Developments in The Law International Criminal Law

Developments in the Law: International Criminal Law Reviewed work(s): Source: Harvard Law Review, Vol. 114, No.
7 (May, 2001), pp. 1943-2073 Published by: The Harvard Law Review Association Stable URL: http://www.jstor.org/stable/1342499 . Accessed: 06/02/2013 11:54
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
The Harvard Law Review Association is collaborating with JSTOR to digitize, preserve and extend access to Harvard Law Review.
http://www.jstor.org
This content downloaded on Wed, 6 Feb 2013 11:54:40 AM All use subject to JSTOR Terms and Conditions
DEVELOPMENTS IN THE LAW
INTERNATIONAL CRIMINAL LAW
"Therecan be no beauty if it is paidfor by humaninjustice, nor truth that passesoverinjusticein silence,nor moralvirtue that condonesit."
TADEUSzBOROWsKI, Auschwitz, Our Home (A Letter), in
THIS WAY FOR THE GAS, LADIES AND GENTLEMEN 98, I32 (Barbara Veddertrans.,PenguinBooks I976) (I959)
"[M]enare unable toforgive what they cannotpunish and ... they are unable to punish what has turnedout to be unforgivable."
HANNAH ARENDT, THE HUMAN CONDITION
24I
(I958)
"It may be that these men of troubledconscience,whose only wish is that the worldforget them,do not regarda trial as a favor. But they do have a fair opportunityto defend themselves- a favor which these men, when in power,rarelyextendedto theirfellow countrymen." RobertH. Jackson,OpeningStatementfor the United States
(Nov.
2I, I945),
reprinted in THE NURNBERG CASE 30, 34 (I947)
"[Ciriminal prosecution ... does some things rather well, other things only passably well, and makes an utter hash of still others." Mark J. Osiel, Ever Again: Legal Remembrance of Administrative Massacre, I44 U. PA. L. REV. 463, 700 (I995) "[Other] countries are our 'constitutional offspring' and how they have dealt with problems analogous to ours can be very useful to us when we face difficult constitutional issues. Wise parents do not hesitate to learn from their children."
United Statesv. Then, 56 F.3d464, 469 (2d. Cir. I995)

(Calabresi, J., concurring)
I 943
I944
HARVARD LAW REVIEW
[Vol.
II4:I943
TABLE OF CONTENTS
I. INTRODUCTION..............................................................
I947
A. A Brief History of International Criminal Law.............................................................. I949 B. An Assessment of Recent Developments .................................. ........................... I955
II. THE PROMISES OF INTERNATIONAL PROSECUTION .......................................................... I957
A. An Overview of the Existing Landscape ............................................................. B. The Asserted Goals of Prosecution ...................... ....................................... i. Prevention ............................................................... (a) Incapacitation .1............................................................. (b) General Deterrence............................................................... (c) Moral Education and the Rule of Law .............................................................
2.
I958 i96I i96 i962 i963 9 I66
(d) Alternatives to Vigilantism....................................................................................i967 Retribution............................................................... i969 3. Restorative Justice.............................................................9 I70 4. Historiographic Accuracy.............................................................9 5. Future Prosecutions.............................................................9 C. Beyond Unfulfilled Promises ............................................................. i. Mind the Gap.............................................................5 2. Confront the Means ............................................................... 3. Confront the Ends .............................................................9 4. The Promise of the Future............................................................... D. Conclusion ..............................................................
III. FAIR TRIALS AND THE ROLE OF INTERNATIONAL CRIMINAL DEFENSE ....
I73 I74
I'974
I97 I976 I76

I980 198I
I982
A. Formation of the ICTY and the ICTR ............................................................. i984 .. B. Rights and Burdens ............................................................. i985 i. Anonymous Witnesses and the Contingency of Procedural Rights . . Ig985 (a) The Protective Measures Decision............................................................. I985 (b) The Contextual Nature of Procedural Rights . .................................................... I988
2. Shifting the Burden? ............................................................. I99I C. Structural Flaws in International Criminal Defense. .................................................... I994 i. Institutional Biases in International Tribunals. .........................................................9 I94 2.
A Typology of Problems in International Criminal Defense ............ (a) The Current Framework.1.............................................................
........................ i996
i996 (b) Difficulties of International Humanitarian and Human Rights Law ..............I997 (c) Difficulties of Judicial Globalization and Transjudicialism............................... i999 (d) Difficulties of the Hybrid Procedure............................................................. 2000 (e) Conflicts of Interest ............................................................. 200
D. Structural Reform and Fair Tials ...................................... ....................... 2002 i. The Case for Professionalization 2003 ................................................ 2. The Case for an Independent Defense Unit . ............................................................ 2005 E. Conclusion ..............
................................................ 2006
200I]
DEVELOPMENTS
INTERNATIONAL
CRIMINAL LAW
I945
2007
IV. DEFINING PROTECTED GROUPS UNDER THE GENOCIDE CONVENTION ..................... A. Historical Development of the Genocide Convention ................................... . i. Origins of the Term "Genocide" .................................................................. 2. The Genocide Convention ................................................................. (a) Legal Provisions of the Convention ................................................................. (b) Notable Omissions ................................................................... B. Enforcement of the Genocide Convention .................................. ...............................
I. The Establishment of International Tribunals . . .
2008 2008
20Io 20Io 20Io
20I2 20I2
(a) The Conflict in the Former Yugoslavia and the Formation of the ICTY ....... 20I2 (b) The Conflict in Rwanda and the Formation of the ICTR . ............................... 20I3 2. Recent Case Law Regarding the Prosecution of Genocide . . . 204 (a) The Akayesu Case..................................................................20. 4 (b) The Kayishema Case ................................................................. 20I5 (c) The Rutaganda Case .............................................................................. 20I7 (d) The Jelisi6 Case................................................................. 20i8 C. A Comparison of the Chambers'Approaches to Defining the Termsof the Genocide Convention... ................................................................ 20I9 D. The Effects of Ambiguity.................................................................. 2021
i.
Ramifications of the Conflicting .................................................................202 I Opinions

. 2022 .................................. (a) Political Pressure from the U.N . 2022 ................................................................. (b) Political Pressure from Other Sources..................................................................2023
2024
2. Political Pressure and Institutional Competence
E. Conclusion .................................................................. V. CORPORATELIABILITY FOR VIOLATIONSOF INTERNATIONAL
HUMAN RIGHTS LAW................................................................. 2025 A. The Range of CorporateHuman Rights Violations. ....................................................... . 2027 i. Economic, Social, and Cultural Rights ........................................... 2027 2. Civil and Political Rights................................................................. 2028 3. Rights Protected Under International Humanitarian Law . .......................... 2029 B. The Gap in International Law ................................................................. 2030 C. CorporateLiability Under the ATCA................................................................. 2033
Background................................................................. 2033 Establishing Subject Matter and Personal Jurisdiction Under the ATCA............. 2036 (a) Subject Matter Jurisdiction................................................................. 2037 (b) Personal Jurisdiction over Corporations..............................................................2039 3. Damages and Deterrence................................................................. 2040 4. Limitations of the ATCA................................................................. 2042 D. Expanding Subject Matter Jurisdiction Under the ATCA ............................................ 2043 E. A Multilateral Approach to Filling the Remedial Gap . ................................ 2046 F. Conclusion ........ .................................. 2048
i. 2.
VI. THE INTERNATIONAL JUDICIAL DIALOGUE: WHENDOMESTIC

CONSTITUTIONAL COURTS JOIN THE CONVERSATION ............................................... 2049
2052
A. The Process of Incorporation.................................................................

i.
Examining Foreign and Supranational Jurisprudence............................................2052
1946
HARVARD LAW REVIEW
[Vol. I I4:1943
2. The Increasing Sophistication of the Dialogue ........................................................... 2055 3. The Absence of Legal Hierarchy............................................................. 2058 B. Theoretical Aspects of Incorporation ............................................... 2059
Practical and Political Reasons To Join the International Judicial Dialogue ......... 2059 The Difficulties of Incorporation: A Possible Need for a Constitutional "License" ............................................................. 2062 3. An International View of the Domestic Constitution................................................ 2063 C. The American Anomaly............................................................. 2064 i. One Justice's Attempt To Join the International Judicial Dialogue ........................ 2065 2. The Court's Reluctance To Join the International Judicial Dialogue ..................... 2067 D. Conclusion .............................................................. 207I
i. 2.
2001]
DEVELOPMENTS -
INTERNATIONALCRIMINAL LAW
I947
I. INTRODUCTION* In the summer and autumn of i998, two events captured headlines around the world and heralded the arrival of a new era of accountability for violations of international criminal law. First, in June, representatives of more than I50 nations gathered in Rome to negotiate a treaty to create an international criminal court.' After five weeks of tense debate, I20 nations2 voted in favor of the Rome Statute,3 which would create the International Criminal Court (ICC) to prosecute perpetrators of genocide, war crimes, crimes against humanity, and aggression,4 thus realizing a goal that had arisen fifty years earlier. Second, in October, at the request of a Spanish prosecutor, Scotland Yard arrested General Augusto Pinochet, the former dictator of Chile, while he was in Great Britain for surgery.6 After months of legal wrangling, the House of Lords ruled that General Pinochet could face extradition to Spain, but only for charges of torture committed after i988, the year in which Great Britain ratified the Torture Convention7 and incorporated its provision for universal jurisdiction over the crime of torture into domestic law.8 Regardless of the number of charges, the Pinochet case set a remarkable precedent - especially given the Law Lords'
The Development authors would like to thank the Harvard Law School faculty, in particular Martha Minow, Anne-Marie Slaughter, and Henry Steiner, for helpful guidance throughout this project. 1 Alessandra Stanley, Conference Opens on Creating Court To Try War Crimes, N.Y. TIMES, June 15, I998, at Ai. 2 Press Release, United Nations, UN Diplomatic Conference Concludes in Rome with Decision To Establish Permanent International Criminal Court, at http://www.un.org/icc/pressrel/ lrom22.htm (July i7, i998). 3 Rome Statute of the International Criminal Court, July 17, i998, U.N. Doc. A/CONF.i83/9 (i998), 37 I.L.M. 999 [hereinafter Rome Statute], available at http://www.un.org/law/icc/statute/ romefra.htm. 4 Id. art. I, 37 I.L.M. at ioo3; Alessandra Stanley, U.S. Dissents, but Accord Is Reached on War-CrimeCourt, N.Y. TIMES, July i8, I998, at A3. 5 See G.A. Res. 260B, U.N. GAOR, 3d Sess., pt. I, at 177, U.N. Doc. A/8io (1948) (proposing to create an international criminal court); M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years: The Need To Establish a Permanent International Criminal Court, io HARv. HUM. RTS. J. II, 51-57 (I997) (describing the U.N.'s efforts to establish a permanent international criminal court). 6 Clifford Krauss, Britain Arrests Pinochet To Face Charges by Spain, N.Y. TIMES, Oct. i8,
I998, at i.
7 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. iO, i984, 1465 U.N.T.S. 113 [hereinafter Torture Convention] (entered into force
June 26, i987).
8 Regina v. Bow St. Metro. Stipendiary Magistrate, [1999] 2 W.L.R. 827, 848 (H.L.) (Lord Browne-Wilkinson); Warren Hoge, Pinochet Arrest Upheld, but Most Charges Are Discarded,
N.Y. TIMES, Mar. 25, I999, at A6.
1948
HARVARD LAW REVIEW
[Vol.
II4:I943
decision that General Pinochet, though a former head of state, lacked immunity from prosecution.9 Such events would have been unthinkable even a decade earlier. Though these episodes are incomplete victories - the future of the ICC is uncertain without American cooperation'0 and no court has yet put General Pinochet on trial - they are representative of the wave of accountability that has spread over the globe." In recent years, enforcement has finally begun to catch up with the development of substantive law, beginning the transformation of international criminal law from a set of unenforced, seemingly hortatory norms into a body of law backed by institutions, precedents, and convictions of offenders. This encounter of theory with practice has brought many violators of human rights'2 and humanitarian law'3 to justice. It has also provided opportunities to assess the direction in which international criminal law is moving. For example, how should it be enforced: criminally or civilly, domestically or internationally? Should enforcement focus on individuals, states, or other entities such as corporations? What special challenges does international prosecution present for the prosecution and the defense? How will judicial elaboration affect the content of the substantive prohibitions contained in international criminal law? How do international human rights norms constrain domestic criminal procedure and the punishments that nations can impose upon criminals? More fundamentally, what is the relationship between national and international criminal law? The explosion of international criminal law in the last decade has begun to answer some of these questions, even as it raises others.
9 Bow St. Metro. Stipendiary Magistrate, [19991 2 W.L.R. at 848. One year later, the British home secretary Jack Straw decided not to pursue the extradition proceedings because General Pinochet's failing health rendered him unfit to stand trial. Warren Hoge, After I6 Months of House Arrest, Pinochet Quits England, N.Y. TIMES, Mar. 3, 2000, at A6. After sixteen months of house arrest in a London suburb, General Pinochet returned to Chile. Id. Once there, however, his legal battles continued. The following August, the Chilean Supreme Court stripped him of his immunity from prosecution as Senator for Life. Clifford Krauss, Pinochet Ruled No Longer Immune from Prosecution, N.Y. TIMES, Aug. 9, 2000, at A3. In December, a judge charged General Pinochet with kidnapping and ordered his house arrest. Clifford Krauss, Pinochet's Arrest Ordered by Judge, N.Y. TIMES, Dec. 2, 2000, at Ai. 10 The United States has signed, but not yet ratified, the Rome Statute. Rome Statute of the International Criminal Court: Ratification Status, at http://www.un.org/law/icc/statute/status.htm (Feb. 12, 2001) [hereinafter Ratification Status]. 11 See infra pp. 1952-55. 12 "[I~nternational human rights law refers to the body of international law aimed at protecting the human dignity of the individual." STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW: BEYOND THE NUREMBERG LEGACY 9 (I997) (emphasis omitted). 13 "[I~nternationalhumanitarian law ... is ... synonymous with the law governing the con-
duct of armed conflict." Id. (emphasis omitted).
200I]
DEVELOPMENTS -
1949
A. A Brief History of International Criminal Law The very concept of individual criminal accountability - indeed, the very idea that an act could be "criminal"- was antithetical to international law during much of its history. Beginning in the late eighteenth century, the dominant perspective on international law was legal positivism. Under this view, which supplanted the naturalist view,'4 international law consisted of the behavior of states; only states had international legal personalities.'5 With narrow exceptions, individuals held no rights and bore no responsibilities under international law. International law provided some protection for individuals through the laws of war,'6 but these individual rights were derivative of the rights that states had against other states. The concept of war crimes evolved as customary law for millennia. Toward the end of the nineteenth century, several European states took the important step of codifying these norms. The "Law of the Hague," embodied in a series of treaties, governed the conduct of war;'7 another set of treaties comprising the "Law of Geneva" gov-
14 Writers such as Grotius, Vitoria, and Suarez had developed the naturalist account of international law in the sixteenth and seventeenth centuries. PETER MALANCZUK, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 15 (7th rev. ed. I997). According to the naturalist perspective, law was derived from abstract and universal principles of justice; it was "found, not made." Id. at 15-i6. One consequence of this view was that there was little distinction between national and international law; the same principles were supposed to bind all people in all places. Id. at I. 15 Id. at i6 (stating that positivism "regarded the actual behaviour of states as the basis of international law'); RATNER & ABRAMS, supra note 12, at 4; see also infra section V.B, pp. 2030-3I (discussing the evolution of notions of international legal personality). 16 Even ancient sources suggest that some nations thought that universal standards governed the manner in which states could conduct a war. For example, Herodotus reports that Xerxes refused to retaliate by killing Spartan heralds after Athens and Sparta slew Persian envoys because "he would not act like the Lacedamonians, who, by killing the heralds, had broken the laws which all men hold in common." HERODOTUS, THE HISTORIES562 (George Rawlinson trans., Everyman's Library 1997) (internal quotation marks omitted). During the Peloponnesian War, after a battle at Aegospotami, the Spartan commander Lysander organized an informal tribunal of Sparta and its allies and condemned Athenian prisoners for violations of the laws of war.
XENOPHON,
1979).
A HISTORY OF MY TIMES (HELLENICA) 103 (Rex Warner trans., Penguin Books
For a discussion of the attitudes toward the laws of war among ancient civilizations, see Timothy L.H. McCormack, From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime, in THE LAW OF WAR CRIMES: NATIONAL AND INTERNATIONAL APPROACHES 3I, 32-37 (Timothy L.H. McCormack & Gerry J. Simpson eds., I997)
[hereinafter THE LAW OF WAR CRIMES].
17 Two Hague Peace Conferences produced the i899 Hague Conventions I-III and the I907 Hague Conventions I-XIII. See, e.g., Convention Respecting the Laws and Customs of War on Land, Oct. i8, I907, 36 Stat. 2277, I Bevans 63I [hereinafter I907 Hague Convention IV]; Convention with Respect to the Laws and Customs of War on Land, July 29, i899, 32 Stat. i803, I Bevans 247; see also Jorg Manfred Mossner, Hague Peace Conferences of 1899 and 1907, in 2 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 67i, 67I-77 (Rudolf Bernhardt ed., i995). Treaties are, of course, binding only on signatory nations. The process of codification, however,
1950
HARVARD LAW REVIEW
[Vol.
II4:I943
erned the treatment of the wounded and sick during war.'8 Despite their advances in articulating and refining norms of international conduct, these European states had little success in enforcing them. After the First World War, the victors proposed to prosecute Kaiser Wilhelm II, members of the German military accused of war crimes, and Turkish officials responsible for the Armenian genocide.'9 This first attempt20 to establish an international tribunal to prosecute international crimes proved abortive.2' In the years between the World Wars, the codification and development of international humanitarian law continued. The I929 Gedid not halt the evolution of customary law, as the I907 Hague Convention IV recognized in the famous Martens Clause: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. 1907 Hague Convention IV, supra, pmbl., 36 Stat. at 2279-80, I Bevans at 633. 18 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, July 6, i906, 35 Stat. i885, I Bevans 5i6; Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Aug. 22, i864, 22 Stat. 940, I Bevans 7; see Anton Schlogel, Geneva Red Cross Conventions and Protocols, in 2 ENCYCLOPEDIAOF PUBLIC INTERNATIONAL LAW,supra note I7, at 53I, 533. Though the terms "Law of the Hague" and "Law of Geneva" are common, see, e.g., RATNER & ABRAMS, supra note I2, at 79, the distinction between the two sets of treaties is not clear cut, see, e.g., Convention for the Adaptation to Maritime Warfare of the Principles of Geneva Convention of August 22, 1864, July 29, I899, 32 Stat. i827, i Bevans 263. 19 Bassiouni, supra note 5, at I4-i6. 20 Many authors cite the trial of Peter von Hagenbach in I474 as the first international war crimes prosecution. See, e.g., Jules Deschenes, Toward International Criminal Justice, in THE PROSECUTION OF INTERNATIONAL CRIMES 29, 30-32 (Roger S. Clark & Madeleine Sann eds., i996). Hagenbach, the governor of the town of Breisach, imposed a reign of terror on its inhabitants. Id. at 3'. After the town revolted, Hagenbach was captured and put on trial before twenty-eight judges from Austria and its allies. Id. While the Hagenbach case is undoubtedly important, some scholars question whether the law applied and the tribunal were truly "international" and whether Hagenbach's crimes were really "war crimes." See Timothy L.H. McCormack, Selective Reaction to Atrocity: War Crimes and the Development of International Criminal
Law, 6o ALB. L. REV. 68i, 690-92
21 With the exception of twelve domestic criminal prosecutions of military officers in Germany, little came of these plans. Bassiouni, supra note 5, at I7-20. The Allies declined to pursue prosecutions of Turkish officials because they wanted the government of Turkey to remain stable and friendly to Western nations. Id. at I7. 'Irpically, a variety of political and diplomatic considerations have hindered efforts to prosecute violators of international criminal law. After wars, the victors usually do not wish to prosecute their own citizens and may fear that prosecution of enemy personnel would draw attention to similar acts committed by their own citizens. Antonio Cassese, On the Current Trends Towards Criminal Prosecution of Breaches of International Humanitarian Law, 9 EUR. J. INT'L L. 2, 5 (I998). Crimes committed during conflicts in which a state is not involved present both diplomatic complications and difficulties in the collection of evidence. Id. If states attempt to overcome these problems by turning to international prosecutions, they must contend with concerns about losses of national sovereignty. Id. at I I.
(I997).
2001]
DEVELOPMENTS -
I95I
neva Conventionsupdated and expanded the earlier Law of Geneva protections for the wounded and prisonersof war.22 The KelloggBriand Pact went beyondthe Law of the Hague in regulating.theconduct of war by declaringthe initiationof a war of aggressionto be illegal.23 Even these expansions,however,failed to addressthe manner in which states dealt with their own citizens. Nor did international law createmechanismsof individualaccountability. humanitarian The costs of such lacunae were demonstratedby the atrocitiesof the SecondWorldWar. Not only did the failureto prosecuteafter earlier wars create a sense of impunityon the part of war criminals,but the inconceivable horror of the Holocaust provided incontrovertible evidence that in some cases the domesticacts of a governmentshould community. Thus, toward the end be the concernof the international of the war the Allies decided to prosecutethe leaders of the Nazi regime. On August 8, I945, the four major EuropeanAllies signed the which established the International Military London Agreement,24 Tribunalthat subsequentlysat in Nuremberg.25In what were arguably the first genuinely internationalcriminaltrials, the tribunal tried twenty-two German leaders and convicted nineteen of them of war crimes, crimes against peace, and crimes against humanity.26 Subsequent trials in Tokyo, the Philippines,and elsewhere in the Pacific theater resultedin the convictionsof Japanesewar criminals.27These trials, though not without their critics,markedthe high point in interfor many years to come. nationalaccountability The decades that followed witnesseda split in the evolution of internationalcriminallaw. The substanceof internationalcriminallaw expandedrapidly,especiallyin imposinglimits on the conductof states toward their own citizens. In the I940S alone, the internationalcommunity adopted the Universal Declaration of Human Rights,28the
22 Convention Relative to the Treatment of Prisoners of War, July 27, I929, ii8 L.N.T.S. 343; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, July 27, 1929, ii8 L.N.T.S. 303. 23 General Treaty for Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, arts. I-I1, 94 L.N.T.S. 57, 63. 24 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. 25 Id.
26 RATNER & ABRAMS, supra note 12, at I63-64. For a detailed account of the Nuremberg trials, see TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS (1992). 27 General Douglas MacArthur, the Supreme Allied Commander, established the Tokyo tribunal (formally, the International Military Tribunal for the Far East) by unilateral proclamation. RATNER & ABRAMS, supra note 12, at I63. See generally B.V.A. ROLING, THE TOKYO TRIAL AND BEYOND: REFLECTIONS OF A PEACEMONGER (Antonio Cassese ed., I993). 28 G.A. Res. 2I7A, U.N. GAOR, 3d Sess., pt.i, at 7I, U.N. Doc. A/8io (I948). The declaration
imposes no legal obligations on states, though some of its prohibitions, like that against torture, have become part of customary international law. MALANCZUK, supra note 14, at 213.
I952
HARVARD LAW REVIEW
[Vol.
II4:I943
Genocide Convention,29 and the four Geneva Conventionsof I949.30 Meanwhile, however, the Cold War stalled efforts to develop mechacriminallaw.31 nisms to enforceinternational This period of relative stagnationended in the i99os, which witnessed an astonishingrise in individualaccountabilityfor violations of and human rightslaw.32 At least three facinternationalhumanitarian tors, each tied in varying degreesto the end of the Cold War,account for this change. has causedmany states to examine First, the spreadof democracy33 the crimes committed by previous dictatorial regimes. Many newly democratic states have established commissions to investigate their
29 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, I948, 78 U.N.T.S. 277 (entered into force Jan. I2, I95 ). 30 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. i2, I949, 6 U.S.T. 3516, 75 U.N.T.S. 287; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. I2, I949, 6 U.S.T 3316, 75 U.N.T.S. I35; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. i2, I949, 6 U.S.T. 32I7, 75 U.N.T.S. 85; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. I2, I949, 6 U.S.T 3II4, 75 U.N.T.S. 3P. These treaties go beyond the i906 and I929 Geneva Conventions. MALANCZUK, supra note 14, at 344. In the decades that followed, human rights and humanitarian law continued to evolve. Examples of this evolution include the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, i966, 66o U.N.T.S. I95 (entered into force Jan. 4, i969); the International Convention on the Suppression and Punishment of the Crime of
Apartheid,
Nov. 30, 1973,
IOI5 U.N.T.S.
243 (entered into force July i8, I976); and the Torture
Convention, supra note 7. Two treaties transformed the norms contained in the Universal Declaration of Human Rights into binding legal rules and created monitoring bodies, though weak ones. International Covenant on Civil and Political Rights, Dec. I9, i966, 999 U.N.T.S. I7I (entered into force Mar. 23, I976); International Covenant on Economic, Social and Cultural Rights, Dec. i6, i966, 993 U.N.T.S. 3 (entered into force Jan. 3, I976). 31 Bassiouni, supra note 5, at 38-39 ("[S]inceWorld War II there have been many conflicts for which no international investigative or prosecutorial bodies were ever set up. Justice was the Cold War's casualty." (footnote omitted)). 32 "The international legal community is beset today with talk of accountability." RATNER& ABRAMS, supra note I2, at 3; see also David Stoelting, Enforcement of International Criminal Law, 34 INT'L LAW.669, 669 (2000) ("International criminal law has become a body of law with teeth, a universal law, recognized and applied by numerous governments in a variety of contexts... .'); David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 FORDHAMINT'L L.J. 473, 473 (i999) ("For advocates of peace through justice, the last decade of the twentieth century marks a turning point in international legal history comparable only to the
Nuremberg and Tokyo trials of the I940S."). 33 See FREEDOM HOUSE, DEMOCRACY'S CENTURY: A SURVEY OF GLOBAL POLITICAL CHANGE IN THE 20TH CENTURY 2 (2000), available at http://www.freedomhouse.org/reports/ century.pdf (last visited Apr. 2I, 200I) (listing II9 of I92 states as "democracies" in 2000, compared to 22 of I54 in I950).
200I]
DEVELOPMENTS -
I953
pasts.34 Spurred in part by internationaldevelopments,some have also turnedto criminalprosecutions.35 Second, the end of the Cold War stalemate unleashedmany wars and violent internal conflicts around the world, and thus created a need for greater accountability.36Two particularlyhorrific conflicts developed in the former Yugoslaviaand in Rwanda. In Yugoslavia, the collapse of communismled the republicsof Slovenia and Croatia to declare their independencein i99I. The ensuing conflict among Serbs, Croats,and Bosnian Muslims,which soon becameconcentrated in the republicof Bosnia, resultedin hundredsof thousandsof deaths, the forced relocation of non-Serbs as part of a program of "ethnic of concentration cleansing,"and the reappearance camps on European soil.37 In the spring of I994, the deaths of the presidentsof Rwanda and Burundiin a plane crash at Kigali airportin Rwanda touched off massacres throughoutRwanda.38 Radical Hutus killed hundreds of thousands of Tutsis and moderateHutus.39 The mass killings ended only when the Tutsi-ledRwandanPatrioticFront triumphedin a civil
war on July i8, I 994.4?
Third, the reduced tension among the permanentmembersof the United Nations SecurityCouncil has allowed that body to respondto the Yugoslav and Rwandan atrocities first by creating investigatory commissions,41 and later by creating the first internationalcriminal
34 See MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY AFTER GENOCIDE AND MASS VIOLENCE 53-90 (i998); Priscilla B. Hayner, Fifteen Truth Commissions - 1974 to 1994: A Comparative Study, i6 HUM. RTS. Q. 597 (I994). 35 See infra pp. I954-55. Western nations have also begun to expand the reach of national jurisdiction over international crimes. The Pinochet decision, which recognized universal jurisdiction over violations of the Torture Convention, is only the most dramatic example of this expansion. German and Belgian law recognize universal jurisdiction for war crimes. Christine Van den Wyngaert, War Crimes, Genocide, and Crimes Against Humanity - Are States Taking National Prosecutions Seriously?, in 3 INTERNATIONAL CRIMINAL LAW 227, 23I (M. Cherif Bassiouni ed., 2d ed. i999). Australia, Canada, and the United Kingdom have expanded jurisdiction over extraterritorial war crimes but have not adopted universal jurisdiction, id. at 230, even though the Geneva Conventions of I 949 require universal jurisdiction, see Mark S. Zaid, The U.S. War Crimes Act of 1996, in 3 INTERNATIONAL CRIMINAL LAW, supra, at 33I, 333. 36 See Cassese, supra note 2i, at 8 (noting that the Cold War guaranteed[] a modicum of international order" and that its end "entailed a fragmentation of international society and intense disorder which, coupled with rising nationalism and fundamentalism, has resulted in a spiralling of (mostly) internal armed conflict"). 37 See, e.g., David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of Foreign Intervention, 27 CORNELL INT'L L.J. 203, 22 I-25 (I994). 38 ALAIN DESTEXHE, RWANDA AND GENOCIDEIN THE TWENTIETH CENTURY, app. 2, at 8i (Alison Marschner trans., N.Y.U. Press I995) (I994). 39 Id. app. 2, at 8i-82. 40 Id. app. 2,at83. 41 On October 6, I992, the U.N. Security Council established a Commission of Experts to investigate "grave breaches of the Geneva Conventions and other violations of international humanitarian law" in the former Yugoslavia. S.C. Res. 780, U.N. SCOR, 47th Sess., 3Ii9th mtg. at
I954
HARVARD LAW REVIEW
[Vol.
II4:I943
tribunals since the end of the Second World War. The International and the InterCriminalTribunalfor the FormerYugoslavia(ICTY)42 began operationsin national CriminalTribunalfor Rwanda (ICTR)43 and have tried and convicted dozens of I993 and I995, respectively, of crimesagainsthumanity,war crimes,and genocide." perpetrators As important as they are in their own right, the ICTY and the ICTR are perhapsmost intriguingfor what they herald. Their efforts to establish individual accountabilityrevived widespreadinterest in a permanentinternationalcriminal court. In i998, negotiatorsfinally which has already been signed by agreed on a foundationaltreaty,45 I39 nations and formallyratifiedby 27 nations.46 When 6o countries have ratifiedthe document,the court will becomea legally functioning entity.47 National judicial systems have joined the movement toward greater accountability.48 Courts in at least eleven countries have prosecutedalleged violators of internationalhumanitarianlaw in the last seven years.49 Spain's attempt to prosecuteGeneralAugusto Pii, U.N. Doc. S/RES/78o
(1992),
(1992).
The commission submitted its final report in May 1994. See Fi-
nal Reportof the Commission of ExpertsEstablished Pursuantto SecurityCouncilResolution780

at 7, U.N. Doc. S/I994/674 (I994). For a detailed account of the commission's activities and a criticism of the decision to terminate its activities in I994, see M. Cherif Bassiouni, The
Commission of ExpertsEstablishedPursuantto SecurityCouncilResolution780: Investigating in 3 INTERNATIONAL Violations of International Humanitarian Law in the FormerYugoslavia,
CRIMINALLAW,supra note 35, at 395. The Security Council subsequently established another commission to investigate violations in Rwanda. S.C. Res. 935, U.N. SCOR, 49th Sess., 3400th mtg. at i, U.N. Doc. S/RES/935 (I994). 42 Statute of the International Tribunal, 32 I.L.M. II92, available at http://www.un.org/ icty/basic/statut/statute.htm, adopted by S.C. Res. 827, U.N. SCOR, 48th Sess., 32I7th mtg. at 6, U.N. Doc. S/RES/827 (I993), 32 I.L.M. I203. 43 Statute of the International Tribunal for Rwanda, 33 I.L.M. i602, available at http:// www.ictr.org/ENGLISH/basicdocs/statute.html, adopted by S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg. at 3, U.N. Doc. S/RES/955 (I994), 33 I.L.M. I600. 44 For a more detailed account of the creation and actions of the ICTY and the ICTR, see Parts II-IV, below. 45 See Rome Statute, supra note 3; supra p. I947. 46 Ratification Status,supranote io. 47 See Rome Statute, supra note 3, art. I26, 37 I.L.M. at io68. 48 Although they have never been so frequently pursued, national prosecutions of international crimes have substantial historical roots. See, e.g., Jonathan M. Wenig, Enforcing the Lessons of History:IsraelJudgesthe Holocaust,in THE LAWOF WARCRIMES,supranote I6, at I03, I IOi8 (describing the trials of Adolf Eichmann and John Demjanjuk); Leila Sadat Wexler, The French Experience, in 3 INTERNATIONAL CRIMINALLAW,supra note 35, at 273, 279-85 (recounting the trial of Klaus Barbie). 49 See Stoelting, supra note 32, at 669-7I (Ethiopia, Haiti, and Rwanda); Ruth Wedgwood, National Courts and the Prosecution of War Crimes, in I SUBSTANTIVEAND PROCEDURAL ASPECTS OF INTERNATIONALCRIMINAL LAW: THE EXPERIENCE OF INTERNATIONAL AND NATIONALCOURTS389, 40I-02 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000) (Austria, Denmark, Germany, Switzerland, and the former Yugoslavia); Leila Sadat Wexler, supranote 48, at 273 (France); Former Nazi ToAppeal a Life Sentencein Italy, N.Y. TIMES, Mar.
200I]
DEVELOPMENTS -
I955
nochet for crimes perpetratedagainst Spanish citizens in Chile50has become a symbol of "universal the notion that violations jurisdiction," of internationalhumanitarianlaw may be prosecutedin any court of any nation.51 B. An Assessment of RecentDevelopments In recent years, the internationalcommunityhas begun to move beyond norm articulationtoward norm enforcementin international criminal law. "International criminal law" itself is an elusive concept.52 By analogy to domesticcriminallaw, it should consist of substantive prohibitionsas well as proceduresand institutions for enforcement. The substantive aspect of internationalcriminal law is fairly straightforward: it consists mostly, though not exclusively,53 of treaty and customary rules of humanitarianand human rights law. The proceduraland institutionalcomponentsare more complicated. Until recently,there were no internationalcriminalcourts;even now, domestic courts, both civil and criminal, hear the vast majority of cases involving substantiveviolationsof international criminallaw. In domestic and internationalcriminalcases, internationalhuman rights law may also establishrightsof the accused,both proceduraland substantive. This Developmentsurveys recent changes in all of these aspects of international criminal law,54 identifying many substantial
9, i998, at As (Italy); Brian Whitmore, Latvian Courts Try To Sort Ragic History, BOSTON GLOBE,Apr. 25, 2000, at Ai (Latvia); see also infra Part II, p. I957 & n.I.
50 See suprap. I947.
TOWARD AN INTERNATIONAL
sal jurisdiction). In the United States, if not elsewhere, the judicial system has been willing to address civil claims driven by violations of international human rights law. See infra Part V. 52 Scholars have proposed many definitions of international criminal law. See, e.g., Georg Schwarzenberger, The Problem of an International Criminal Law, 3 CURRENT LEGAL PROBS. 263, 264-74 (I950) (providing six definitions for international criminal law). 53 See RATNER & ABRAMS,supra note I2, at ii (listing other international crimes such as hijacking, narcotics offenses, and trafficking in obscene publications). 54 The field of international criminal law is too diverse, and is changing along too many dimensions, for this Development to provide a comprehensive overview of all the changes. To name three of the most prominent examples, this Development does not investigate directly the ICC, the exercise of universal jurisdiction in criminal cases by national courts, or mechanisms of accountability other than criminal and civil liability. For instructive discussions of these subjects, see
CRIMINAL COURT? THREE OPTIONS PRESENTED AS
INTERNATIONAL COUNCIL ON HUMAN RIGHTS POLICY, HARD CASES: BRINGING HUMAN RIGHTS VIOLATORS TO JUSTICE ABROAD (i999) (defining and explaining the need for univer-
51 See generally ROSALYN HIGGINS, PROBLEMSAND PROCESS:INTERNATIONALLAW AND How WE USE IT 56-65 (I994) (discussing universal jurisdiction as a well established norm);
PRESIDENTIALSPEECHES (Alton Frye ed., i999) (ICC); Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 GEO. L.J. 38i (2000) (ICC); Michael P. Scharf, The Case for a Permanent International ThuthCommission, 7 DUKE J. COMP.& INT'L L. 375 (I997) (truth commissions); sources cited supra note 34 (truth commissions); and sources cited supra note 5 I (universal jurisdiction).
I956
HARVARD LAW REVIEW
[Vol.
II4:I943
achievements. It also identifiesseriouschallengesthat the world faces as it attemptsto establishan international rule of law. Part II considersthe two most importantnew institutionsin international criminallaw: the ICTY and the ICTR. Judges, prosecutors, and politicians affiliated with these institutionshave provided many justificationsfor prosecution. Part II examinesthe rationalesthat they offer and arguesthat the currentmechanismsof internationalprosecution may not adequatelymeet all of the assertedgoals. It suggeststhat more realisticexpectationsfor internationalprosecutionwill allow the internationalcommunity to adopt a more flexible and effective approachto ensuringthat violatorsof international criminallaw are held accountable. Part III examines the ICTY and the ICTR from the opposite perspective, that of the defense. In responseto widespreadcriticismthat the Tokyo and Nuremberg tribunals had been unfair "victors' justhe draftersof the ICTY and ICTR statutesincorporated tice,"55 many provisionsdesignedto ensure a fair trial for defendants. Yet both tribunals have faced similar critiques. Part III argues that although some defendantsmay have receivedunfairtreatmentbefore the tribunals, the adoption of procedural standards derived from domestic criminal law is not the appropriatesolution. Such standardsfail to addressthe uniqueburdensinherentin international prosecutionof the most heinouscrimes;they also ignorethe unfairnessto defendantsthat results from institutional biases rather than from procedural rules. The Part concludesby proposingthe professionalization of the international criminaldefense bar and the creationof an independentdefense unit as a possiblesolution. Part IV turns to the effect that the international tribunalshave had on the development of the substance of internationalhumanitarian law. Specifically,it examinesfour genocideprosecutionsin the ICTR and the ICTY. The tribunalshave struggledto apply the vague language of the GenocideConvention,particularly the requirements for a targeted group to qualify as one of the four groups protectedby the convention. Part IV compares the approachesof the different trial chambersand concludesthat the elaborationof ambiguoustreaty language by unaccountablejudges is problematicfor the international rule of law. The trend toward increasedindividualaccountability for violations of internationalhumanitarianlaw over the past decade has extended only to naturalpersons. Part V examinesthis limitationin the context of the growinginfluenceof multinational corporations. Some corpora55
See generally RICHARD H. MINEAR, VICTORS' JUSTICE: THE TOKYO WAR CRIMES
TRIAL (I97I).
200I]
DEVELOPMENTS -
I957
tions are now more economically powerful than many states and are capable, either alone or with the cooperation of local governments, of large-scale violations of international law. Yet virtually no international instrument provides for corporate liability. For example, despite proposals to the contrary, the Rome Statute specifically limits the ICC's reach to natural persons. In recent years, the U.S. Alien Tort Claims Act (ATCA) has emerged as one means of holding corporations liable for violations of international law. Part V assesses this experience with domestic civil liability for violations of international criminal law. It concludes that the ATCA will leave many victims of corporate violations without redress, but that American courts should not unilaterally expand the ATCA's reach. Instead, this Part advocates a multilateral approach to addressing corporate liability for human rights violations. Finally, Part VI investigates the influence of international norms on domestic criminal law. It examines the phenomenon of an "international judicial dialogue," in which domestic, supranational, and international courts look to one another both as sources of and as an audience for their pronouncements. The treatment of the death penalty serves as one example of this phenomenon. Many courts have looked to evolving international customary law (which is demonstrated, in part, by such decisions themselves) when interpreting their domestic constitutional law. This Part concludes that the decision to enter this dialogue indicates that these courts see their domestic constitutions as parts of international law and that the U.S. Supreme Court's unwillingness to enter this dialogue reflects its vision of the U.S. Constitution as a purely American document.
II. THE PROMISES OF INTERNATIONAL PROSECUTION
The wave of accountability is gathering strength. At no point in the last fifty years has so much attention been focused on human wrongs: by global media, by nongovernmental organizations, and by the organs of national and international law. One means of holding individuals accountable for these wrongs - criminal prosecution has become particularly popular of late. Though prosecution for human rights offenses had been a historical rarity, in the year 2000 alone, former officials from at least fourteen different countries were under indictment for violations of international humanitarian law.'
1 See David Stoelting, Enforcement of International Criminal Law, 34 INT'L LAW.669, 669(Chile, Ethiopia, Haiti); Roger Boyes & Nigel Glass, Judge Rules That Nazi Doctor Is Unfit To Stand Tral, TIMES (London), Mar. 22, 2000, at Is (Austria); Rajiv Chandrasekaran, U.N. Names II in E. Timor Violence, WASH. POST, Dec. 12, 2000, at A40 (Indonesia); Douglas Farah, Chad's Torture Victims Pursue Habre in Court: Pinochet Case Leaves Ex-Dictator Vulnerable, WASH. POST, NOV. 27, 2000, at A12 (Chad); Philip Gourevitch, Forsaken, NEW YORKER,
72 (2000)
I958
HARVARD LAW REVIEW
[Vol.
II4:I943
The institutionscurrentlycommandingthe most attentionfor ongoing internationalprosecutionsare the InternationalCriminalTribunal for the formerYugoslavia(ICTY)2and the InternationalCriminalTribunal for Rwanda (ICTR).3 With an eye to designingthe institutions of the future, this Part examines how well these vehicles for international prosecutionachieve their purportedgoals. The judges, prosecutors, and politiciansaffiliatedwith these tribunalsstate many goals for prosecutionbut may ultimatelypromisetoo much. Prosecution- the familiardomesticsolutionto crime- may be an imperfectmechanism to achieve many of the objectives they propose,and inflated expectations for what internationaltribunalscan accomplishmay distract attention and divert resourcesfrom other worthyendeavors. Those who wish to address violations of internationalhumanitarianlaw effectively would do well to examinemore rigorouslythe realisticgoals of prosecutionand to seek a closer fit between their chosen means and their stated ends.4 A. An Overview of the Existing Landscape In I993, the United Nations SecurityCouncilestablishedthe ICTY to combat ongoing atrocitiesin the formerYugoslavia;5 one year later, it created the ICTR to address the Rwandan genocide.6 The ICTY and the ICTR are ad hoc courts of limited jurisdiction,but they are more significantthan their restrictivemandatesimply. These tribunals herald a transformation in individual accountabilityfor violations of international humanitarian law. They represent the international community'sfirst institutionaleffortsto impose individualcriminalresponsibility in the fifty years since the tribunals at Nuremberg and
Sept. 25, 2ooo, at 53, 59 (Democratic Republic of Congo); Tom Long, Obituary, Aleksandras Lileikis, 93; Indicted in WWII Genocide, BOSTON GLOBE, Sept. 28, 2000, at Bii (Lithuania); Pole Charged in Aiding Nazis at a Holocaust Death Camp, N.Y. TIMES, Nov. 5, 2000, at i8 (Poland); Brian Whitmore, Latvian Courts ThyTo Sort Tagic History, BOSTON GLOBE, Apr. 25, 2000, at Ai (Latvia); Int'l Crim. Trib. for Former Yugoslavia, Outstanding Public Indictments, at http://www.un.org/icty/glance/indictlist-e.htm (Mar. 29, 2001) (Bosnia, Croatia, Serbia); Int'l Crim. Trib. for Rwanda, Cases, at http://www.ictr.org/ENGLISH/cases/index.htm (last visited Apr. i8, 2001) (Rwanda). 2 Statute of the International Tribunal, 32 I.L.M. II92 [hereinafter ICTY Statute], available at http://www.un.org/icty/basic/statut/statute.htm, adopted by S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg. at 6, U.N. Doc. S/RES/827 (i993), 32 I.L.M. 1203. 3 Statute of the International Tribunal for Rwanda, 33 I.L.M. I602 [hereinafter ICTR Statutel, available at http://wwwictrorg/ENGLISH/basicdocs/statute.html, adopted by S.C. Res. 955, U.N. SCOR, 49th Sess., 3453d mtg. at 3, U.N. Doc. S/RES/955 (i994), 33 I.L.M. i6oo. 4 See Jose E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 YALE J. INT'L L. 365, 459 (i999) (calling for tribunal sponsors to articulate their goals clearly). 5 ICTY Statute, supra note 2. 6 ICTR Statute, supra note 3.
20011
DEVELOPMENTS -
I959
Tokyo.7 And though the pace of their first prosecutions matched their fitful initial funding, the tribunalshave grown steadily,amassing annual budgets of almost $ioo million each8and successfullyconvicting twenty-seven perpetratorsof genocide, crimes against humanity,and violationsof the laws and customsof war.9 Emerginginternationalinstitutionsand, increasingly,domestic judiciarieshave followed the ICTY and the ICTR's lead with unprecedented zeal.10 This "unmistakable contagion of accountability""for violationsof international humanitarian law has generatedvast publicity and several currentsof debate among scholarsand practitioners in the field.12 Some commentators have confrontedthe natureand scope of the law applied in these prosecutions;13others have evaluated the nature and scope of amnestyand a corresponding legal duty to prosecute.14 Still others have endorsedor critiquedparticularmechanisms of accountability- national or internationalprosecutions,15 tribunals
7 M. Cherif Bassiouni, From Versailles to Rwanda in Seventy-Five Years:The Need To Establish a Permanent International Criminal Court, io HARv. HUM. RTs. J. II, I3 & n.2 (I997). For an analysis of the Nuremberg trials, see generally TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS (1992); for an analysis of the Tokyo trials, see generally B.V.A. ROLING, THE TOKYO TRIAL AND BEYOND (Antonio Cassese ed., I993). 8 ICTY, ICTY Key Figures, at http://www.un.org/icty/glance/keyfig-e.htm (Mar. 29, 200i) (reporting an ICTY budget for fiscal year 2000 of approximately $96 million); ICTR, Budget and Staff, at http://www.ictr.org/ENGLISH/geninfo/ictrlaw.htm (last visited Apr. i8, 2001) (reporting an ICTR budget for fiscal year 2000 of approximately $80 million). 9 See ICTR, ICTR Detainees, at http://www.ictr.org/ENGLISH/factsheets/detainee.htm (Apr. 4, 2001) (8 ICTR judgments); ICTY, Fact Sheet on ICTY Proceedings, at http://www.un.org/icty/ glance/procfact-e.htm (Mar. 29, 2001) (i9 ICTY judgments). For a more thorough discussion of these crimes, see I INTERNATIONAL CRIMINAL LAW 52i-642 (M. Cherif Bassiouni ed., 2d ed. '999). 10 See supra Part I, p. 1954 & sources cited n.49. Despite the recent prosecutorial boom, the number of suspects tried for violations of international humanitarian law remains a tiny proportion of the number of alleged offenders still at large. See infra pp. 196465. 1 Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 AM. J. INT'L L. 7, 9 (2001). 12 For an overview of the most pressing topics of debate, see Madeline H. Morris, Foreword, LAW&CONTEMP. PROBS.,AutumnI996, at I, I-3. 13 See generally I INTERNATIONAL CRIMINAL LAW, supra note 9, at 52i-642 (detailing the substantive contours of violations of international humanitarian law); Timothy L.H. McCormack, Selective Reaction to Atrocity: War Crimes and the Development of International Criminal Law, 6o ALB. L. REV. 68i (I997) (tracing the historical development of international crimes); Theodor Meron, The Humanization of Humanitarian Law, 94 AM. J. INT'L L. 239 (2000) (describing the individualized focus of international crimes). 14 See generally IMPUNITY AND HUMAN RIGHTS IN INTERNATIONAL LAW AND
tice and Ashes: Amnesty Commissions and the Duty To Punish Human Rights Offenses,
12 N.Y. INT'L L. REV. I (i999).
PRACTICE 24-70 (Naomi Roht-Arriazaed., I995) [hereinafterIMPUNITY AND HUMAN RIGHTS]; Diane F. Orentlicher, Settling Accounts: The Duty To Prosecute Human Rights Violations of a PriorRegime,i00 YALE L.J. 2537 (i99i); Emily W. Schabacker, Reconciliationor Jus-
15 See generally Bartram S. Brown, Primacy or Complementarity:Reconciling the Jurisdiction of National Courts and International Criminal Tribunals, 23 YALE J. INT'L L. 383 (I998)
i960
HARVARD LAW REVIEW
[Vol.
II4:I943
or truth commissions,16 civil or criminal suits,"7 and the coming International Criminal Court (ICC).18 This Part engages the debate by focusing not on the substantive terms of accountability but rather on the discourse of accountability itself,19 examining the objectives that sponsors of prosecution offer to justify their efforts. At first blush, the reasons for prosecution appear both plain and plausible. In the resolutions that established the ICTY and the ICTR, the Security Council emphasized that by "bring[ing] to justice . . . persons responsible for serious violations of international hu-
manitarian law ... [prosecution] will contribute to ensuring that such violations are halted and effectively redressed."20 Throughout the Security Council's debates on these resolutions, delegates also stressed the need to prosecute in order to eradicate "the culture of impunity."21 Yet terms like "justice,""effective redress,"and "ending impunity" though popular rhetorical devices22 - are too vague to guide the appropriate selection of institutions of accountability.23
(assessing the legal and political bases for the primacy of international tribunals); Madeline H. Morris, The Trials of Concurrent Jurisdiction: The Case of Rwanda, 7 DUKE J. COMP.& INT'L L. 349 (I997) (describing the interaction of national and international tribunals in the Rwandan context). 16 See generally MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS (I998); TRUTH V. JUSTICE (Robert I. Rotberg & Dennis Thompson eds., 2000); Michael P. Scharf, The Casefor a Permanent International TruthCommission, 7 DUKE J. COMP.& INT'L L. 375 (I997). 17 See generally John F. Murphy, Civil Liability for the Commission of International Crimes as an Alternative to Criminal Prosecution, 12 HARv. HUM. RTS. J. I (i999). 18 See generally TOWARD AN INTERNATIONAL CRIMINAL COURT? THREE OPTIONS PRESENTED AS PRESIDENTIAL SPEECHES (Alton Frye ed., i999) (setting forth several scholars' proposals for U.S. stances toward the ICC); sources cited in M. Cherif Bassiouni, Historical Survey: 1919I-998, in 3 INTERNATIONAL CRIMINAL LAW,supra note 9, at 597, 599 n.12; Leila Nadya Sadat & S. Richard Carden, The New International Criminal Court: An Uneasy Revolution, 88 GEO. L.J. 38i (2000). 19 This Part is particularly indebted to the work of Payam Akhavan and Jose Alvarez. Akhavan, former Legal Advisor to the tribunals' Office of the Prosecutor, has written extensively on the work of the ICTY and the ICTR, addressing in detail their impact on deterrence. See, e.g., Akhavan, supra note II; Payam Akhavan, The International Criminal Tribunalfor Rwanda: The Politics and Pragmatics of Punishment, go AM. J. INT'L L. 501 (I996); Payam Akhavan, Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal, 20 HUM. RTS. Q. 737 (I998) [hereinafter Akhavan, Justice]. Professor Alvarez has examined the tribunals' goals using a broader lens. See, e.g., Alvarez, supra note 4 (examining why international lawyers focus on certain reasons for prosecution, but overlook others); Jose E. Alvarez, Rush to Closure: Lessons of the Tadi6 Judgment, 96 MICH. L. REV. 2031 (I998) (explaining that the tribunals may be best designed to foster "civil dissensus"). 20 S.C. Res. 955, supra note 3, pmbl.; S.C. Res. 827, supra note 2, pmbl. 21 E.g., U.N. SCOR, 49th Sess., 3453d mtg. at 7, 14, U.N. Doc. S/PV.3453 (1994). 22 See, e.g., U.N. SCOR, 53d Sess., 3877th mtg. at 3, U.N. Doc. S/PV.3877 (i998) (justice, redress, and impunity); U.N. Doc. S/PV.34s3, supra note 1i. at 7 (justice and impunity); KOFI
ANNAN, "WE THE PEOPLES": THE ROLE OF THE UNITED NATIONS IN THE 2IST
110,
CENTURY 46 (2000) (impunity). 23 See Michael Ignatieff, Articles of Faith, INDEX ON CENSORSHIP, Sept./Oct. I996, at I I0 ("[In]Yugoslavia and Rwanda[,] the rhetoric is noble but the rationale unclear.").
200I]
DEVELOPMENTS -
i96i
When the judges, prosecutors, and politicians involved with the tribunals have attempted to specify more explicitly what they intend prosecutions to accomplish, they have drawn from a cornucopia of objectives. In their public statements,24 ICTY and ICTR affiliates have touted the tribunals' ability to prevent future crime, provide retribution, achieve restorative justice, establish an accurate historiographic record, and build precedent for future prosecutions.25 Yet this overabundance of objectives may in fact undermine the tribunals' broader attempt to address violations of international humanitarian law. Given the attention that the tribunals have attracted, the hopes pinned on their performance, and the alternatives potentially foreclosed by the excessive reliance they have inspired,26 it is critical that the tribunals actually accomplish what they say they will accomplish. Currently, however, the gap between rhetoric and reality may be dangerously
large.27
B. The Asserted Goals of Prosecution

i. Prevention. The specific aim of prosecution that tribunal affiliates recite most frequently is the prevention of future violations of international humanitarian law. In their public statements, ICTY and
24 Though the tribunals have discussed their legal origins at length, see, e.g., Prosecutor v. Tadid, Case No. IT-94-I-A, 11 9-64, 105 I.L.R. 453, 45 7-85 (Int'l Crim. Trib. for Former Yugoslavia App. Chamber Oct. 2, 1995) (decision dismissing defense's interlocutory jurisdictional appeal), available at http://www.un.org/icty/tadic/appeal/decision-e/51002.htm, they have not often investigated the political or normative motivations for their existence. Cf Annual Report of the International Tribunalfor the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since I99I, U.N. GAOR, 49th Sess., Agenda Item 152, 1 44, U.N. Docs. A/49/342, S/1994/1007 (I994) [hereinafter 1994 ICTY Report] ("It is not for the Tribunal to speak for the Security Council or the General Assembly in responding to critics of its creation: the Tribunal exists; it is entrusted with a worthy task and stands ready to fulfil it."). To unpack the avowed institutional objectives, this Part turns to several sources: the tribunals' legislative history, tribunal personnel's public writings and statements, and tribunal judgments in particular cases. Each source has limitations - the legislative histories may conflate individual sponsors' objectives with those of the institution, the public statements may conflate intended purposes with beneficial side effects, and the judgments may conflate the aims of sentencing with those of prosecution itself. The potential imprecision only amplifies this Part's call for a more rigorous discussion of motive. 25 Domestic prosecutions have many similar goals but generally place little emphasis on restorative justice or a truthful historical record. See RALPH D. ELLIS & CAROL S. ELLIS, THEORIES OF CRIMINAL JUSTICE I-87 (i989) (reviewing the common objectives of domestic prosecution); BARBARA A. HUDSON, UNDERSTANDING JUSTICE 3-6, 17-75 (i99.6) (same). Indeed, given the many peculiarities of international justice, it would be dangerous to attempt to derive international objectives directly from domestic analogues. 26 See infra p. 1975. 27 This Part in no way intends to impugn the integrity or effort of individual advocates helping to hold criminals accountable. Many tribunal employees do not have the ability or authority to remedy the structural deficiencies analyzed below; other national or international bodies may bear the legal or practical responsibility for the tribunals' shortcomings.
i962
HARVARD LAW REVIEW
[Vol. II4:I943
of prevention:inICTR affiliatesimplicitlyinvoke four manifestations capacitation,generaldeterrence,moral education,and substitutionfor vigilantism. (a) Incapacitation.- Tribunalaffiliates frequentlyclaim to seek prevention through the incapacitationof particular offenders. The ICTY, for example, has prominentlynoted that one of its aims is to to protect society from the hostile, predatory impose "imprisonment conduct of the guilty accused."28 The eighty-five ICTY and ICTR suspects now in custody cannot commit further internationalcrimes while in prison.29 Furthermore, even prosecutionmay "incapacitate" those wrongdoerswho avoid prison entirely;a local force empowered to arrestindicteesmay drive or shame offendersfrom public office30 or may force them to flee the area, eliminatingtheir short-termcapacity to commit further violations. Tribunal affiliates claim that in the longer term the stigma of indictmentmay similarly"incapacitate" politically prominentfugitive offenders by discreditingtheir leadership and undermining their politicalinfluence.31 Despite these claims,the impact of incapacitation may be mitigated by the natureof the ICTY and the ICTR's politicalcontext. Prosecution is an inherentlyslow process. If incapacitationis to be meaningful, tribunalsmust act quickly to have an effect before atrocities are essentially "complete." However, the political will to arrest - and thereforeto incapacitate- indictees appears to depend on the existence of stable local conditionsposing little risk for arrestingtroops.32 If local stability is a prerequisiteto apprehension,prosecutionsmay
28 Prosecutor v. Delalid, Case No. IT-96-2i-T, 1 I232 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Nov. i6, I998), http://www.un.org/icty/celebici/trialc2/judgement/index.htm; see
also, e.g., FourthAnnualReportof the International Tibunalfor the Prosecution of PersonsResponsible for Serious Violations of International Humanitarian Law Committed in the Territory of
U.N. GAOR, 52d Sess., Agenda Item 49, 1 179, U.N. Docs. ICTY Report]. To the extent that incapacitation becomes a means of preventive detention, however, the ICTY has recently cast doubt on its validity. See Prosecutor v. Kunarac, Case Nos. IT-96-23-T, IT-96-23/I-T, 1 843 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Feb. 22, 200i), available at http://www.un.org/icty/foca/ trialc2/judgement/kun-tjoIo2 2 2e.pdf. 29 This figure includes i9 ICTY convicts and 22 ICTY detainees in custody awaiting trial, and 8 ICTR convicts and 36 ICTR detainees in custody awaiting trial. See ICTR, ICTR Detainees, supra note 9; ICTY, ICTY Detainees and Former Detainees, at http://www.un.org/icty/glance/ detainees-e.htm (Mar. 29, 200I). Simo Drljaca, an ICTY indictee killed during an attempted arrest, has also been "incapacitated." See GARY JONATHANBASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS 267 (2000) (recounting the incident). 30 See Richard J. Goldstone, Exposing HumanRightsAbuses- A Help or Hindranceto Reconciliation?, 22 HASTINGS CONST. L.Q. 607, 619-20 (I995) (discussing this effect). 31 See U.N. SCOR, 48th Sess., 32 I7th mtg. at I3, U.N. Doc. S/PV.32I7 (I993) (noting that indictees "will become international pariahs"); Akhavan, supra note ii (claiming that individual leaders have been undermined by prosecution). 32 See BASS, supra note 29, at 29-30 (arguing that nations will not risk their own soldiers to capture suspects).
I9zI,
the Former Yugoslavia Since
A1521375, S/1997/729 (1997) [hereinafter I997
200I]
DEVELOPMENTS -
i963
only proceed once the worst violations have already occurred.33 In Rwanda, for example,the genocidehad been largelycompletedby the time the ICTR sentencedits first convictsin I998.34 (b) General Deterrence.- Tribunal affiliates also invoke deterrence as a means of preventingfuture crime. Usually,when affiliates refer to "deterrence," they follow the ICTR's formulation:35 "[T]heTribunal must be directed ... [primarily] at deterrence, namely dissuad-
ing for good those who will attemptin futureto perpetrate such atrocities ....")36 This concernwith generaldeterrence pervadesthe official and unofficialstatementsof tribunalinsiders;37 as the tribunals'prosecutor explained,it is "oneof the main purposesof the Tribunal."38 Yet in practice,the tribunalsseem ill-equippedto satisfy this ambition. First, the logic of generaldeterrence presumesa rationalcalculation that the likelihoodand severity of punishmentfor an action will
33 This limitation may be especially applicable to the more senior policymakers with better security. Despite the fact that "the highest ranking political and military officials indicted by the Tribunal ..., more than any others, endanger the international public order," many remain at large. Judge Claude Jorda, Speech to the U.N. General Assembly (Nov. 20, 2000), at http:// www.un.org/icty/pressreal/p54o-e.htm (last visited Apr. i8, 200I). 34 Jean Kambanda, the former Prime Minister, was the first Rwandan sentenced. Prosecutor v. Kambanda, Case No. ICTR-97-23-S (Int'l Crim. Trib. for Rwanda Trial Chamber I Sept. 4, i998), http://www.ictr.org/ENGLISH/cases/Kambanda/judgement/kambanda.html. Sporadic killings of both Hutu and Tutsi continue in Rwanda - and across the borders of Burundi and the Democratic Republic of the Congo - to this day, but on a far smaller scale than the genocide of I994. See Akhavan, supra note ii, at 23. 35 The use of a boilerplate formulation may demonstrate more of a concern with satisfying the legal requirements of the Tribunal's mandate to "put an end to such crimes," S.C. Res. 955, supra note 3, pmbl., than with a thoughtful examination of the purposes of prosecution. Cf Prosecutor v. Kunarac, Case Nos. IT-96-23-T, IT-96-23/I-T, 1 842 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Feb. 22, 200I) (noting similar concerns for the resolution that established the ICTY), available at http://www.un.org/icty/foca/trialc2/judgement/kun-tjoIo222e.pdf. 36 Kambanda 1 28. General deterrence is concerned with potential future offenders; specific deterrence, in contrast, is intended to prevent recidivism among ex-convicts. The tribunals occasionally refer to specific deterrence, but do so more frequently as an objective of sentencing than of prosecution itself. See, e.g., Prosecutor v. Delalid, Case No. IT-96-2i-T, ? I234 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Nov. i6, i998), http://www.un.org/icty/celebici/ trialc2/judgement/index.htm ("[T]he accused should be sufficiently deterred by appropriate sentence from ever contemplating taking part in such crimes again."). But see Kunarac 1 840 (disavowing specific deterrence due to low probability of recidivism). 37 See, e.g., 1994 ICTY Report, supra note 24, 1 I3 (addressing deterrence of "the parties to the conflict'); U.N. SCOR, 47th Sess., 3PIgth mtg. at ii, U.N. Doc. S/PV.3II9 (I992) (addressing deterrence of "those in other parts of the world who may be contemplating similar violations and crimes");Richard J. Goldstone, Justice as a Toolfor Peace-Making: Truth Commissions and International Criminal Tribunals, 28 N.Y.U. J. INT'L L. & POL. 485, 490 (I996) (discussing the deterrent value of prosecution generally). 38 Prosecutor v. Aleksovski, Case No. IT-95-I4/I-A, 1 I79 (Int'l Crim. Trib. for Former Yugoslavia App. Chamber Mar. 24, 2000), available at http://www.un.org/icty/aleksovski/appeal/ judgement/ale-asjooo324e.pdf; cf. Prosecutor v. Erdemovid, Case No. IT-96-22-T, It 58-64, io8 I.L.R. i8o, 2oI-04 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber I Nov. 29, I996) (discussing the role of deterrence in sentencing), available at http://www.un.org/icty/erdemovic/trialc/ judgement/erd-tsj96 I I 2 ge.htm.
I 964
HARVARD LAW REVIEW
[Vol. II4:I943
outweigh any benefits.39 This calculation depends on an individual's threshold ability to recognize that a particular action may be subject to punishment at all. In the context of violations of international humanitarian law, average citizen-actors may never reach that threshold. For participants in mass violence, "criminal conduct that is normally characterized as 'deviance' is transformed into acceptable, even desirable, behavior."40 This social approval does not excuse the conduct morally or legally.41 It does, however, indicate that in circumstances conducive to international offenses, individuals may not perceive their actions to be wrong42 - and therefore may not adopt the cost-benefit cognitive framework upon which deterrence relies.43 Even if potential wrongdoers realize that their actions will theoretically be subject to prosecution, there is currently little credible threat of punishment for individual violators of international humanitarian law.44 Before prosecution can take place, states must commit the political will, funding, and personnel to prosecute in a particular region. Prosecutors must then gather sufficient evidence to support a case against particular individuals, and the appropriate tribunal must obtain custody over an indictee. Even within the command ranks of national leadership, the likelihood of complete prosecutorial proceedings
39 Johannes Andenaes, The General Preventive Effects of Punishment, II4 U. PA. L. REV. 949, 960, 964 (i966). 40 Akhavan, supra note ii, at iI. Moreover, even when the wrongful nature of the criminal action is clear, norms of group conformity may be sufficiently powerful to render any deterrent value immaterial. See, e.g., Dan M. Kahan, Social Influence, Social Meaning, and Deterrence, 83 VA. L. REV. 349, 354 (I997) ("[Tihe perception that one's peers will or will not disapprove exerts a much stronger influence than does that of a formal sanction ...."). 41 See Prosecutor v. Erdemovid, Case No. IT-96-22-A, if 82-88, iii I.L.R. 298, 370-73 (Int'l Crime.Trib. for Former Yugoslavia App. Chamber Oct. 7, 1997) (McDonald & Vohrah, JJ., concurring) (holding that even crimes that reasonable individuals would commit under duress are not legally excused), available at http://www.un.org/icty/erdemovic/appeal/judgement/erd-asojmcd 97 Io07e.htm. 42 See Akhavan, supra note ii, at ii (describing this effect); Naomi Roht-Arriaza, Punishment, Redress, and Pardon: Theoretical and Psychological Approaches, in IMPUNITY AND HUMAN RIGHTS, supra note I4, at I3, I4 (stating that certain "human rights abusers may not see their acts as ones that need to be deterred"). Selective prosecution also detracts from the likelihood that individuals will perceive offenses as indubitably criminal. A potential offender may find it difficult to see why expelling Bosnian Muslims from their homes is criminally deviant, for example, if expelling Palestinians or Chechens is not subject to criminal sanction. 43 Akhavan suggests that this effect holds for low-level perpetrators, but that political and military leaders, who more instrumentally calculate the costs and benefits of violations of international humanitarian law, are more susceptible to deterrence. Akhavan, Justice, supra note i9, at
44 For low-level offenders, this factor alone may effectively eliminate the deterrent impact of prosecution. In mass violence, the perception that there is little risk of punishment for any given individual is self-fulfilling; the perception itself increases the number of people willing to commit crime, which decreases the probability of prosecution. See Kahan, supra note 40, at 357.
752, 756-58.
200I]
DEVELOPMENTS -
i965
is slight.45 For example, only forty-one individuals are currently held by the ICTY, and only forty-four have been taken into custody by the ICTR,46 despite the fact that thousands have been implicated in violations subject to tribunal jurisdiction.47 In theory, any limited deterrent effect should be strongest in each tribunal's home territory because ongoing prosecutorial investigation should make the threat of punishment for (and moral condemnation of) future wrongdoing substantially more potent for those in the area.48 Yet even under this strong scenario, tribunals may not be able to
achieve general deterrencein the short term.49 In
i998
and i999, de-
spite fifty-nine pending ICTY indictments, two well-publicized convictions,50 and explicit warnings against further wrongdoing, both Ser-
bian and Kosovar forces within the ICTY's jurisdiction allegedly violated international humanitarian law.5s Though the U.N. Security Council established the ICTY as an immediate measure to restore and
45 In additionto the uncertainty of the punishment, ICTY sentencesmay not be perceivedas sufficiently severe to deter. See Mary Margaret Penrose, Lest We Fail: The Importance of Enforcement in International Criminal Law, Is AM. U. INT'L L. REV. 32I, 367, 382-83 (i999) (cast-
ing doubt on the deterrent value of low ICTY sentences). Whileroughly63%of ICTR convicts have been sentencedto life in prison,see ICTR,ICTRDetainees,supranote 9, only about 26%of ICTY convictshave receivedsentencesof twenty-five yearsor more- and not one has been sentenced to life, see ICTY, ICTY Detainees and Former Detainees, supra note 29. 46 See supra note 29. 47 See David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 FORDHAMINT'L L.J. 473, 476 (i999) (notingthe ratioof indicteesto offenders).The possibility
that tribunalprosecutors are, throughdiscretion, maximizingthe efficiencyof their efforts may but does not mitigatethe impactof that low numberon explainthe low numberof proceedings, the perceivedlikelihood of prosecution.
48 See Richard Goldstone, The United Nations' War Crimes Tribunals: An Assessment, I2
that promptlocal investigations CONN. J. INT'L L. 227, 238 (I997)(claiming may deterwrongdoing). 49 Of course,it is difficultto find preciseempirical supportfor this argument. To prove decihas failed,it wouldbe necessary sively that deterrence to find that no additionalviolationsof inlaw would have taken place even had therebeen no prosecutions.See ternational humanitarian Andenaes,supranote 39, at 973-78 (notingdifficulties with empiricalproofof deterrence); David
J. Scheffer, War Crimes and Crimes Against Humanity, ii PACEINT'L L. REV. 3I9, 326 (i999)
these difficultiesfor violationsof international (confronting humanitarian law);Wippman,supra note 47, at 474-75 (same).
50 Fifth Annual Report of the International Tribunalfor the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since I99I, U.N. GAOR, 53d Sess., Agenda Item 48, is 2, 4, I2-I3, U.N. 51 See Indictment, Prosecutor v. Milogevid, Case No. IT-99-37-I, ?? 25-39 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber May 22, I999), http://www.un.org/icty/indictment/english/ mil-ii99o524e.htm; Guy Dinmore, Serbs Provoke New U.N. Confrontation, CHI. TRIB., Nov. 9, i998, at 3 (noting alleged crimes by both forces); see also Akhavan, supra note ii, at 9 (claiming that the ICTY marginally deterred Kosovar atrocities but could not stop the Serbs).
Docs. A/53/2I9, S/i998/737(i998).
i966
HARVARD LAW REVIEW
[Vol.
II4:I943
maintain the peace,"2 it is "clear[that] the establishmentof the Tribunal has not prevented" furtheratrocitiesin the region.S3 Moral (c) Education and the Rule of Law. - Tribunal affiliates seek also to prevent future offenses by firmly instilling humanitarian norms and respect for individual rights. This form of long-termprevention departsfrom the cost-benefitcalculationabove,54 aiming to inculcate the norms of internationalhumanitarianlaw so thoroughly that the crediblethreat of externalpunishmentis no longer necessary
to prevent offenses."S Prosecution thereby acts as an agent of moral
educationabout the norms'inviolatecharacter.56 Prosecutionis also intendedto cultivateas much faith in legal institutions as in the substantivenorms themselves. Tribunalaffiliates repeatedly refer to the intendedrole of the ICTY and the ICTR in promoting the "ruleof law.""7The unarticulated premisebehind this aim seems to be that respectfor the rule of law will create respectfor legal
52 S.C. Res. 827, supra note 2, pmbl., 11 4, 8 (calling for urgent prosecutions to end ongoing violations in the former Yugoslavia). 53 U.N. SCOR, s5th Sess., 4i6ist mtg. at 3, U.N. Doc. S/PV.4i6i (2000) (statement of Judge Claude Jorda). Judge Jorda continues: "Perhaps this weapon was not in and of itself sufficient, or perhaps it was too tentative, to succeed in driving away the deadly fumes of nationalism by threat alone." Id. In the short term, a stronger show of military force may be necessary to deter continuing atrocities; the tribunals may be able to cultivate local deterrence only in the long run. 54 Some might claim that moral education in this fashion remains within the cost-benefit framework but acts upon a different variable; while general deterrence seeks to increase the magnitude and salience of the cost of international offenses, moral education seeks to decrease the psychological benefit that offenders obtain by committing violations. 55 See Akhavan, Justice, supra note I9, at 74I-42, 746-5 I (describing the tribunals' role in the "gradual internalization of values that encourage habitual conformity with the law'). 56 See U.N. SCOR, 54th Sess., 4063d mtg. at 7, U.N. Doc. S/PV.4o63 (i999) ("The Tribunals ... serve an important norm-reinforcing function."). See generally Jean Hampton, The Moral Education Theory of Punishment, I3 PHIL. & PUB. AFF. 208, 2 I2-I7 (i984) (describing the theory of moral education in detail). 57 E.g., Prosecutor v. Erdemovid, Case No. IT-96-22-T, 1 58, io8 I.L.R. i8o, 20I (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber I Nov. 29, i996), available at http://www.un.org/ icty/erdemovic/trialc/judgement/erd-tsjg6II29e.htm; U.N. Doc. S/PV.32I7, supra note 3i, at 27; Minna Schrag, The Yugoslav Crimes T7bunal: A Prosecutor's View, 6 DUKE J. COMP.& INT'L L. i87, I95 (I995). Tribunal affiliates are remarkably imprecise in evaluating how their efforts further this goal. For example, some assert that the tribunals contribute to the rule of law by "building trust among the population and confidence in State institutions." Sixth Annual Report of the International T7bunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since z99i, U.N. GAOR, 54th Sess., Agenda Item 53, 1 208, U.N. Docs. A/54/I87, S/I999/846 (i999) [hereinafter 1999 ICTY Report]. In reality, however, an international prosecution communicates precisely the opposite sentiment: that national institutions are so deficient and untrustworthy that international jurisdiction is required. See Alvarez, supra note 4, at 402-03, 466 (noting that only national trials can restore faith in national legal systems); infra note I03. If the international tribunals contribute at all to the "rule of law," then they must instead do so by creatingn] trust in and respect for the developing system of international criminal justice." Prosecutor v. Kupreskid, Case No. IT-95-i6-T, 1 838 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Jan. I4, 2000), http://www.un.org/icty/kupreskic/trialc2/judgement/index.htm.
200I]
DEVELOPMENTS -
i967
processes38 and an internal moral barrieragainst conduct that legal institutionshave condemned. Because this sociologicaleducationmay requiredecadesor more, it remains unclear whether the ICTY and the ICTR will successfully furtherthis objective. However,the logical prerequisite to moral education is a threshold level of social consensus that the prosecution process is itself legitimate.59 At present, a large proportionof the populations of the former Yugoslavia and Rwanda may not see the tribunalsas sufficientlylegitimateto heed the moral lessons the tribunals seek to teach. The ICTR's strong moral stance against genocide may have been somewhat compromisedby allegationsthat affiliated internationalactors,despite ample warning,failed to take steps necessary to avert the Rwandan tragedy.60 And accordingto an August 2000 survey,"[o]ver 6o percentof [Croatian] citizens believed that the ICTY was 'unfair' .... The pollstersconcludedthat there is 'an express anti-Hague atmospherein the country."''61 The data indicate that the tribunals may not be able to inculcate norms effectively among the local citizens who would arguablybenefit most from their instruction. - As a final means of prevention, (d) Alternativesto Vigilantism. tribunalaffiliatesintend prosecutionto serve as a controlledsubstitute for vigilantism,62 assertingthat the "onlycivilized alternativeto [victims'] desire for revenge is to renderjustice."63 Affiliates hope that collective societal retributionagainst particularoffendersthroughoffi58 These process values may also lie behind the universal insistence on "due process" in ad-
dressing violations of international humanitarian law, imposed as a constraint on many of the other aims justifying prosecution. See, e.g., Richard Goldstone, Address at Harvard Law School (Jan. 22, 2001) ("It was more important that the trials should be fair than that they should be won."). 59 The moral authority of global actors promoting prosecution may be substantially undermined when international bodies prosecute selectively, condemning certain offenses and condoning substantially similar acts in a different context. Even the perception that offenses are condoned, despite action to the contrary, may decrease the symbolic effect. 60 See Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda, U.N. SCOR, 54th Sess., Enclosure, at 3, U.N. Doc. S/1999/1257 (I999) (calling for U.N. organs and member states to "acknowledge their ... responsibility for the failure of the international community in Rwanda");Alvarez, supra note 4, at 391-92. 61 Akhavan, supra note ii, at 22; see also id. at i6-i7 (Serb disapproval of the ICTY); cf. Alvarez, supra note 4, at 387 (Rwandan distrust of the ICTR). 62 This goal may also be said to promote the "rule of law" - tribunal affiliates do not generally distinguish between this objective and the "rule of law" justification in their rhetoric. 63 z994 ICTY Report, supra note 24, 1 I; see also, e.g., Prosecutor v. Kupregkid,Case No. IT95-i6-T, ? 530 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Jan. 14, 2000), http:// www.un.org/icty/kupreskic/trialc2/judgement/index.htm (explaining the ICTY's intention to prevent vigilantism); Antonio Cassese, Reflections on International Criminal Justice, 6i MOD. L. REV. i, 6 (I998) ("[Wjhenthe Court metes out to the perpetrator his just deserts, then the victims' calls for retribution are met.").
i968
HARVARD LAW REVIEW
[Vol.
II4:I943
cial channels will render victims less likely to resort to self-help measures that themselves offend international humanitarian law.64 Yet it may be that only convictions, and not mere prosecutions, effectively supplant the need for individual retribution.65 For example, widespread protest66accompanied the ICTR's decision to release JeanBosco Barayagwiza, one of the "intellectual architects of [the] planned campaign of genocide,"67 because of prosecutorial misconduct.68 Though the decision was effectively overruled five months later,69 it intimated the threadbare nature of the ICTR's ability to prevent vigilantism. Given the sporadic violence surrounding ICTR proceedings,70 had Barayagwiza been released following the initial decision, aggrieved citizens might well have satisfied their need for vengeance outside the judicial process.
64 Indeed, Akhavan argues that ICTY and ICTR proceedings have helped to deter further atrocities that would have been committed in the name of retribution by Tutsi gangs and the Kosovo Liberation Army. Akhavan, supra note ii, at 9, 19, 24-25. By attributing responsibility for violations to specific individuals, see ICTR Statute, supra note 3. art. 6, 33 I.L.M. at 1604; ICTY Statute, supra note 2, art. 7, 32 I.L.M. at i194, prosecutions may prevent private reprisals not only against particular accused offenders, but also against innocent members of an accused's societally salient group, who may become targets solely because of their group identity. See, e.g., Gabrielle Kirk McDonald, The Eleventh Annual Waldemar A. Sojf Lecture: The Changing Nature of the Laws of War, i56 MIL. L. REV. 30, 33-34 (I998) (implying that only individualized prosecutions can prevent group-based private vengeance). Individual responsibility, though, may be in significant tension with other purposes of prosecution. Singling out particular villains may inappropriately downplay the role of more sweeping societal complicity - or tacit international approval - which is important to capture when establishing a comprehensive historical record. See infra p. 1973; see also Alvarez, supra note 4, at 400, 453-54 & n.45o (discussing the perpetrators whom individual responsibility may fail to capture); Mark J. Osiel, Ever Again: Legal Remembrance of Administrative Massacre, 144 U. PA. L. REV. 463, 581-82, 6oo-oi (1995) (same). Individual responsibility may also underemphasize the role of institutions, social structures, and standard procedures that should be dismantled to prevent individuals from wielding the machinery of state government in violation of international humanitarian law in the future. See id. at 535-36 (noting this underemphasis at the Nuremberg trials). 65 Prosecutions, of course, allow the possibility of acquittal on either substantive or procedural grounds. BASS, supra note 29, at 7, 13. 66 See Letter Dated 8 November I999 from the Permanent Representative of Rwanda to the United Nations Addressed to the President of the Security Council, U.N. SCOR, 54th Sess., U.N. Doc. S/1I999/1II48 [hereinafter Rwanda Letter] (government protest); 5,ooo Protest U.N.'s (i999) Release of Suspect in '94 Slaughter, CHI. TRIB., Nov. i6, i999, at 4 (popular protest). 67 Rwanda Letter, supra note 66, at 2. 68 Barayagwiza v. Prosecutor, Case No. ICTR-97-19-I, 11 IOO, io8 (Int'l Crim. Trib. for Rwanda App. Chamber Nov. 3, I999), http://www.ictr.org/ENGLISH/cases/Barayagwiza/ decisions/dcsgg I 103.htm. 69 See Barayagwiza v. Prosecutor, Case No. ICTR-97-19-AR72 (Int'l Crim. Trib. for Rwanda App. Chamber Mar. 31, 2000), http://www.ictr.org/ENGLISH/cases/Barayagwiza/decisions/ dcs2000033i.htm (rescinding the release order). 70 "In early January, Hutu extremists murdered a witness, her husband and seven children after she appeared before the U.N. trials and was promised protection. Another tribunal witness was killed with his [family] .. . last December." Nasser Ega-Musa, Editorial, Another Failure of Justice in Africa, WASH.POST,Mar. 6, I997, at A21; see also infra p. I972.
200I]
DEVELOPMENTS 2.
i969
Retribution.
Tribunal affiliates claim a retributive aim almost
as frequentlyas they claim to seek prevention." The expressionof the retributivegoal is often strikinglyabstract,based on a duty to balance a moral scale upset by atrocities.72 For some affiliates, prosecution serves a sort of ritual cleansing function, absolving the international communityof any residual"bloodguilt"that it might otherwiseabsorb by failing to punishthe offenders'allegedwrongs.73For others,crimes that "have shocked the conscienceof the internationalcommunity"74 deontologically demand a commensurateresponse, simply because or "just."75 such a responseis "right"
71 See, e.g., Prosecutor v. Kupreskid, Case No. IT-95-i6-T, 1 838 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Jan. 14, 2000), http://www.un.org/icty/kupreskic/trialc2/judgement/ index.htm (asserting the importance of retributive punishment); cf. Prosecutor v. Delalid, Case No. IT-96-2i-T, 1 1231 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Nov. i6, 1998), http://www.un.org/icty/celebici/triaIc2/judgement/index.htm (discussing whether retribution is an appropriate rationale). 72 See, e.g., U.N. Doc. S/PV.3453, supra note 21, at 7 (asserting that international crimes must "be punished for a sense of right . . . to be restored"); Roht-Arriaza, supra note 42, at i6 ("[Rletributivismaims to restore balance to society."). Occasionally, tribunal affiliates speak more specifically of retribution on behalf of individual victims. See U.N. Doc. S/PV.4I6i, supra note 53, at 3 (statement of Judge Claude Jorda) (recognizing retribution for victims as one of the goals of the ICTY); Goldstone, supra note 37, at 491 (noting the individual need for vengeance); cf. supra pp. i967-68 (describing the tribunals' aim to substitute legal proceedings for individual vengeance). Yet institutional vengeance can only satisfy victims' retributive needs if victims are informed participants in the process. For the ICTY and the ICTR, tribunal contact with the communities they purportedly represent has been erratic. See infra note 88. Moreover, at least in Rwanda, the government has disavowed vengeance as a principal objective of prosecution; the tribunals may be offering a service rejected by its intended beneficiaries. See U.N. SCOR, 5oth Sess., 3502d mtg. at 2, U.N. Doc. S/PV.35o2 (i995) (statement of the Rwandan representative to the Security Council) (rejecting vengeance as an aim). 73 See Claude Jorda, The International Criminal Tribunalfor the Former Yugoslavia:Its Functioning and Future Prospects, 3 HOFSTRAL. & POL'VY SYMP. 167, 20I (i999) ("If . .. much international crime [goes] unpunished, [it] will blemish the international community ...." ); Gabrielle Kirk McDonald, Address at War Crimes Tribunals: The Record and the Prospects Conference at the Washington College of Law (Mar. 3i-Apr. i, i998), in International Supportfor International Criminal Tribunals and an International Criminal Court, I3 AM. U. INT'L L. REV. I413, I436 (i998) ("[T]hefailure to act effectively implicates us all."). 74 U.N. SCOR, 5oth Sess., 36I2th mtg. at 9, U.N. Doc. S/PV.36I2 (I995). 75 This logic often appears as the tautology that prosecutions are justified because criminal acts must "not go unpunished." E.g., U.N. SCOR, 52d Sess., 3842d mtg. at i9, U.N. Doc. S/PV.3842 (I997); U.N. Doc. S/PV.3453, supra note 2i, at 3-4; see also U.N. SCOR, 48th Sess., 3I75th mtg. at I9, U.N. Doc. S/PV.3I75 (I993) ("[T]he conscience of ... the world cannot allow those who have ... committed violations of international humanitarian law ... to escape justice."). Richard Posner notes the deterrent effect of a policy of "justice," which increases the credibility of reprisals, and the individual utility of "retaliation,"a victim's desire to do a wrongdoer harm. Richard A. Posner, Retribution and Related Concepts of Punishment, 9 J. LEGAL STUD. 71, 72-78 (ig80). Here, by contrast, retribution is presented as an independent justification for prosecution, grounded in the assertion that wrongdoing deserves punishment without regard to particular consequences.
I970
HARVARD LAW REVIEW
[Vol.
II4:I943
Yet as with prevention,ICTY and ICTR design and practice are imperfectlysuited to retributiveends. If indicteesare acquittedor excused on procedural grounds,the attemptto prosecutemay not be sufficient to fulfill retributivepurposes.76 Plea bargains may also compromiseretributiveaims, especiallyif the pleas appearto be motivated more by politicalconcernsthan by logisticalnecessity.77Finally,given the moral magnitudeof most violations of internationalhumanitarian law, if effective retribution dependson the degreeof punishment,then tribunalpenaltiesdeemedinadequatemay not meet the mark.78 3. RestorativeJustice. - Affiliatesof the tribunalsalso repeatedly assert their intention to provide restorative justice, claiming that prosecutionscontribute to "the process of national reconciliation."79 They are less clear about how prosecutionwill unite splinteredcommunities. At their most basic level, prosecutionsmay remove public figures who impede reconciliation from their positionsof power.80Alternatively,prosecutionsmay act as vehicles for public catharsis:to move beyond atrocitiesof the past, individualvictims may need a safe
76 See supra p. i968. As with other objectives, it may be desirable to constrain the retributive impulse by norms of due process, but the choice to do so must be made consciously. See supra
note 58; infrap. 1979.

77 For example, the ICTY prosecutor agreed to drop 26 of 27 counts against Stevan Todorovid in return for his guilty plea and his promise to withdraw allegations that the SFOR peacekeeping force and NATO had arrested him illegally. Press Release, Plea Agreement Announced at Motion Hearing in Todorovic Case (Dec. I3, 2000), at http://www.un.org/icty/pressreal/p549-e.htm. 78 See Alvarez, supra note i9, at 2070 (suggesting that some penalties may be too light to meet retributive ends); supra note 45. For many international offenses of this scale, "appropriate" retributive punishment may demand the execution of the offender, but the ICTY and the ICTR are not empowered to impose the death penalty. ICTY Statute, supra note 2, art. 24, ? I, 32 I.L.M. at ii99; ICTR Statute, supra note 3, art. 23, ? I, 33 I.L.M. at i6ii. In contrast, Rwandan national courts embrace the death penalty for certain international crimes. See, e.g., Prosecutor v. Kambanda, Case No. ICTR-97-23-S, 11 i8-22 (Int'l Crim. Trib. for Rwanda Trial Chamber I Sept. 4, i998), http://www.ictr.org/ENGLISH/cases/Kambanda/judgement/kambanda.html (describing the Rwandan death penalty). Indeed, Rwanda bitterly opposed the ICTR's primacy, in part because it feared that the ICTR would assert jurisdiction only over the masterminds of the genocide sparing leaders from execution while leaving their subordinates subject to the harsher penalty in national courts. U.N. Doc. S/PV.3453, supra note 2i, at i6. For a thorough discussion of the role of the death penalty in international tribunals, see generally William A. Schabas, War Crimes, Crimes Against Humanity and the Death Penalty, 6o ALB. L. REV. 733 (I997). 79 E.g., S.C. Res. 1329, U.N. SCOR, 55th Sess., 4240th mtg., pmbl., U.N. Doc. S/RES/i329 (2000); S.C. Res. 955, supra note 3, pmbl., 33 I.L.M. at i6oi; U.N. Doc. S/PV.3453, supra note 21, at 2. 80 See U.N. Doc. S/PV.4o63, supra note 56, at io ("The continued presence of indicted per-
sons ... contributes to sustaining a climate of fear and insecurity that inhibits the return of refugees...."); U.N. GAOR, 54th Sess., 48th mtg. at 2, U.N. Doc. A/541PV.48 (i999) ("[T]he Tribunal's principal responsibility is to bring to justice those individuals whose presence impedes ... reconciliation."). This rationale is subject to the same limitations as incapacitation. Cf. supra pp. i962-63.
200I]
DEVELOPMENTS -
I97I
forum to have their stories formallyheard and acknowledged,81 and a society may need a sustainedand ritualizedevent to channelthe grieving process.82 Finally, as some tribunalaffiliates emphasize,prosecutions may serve an expressivepurpose,forminga more cohesive social of wrongdoing.83 communitythroughthe collectivereprobation However,the tribunals'adversarial processesmay also deepen local divides.84 Their client communities,ethnicallysplinteredin the aftermath of atrocities,may see tribunal activities through the polarized lenses of their ethnic groups;ratherthan promotingreconciliation, the trials may actually confirmpreexistingbiases.85 Moreover,the ICTY and the ICTR are remoteand disconnected from the communitiesthey purport to serve.86 Even supportersadmit that "U]usticedelivered close to the affected societies may encouragepostconflict reconciliation . . . far more effectively than justice delivered in the remote con-
fines of The Hague."87And communication back to the local commu81 who have come to The Hague have commented afterwards that the opportu"[Wlitnesses nity to testify beforea duly constitutedcourt has broughtthem great relief. Justice'scathartic effectsmay therefore promisehope for recoveryand reconciliation ...." z997 ICTYReport,Supra note 28, 1 192; see also, e.g., Minna Schrag,The Yugoslav WarCrimesTibunal:An Interim Assessment, 7 TRANSNAT'LL. & CONTEMP.PROBS. 15, 19 (1997) ("Forthe international communityto acknowledge, in a publicforum,what happened to the victimsis probablyessentialto fundamental healing.').
82
See Prosecutor v. Erdemovid, Case No. IT-96-22-T, ? 65,
i08
I.L.R.
I80,
205
Trib.for FormerYugoslavia TrialChamber I Nov. 29, I996) (aimingto allow the "sorely afflicted to mourn those among them who had been unjustly killed"),availableat http://www.un.org/ icty/erdemovic/trialc/judgement/erd-tsjg6il2ge.htm; see also Osiel,supranote 64, at 471-73, 478, prosecutions as providing 512 (describing "acathartic theater" and"national grouptherapy"). 83 See, e.g.,Erdemovi6, 1 65, i08 I.L.R.at 205 (notingthat the ICTY "seespublicreprobation and stigmatization by the international ... as one of the essentialfunctions" community of prosecution);Anthony Faiola, 'PinochetEffect'Spreading: Case Opens Way to OtherProsecutions, WASH. POST, Aug. 5, 2000, at AI ("[T]he [end]soughtis sometimesmore symbolic:uncovering truehistories, providing a formalcondemnation of what happened ...."). 84 See Osiel, supranote 64, at 678 ("Acriminaltrial, particularly, is not well-designed for establishing society-wide consensus over the interpretation of tremendously controversial events."). 85 See Akhavan,supranote II, at i6-17, 21-22 (reporting that Yugoslavethnic groupseach think that the tribunalsfavorothersand are biasedagainstthem);cf. CharlesG. Lord,Lee Ross & Mark R. Lepper,Biased Assimilation and AttitudePolarization: TheEffectsof Prior Theories on Subsequently Considered Evidence,37 J. PERSONALITY & SOC. PSYCHOL.2098, 2099 (1979) (finding,in controlled studies,that biasedgroupsmay evaluateeven identicalneutralevidencein a polarizing fashion). Moreover, "because few citizenscan be expectedto readthe judicialopinion (or to follow closely the proceedingsthat produceit), much of any story that the courts recount .., must be filteredthroughthe mass media." Osiel,supranote 64, at 542. In the former Yugoslavia, some mediaexacerbate the problemby portrayingn] the Tribunal as persecuting one or otherethnicgroups."1999 ICTYReport, supranote57, 1 148. 86 See ICTY Statute,supranote 2, art. 31, 32 I.L.M. at 1201 (establishing the ICTY seat at the Hague, Netherlands); S.C. Res. 977, U.N. SCOR,5oth Sess., 3502d mtg., U.N. Doc. S/RES/977 the ICTRseat at Arusha, (I995)(establishing Tanzania). 87 Akhavan,supranote ii, at i8; see also U.N. Doc. S/PV.35o2, supranote 72, at 2 (statement of the Rwandanrepresentative to the SecurityCouncil)("TheTribunalshould sit in Rwanda given that it is a tribunalfor judgingRwandans."). Indeed,JudgeClaudeJorda,President of the
(Int'l Crim.
I972
HARVARD LAW REVIEW
[Vol.
II4:I943
nities, though improving, has been deficient.88 This disconnection has translated into significant public opposition to the tribunals in the former Yugoslavia and Rwanda. Ironically, the ICTY and the ICTR may most effectively bring communities together by galvanizing them against the tribunals.89 Furthermore, the tribunals' practice is not ideally suited to individual restoration. Security around tribunal proceedings has been sufficiently porous to threaten witness safety.90 ICTY and ICTR prosecutors generally elicit testimony in a fashion designed to suit the requirements of legal proof, not victims' psychological health.91 Moreover, though "the prerequisite for any reconciliation is forgiveness,
which . . . implies that the [perpetrator] ... has been able to show re-
pentance,"92no provisions for repentance are inherent in the tribunals' structure. Indeed, of twenty-seven ICTY and ICTR convictions,94 only four defendants convincingly expressed remorse for their acICTY, admitted that "bring[ing] the Tribunal closer to the local population [would] contribute to national reconciliation," but believed any such move to be "premature." Jorda, supra note 33. 88 See, e.g., U.N. Doc. A/54/PV.48, supra note 8o, at 4, 26 (claiming that the people of the former Yugoslavia and Rwanda do not know what the tribunals are doing); Akhavan, supra note I I, at 25 (noting that the ICTR has been remote from local communities). Both the ICTY and the ICTR have improved slightly in this regard with recent outreach programs. 1999 ICTY Report, supra note 57, It 3, 146-153; Report of the International Criminal Tribunalfor the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territoryof Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territoryof Neighbouring States Between IJanuary and 31 December I994, U.N. GAOR, 54th Sess., Agenda Item 5I, if io8-io9, U.N. Docs. A/54/315, S/19991943 (i 99). However, affiliates still recognize the need to "make [tribunal] work more relevant to the people" in tribunal communities. Press Release, Security Council Meets To Discuss International Tribunals for Former Yugoslavia and Rwanda (Nov. 21, 2000), U.N. Doc. SC/6956, at http://www.un.org/News/Press/archives.htm. 89 See supra p. i967 & sources cited n.6i. 90 See, e.g., Akhavan, supra note ii, at i6, 25-26 (describing risks to judges, lawyers, and witnesses); Michail Wladimiroff, Address at War Crimes Tribunals: The Record and the Prospects Conference at the Washington College of Law (Mar. 3i-Apr. i, i998), in The Prosecutor v. Dusko Tadid, 13 AM. U. INT'L L. REV. 1441, 1450-51 (i998) (same); supra note 70. 91 See Alvarez, supra note I9, at 2068-69 (claiming that ICTY testimony was shaped by legal needs, not victims' needs); Press Release, supra note 88 (noting that the tribunals' statutes "made no provision for victim participation");see also Osiel, supra note 64, at 540 (finding that vigorous cross-examination, in the Argentine context, made "the experience of public testimony ... personally degrading, rather than empowering"). 92 Question of the Impunity of Perpetrators of Violations of Human Rights (Civil and Political Rights), Subcommission on Prevention of Discrimination and Protection of Minorities, U.N. Commission on Human Rights, 48th Sess., Agenda Item io, at I4, U.N. Doc.
E/CN.4/Sub.2/Iqq6/i8
93
(i996).
Alvarez, supra note 4, at 409. Indeed, the Czech Ambassador to the United Nations recognized this limitation in establishing the ICTR. U.N. Doc. S/PV.3453, supra note 21, at 7 ("The Tribunal might become a vehicle of justice, but it is hardly designed as a vehicle of reconciliation[;J... reconciliation is much more complicated, and it is certainly impossible until and unless the criminals repent and show remorse."). 94 See supra note 29.
200I]
DEVELOPMENTS -
I973
tions.95 These conditions are unlikely to further restorativejustice effectively. 4. Historiographic Accuracy. - Tribunalaffiliatesalso purportedly prosecute to establish a truthful public record of past injustices.96 Through institutionalrecordkeeping, prosecutionsmay preserve facts and emotions that would otherwise be lost through an intentional purgeor the inevitableamnesiaof time.97 Yet prosecutionsat the internationaltribunalsoffer at best an imperfectly"truthful" record.98 Facts and opinions irrelevantto a particular legal theory but necessaryfor historicalcompleteness,such as the complicity of actors not subject to prosecution, may be overlooked.99 Despite the tribunals'efforts to recount the historicalcontext for the crimesthey allege,100 emphasizingcertainlegal claims may still preserveonly a partialrecordof other aspectsof the conflict.101
95 See Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, ?? 69-72 (Int'l Crim. Trib. for Rwanda Trial Chamber I June I, 2000), http://www.ictr org/ENGLISH/cases/Ruggiu/judgement/ rugoio6oo.htm; Prosecutor v. Blalkid, Case No. IT-95-14-T, 1 775 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber I Mar. 3, 2000) (discussing defendants Akayesu, Erdemovid, and Serushago), available at http://www.un.org/icty/blaskic/trialci/judgement/bla-tjooo3o3e.pdf. In several other cases, the court did not believe the defendants' remorse to be sincere. E.g., id. (reviewing other defendants); Prosecutor v. Delalid, Case No. IT-96-2i-T, 11 I278-I280 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Nov. i6, i998), http://www.un.org/icty/celebici/ trialc2/judgement/index.htm. 96 Rwanda Letter, supra note 66 ("'[Justicefor the victims ... can only be served by establishing the truth through a trial of the case against the accused ... .'); Interview with Judge Richard Goldstone, Chief Prosecutor for the ICTY and the ICTR (Dec. I3, 1995), in Living History Interview, 5 TRANSNAT'L L. & CONTEMP. PROBS. 373, 377-78 (I995) [hereinafter Goldstone Interview] (asserting that the public record alone would justify the tribunals). 97 See, e.g., U.N. Doc. S/PV.4i6i, supra note 53, at 3 (statement of Judge Claude Jorda) ("Establishing the truth behind events and preventing all forms of revisionism have always been the underlying objectives of all international criminal justice systems ....'). 98 E.g., Osiel, supra note 64, at 524 ("[Jjudgeswhen faithful to liberal law and professional ethics - may make poor historians . . . .'); id. at 520-27. For a discussion of the relative merits of truth commissions in establishing a truthful public record, see sources cited in note i6, above. 99 See, e.g., U.N. Doc. S/PV.4063, supra note 56, at 4 (statement of Prosecutor Carla Del Ponte) ("But our task is not to prepare a complete list of war casualties. Our primary task is to gather evidence relevant to criminal charges.");Alvarez, supra note I9, at 2054-58 (describing other historiographic limitations of judicial factfinding); cf. Osiel, supra note 64, at 533-53 (discussing these limitations at the Nuremberg trials). 100 See Prosecutor v. Tadid, Case No. IT-94-I-T, ?? 53-I26, II2 I.L.R. I, 30-53 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II May 7, I997), available at http://www.un.org/icty/ tadic/trialc2/judgement/index.htm (last visited Apr. i8, 200I); Alvarez, supra note I9, at 2044-46, 2052 (describing the court's attempt to construct a historical account). 101 See, e.g., Alvarez, supra note 4, at 448-50 (noting the tribunals' predilection for underemphasizing the impact of ethnic divisions in Rwanda and the former Yugoslavia); McDonald, supra note 64, at 44 (admitting that trial records may not reflect the role of foreign actors); Osiel, supra note 64, at 560-63 (discussing the limiting historiographic effects of temporal jurisdictional constraints); see also supra note 64. In addition to the risk of incomplete factual records, the tribunals' binary determination of guilt may also impede their ability to apportion the relative blame critical to accurate interpretive histories. See Ignatieff, supra note 23, at I I4 (distinguishing "factual" truth and "moral or interpretive truth').
I974
HARVARD LAW REVIEW
[Vol. II4:I943
5. Future Prosecutions.- Finally,given the relative novelty of internationalcriminallaw enforcement, tribunalaffiliates look to prosecutions as a means to catalyzefutureprosecutions.102 Trialsin one region, for example, may exert political pressureon recalcitrantactors elsewhereto conformto norms of accountability. Internationalprosecution
-
indeed, even the threat of international prosecution
may
similarly spark companion national prosecutions.103 Furthermore, prosecutionhas been justified in its instructionalvalue for the next generationof more effective trials.104 Tribunalaffiliates also regard prosecutionas a means to increase the long-term,global visibility of internationalhumanitarian law as a field,10s spawningincreasedinterest in futuretribunalsto enforceits requirements. Of all the asserted objectives, the ICTY and the ICTR are most likely to meet this aim successfully. Though it is difficult to prove a causal relationship,prosecutions in a variety of contexts have emerged since the tribunalswere established.'06Moreover,seven years of wisdom culled from ICTY and ICTR practice provides a wealth of instructionalsourcematerialfor the prosecutions of the future. C. Beyond Unfulfilled Promises As discussed above, those most intimately connected with the ICTY and the ICTR claim to prosecutein orderto achieve a dizzying
See, e.g., Goldstone, supra note 48, at 227-28 (declaring that the ICTY is primarily usefulin servingas precedent for the ICC);PressRelease,supranote 88 (emphasizing the tribunals'precedentialvalue for SierraLeoneanand Cambodian prosecutions). 103 See, e.g., Akhavan,supranote ii, at 30 ("[I]nternational demandsfor criminaljustice can
102
104 See, e.g., U.N. Doc. S/PV.4o63, supranote 56, at I2 (recognizing that through"the Tribunals ... we are learningimportant lessonsfor lateruse"). For some,the most important lessonin this nascentstagemay simplybe that prosecution is possible. 105 See, e.g., GoldstoneInterview, supranote 96, at 377 ("[T]he existenceof the Tribunalhas broughthometo people,certainly to peoplein politicaland militarycommand, the fact that there is such a thing as international humanitarian law."); DjienaWembou, TheInternational Criminal hibunalfor Rwanda: Its Role in the African Context, INT'L REV. RED CROSS,Nov.-Dec. I997, at 685, 69I (notingthat the ICTR has "sparked an in-depthdiscussionof humanitarian law"in academicand politicalcircles).
106
unwilling to extradite); Preliminary Report of the Independent Commission of Experts Established in Accordance with Security Council Resolution 935 (1994), U.N. SCOR, 49th Sess., Annex I 136, U.N. Doc. S/I994/II25 (I994)(biasor perceived bias);id. I I38 (inconsistent adjudication).
tion.');Scheffer, supranote 49, at 332-33 (asserting that "a key purpose" of international prosecution is to spurdomesticenforcement of international law). In some of these cases,nationalcourtsmay be perfectly suitedfor entertaining prosecutions but politically hesitantto begintrials. In contrast, sponsors justifiedthe creationof the ICTY and the ICTR in part by assertingthose nationalsystems'inabilityto prosecute violationsof international humanitarian law adequately.Affiliatesfoundseveralpurported shortcomings of these nationaljudiciaries.See, e.g., U.N. Doc. S/PV.3453, supranote 2i, at I4 (statement of the Rwandan representative to the SecurityCouncil) (inabilityto gain jurisdiction over defendants in countries
inspire action by national courts, and ... such pressures can ... promot[e] national reconcilia-
See supra Part I, p. I954 & n-49.
200I]
DEVELOPMENTS -
I975
array of objectives. Yet, as currentlydesigned and implemented,the tribunalsseem tailoredto only a few of these purportedgoals - primarily,those objectives with a long-termfocus.107The tribunalsmay politically incapacitate some indicted offenders, begin a course of global moral education, and pave the road for future prosecutions elsewhere.108 However, limited jurisdictionand selective arrests constrain the tribunals' short-termimpact on general deterrence;local suspicionand limited proactivecommunication hampertheir ability to contributeto societal reconstruction.In the course of advocacy,tribunal affiliates overstate the success of existing practices and present goals that may be unrealisticgiven the tribunals'currentstructure.109 There is a palpablegap betweenthe tribunals'rhetoricalpromisesand their manifestreality. x. Mind the Gap.- This gap is more than conceptuallyunsatisfying: it may also impairthe greatereffort to addressviolationsof international humanitarianlaw. Even if individual tribunal affiliates recognize that prosecutionis no panacea,110 the aggregate exaggerated claims supportinginternationaltribunalsmay relieve pressureon internationalpower brokersto supplementprosecutionwith other tools, diverting preciousattentionand resourcesfrom mechanismsthat may more effectivelymeet some of the goals discussedabove.111If existing
107 See Osiel, supra note 64, at 700 ... does some things ratherwell, prosecution ('[C]riminal
other thingsonly passablywell, and makesan utterhash of still others.'). Despitethe tribunals' establishment as short-term measuresostensiblynecessary to "restore international peace and security," U.N. CHARTERart. 39, for example,the ICTY and the ICTR appearto have had limited immediate impact. See suprap. i963 &n.33;suprapp. i965-66 & n.53. 108 This impactalone,thoughsignificantly less than that envisionedby tribunalaffiliates,may well justify prosecution as a threshold matter. This Part claimsnot that prosecution is improper, but ratherthat exaggerated claims for prosecution detractfrom a more balancedapplicationof mechanisms of accountability. 109 Overstated advocacymightwell have been necessary to mobilizethe politicaland financial capital of the international communityto supportthese institutionsat their inception,but now that the general prospectof prosecutionfor violationsof international humanitarian law has reachedthresholdstatus on the agendaof international actors,exaggerated expectations may do moreharmthangood. 110 Some tribunalproponents recognize, for example,that prosecutions "cannotbe a substitute for [more]robustaction by the United Nations." AntonioCassese,On the CurrentTrendsTowards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law, 9 EUR. J. INT'L L. 2, I7 (i998); see also U.N. Doc. S/PV.32I7, supra note 3i, at 27 ("[A]n international tribunal must be but one element of a plan ...."). 1l l The alternatives to international prosecution need not be impunity, but rather other mechanisms of accountability better able to meet the goals that international prosecution cannot. Military action, for example, may be far more effective at ensuring immediate incapacitation. National prosecutions, truth commissions, independent investigations, textbook revisions, lustration, banishment, political isolation, fines, sanctions, and civil damages are just a few of the other means to establish and respond to responsibility for violations of international humanitarian law. See BASS, supra note 29, at 7 (listing mechanisms); Alvarez, supra note i9, at 2099-2I03 (discussing different mechanisms and the ends they best satisfy); Neil J. Kritz, Coming to Terms with
I976
HARVARD LAW REVIEW
[Vol.
II4:I943
means of prosecution can adequately incapacitate offenders, why risk military intervention? If existing means of prosecution can adequately spur reconciliation, why sponsor additional grassroots reconstructive measures? Inflated expectations for prosecution provide an incremental excuse for international actors to cling to a limited range of familiar responses to international offenses. Given the difficulty of mobilizing and coordinating political will to achieve international goals beyond narrow national self-interest, even this minor inertial effect may disproportionately deter support for supplemental mechanisms of accountability that better meet the objectives of prosecution."2 Fortunately, the gap between rhetoric and reality may be narrowed by carefully examining of the purposes of prosecution. Tribunal affiliates deftly cite the rationales articulated in section B to justify their existing efforts, but have not yet grappled with their objectives rigorously enough to ensure that their means are optimally suited to their ends. Two straightforward processes may improve the fit. 2. Confront the Means. Tribunal sponsors should focus on the mechanisms of prosecution, seeking incremental opportunities to satisfy the rhetorical aspirations outlined in section B through better implementation and institutional design. Affiliates may justifiably protest that limited resources, logistical constraints, and even political timidity inhibit optimal tailoring. But through critical examination of the precise ways in which tribunal practice falls short of its goals, affiliates may still find opportunities to modify current practices marginally in order to achieve some objectives more effectively - and without compromising other ends."3 3. Confront the Ends. - At the same time, tribunal affiliates should subject their objectives to closer scrutiny to ensure that they are legitimate and may realistically be satisfied by prosecution. This
Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights, LAW & CONTEMP. PROBS.,Autumn i996, at I27, I2 7-44 (same). Indeed, advocates have been so successful at focusing political energy on prosecution that the international community's attention may have been unduly distracted not only from other means of accountability, but also from efforts to confront the root causes of humanitarian violations. Affiliates may well have created an analogue to Nuremberg without a corresponding analogue to the Marshall Plan. See Mark A. Drumbl, Punishment, Postgenocide: From Guilt to Shame to Civis in Rwanda, 75 N.Y.U. L. REV. I22I, I303 (2000). 112 "Attempts to make international criminal tribunals carry as much freight as some of their advocates recommend ... may endanger alternative processes and possibly undermine competing goals for the international community ... ." Alvarez, supra note i9, at 2 I04. 113 For example, even given recent improvements in the ICTY and the ICTR's outreach, tribunal reporting might be adjusted to match the particular aims of restorative justice more effectively, without consuming additional resources devoted to different objectives. See supra note 88. Moreover, it may be possible to append incremental structural or procedural components, such as the Rwandan domestic provision for formal apology, to achieve objectives that the current institutions unduly neglect. See Alvarez, supra note 4, at 409 (describing the apology mechanism); supra
pp. I972-73.
200I]
DEVELOPMENTS -
I977
analytical undertaking requires three discrete steps. First, institutional designers should flush out any underacknowledged aims that may in the future motivate prosecutions sub silentio."4 For example, international lawyers may be driven to seek prosecution in order to expand the substantive scope of international humanitarian law."5 With no international legislature, this body of law depends largely on painstakingly negotiated treaties and judicial interpretations of customary international law."6 International tribunals amenable to flexible interpretation may be able to advance the law more quickly than the convention process permits."17 Prosecution may also become a tool for political gain."18 Tribunals may provide an avenue to reduce the political influence of indictees"19or to enhance public opinion of regimes helping to deliver "justice."''20 In addition, tribunals may provide a relatively safe symbolic avenue for international power brokers to prove to political constituencies that they are engaged in remedying humanitarian deprivations,
114 In addition, there may be reasons to prosecute that are not currently motivating affiliates, but nevertheless deserve attention. See, e.g., Osiel, supra note 64 (claiming that prosecutions promote "civil dissensus," the intellectual deliberation of contentious questions that is necessary for social reconstruction). 115 See, e.g., U.N. Doc. S/PV.4i6i, supra note 53, at 25 (statement of Judge Claude Jorda) (discussing the tribunals' role in "open[ing] up an entire scientific universe of progress in the evolution of international humanitarian law'); Iooo ICTY Report, supra note 57, ? 206 (noting with pride that ICTY decisions are often "on the cutting edge of the development of international humanitarian law'). 116 Oscar Schachter, The Invisible College of International Lawyers, 72 Nw. U. L. REV. 2I7, 223 (I977). 117 In its Ruggiu decision, for example, the ICTR firmly established that speech constituting incitement to genocide could be criminal, though no clear international consensus existed on the topic. See Alvarez, supra note 4, at 424 (discussing international disagreement on the criminal status of incitement to criminal activity); infra Part IV, note 6i (discussing Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Int'l Crim. Trib. for Rwanda Trial Chamber I Sept. 2, i998), http://www.ictr.org/ENGLISH/cases/Akayesu/judgement/akayooi.htm, and the recognition of rape as a means of perpetrating genocide). There may be concerns about the democratic legitimacy of such an interpretation. The Russian representative to the Security Council, for example, claimed in protest that "the Tribunal has repeatedly tinkered with the norms and rules of international humanitarian law to suit its own purposes." U.N. Doc. S/PV.4i6i, supra note 53, at 8. 118 This motivation may arise most prominently in the decision to establish particular tribunals or target particular regional conflicts for prosecution. Once a prosecutorial structure is in place in a region, the possibility for political gain depends more directly on an individual prosecutor's susceptibility to political influences. 119 See Akhavan, Justice, supra note i9, at 8io ("[I]ndictment ... can become a convenient weapon for the elimination of political rivals in transitional power struggles.");supra p. i962. Of course, prosecutions may also galvanize communities behind so-called political martyrs. 120 See BASS, supra note 29, at 32, 279 (describing public clamor for prosecution). On a more individual level, politicians may publicly support foundational prosecutions and prosecutorial institutions to cultivate a personal legacy.
I978
HARVARD LAW REVIEW
[Vol.
II4:I943
without needing to muster resources more suitable to the task at

hand.121
may lie behind future efSimilarly,bureaucraticself-preservation prosecutionmay of The institutions international forts to prosecute.122 efficacy of perceived and have a vested self-interestin the prominence Alaccountability.123 of mechanism internationalprosecution as a an instias institution though it is true that preservinga prosecutorial self-preservation tution may be necessaryto achieve long-termends,124 aims and to institution's original also has the potentialto crowd out an may self-preservation this In tribunals, emerge as an end unto itself. for credibility and growth institutional for manifest itself as a concern alhas of the President ICTY, Jorda, Claude Judge their own sake.125 an into evolving be to more seems Tribunal "the that recognized ready institution which expects its expansion to continue over time rather than remainingone which is temporary."126 Second, once all of the ends motivatingprosecutionhave been acknowledged,affiliatesshould considerthe relativepriority of their ob121 that the tribunalwas createdto fill the See 1994 ICTYReport,supranote 24, 1 7 (admitting that the UnitedNationswas not sittingback community "needto demonstrate to the international werebeingbrutallyabusedor massacred"); BASS, supranote 29, at 207 ("Afidly while thousands of the Hague tribunalwas an act of tokenismby the world community, ter all, the establishment but did not mind creatingan instituwhich was largelyunwillingto intervenein ex-Yugoslavia of moralconcern."). tion that wouldgive the appearance 122 See Richard Goldstone,ConferenceLuncheonAddress to the MinnesotaAdvocates for PROBS. I, I2 (I997) ("[A]ny Human Rights(Mar.23, i996), in 7 TRANSNAT'LL. & CONTEMP. an international to maintainit."). bureaucracy international bodywill require 123 Organizational institution may,over time, that a bureaucratic theoristshave long recognized ancillaryto its originalgoals. Cf. ANTHONY becomemotivatedby concernsof self-preservation i9 (i967) ("Asa bureauages, its officialsbecomemore willing INSIDE BUREAUCRACY DOWNS, to modifythe bureau'soriginalformalgoalsin orderto furtherthe survivaland growthof its administrative machinery."). 124 Cf.id. at 8 (explaining incentivesfor short-term survival). long-term bureaucratic 125 As JudgeClaudeJordaexplained "the[Security Council]has regarding the ICTY'screation, UN credibility." institution calculated to reestablish Jorda,subeen looking. . . for an exemplary pra note 73, at i68. 126 Jorda,supranote 33. Otherappraisals have been less benign: "'It'sa sort of Frankenstein,' said an officerin the prosecutor's office .... 'Youcreatethe monsterand then you can't control it.'" BASS, supranote 29, at 34. Considerin this vein the ICTR's recentdecisionto assumejuleadersof the Rwandangenorisdictionover ColonelTheonesteBagosora,one of the recognized cide. "The Rwanda Government... wanted to hold the actual trial of Colonel Bagosorain of justice taking its courseinside the country. Rwandain orderto have a visible demonstration to theirpeaceand reconciliation process."NavanethemPillay, They felt that was very important at the Washington The Recordand the ProspectsConference Addressat WarCrimesTribunals:
College of Law (Mar. 3i-Apr. i, i998), in The Rwanda Trbunal and Its Relationship to National Goldstone"was Trials in Rwanda, I3 AM.U. INT'L L. REv. I469, I474 (I998). Yet Prosecutor
.... To have done so would have the primacyof the RwandaTribunal not prepared to surrender been to subvert the credibilityof the Rwanda Tribunal." Goldstone,supra note 37, at 497. prosecuted by the ICTRand not by Rwandancourts,but justiBagosoramay have beenproperly of the ICTR betraysa concern fying the decisionby the need to maintainthe vigorand credibility for self-preservation.
200I]
DEVELOPMENTS -
I979
jectives to make coherenttradeoffsnecessaryin the drive for accountability. Some objectiveswill not be fully compatiblewith others;compromiseof some kind is inevitable.127 For example,proceedingsto establish individual criminal responsibility may help to prevent vigilantismbut are not likely to establisha completenarrativeof societal complicity in violations of internationalhumanitarianlaw. Conversely, condemnationthat is more historicallyprecise but also more sweeping may promote collective guilt and thereby impair tribunals' ability to deter repeatedcycles of groupviolence. Affiliates should also prioritizethe legitimate competing interests that are unrelatedto accountability against the tribunalgoals explored above.128 Due process and capital punishmentnorms, for example, should be balanced against the deterrent and retributive goals of prosecution;similarly,demands of physical security and judicial efficiency should be balancedagainst the value of restorativeproceedings involving witness testimonyin local communities. The case of SlobodanMilogevid, the formerPresidentof the former Yugoslavia, provides a salient example of the need to prioritize.129 There has been no argumentthat prosecuting would detract Milogevid from the objectives describedin section B. Yet because powerful internationalactors want to protectthe safety of their nationals,'30 safeguard the stabilityof a new politicalregime,'3'or maintainthe former Yugoslavia's territorial sovereignty,'32 Milogevic has not yet been brought before the ICTY.133 These concernsmay or may not repre-
127 Todd Howland & William Calathes, The U.N.'s International Criminal Tribunal, Is It Justice or Jingoism for Rwanda? A Callfor Transformation,39 VA.J. INT'L L. I35, I42 (i998). 128 See, e.g., Louise Arbour, The Status of the International Criminal Tribunalsfor the Former Yugoslavia and Rwanda: Goals and Results, 3 HOFSTRA L. & POL'Y SYMP. 37, 39-40 (I999) (considering that criminal justice must sometimes yield to other peacebuilding interests). 129 On May 22, i999, Milogevid was indicted for his role in atrocities perpetrated in Kosovo. Indictment, Prosecutor v. Milogevid, Case No. IT-99-37-I (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber May 22, i999), http://www.un.org/icty/indictment/english/mil-ii99o524e.htm. 130 See BASS, supra note 29, at 29-30 (arguing that nations hesitate to risk their own soldiers to capture suspects). 131 See Diane F. Orentlicher, Let the Serbs Help Pursue Their Own, WASH. POST, NOV. 26, 2000, at B3 (noting that arresting Milogevid could be volatile for the "fragile and untested government"). 132 See Ann Scales, Clinton Says Milosevic May Avoid Arrest, BOSTONGLOBE,June i8, i999, at A39 (reporting that President Clinton hesitated to "invade" Belgrade to arrest Milogevid). 133 On April I, 200I, Milogevid was arrested by Serbian authorities under domestic charges, but international prosecution still seems unlikely. See Steven Erlanger, Serb Authorities Arrest Milosevic To End Standoff, N.Y. TIMES, Apr. I, 200I, at i. Even if Milogevid is eventually tried at the Hague, similar concerns are implicated in the decision to forego the arrest and prosecution of other prominent figures in other countries who have been accused of violations of international humanitarian law.
980
HARVARD LAW REVIEW
[Vol.
II4:I943
sent acceptable tradeoffs, but advocates can make these choices strategically only if they explicitly prioritize their objectives.134 Third, to reduce the gap between rhetorical promise and real-world impact, sponsors of international prosecution should abandon claims that tribunals cannot effectively realize.135 Affiliates should refrain from contending that tribunals can adequately meet contradictory objectives; instead, they should strive to realize fully their highestpriority aims. This restraint would clarify the need for supplemental strategies to address the aims left undersatisfied by prosecution. Only then would it be possible to implement a robust array of mechanisms to address violations of international humanitarian law effectively. 4. The Promise of the Future. - The rigorous self-examination prescribed above is especially pressing at the moment, with powerful new institutions for accountability on the horizon. Given the inflated rhetoric surrounding the nascent International Criminal Court (ICC),136there is a substantial risk that promises will once again outstrip reality, leaving violations of international humanitarian law inadequately addressed by institutions only partially suited to the task. The recent design innovations of the Special Court for Sierra Leone (SCSL)137provide a more encouraging model for a first step toward a tighter weave of rhetoric and reality. Established in 2000,138 the SCSL attempts to meet the above-mentioned rationales more effectively than its international forebears through incremental changes in the familiar institutions of prosecution. For example, the U.N. Secretary-General has emphasized the need to inform and educate Sierra Leonean citizens about the SCSL's work,139 which should improve the Special Court's ability to achieve long-term local prevention140 and individual
134 The priority of objectives may also have implications for whom prosecutors should target. See Alvarez, supra note i9, at 209I-92 (discussing how distinct aims may lead to prosecuting different defendants); Morris, supra note I5, at 366-7I (same). 135 "[Ilt is best to be modest about what war crimes trials can accomplish." Ignatieff, supra note 23, at II7; see also Akhavan, Justice, supra note i9, at 784 (calling for an end to the "extravagant expectations and judicial romanticism about what the ICTY reasonably can achieve"). This restraint will necessitate hard choices about objectives undermined by lack of cooperation from other international actors. In some circumstances, repeated adherence to lofty goals may inspire those other actors to provide the support tribunals require. However, if support is not realistically forthcoming, inflated expectations may wrongly emphasize prosecution over alternative mechanisms less dependent on the goodwill of others. 136 The ICC is the most prominent of these new institutions, but a full review of the fit between its design and objectives is beyond the scope of this Part. For more thorough discussion of the ICC, see generally sources cited in note i8, above. 137 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, U.N. SCOR, 55th Sess., U.N. Doc. S/2000/9I5 (2000) [hereinafter Sierra Leone Report] (explaining the structure of the SCSL). 138 Id. 139 140
Id. 117.
See supra pp. i965, i966-67.
200I]
DEVELOPMENTS -
I98I
retributive justice.141 Moreover, the SCSL's temporal jurisdiction is designed to put the worst atrocities in contextual perspective,142 increasing slightly the accuracy of the resulting historical record.143 Furthermore, because the SCSL will sit in Sierra Leone and apply some national law,144 its capacity for local restorative justice will improve.145 As for the second prong of the analytic effort - the focus on the objectives of prosecution - there has been little public discussion of potential subtextual motivations and only a modest public attempt to prioritize tribunal objectives explicitly. However, SCSL affiliates have left rhetorical space for other mechanisms of accountability that may better achieve some of the goals that prosecution does not adequately fulfill. For example, institutions such as the national Truth and Reconciliation Commission are expressly designed to operate in tandem with the SCSL prosecutions.146 If executed effectively, these other mechanisms may leave the SCSL more free to concentrate on what prosecutions do best. D. Conclusion These developments are welcome, but the process of selfexamination should not be considered complete. Currently, prosecution seems the sole presumptive response to violations of international humanitarian law.147 Yet international prosecution is just one element in a toolbox of accountability. In any given context, those who seek accountability must closely examine their objectives to ensure that the mix of tools they select is best tailored to the particular need. Exaggerating what just one tool - international prosecution - can reasonably accomplish may distract attention and resources from other more suitable mechanisms and will inevitably lead to disappointment
141 142 143 144
See supra note 72. Sierra Leone Report, supra note See supra p. I973.
I37, ?d 26-27
(describing the jurisdictional compromise).
Sierra Leone Report, supra note I37, (noting the seat's location in Sierra Leone); id. I9-20 (giving the SCSL jurisdiction over crimes under both international law and Sierra Leonean law). 145 See supra pp. I97I-72.
?2
?1
I2,
146 Eighth Report of the Secretary-General on the United Nations Mission in Sierra Leone, U.N. SCOR, 55th Sess., It 5I-53, U.N. Doc. S/2000/II99 (2000) (describing the establishment of the Truth and Reconciliation Commission, the Human Rights Commission, and a "data-gathering project" to supplement the SCSL); see also Report of the Security Council Mission to Sierra Leone, U.N. SCOR, 55th Sess., It 52-55, U.N. Doc. S/2000/992 (2000) (cataloging elements of a "comprehensive strategy'). 147 The problem is not with the laudable attempt to address violations, but with the exaggerated focus on prosecution as a means to that end. The critiques herein do not disparage the necessary quest for accountability; as Oliver Wendell Holmes recognized, "[O]ne may criticise even what one reveres." Oliver Wendell Holmes, The Path of the Law, io HARV.L. REV. 457, 473 (I 897), reprinted in i io HARV. L. REV. 99 I, I005 (I 997).
I982
HARVARD LAW RE VIEW
[Vol.
II4:I943
in the prosecutions' performance. Instead, those seeking accountability should carefully examine what they seek to accomplish, employ well-designed prosecutions only to satisfy the highest priority goals, and supplement tribunals with other mechanisms to address the objectives for which prosecution all too often falls short.
III. FAIRTRIALSAND THE ROLE OF INTERNATIONAL

CRIMINALDEFENSE When drafting the statutes of the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), the United Nations was refighting a previous war. The backlash against the Nuremberg and Tokyo war crimes tribunals began even before those trials ended' and continues to this day as judges, lawyers, and academics decry the imposition of "victors' justice," the application of retroactive laws, and the denial of procedural rights essential for a fair trial.2 Attempting to avoid a similar backlash, the drafters of the statute establishing the ICTY3 provided for an independent judiciary,4 the criminalization of only those substantive crimes that were "beyond any doubt part of customary law,"5and procedures respecting the rights of the accused informed by the development of human rights norms over the past half-century.6 A year and a half after adopting the ICTY statute, the U.N. incorporated the same provisions into the ICTR statute.7 Yet neither the ICTY nor the ICTR has fully avoided the fate of
1 See, e.g., In re Yamashita, 327 U.S. I, 28-29 (I946) (Murphy, J., dissenting) ("To subject an enemy belligerent to an unfair trial, to charge him with an unrecognized crime, or to vent on him our retributive emotions only antagonizes the enemy nation and hinders the reconciliation necessary to a peaceful world."). 2 See Kevin R. Chaney, Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials, I4 DICK. J. INT'L L. 57, 70-9I (I995) (surveying criticism of the Nuremberg trials). See generally RICHARD H. MINEAR, VICTORS' JUSTICE: THE TOKYO WARCRIMESTRIAL (I97I) (criticizing legal and procedural aspects of the Tokyo trial). 3 Statute of the International Tribunal, 32 I.L.M. II92 [hereinafter ICTY Statute], available at http://www.un.org/icty/basic/statut/statute.htm, adopted by S.C. Res. 827, U.N. SCOR, 48th Sess., 32I7th mtg. at 6, U.N. Doc. S/RES/827 (I993), 32 I.L.M. I203. 4 See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 8o8 (I9p3), U.N. SCOR, 48th Sess., It 72-75, U.N. Doc. S/25704 (I993), 32 I.L.M. ii63, II78-79 [hereinafter Report of the Secretary-General];see also ICTY Statute, supra note 3, arts. I2, I3, 32 I.L.M. at II95-96. 5 Report of the Secretary-General, supra note 4, 1 34, 32 I.L.M. at I,70. 6 See ICTY Statute, supra note 3, art. 2I, 32 I.L.M. at ii98 (entitled "Rights of the accused"); Report of the Secretary-General, supra note 4, 11io6, 32 I.L.M. at ii85 ("It is axiomatic that the International Tribunal must fully respect internationally recognized standards regarding the rights of the accused at all stages of its proceedings."). 7 Statute of the International Tribunal for Rwanda, 33 I.L.M. I602 [hereinafter ICTR Statute], available at http://www.ictr.org/ENGLISH/basicdocs/statute.html, adopted by S.C. Res. 955,
200I]
DEVELOPMENTS -
i983
Nuremberg and Tokyo; instead, both tribunals have provoked criticism that they deny defendantsproceduralrights essential for fair trials.8 This Part addressesthis criticismand arguesthat the unique factual and legal circumstancesof international prosecution of mass atrocitiesrequiresthe ICTY and the ICTR to employ differentprocedures than those that national legal systems employ. Furthermore,to ensure that defendants receive fair trials within this unique framework, the tribunalsmust guaranteestructuraluniformityand effectiveness, especiallyin the provisionof defense counsel. To the extent that the framers and critics of internationalprosecutionignore structural deficienciesin favor of proceduralrights transplantedfrom inapposite sources, their misplacedfocus bodes ill not only for the goals of internationalprosecution,but for international criminaldefendantsas well. Section A describesthe creation of the ICTY and the ICTR and the draftingof their Rules of Procedureand Evidence (Rules). Section B argues that "international standards" derived from domestic criminal procedureare inappropriate for wholesale transplantinto the tribunals. First, such standardsfail to recognizethe special factual and legal burdensinherentin international prosecution. Tribunaldesigners can best addressthese burdensthroughtargetedprocedural departures from domestic norms, such as the controversial decision to allow anonymous testimony in Prosecutor v. Tadic.9 Second, domestic criminalprocedureis not typicallydesigned to confrontthe extraordinary harms adjudicatedby the ICTY in the Hague and the ICTR in Arusha. Under these circumstanceseven the sacrosanct "beyond a reasonabledoubt"burdenof persuasionmay not be appropriate. Section C arguesthat the most pressingthreatsto defendantsare not proceduralinnovations,but rathertribunal-widestructuralflaws, such as ineffectivedefense counsel,that preventlike adjudicationof like cases. Section C then constructsa brief typology of challengesthat confront defense attorneysin internationalprosecutions. Section D proposesto alleviate these structuralproblemsthrough the professionalization of the internationalcriminaldefense bar and the creationof an indepenU.N. SCOR, 49th Sess., 3453d mtg. at 3, U.N. Doc. S/RES/g95 (I994), 33 I.L.M. i6oo; id. arts. II, I2, 20, 33 I.L.M. at i606-07, i6og-io. 8 See, e.g., Monroe Leigh, The Yugoslav Tribunal: Use of Unnamed Witnesses Against Accused, go AM. J. INT'L L. 235 (i996) (criticizing the use of anonymous witnesses against defendants). See generally Vincent M. Creta, The Search for Justice in the Former Yugoslavia and Beyond: Analyzing the Rights of the Accused Under the Statute and the Rules of Procedure and Evidence of the International Criminal Tribunalfor the Former Yugoslavia, 20 Hous. J. INT'L L. 38i, 390-4I7 (i998) (criticizing various pretrial and trial procedures); Scott T. Johnson, On the Road to Disaster: The Rights of the Accused and the International Criminal Tribunalfor the Former Yugoslavia, IO INT'L LEGALPERSP.III, I 74-92 (i998) (same). 9 Case No. IT-94-I-T, I05 I.L.R. 599 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Aug. IO, I995) (decision granting motion requesting protective measures) (Tadic' Protective Measures Decision), available at http://www.un.org/icty/tadic/trialc2/decision-e/Ioo895pm.htm.
i984
HARVARD LAW REVIEW
[Vol.
II4:I943
dent defense unit both at the ad hoc tribunals and at the incipient International CriminalCourt(ICC). A. Formationof the ICTYand the ICTR In I993, the U.N. SecurityCouncilcreatedthe ICTY in responseto ethnic cleansingin the formerYugoslavia.10Takinginto account proposals from various nations, the U.N. Office of Legal Affairs drafted an enabling statute, which the Security Council adopted in May
I993.11 The General Assembly elected the first eleven ICTY judges in
September of that year.12 Between November I993 and February I994, the judges draftedthe ICTY's Rules pursuantto article I5 of the statute, taking into account proposalsagain from various nations and from nongovernmental organizations.13 In November I994, the U.N. SecurityCouncilcreatedthe ICTR in responseto the genocidethat occurredin Rwanda between April and June of that year.14 The ICTR statute is nearlyidenticalto that of the ICTY.15 In May I995, the General Assembly elected the first six ICTR judges,16 and one month later the judges adopted their own Rules, based substantiallyon those of the ICTY.17 The Rules of both tribunals,like those of the post-WorldWar II tribunals, reflect a hybrid approachthat combines features that are generallyassociatedwith both common law adversarialand civil law inquisitorial systems.18 Partly out of concern for fairness to defen10 ICTY Statute, supra note 3, 32 I.L.M. 1192. For a detailed description of the circumstances leading to the establishment of the ICTY, see I VIRGINIAMORRIS& MICHAELP. SCHARF,AN INSIDER'S GUIDE TO THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER
YUGOSLAVIA 17-2 2 (i995) [hereinafter MORRIS& SCHARF, ICTY]. 11 I MORRIS& SCHARF, ICTY, supra note io, at 31-33 & n. 17. 12 Id. at 144-45 & nn.399-400. 13 Id. at 177-8i. 14 ICTR Statute, supra note 7, 33 I.L.M. 0602. For a detailed description of the circumstances leading to the establishment of the ICTR, see I VIRGINIAMORRIS & MICHAEL P. SCHARF, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA 59-72 (I998) [hereinafter MORRIS& SCHARF, ICTR]. 15 The statutes differ most notably in their subject matter jurisdiction. The ICTY has jurisdiction over four substantive crimes: genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, and violations of the laws or customs of war. ICTY Statute, supra note 3, arts. 2-5, 32 I.L.M. at 1192-94. The ICTR also has jurisdiction over genocide and crimes against humanity, but its jurisdiction over war crimes is distinct, consisting of violations of article 3 common to the Geneva Conventions and of Additional Protocol II. ICTR Statute, supra note 7, arts. 2-4, 33 I.L.M. at 1602-04. The ICTY and the ICTR share both an appeals chamber and a prosecutor. Id. arts. 12(2), I5(3), 33 I.L.M. at i6o6, i6o8. 16 I MORRIS& SCHARF, ICTR, supra note 14, at 368-69. 17 Id. at 413-I8. 18 See Diane Marie Amann, Harmonic Convergence? Constitutional Criminal Procedure in an International Context, 75 IND. L.J. 809, 842-43 (2000). See generally Benjamin B. Ferencz, Nurnberg Thial Procedure and the Rights of the Accused, 39 J. CRIM. L. & CRIMINOLOGY144 (1948) (describing the procedures employed at Nuremberg); Richard May & Marieke Wierda,
200I]
DEVELOPMENTS -
i985
dants19 and partly because they drew heavily upon the U.S. proposal,20the Rules lean towardadversarialpractices.21 to a greaterextent codifiedthe procedures Althoughthe rulemakers at Nurembergand Tokyo,they also intenthan had their predecessors tionally left the Rules vague, expecting many of the details to be worked out through amendments and case-by-case adjudication.22 This vaguenessis especiallyapparentin the rules governingthe admission of evidence. For example, Rule 89, common to both tribunals, specifies only that "[a] Chamber may admit any relevant evidence and that "[i]ncases not othwhich it deems to have probativevalue"23 erwise providedfor ... a Chambershall apply rules of evidence which will best favour a fair determinationof the matter before it and are consonant with the spirit of the Statute and the general principlesof law."24The precisemannerin which the tribunalsdevelop and apply these provisionsis thus as importantto defendantsas the codified proceduresthemselves.
B. Rights and Burdens Rights. Anonymous Witnesses and the Contingency of Procedural (a) The Protective Measures Decision. - In the ICTY's first trial, Prosecutorv. Tadic,25an evidentiaryrequestby the prosecuI.
-
tor forced the judges to determinewhether witness anonymityis consistent with the defendant'sright to a fair trial. Dusko Tadic, an ethnic Serb from Bosnia-Herzegovina,was arrested in Germany on FebruaryI2, I994, and chargedin connectionwith crimes committed
Trends in International Criminal Evidence: Nuremberg, Tokyo, the Hague, and Arusha, 37 COLUM.J. TRANSNAT'LL. 725 (i999) (comparing the ICTY's and the ICTR's rules of evidence with those employed at Nuremberg and Tokyo). 19 Summary of the Rules of Procedure of the International Criminal Tribunalfor the Former Yugoslavia, U.N. Doc. IT/29 (I994) (statement by the ICTY president), reprinted in 2 MoRRIS & SCHARF,ICTY, supra note Io, at 649, 650. 20 i MORRIS&SCHARF, ICTY,supranote I0, at 177. 21 See May & Wierda, supra note i8, at 735. Yet the Rules also retain several inquisitorial features. For example, judges, not juries, make all findings of fact and law. Id. 22 See Rod Dixon, Developing International Rules of Evidence for the Yugoslav and Rwanda PROBS.8i, 82, 84-87 (I997). Tribunals, 7 TRANSNAT'LL. & CONTEMP. 23 ICTY R.P. & EvID. 89(C), http://www.un.org/icty/basic/rpe/IT32-revIgcon.htm (Dec. i3, 2000) [hereinafter ICTY R.P. & EVID.];ICTR R.P. & EVID. 89(C), http://www.ictr.org/ENGLISH/ rules/031 iioo/index.htm (Nov. 3, 2000) [hereinafter ICTR R.P. & EVID.]. 24 ICTY R.P. & EVID., supra note 23, R. 89(B); ICTR R.P. & EVID., supra note 23, R. 89(B). The term "general principles of law" refers to "those principles of law, private and public, which contemplation of the legal experience of civilized nations leads one to regard as obvious maxims INTERof jurisprudence of a general and fundamental character." I HERSCH LAUTERPACHT, LAw 69 (E. Lauterpacht ed., 1970) (citations omitted). NATIONAL 25 Case No. IT-94-I-T, 112 I.L.R. i (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II May 7, 1997) (Tadic Trial Judgment),available at http://www.un.org/icty/tadic/trialc2/judgement/ index.htm.
i986
HARVARD LAW REVIEW
[Vol.
II4:I943
in the Omarskaprison camp duringthe spring of I992.26 Pursuantto a request by the ICTY, Germanytransferred custody of Tadidto the
Registry of the tribunal in April I995.27 The ICTY indicted Tadid on
counts of crimesagainsthumanityand war crimes.28 As the prosecutionassembledits case against Tadic, it became evident that several of the witnesses were unwilling to testify in open court.29 Consequently, the prosecutorapplied to the trial chamberfor various protective measures for six prosecutionwitnesses identified only as witnesses F, G, H, I, J, and K.30 The defense objected to sevbut in a 2-I decision, eral of the measures,includingfull anonymity,31 the judges mandatedanonymityfor witnessesG, H, J, and K.32 Writing for the majority,Judges GabrielleKirk McDonald of the United States and Lal Chand Vohrahof Malaysia concededboth that witness anonymityis an extraordinary measurein traditionaldomestic criminal trials and that it could impede accurate factfinding.33 The rights of the accused, as expressedin article 2I of the ICTY statute, entitled Tadic "to examine, or have examined, the witnesses against him"34and to receive "a fair and public hearing."35 The majority noted,36however, that the latter right is expressly subject to article 22,37 which provides for witness protectionsthat "shall include, but shall not be limited to, the conduct of in camera proceedingsand the protectionof the victim's identity."38 Courtsinterpreting international
I32
26 27
MICHAEL P. SCHARF, BALKAN JUSTICE 95-97 (I997). Tadic Trial Judgment I 9, 112 I.L.R. at i7. The Registry is the administrative arm of each
tribunal. 28 Indictment, Prosecutor v. Tadi6, Case No. IT-94-I (Int'l Crim. Trib. for Former Yugoslavia Feb. i3, 1995), http://www.un.org/icty/indictment/english/tad-ii95o213e.htm. 29 See Alan Tieger, Address at War Crimes Tribunals: The Record and the Prospects Conference at the Washington College of Law (Mar. 3i-Apr. i, i998), in The Prosecutor v. Dusko Tadid, 13 AM. U. INT'L L. REV. 1441, 1446-47 (I998) (stating that "there were certainly witnesses who were too traumatized or too embittered to testify"). 30 Tadic'Protective Measures Decision, Case No. IT-94-I-T, 1 3, 105 I.L.R. 599, 602-04 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Aug. IO, 1995), available at http:// www.un.org/icty/tadic/trialc2/decision-e/Ioo895pm.htm. The prosecution also requested (in addition and in the alternative) delayed disclosure of witness identity, in camera hearings and nondisclosure of witness identity to the media, and testimony via closed-circuit television with voicealtering technology. Id. 31 Id. 1 6, 105 I.L.R. at 604. The prosecution requested full anonymity only for witnesses G through K. Id. 1 3, 105 I.L.R. at 602-04. 32 Id. 1 85, 105 I.L.R. at 628. The judges also allowed most of the other protective measures. Id. at "Disposition," 105 I.L.R. at 630-32. 33 See id. I1 54, 6o, 67, 105 I.L.R. at 620, 62i, 623. 34 ICTY Statute, supra note 3, art. 21(4Xe), 32 I.L.M. at ii98-99. 35 Id. art. 21(2), 32 I.L.M. at ii98. 36 Tadic Protective Measures Decision ? 26, 105 I.L.R. at 6i i. 37 ICTY Statute, supra note 3, art. 2 1(2), 32 I.L.M. at ii98. 38 Id. art. 22, 32 I.L.M. at ii99. Against this statutory backdrop, the majority found that the Rules implicitly permitted witness anonymity. See Tadic Protective Measures Decision 1 58, 105
200I]
DEVELOPMENTS -
i987
instrumentsphrasedsimilarlyto article 2 I have been notably averse to witness anonymityin criminal cases.39 However, the Tadic'majority both factually,on the basis of the distinguishedthose interpretations in a climate tribunal'sparticulardependenceon eyewitnesstestimony40 and legally,on and anguishamong the civilian population,"4l of "terror which provides the basis of the statute's "uniquelegal framework," specially for the protectionof victims and witnesses.42 Moreover,the tribunal determined that standards drafted for "ordinarycriminal
and . . . civil adjudications" were not appropriate for the "horrific"
crimesand ongoingconflictin the formerYugoslavia.43 In a strong dissent hailed by much of the academiccommentary,44 Judge Ninian Stephen of Australia argued that witness anonymity simply went too far.45He first noted that neitherthe ICTY statute nor the Rules provided for such a measure.46 Second, after surveying much of the same case law as the majorityand emphasizingthe U.N. commentthat the tribunal"must fully respect inSecretary-General's ternationally recognised standards regarding the rights of the acI.L.R.at 62I; see also ICTY R.P.& EVID., meassupranote 23, R. 75(A)(permitting "appropriate ures for the privacy and protectionof victims and witnesses,providedthat the measuresare consistentwith the rightsof the accused'). 39 See, e.g., KostovskiCase, i66 Eur.Ct. H.R. (ser.A) at 2I (i989) ("Therightto a fair adminia placein a democratic strationof justiceholdsso prominent to societythat it cannotbe sacrificed statements as sufficient expediency.... [The]use of anonymous evidenceto founda conviction[is] irreconcilable with the guarantees in Article6 [of the European contained Convention for the Protectionof HumanRightsand Fundamental Freedoms (ECHR)]." (citations omitted)). 40 One commentator has notedthe absence,relativeto Nuremberg, of a "Balkanpenchantfor
meticulous record keeping." Kim Carter, Proof Beyond a Reasonable Doubt?: Collecting Evidence for the International Criminal Tribunalfor the Former Yugoslavia, 31 CAN. Y.B. INT'L L. 235,
239 (1993) 41 Tadic Protective Measures 42 Id. 1 27, 105 I.L.R.at 6ii.
? 23, 105 I.L.R.at 609-i0. The majoritydistinguished of both article I4 of interpretations the International Covenanton Civil and PoliticalRights(ICCPR), which formsalmostverbatim the textualsourceof the ICTY Statute'sarticle2i, and article6 of the ECHR, which formsthe basis of the ICCPRitself. Id. Ad 2 7-28, 105 I.L.R.at 6i1-12. Accordingto the five-stepbalancingtest developedby the majority, see id. 11 62-66, I05 I.L.R.at 622-23, the tribunalwouldpermitanonymity only for those witnesseswho would refuse to testifywithoutit, see id. ? 66, I05 I.L.R.at 623. If anonymitywere impermissible, these witnesses presumably would neithertestify nor requirespecial protection. The functionalissue is thus not the "protection of victimsand witnesses," id. ? 57, 105 I.L.R.at 62i, but ratherthe desirless credible abilityof admitting evidenceagainstdefendants. 43 Id. ? 28, 105 I.L.R. at 6il-12. The majoritythen determined that anonymitywas appropriatefor witnessesG, H, J, and K, but not witnessI (the prosecutor had requested less extensive for witnessF). Id. It 78-84, 105 I.L.R.at 626-28. protections
Decision
44 See, e.g., Monroe Leigh, Witness Anonymity Is Inconsistent with Due Process, 9i AM. J. INT'L L. 8o (I997) (arguingthat witness anonymitydenies defendantsthe right to a fair trial);
see also Creta,supranote 8, at 396 ("Onecan scarcelyconceiveof a Leigh,supranote 8 (same); with a defendant's courtactionless consistent rightto mountan effectivedefense.'). 45 See Tadic Protective Measures Decision (Stephen, in part), J., dissenting I05 I.L.R.at 636, 63839, 639-40, 641, available at http://www.un.org/icty/tadic/trialc2/decision-e/5o8iopmn.htm. 46 Id., 105 I.L.R.at 639-40.
I 988
HARVARD LAW RE VIEW
[Vol.
II4:I943
cused,"47 Judge Stephen argued that witness anonymity was inconsistent with the defendant's rights.48 Moreover, as academic critics of the majority's decision have warned, denying defendants the procedural protections afforded by "international standards" could lead to gross violations of defendants' rights and a corresponding decline in the effectiveness and credibility of the ICTY.49 (b) The Contextual Nature of Procedural Rights. - Comparative law scholars advise strongly against ill-considered transplants that seek the benefits of a legal doctrine without considering the complementary doctrines and institutions that make it work in its original context.50 It may be true, as Judge Stephen and other critics of the Tadic decision argue,51 that both national legal systems and courts interpreting international human rights instruments have decided that convicting additional guilty defendants is not worth the risk posed to innocent defendants by using unreliable, anonymous evidence. As one critic of the decision has noted, Judge Stephen's interpretation was "most nearly consistent with international law as reflected in the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the Universal Declaration of Human Rights."52 But these documents, as interpreted by supranational courts, actually represent context-specific policy choices that take into account the resources, obstacles, and goals of domestic prosecution. Even if such procedural choices are success47 Id., I05 I.L.R. at 633 (quoting Report of the Secretary-General, supra note 4, 1 io6, 32 I.L.M. at ii85). 48 Id., I05 I.L.R. at 646. Judge Stephen, surveying common law exceptions, left open whether to allow anonymity for bystanders and undercover agents. Id., I05 I.L.R. at 645, 646. 49 Much of this criticism draws its fire from the later application of the Tadic'decision. Of the witnesses covered by the decision, only witness H actually testified anonymously, Natasha A. Affolder, Tadid, the Anonymous Witness and the Sources of International Procedural Law, i9 MICH. J. INT'L L. 445, 453 (i998), but his testimony tended to exculpate Tadid, see SCHARF,supra note 26, at i60-63. However, the chamber later granted anonymity to witness L, who testified strongly for the prosecution. See Kellye L. Fabian, Proof and Consequences: An Analysis of the Tadic and Akayesu 7hals, 49 DEPAuL L. REV. 98i, 1012-15 (2000). A combination of effective cross-examination by the defense and subsequent investigation by the prosecution revealed that witness L had perjured himself, implying that effective anonymity would have prejudiced the defendant. See id.; Michail Wladimiroff, Address at War Crimes Tribunals: The Record and the Prospects Conference at the Washington College of Law (Mar. 3i-Apr. I, I998), in The Prosecutor v. Dusko Tadid, supra note 29, at 1452-53. 50 See, e.g., Mirjan Damaska, The Uncertain Fate of Evidentiary lRansplants: Anglo-American and Continental Experiments, 45 AM. J. COMP.L. 839, 851 (I997) ("[Rieformers beware! The transplantation of factfinding arrangements between common-law and civil-law systems would give rise to serious strains in the recipient justice system."). 51 See, e.g., Leigh, supra note 8. 52 Id. at 238; see also Creta, supra note 8, at 397 (citing sources ranging from the ICCPR to the Bible and stating that fundamentaltl notions of fairness and international standards of due process should prevent the prosecution's use of [anonymous witnesses]" and that "[tihe right of a defendant to face one's accusers is a venerable tradition").
200I]
DEVELOPMENTS -
i989
ful in the domestic context, they should not be adopted in the international context without careful consideration of the ways in which the transferee institution - in this case, a judicial organ of the United Nations - differs from the transferor institution - in this case, the criminal justice system of a typical Western democracy. National criminal justice systems generally have less need for anonymous testimony than do international tribunals.53 First, witnesses in domestic prosecutions typically have less to fear. Local police forces maintain order, and threatening suspects are usually detained pending trial. The witnesses against Tadic, however, lived in the maelstrom of an ongoing conflict.54 Furthermore, tribunal defendants generally held civilian and military leadership roles in divisive ethnic conflicts before their arrests.55 Although these defendants are now usually detained in the Hague or Arusha, witnesses against them may fear retaliation from the defendants' personal supporters, anti-tribunal leaders, and members of opposing ethnic groups.56 Second, even in the face of witness fear, national legal systems have alternative means of protecting witnesses from retaliation. Sovereign nations typically have large police forces to guard against discrete threats and can use extensive witness protection and relocation programs to defend against ongoing or repeated threats. The ICTY and the ICTR have neither police forces nor jurisdiction to protect witnesses after they have testified. The tribunals do have witness services units,57 but the development of a large, permanent international witness protection program
-
often recommended
as an alternative to anonymity58
is not as
53 Anonymous witness testimony may also be more credible in international prosecution than it is typically in national prosecution. The crimes alleged at both the ICTY and the ICTR were extensively documented by news media, national governments, nongovernmental organizations, and U.N. commissions. See, e.g., M. Cherif Bassiouni, The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia, in THE PROSECUTION OF INTERNATIONAL CRIMES6I, 72-1i8 (Roger S. Clark & Madeleine Sann eds., i996). 54 See Tadi6 Protective Measures Decision, Case No. IT-94-i-T, 1 23, 10$ I.L.R. 599, 60g-1o (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II Aug. lo, i995), available at http:II www.un.org/icty/tadic/trialc2/decision-e/Ioo895pm.htm. 55 See ICTY, Outstanding Public Indictments, at http://www.un.org/icty/glance/indictlist-e. htm (Mar. 29, 2001) (listing military ranks and government positions of detained defendants). 56 See Report of the Expert Group To Conduct a Review of the Effective Operation and Functioning of the International 7Tbunal for the Former Yugoslavia and the International Criminal Thbunal for Rwanda, U.N. GAOR, 54th Sess., Agenda Items 142 & 143, 1 141, U.N. Doc. A/541634 (i999) [hereinafter Expert Group Report] (discussing reports "of the death or disappearance, in suspicious circumstances, of possible future [ICTRI witnesses"). 57 See, e.g., ICTR, Witness Support and Protection at ICTR, at http://www.ictr.org/ ENGLISH/geninfo/wsupport.htm (last visited Apr. i8, 2001). 58 See, e.g., Michael Scharf & Valerie Epps, The International Trial of the Century? A "CrossFire" Exchange on the First Case Before the Yugoslavia War Crimes Trbunal, 29 CORNELL INT'L L.J. 635, 659 (I996) (remarks of Valerie Epps) ("Perhaps the president of the Tribunal
I990
HARVARD LAW REVIEW
[Vol.
II4:I943
feasible as are such programswithin a single nation. The United States can send mafia witnesses to distant states and equip them with new identities, but "Europelacks the equivalent of Kansas."39 Bosare not likely to nian Muslims who are fluent only in Serbo-Croatian with their families to, find either anonymityor comfortif transplanted say, Scotlandor Egypt. In short, the tribunalsare unlikely to develop a witness protectionand relocationprogramefficient enough to obviate the need for anonymoustestimony. Given the unusualdangersthat witnessesin the formerYugoslavia face and the limited ability of the ICTY to protect them, the ICTY prosecutorcan expect in the typical case that some potentialwitnesses will not testify without anonymity. Their refusalto testify would make it more difficult for the prosecutorto carry the requisite burden of proof than if he were a typical domesticprosecutor. Therefore,allowing anonymoustestimony in ICTY prosecutions,while introducinga greaterpossibilityof errorinto trials and in turn increasingthe likelihood that innocent defendantswill be convicted, may also be necessary in some cases to permit the conviction of guilty defendants.60 That is not to say that such targetedadjustmentswill be appropriate in every internationalprosecution; it is not even to say that they will always be appropriateat the ICTY. For example, anonymous witnesses were apparentlynot necessaryin the largely documentary and militarily secured - prosecutionsat Nuremberg.61 But contingencies like these explain why the rulemakers left the tribunals'Rules flexible. Appreciationof the role of factual and legal circumstances in
should have explainedthese difficultiesto the U.N. Secretary-General and arguedin favor of a well-funded witnessprotection program."). 59 Ruth Wedgwood, Prosecuting War Crimes, I49 MIL. L. REV. 217, 222 (I995). But see id. at 221 ("There is nothingthat prevents the UnitedNationsfromsettingup a witnessprogram.). 60 Otherdepartures fromtypicaldomesticprocedural rightsmay also be justifiableas targeted attemptsto addressthe factualand legal obstaclesspecificto international prosecution. For example, commentators have criticized both the ICTY and the ICTR for their broad admission of oral hearsayevidence. See, e.g., Fabian,supra note 49, at 1019-34; id. at 1038 (recommendingthe adoptionof "somevarianton the hearsayrulesin the FederalRules of Evidence"); Johnson,supranote 8, at i82-83. Althoughthe admission of hearsayevidence,like the admission of anonymoustestimony, may generallyweigh in favorof the prosecution by makingit easier to adduce incriminating evidence,it does so in the tribunals'case in responseto an extraordinary burdenalreadystackedheavilyagainstthe prosecution.For example,to provemany of the substantivecrimeswithin the jurisdiction of the tribunals, the prosecution must establishfacts both unrelatedto the particular defendantand unlikelyto be withinthe knowledgeof any one or two witnesses,requiringadductionthroughso-called"expert" testimonyfrom investigators, journalists, and historians.See Dixon,supra note 22, at 87-90. 61 Documentary hearsay,by contrast,was essential:much of the evidence presentedby the prosecution consistedof capturedNazi documents.See TELFORDTAYLOR,FINAL REPORTTO
THE SECRETARYOF THE ARMY ON THE NUERNBERG WAR CRIMES TRIALS UNDER CONTROLCOUNCILLAWNo. io, at 89-90 (William S. Hein & Co. 1997) (I949).
200I]
DEVELOPMENTS -
I99I
the calculusof procedural rightsshoulddissuadethe tribunalsfrom relying on texts and doctrinesdevelopedfor nationallegal systems. 2. Shifting the Burden?- By easing the prosecutor'sburden of proof by relaxing proceduralrequirementsin targeted areas such as witness anonymityand hearsay,the ICTY and the ICTR have taken an important and justifiable step toward accomplishingtheir goals. Outsidethese areas,however,the prosecution's burdenmay remaintoo high to permitconvictionsof a sufficientnumberof guilty defendants. Just as barringanonymoustestimonyis inappropriate because of the unique factual and legal obstaclesto internationalprosecution,a burden of persuasionthat strongly favors the protectionof the innocent over the conviction of the guilty may also be an inappropriatetransplant to tribunalsthat adjudicateextraordinarily heinouscrimes. Both the ICTY and the ICTR statutes dictate that "[t]heaccused shall be presumedinnocentuntil proved guilty accordingto the provisions of the present Statute."62Common Rule 87 gives substance to this presumptionby requiringthat "[a]finding of guilt may be reached only when a majority of the trial chamberis satisfied that guilt has been proved beyond reasonabledoubt."63Accordingly, in most guilty judgmentsrenderedby the tribunals,the judges have found "beyonda reasonabledoubt"every elementrequiredto prove guilt.64 A burden of persuasion balances the need to convict the guilty against the need to acquit the innocentby specifyingthe level of confidence with which the factfindermust find guilt. The reasonabledoubt standardresistsmeasurement and is often approximated as somewhere between eighty and ninety-fivepercentcertainty.6SIn civil litigation, an erroneousjudgmentagainst the plaintiffcosts the plaintiff no more than a similarlyerroneousjudgmentagainst the defendantwould cost the defendant. By equally distributingthe risk of erroneousjudg62 ICTY Statute, supra note 3, art. 21(3), 32 I.L.M. at ii98; ICTR Statute, supra note 7, art. 20(3), 33 I.L.M. at i6io. 63 ICTY R.P. & EVID., supra note 23, R. 87(A); accord ICTR R.P. & EVID., supra note 23, R. 87(A). 64 See, e.g., Tadi6 Trial Judgment, Case No. IT-94-I-T, ?1 235, 237, 112 I.L.R. I, 85, 86 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II May 7, 1997) (reasonable doubt burden carried), available at http://www.un.org/icty/tadic/trialc2/judgement/index.htm; id. 1 241, 112 I.L.R. at 87 (burden not carried). But see Prosecutor v. Jelisid, Case No. IT-95o-Io (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber I Dec. i4, i999), http://www.un.org/icty/brcko/trialci/ judgement/index.htm (finding guilt without explicitly considering the reasonable doubt burden). 65 See Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 TEX. L. REV. I05, 125-29 (i999) (presenting widely divergent empirical data). The reasonable doubt standard is rooted obscurely in common law jurisdictions. See id. at i io-i i. It has also recently appeared in criminal cases in civil law jurisdictions. See
JULIANE KOKOTT, THE BURDEN OF PROOF IN COMPARATIVE AND INTERNATIONAL HUMAN RIGHTS LAW i8 (I998) (noting that Germany employs a standard equivalent to reason-
able doubt for both civil and criminal litigation); see also Amann, supra note i8, at 8i6-i7 (observing that civil law judges traditionally needed only reach verdicts based on "inner conviction').
I992
HARVARD LAW RE VIEW
[Vol.
II4:I943
ments, a preponderance of the evidence burden roughly ensures that the parties share these costs. In a criminal case, however, "the social disutility of convicting an innocent man [is not viewed] as equivalent to the disutility of acquitting someone who is guilty."66 A reasonable doubt burden therefore is designed to ensure that erroneous judgments will more often set guilty defendants free than send innocent defendants to prison.67 But what about cases in which the "disutility of acquitting" is much greater than it would be for, say, ordinary murder? The harm of imprisoning an innocent defendant for life on a false charge of genocide may be seen as roughly equivalent68 to the harm of imprisoning an innocent defendant for life on a false charge of murder.69 By contrast, the harm of letting a ge'nocidaire go free is not likely to be of the same order of magnitude as the harm of freeing an ordinary murderer.70 If the presumption of innocence really reflects "a rational world,""7should not the prosecutor's burden of persuasion drop considerably in cases involving charges of genocide?72 The grave nature of the harm that the tribunals aim to redress suggests that they have more in common with international human rights courts and multilateral treaties than with domestic criminal courts. In supranational courts such as the European Court of Human Rights, individual plaintiffs who bring human rights lawsuits against state defendants need not always carry a reasonable doubt burden to prevail.73
In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring). One commentator has expressed the number of guilty men theoretically set free for each innocent man convicted as n, and thereupon measured the value of n in American judicial dicta as anywhere between one and infinity. See Alexander Volokh, n Guilty Men, 146 U. PA. L. REV.
67 66
I173,1I99-2o6 (I1997)68 There may be a marginally greater harm from the stigma of being falsely convicted as a genocidaire, but this additional harm, although obviously difficult to measure, is unlikely to increase meaningfully the harm of life imprisonment that both hypothetical convicts face. 69 Neither the ICTY nor the ICTR may impose the death penalty. ICTY Statute, supra note 3, art. 24(I), 32 I.L.M. at II99 ("The penalty imposed by the Trial Chamber shall be limited to imprisonment.'); ICTR Statute, supra note 7, art. 23(I), 33 I.L.M. at i6ii (same). 70 Any measure of harm obviously depends on the underlying goals of criminal justice, an inquiry beyond the scope of this Part. Generally, the interest in deterring genocide through fear of probable and severe punishment is likely to be many times greater than the interest in deterring ordinary murder. The interest in incapacitation or retribution may not be similarly disproportionate. 71 Winship, 397 U.S. at 371 (Harlan, J., concurring). 72 Cf. William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842, 847-52 (2001) (arguing that because the state's interest in solving murders is greater than its interest in catching marijuana users, Fourth Amendment law should require a lower standard of probable cause for police searches aimed at solving murders). 73 See KOKOTT,supra note 65, at 197-200. Kokott argues that a burden of persuasion lower than reasonable doubt is justified in this context both by the lesser harm of an erroneous finding against a state-defendant, which cannot be imprisoned, and the greater interest in vindicating human rights claims that will affect numerous individuals. See id. at 199-200, 205-06, 209-10.
200I]
DEVELOPMENTS -
I993
Furthermore, principles of treaty interpretation encourage an expansive reading of treaties such as the Geneva Conventions to promote their "fundamental purpose" of protectingn] civilians."74 Allowing the criminal nature of the tribunals to outweigh their human rights goals is similar to barring anonymous testimony at the tribunals because it is barred in the United States: it is a policy judgment that cannot be justified by superficial similarities. 5 Finally, burdens of proof and persuasion not only affect the outcomes of cases already before the courts, but also determine which cases will be brought in the first place. The ICTY and the ICTR are responses to specific atrocities, and to the extent that weaker cases cannot be brought in criminal courts, the international community may need to respond with alternative nonjudicial measures. Those who formulate or critique the procedural rights of defendants in international criminal courts must therefore be careful not to view these courts in a vacuum, but rather as one option on a continuum of options, each of which carries its own mix of uncertainty and ineffectiveness.76
74 Dixon, supra note 22, at IoI. The tribunals are not treaty-based organs. See supra p. I984. However, in applying article 4 of the ICTR statute, which specifically incorporates portions of the Geneva Conventions, the ICTR judges have engaged in such expansive interpretation (apparently without considering the effect on the defendant). See, e.g., Prosecutor v. Akayesu, Case No. ICTR-96-4-T, I 63I (Int'l Crim. Trib. for Rwanda Trial Chamber I Sept. 2, i998), http://www.ictr.org/ENGLISH/cases/Akayesu/judgement/akayooi.htm (interpreting broadly the class of perpetrators bound by the Geneva Conventions in light of the conventions' "overall protective and humanitarian purpose");cf. infra Part IV (discussing expansive interpretations of the class of victims protected by the Genocide Convention). 75 Cf Christine M. Chinkin, Due Process and Witness Anonymity, 9i AM. J. INT'L L. 75, 78 (1997) (arguing in the context of the Tadi6 decision that the placement of greater weight on the defendant's liberty interest than on the victim's interest in being free from rape indicates only that "human rights standards have been defined by men in accordance with male assertions of what constitutes the most fundamental guarantees required by individuals"). 76 Alternative national and international responses may include quasi-judicial truth commissions, compare Kent Greenawalt, Amnesty's Justice, in TRUTH V. JUSTICE: THE MORALITY OF TRUTH COMMISSIONS i89, 190-94 (Robert I. Rotberg & Dennis Thompson eds., 2000) (discussing the impunity that may ensue from the use of truth commissions instead of criminal trials to redress mass violations of human rights), with id. at 202-03 (discussing the reduced procedural rights available to defendants before truth commissions); domestic trials, see generally Mark A. Drumbl, Rule of Law amid Lawlessness: Counseling the Accused in Rwanda's Domestic Genocide 7ials, 29 COLUM. HUM. RTS. L. REV. 545 (I998) (cataloguing procedural defects in Rwanda's prosecution of genocide suspects); and military intervention, see, e.g., Michael Dobbs, A War-Torn Reporter Reflects, WASH. POST, July II, i999, at BI (estimating Serbian casualties from the NATO bombing of Kosovo at i6oo civilians and io,ooo soldiers). It is notorious that the so-called "Morgenthau Plan" concocted by Roosevelt's Treasury Secretary at the end of World War II called for the summary execution of Nazi leaders. See GARY JONATHAN BASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES TRIBUNALS 157-60 (2000). To obtain the benefits of court adjudication over a greater portion of potential "cases," the designers of international criminal tribunals might consider adjusting the burden of persuasion to accommodate a level of inaccuracy that might be unacceptable in other criminal contexts. For example, the tri-
I 994
HARVARD LAW REVIEW
[Vol.
II4:I943
C. StructuralFlaws in InternationalCriminalDefense I. Institutional Biases in InternationalTribunals. Those concerned with fair trials should focus more on the structureand operation of the tribunalsthan on proceduralrights. As discussed above, the tribunals have adopted proceduresmodeled after international human rights treaties,and deviate from this model only to target the unique factual and legal challengesof internationalprosecution. Only a sound and unbiased structurepermits the effective adjustment of proceduralrights to accommodatedesiredlevels of factual discrimination. Biases toward conviction,such as judicial bias or ineffectiveappointeddefensecounsel, undercutthe benefitsof "pro-defendant" rules and magnify the effects of rules that favor the prosecution. Such structuralbias results in a diversionfrom discrimination on the basis of fact and toward discrimination on the basis of other factors such as nationalorigin,wealth, or simplebad luck.77
bunalsmightemploya compromise standard underwhich a defendant would be "convicted" with marginallyless evidence and receive a marginallylower penalty. Alternatively, the tribunals coulddefineliabilityfor certainelementsmorebroadly- even strictly- to enablethe conviction of defendants againstwhomcertaindifficult-to-adduce evidenceis lacking. A contraryargumentcan be made that the credibilityof the tribunals,and indeed of any organpurporting to judge individualcriminalresponsibility, such interdependson incorporating nationalstandardsas proof beyonda reasonable doubt. See, e.g., Winship, 397 U.S. at 363-64. Accordingto this argument, any materialabrogation of such standardswould resultin a correspondingloss of effectiveness becauseof a decreasein popularsupportfor the judgments. A similar argument is that one of the goalsof the tribunals is to promote or reestablish the ruleof law in a mannerthat does not permitviolationsof international standards. See suprasectionII.B.i(c),
pp. I966-67. 77 ProfessorWilliamStuntz argueswith respectto the U.S. criminaljustice system that the
formulation of additionalprocedural rights may itself lead to structural biases, such as underfundedpublicdefenders, as a way for legislators to maintainstableconvictionratesand respond
to constituent concerns. William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, I07 YALE L.J. I, 7-I2 (I997). Furthermore, the availabilityof
nontruth-based procedural rightswill rewarddefendants who can affordto litigatethem,and encouragepoorerdefendants to concentrate their resources on nonfactual defenses. The resultis a system that as a whole discriminates less on the basis of factualguilt and more on the basis of luck and money. Id. at 3-5. Even a procedural deck stackedagainstdefendantswill, in the hands of unbiasedjudges and competentdefense counsel,still allow for factual discrimination.SeveralGermandefense attorneysat Nuremberg, includingSS and SD chief counselCarlHaensel,criticizedthe substantive law imposedat the trialsand disparaged the pro-prosecution procedure, but commended the impartialsupervisionof the judges and suggestedthat convictionswere based on factual guilt. See, e.g., Carl Haensel, The Nuremberg Trial Revisited, 13 DEPAUL L. REV. 248, 251-52, 258 (I964) (objecting to prosecution of only the defeatedpowers,but notingthat "[t]here would have been no difficultyin findingthe twenty-four defendants ... guiltyaccording to Germanlaw"and that "[t]heproceedings, the treatmentof the defendantsand the rights grantedto the defense counsel were very fair). The post-World War II Tokyo and Yokohamatrials, however,were heavily criticizedas show trials, in significantpart becauseof the behaviorand biases of the judges. See, e.g., MINEAR, supranote 2, at 74-93 (noting,for example,that the Filipinojudge
was a survivor of the Bataan death march and a Japanese prisoner-of-war camp).
200I]
DEVELOPMENTS -
I995
Overt judicial bias does not appear to have been a major problem at the tribunalsthus far. There is little credibleevidenceof bias for or against any of the ethnic or nationalgroupsprominentat the tribunals as defendantsor victims.78There is somewhatmore evidenceof a bias against defendants generally, including as critics have noted, the "prosecutorial zeal"demonstratedby judges in public remarksregarding the need for the tribunalsto succeed.79Yet bias need not be overt. An ad hoc court is by nature mission-oriented,and missionaries and administrators) tend to form a sense of cama(judges,prosecutors, raderie and community.80 By contrast, defense at the tribunals has been task-oriented:attorneysgenerallyrepresentonly one defendant81 and often commute from their home countries to the Hague and Arusha.82 The inevitable result is that the culture of international criminallaw excludesthe defense.83 As pervasive as judicial bias may be, an ill-equipped,incompetent, or conflicteddefense bar poses an even greaterstructuralthreat to defendants. Defending clients accused of violations of internationalhumanitarianlaw has been more difficult than the creatorsof the tribunals anticipated. The defense counsel who practice before the
78 There have, however,been severalcomments about the religiousand nationalcomposition of the judiciary. Compare Chaney,supranote 2, at 88 (notingthe BosnianU.N. Ambassador's complaintthat even thougheightypercentof the victimsof the conflictin the formerYugoslavia were Muslim, there were no Muslims among the ICTY's initial judges), with I MORRIS & ICTY,supranote io, at I45 (rejecting SCHARF, claims of anti-Muslim bias becausefour of the initial eleven judges came from Malaysia,Nigeria, Egypt, and Pakistan- countrieswith substantialMuslimpopulations). 79 Geoffrey War Crimes Deserve a Fair Trial, TIMES (London), Robertson, June 25, I996, at 20 (notingthat Judge Cassesedemandedthat Yugoslaviabe expelledfrom the OlympicGames in Atlantaif it did not turn RadovanKaradlid over to the ICTY). But see O.Q. Swaak-Goldman,
The ICTY and the Right to a Fair Trial: A Critique of the Critics, io LEIDEN J. INT'L L.
2I5-17 (I997)
215,
(discussingsuch claims and arguingthat there would be no outcry if domestic to justice). judgesstressedthe needfor fugitivesto surrender 80 Cf. TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 208-35 (I992) (describingthe "Nuremberg War Crimes Community"). Taylor,the Americandeputyprosecutor at Nuremberg, id. at xi, describesan atmosphere reminiscent of the id. at 208. Prosecutors "coloniallife-styleof the foreigninhabitants of [pre-warShanghai]," and nationssocializedtogether, judges fromthe four prosecuting includingone occasionon which the Soviet prosecutor offereda toast to the defendants: "Maytheirpathslead straightfromthe courthouseto the grave!"Id. at 2 11 (internal quotationmarksomitted).At leastone judge downedhis Cointreau beforehearingthe translation.Id.
81 But see infra note 12 2. 82 See, e.g., Beth Gatchalian-Litwin, Representing the General, CAL. LAw., Nov. i999, at I7, '7. 83 See Anthony D'Amato, Defending a Person Charged with Genocide, I CHI. INT'L L. 459, J.
on the "institutional 466 (2000) (remarking bias at work[among]... the Registrar, the judges,and the prosecutors[,who] see each other socially in a relatively small city like The Hague, and .. . tend to sharea senseof prideand accomplishment when a war criminalis convicted"); cf. TAYLOR, supranote 8o, at 209 (notingthat "thedefendants and defensecounsel[at Nuremberg] wereno partof the war crimescommunity).
i996
HARVARD LAW REVIEW
[Vol.
II4:I943
tribunalshave encountered both substantiveand procedural challenges as well as conflicts of interest. Generally,these problemsderive from the nature of internationalhumanitarianand human rights law, the organizationand operationof the tribunals,and broader geopolitical circumstances.The followingsectionaddresseseach of these concerns.
2. A Typology of Problems in International Criminal Defense. (a) The Current Framework. - The tribunals currently require very
little experienceor knowledgefrom defense attorneys. The only subin fact, is that an attorney"[be]admitted to the stantive requirement, practiceof law in a State, or [be] a Universityprofessorof law."84Furthermore,indigent defendantsbefore the tribunalsare generallyentitled to only one attorney,85 whereasdefendantswho pay for their own representationmay employ as many attorneysas they like and often hire two or more.86 The tribunals have had some difficulty establishing appropriate pay scales for appointed defense counsel. The initial pay scale was significantly lower than the fees earned by typical European and Americancriminal defense attorneysand could only attract those attorneys in essentially pro bono situations.87 The tribunals subsequently raised the rate, which now rangesfrom $8o to $iio per hour,
84 ICTY R.P. & EVID., supra note 23, R. 44(A); ICTR R.P. & EVID., supra note 23, R. 44(A). Furthermore, the ICTY requires that attorneys speak either English or French, but will relax this requirement if the defendant so requests and "the interests of justice so demand." ICTY R.P. & EVID., supra note 23, R. 44(B). The same requirements govern assignment to the list of counsel approved for indigent defendants at the ICTY. ICTY, Directive on Assignment of Defence Counsel, art. 14, at http://www.un.org/icty/basic/counsel/IT73_rev8-e.htm (Dec. I, 2000) [hereinafter ICTY Directive]. The ICTR further requires that appointed counsel speak English or French and have "at least io years' relevant experience," but does not define "relevant." ICTR R.P. & EVID., supra note 23, R. 45(A); accord ICTR, Directive on the Assignment of Defense Counsel, art. i3(i), at http://www.ictr.org/ENGLISH/basicdocs/directiveadc.htm (July i, i999) [hereinafter ICTR Directive]. The ICC draft rules, by contrast, require that "counsel for the defence shall have established competence in international or criminal law and procedure, as well as the necessary relevant experience, whether as judge, prosecutor, advocate or in other similar capacity, in criminal proceedings." Finalized Draft Text of the Rules of Procedure and Evidence, U.N. Preparatory Commission for the International Criminal Court, R. 22, U.N. Doc. PCNICC/2000/Add.I (2000) [hereinafter ICC Draft Rules], available at http://www.un.org/law/icc/statute/rules/english/i-addie.pdf. 85 See ICTY Directive, supra note 84, art. i6(C) (permitting multiple representation of indigent defendants at the ICTY only "[u]nderexceptional circumstances");see also ICTR Directive, supra note 84, art. Is(C) (permitting multiple representation of indigent defendants if "appropriate"and requested by the lead counsel, but subject to the discretion of the Registrar). The Registrar's discretion in the constitution of the defense team may lead to abuse. See infra pp. 2001-02 & n. 117. 86 See, e.g., Tracy Wilkinson, Reason to Take on War Crimes Tribunal, L.A. TIMES, May IS, i998, at Ai. 87 See Mark S. Ellis, Achieving Justice Before the International War Crimes Tribunal: Challenges for the Defense Counsel, 7 DUKE J. COMP.& INT'L L. 519, 529-32 (I997).
200I]
DEVELOPMENTS -
I997
dependingon the attorney'sexperience. This rate is apparentlysufficient to attract numerous European and American attorneys;it is, high for attorneys in other however, likely to be disproportionately parts of the world.89
(b) Difficulties of International Humanitarian and Human Rights Law. - The appellatejudgment in Prosecutor v. Erdemovic,90 which
has attractedacademiccommentaryprimarilyfor its discussionof dudifficultyof litigationbefore indemonstratesthe extraordinary ress,91 ternationalcriminalcourts. Drazen Erdemovic,an ethnic Croat in the Bosnian Serb forces, participatedin the machine-gunningof several
hundred Muslims near Srebrenica in July I995.92 In May i996, the
ICTY indicted him on one count of crimes against humanity,and in the alternative, on one count of war crimes.93 Erdemovic pleaded the prosecutordropped the war guilty to crimes against humanity;94 crimes count; and the trial chamberaffirmedthe guilty plea and sentenced Erdemovic to ten years in prison.95 Erdemovic appealed the sentencingjudgment.96 Althoughthe appealschamberdeclinedto overturnthe plea on the it did overturnthe guilty plea on the babasis that it was equivocal,97 sis that it was uninformed. By a 4-I majority,the appeals chamber determinedthat crimesagainst humanitywere so clearly more serious than war crimes that Erdemovic'slawyer could not possibly have understoodthe substantivelaw when he allowed his client to plead to the
88 ICTY Directive, supra note 84, art. 25 & Annex I; ICTR, Practical Information for Counsel ? 2.1.2.i, at http://www.ictr.org/ENGLISH/1dfms/infoe.htm (Feb. 22, 2001). In addition to the hourly rate, compensation includes $2000 upon the completion of certain trial stages. ICTY Directive, supra note 84, arts. 23-24; ICTR Directive, supra note 84, arts. 22, 23 & n.2. 89 Following the standard U.N. procedure of not discriminating against citizens of thirdworld countries, the rate is uniform for all appointed counsel. Expert Group Report, supra note 56, ? 206 (noting the resulting "windfall" for some attorneys); see also infra pp. 2001-02 (noting difficulties that have ensued from the uniform pay scale). 90 Case No. IT-96-22-A, iii I.L.R. 298 (Int'l Crim. Trib. for Former Yugoslavia App. Chamber Oct. 7, 1997) (Erdemovic Appeals Judgment), available at http://www.un.org/icty/erdemovic/ appeal/judgement/erd-aj97 1007e.htm. 91 See, e.g., Olivia Swaak-Goldman, Prosecutor v. Erdemovid, 92 AM. J. INT'L L. 282 (1998). 92 Prosecutor v. Erdemovid, Case No. IT-96-22-T, [ 2, io8 I.L.R. I8o, 183 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber I Nov. 29, i996) (Erdemovi6 Trial Judgment), available at 2ge.htm. http://www.un.org/icty/erdemovic/trialc/judgement/erd-tsj96I
93 Id.
94
Id. 1 3, io8 I.L.R. at i83-84.
95 Id. 1 3, "Disposition," io8 I.L.R. at i84, 224-25. 96 Erdemovi6 Appeals Judgment, Case No. IT-96-22-A, I i, iii I.L.R. 298, 302 (Int'l Crim. Trib. for Former Yugoslavia App. Chamber Oct. 7, 1997), available at http://www.un.org/icty/
erdemovic/appeal/judgement/erd-aj971oo7e.htm. 97 Id. at "Disposition," iiiI I.L.R. at 314. Although Erdemovid had insisted at the time of his plea that he would have been killed had he not participated in the massacre, a narrow majority of the panel found that duress constituted nothing more than a mitigating factor in war crimes
trials. Id.
I998
HARVARD LAW REVIEW
[Vol.
II4:I943
greater charge.98 Drawing on the transcriptof the plea hearing, the chamber suggested that neither the defendant nor his attorney had of the elementsof eithercrime.99 possesseda thoroughunderstanding This ignoranceshould not be surprising. When confrontingsubstantive law at the tribunals,counsel must venture upon uncharted waters without the guidance of authoritative or easily accessible precedent. The crimes within the subject matter jurisdictionof the ICTY and the ICTR - genocide,crimes against humanity,and war crimes as describedin the Geneva and Hague Conventions- were vaguely defined and seldomenforcedpriorto the creationof the tribunals.'00 Yet for those cases in which gaps arise in the substantive law101 or proceduralrules102 of the tribunals,the judges must inquire into preciselythis body of precedent,as well as a global kaleidoscope of criminallaw and procedure,to divine "customary international law" and "generalprinciples."As a result, the attorneyswho representthe first waves of defendantsin internationalcriminal courts since Nuremberg must often litigate numerousessential, yet inchoate and untested, questionsof law by referringto case law and statutes scattered across the globe, buried for fifty years, and written in languagesfrom Norwegian to Hebrew. Indeed, ICTY and ICTR judges must learn
98 Id. ?1 20-27, III I.L.R. at 327-29 (McDonald & Vohrah, JJ., concurring), available at Ioo7e.htm. http:Ilwww.un.org/icty/erdemovic/appeal/judgement/erd-asojmcd97 99 Id. It I5-27, III I.L.R. at 322-3I ("Defence counsel's statements would indicate a lack of understanding of the offence of a war crime.'). Judge Stephen noted that both Erdemovid and his attorney were familiar with neither "the concept of guilty pleas" nor "the relatively arcane area of international humanitarian law." Id. 1 5, iii I.L.R. at 432 (Stephen, J., concurring in part and dissenting in part), available at http://www.un.org/icty/erdemovic/appeal/judgement/ erd-asojste97 Io07e.htm. 100 The Genocide Convention is only fifty years old, see infra Part IV, pp. 2006-07, and prosecution of statutory genocide has been rare and far-flung, see Payam Akhavan, Enforcement of the Genocide Convention: A Challenge to Civilization, 8 HARv. Hum. RTS. J. 229, 232-33 (1995). Crimes against humanity, essentially invented at Nuremberg, are not much older, and although widespread prosecution at the subsequent post-World War II trials created a substantial body of precedent, consistency in that precedent was generally elusive. See generally Matthew Lippman, Prosecutions of Nazi War Criminals Before Post-World War II Domestic Tribunals, 8 Y.B. INT'L L. i, i8-40 (2000) (outlining divergent precedent on the doctrines of, inter alia, superior orders, command responsibility, and reprisals). War crimes trials, the oldest of the three, have also been held in the widest variety of jurisdictions. See generally Ruth Wedgwood, National Courts and the Prosecution of War Crimes, in i SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW 393 (Gabrielle Kirk McDonald & Olivia Swaak-Goldman eds., 2000) (discussing the roles of national and international courts in prosecuting war crimes). 101 For example, both the majority and the dissents in Erdemovi6 surveyed the law of dozens of nations, case law from Nuremberg and other trials, and academic literature to determine whether duress could provide a complete defense to mass killing. See Erdemovi6 Appeals Judgment, It 4i-87, III I.L.R. at 336-73 (McDonald & Vohrah, JJ., concurring); id. it i8-39, iii I.L.R. at 398-422 (Cassese, President, concurring in part and dissenting in part), available at http:II www.un.org/icty/erdemovic/appeal/judgement/erd-adojcas97Ioo7e.htm. 102 See Affolder, supra note 49, at 464, 475-94.
200I]
DEVELOPMENTS -
I999
the intricaciesof this law alongsidecounsel, and more than once they of a crimeor a have explicitlyrefusedto rule on the legal requirements defense before final judgment,effectively leaving prosecutorsand defense counselto guess.103 (c) Difficulties of Judicial Globalizationand Transjudicialism. Internationaladjudicationis currentlyin an explosive stage: more supranational and internationalcourts appear each year, and existing One result of this courts have radicallyexpandedtheir jurisdiction.104 explosionis the risk of inconsistentadjudicationof facts or application of legal principlesamong differentcourts hearing similar cases. The ICTY and the ICTR sharean appealschamberand theoretically apply consistentlaw,103 but future ad hoc and permanentcriminaltribunals will have no such mechanismto enforcejudicial consistency.106 Other courts unaffiliatedwith U.N. criminaltribunalsadjudicatesimilar issues as well: the InternationalCourt of Justice (ICJ),for example, has taken jurisdictionover a case filed by Bosnia againstYugoslaviaunder the Genocide Convention,107 and national prosecutionsof Rwandan and Yugoslavdefendantshave taken place in Austria,Denmark,Germany,and Switzerland.108 A second phenomenonassociated with the expansion of international adjudicationis a rise in transjudicialism that is, the tendency of judges in differentjurisdictionsand traditionsto cite and follow one another'sreasoning.109For example,to decide whether the Yugoslav conflict was internalor international, the trial chamberin Tadicrelied
103 See, e.g., Peter Krug, The Emerging Mental Incapacity Defense in International Criminal Law: Some Initial Questions of Implementation, 94 AM. J. INT'L L. 3I7, 32I (2000) (noting that one ICTY trial chamber "ruled that it would not define the elements of 'diminished responsibility' . . . prior to issuance of the final Judgement'). 104 See generally The Project of International Courts and Tribunals, at http://www.pictpcti.org/home.html (last visited Apr. 2I, 200i) (charting the expansion of international judicial bodies). 105 But see, e.g., infra section IV.C, pp. 20I9-20 (comparing ICTY and ICTR interpretations of the Genocide Convention). 106 See generally Mark C. Fleming, Appellate Review in the International Criminal Tribunals (200I) (unpublished manuscript, on file with the Harvard Law School Library). The treaty establishing the Sierra Leone tribunal requires it to follow ICTY and ICTR precedent but does not provide for a joint appeals chamber to enforce this command. See Report of the SecretaryGeneral on the Establishment of a Special Court for Sierra Leone 1 40, U.N. Doc. S/2000/9I5 (2000) (rejecting a joint appeals chamber as "legally unsound and practically not feasible"), available at http://www.un.org/Docs/sc/reports/2ooo/9I5e.pdf. 107 See William L. Hurlock, The International Court of Justice: Effectively Providing a Long Overdue Remedy for Ending State Sponsored Genocide (Bosnia-Herzegovina v. Yugoslavia), I2 AM. U. J. INT'L L. & POL'Y 299, 300-I7 (I997). 108 Wedgwood, supra note ioo, at 40I109 See infra sections VI.A.I-2, pp. 2052-58. See generally Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. II03, II04 (2000) (discussing "judicial interaction across, above and below borders, exchanging ideas and cooperating in cases involving national as much as international law").
2000
HARVARD LAW REVIEW
[Vol.
II4:I943
upon the ICJ decision regardingAmericansupport for the contras in Nicaragua.110A i998 study of ICTY and ICTR judicial opinions indicates that the number and pattern of jurisdictionscited reflects the diversity of the membersof the bench.111Althoughthis practicemay ultimately encourageconsistencyand sharperreasoning,in the short term it is likely only to confusepracticinglawyerswho need to synthesize logic and precedentto persuadejudges. (d) Difficultiesof the HybridProcedure.- The proceduralhybrid employedby international criminaltribunalsposes challengesto uninitiated counsel, especiallythose from civil law systems. Indeed, attorneys and commentators have observedthat many of the defense counsel practicingbeforethe tribunalslack relevantexperienceand mastery of necessaryskills.112For example,the procedureadopts a largely adversarial approachin witness examination,relying on vigorous crossexaminationby both prosecutingand defense attorneys. Yet in civil law systems, cross-examination is primarilyleft to the judges. The lead counsel for Tadic, Dutch criminaldefense attorneyand professor Michadl Wladimiroff, recognized before trial his own (and his cocounsel's)lack of adversarialexperienceand, in conjunctionwith the ICTY and the AmericanBar Association'sCentraland East European Law Initiative, arrangedfor a week-long cross-examination training session with one Britishand two Americanattorneys.113
110 Tadic Trial Judgment, Case No. IT-94-I-T, 1 585, II2 I.L.R. i, I89-90 (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber II May 7, I997), available at http://www.un.org/icty/tadic/ trialc2/judgementlindex.htm. Professor Meron has criticized use of the Nicaragua standard. See Theodor Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua's Fallout, 92 AM. J. INT'L L. 236, 236 (I998). The appeals chamber later overturned the Tadic decision. Tadic Appeals Judgment, Case No. IT-94-I, 1t 99--I37 (Int'l Crim. Trib. for Former Yugoslavia App. Chamber July I5, i999), http://www.un.org/icty/tadic/appeal/judgement/index.htm; see Fleming, supra note io6, at 24-27. 1ll Of seventy-six total jurisdictions cited, those most often cited were the United States (I39 citations), the United Kingdom (135), the European Court of Human Rights (96), and Germany (78). Robyn Wood, A Survey of the Domestic Jurisdictions Influencing the Rwanda War Crimes Trials: A Comparative Analysis of French, British, American and Canadian Legal Sources 6, 12I4, i9 (May i999) (unpublished manuscript, on file with the Harvard Law School Library), available at http://www.nesl.edu/center/wcmemos/Iggg/wood.pdf. 112 See, e.g., Wilkinson, supra note 86, at Ai8 ("A lot of prominent [Yugoslav] attorneys think they are ready, but because [the ICTY] is so new, they soon encounter tremendous problems .... The main mistake of some of my colleagues is they want to transfer their knowledge and experience from here to The Hague. But the rules are absolutely different.") (noting remarks of Radovan Karadlid's attorney); Michail Wladimiroff, Rights of Suspects and Accused, in i SUBSTANTIVE AND PROCEDURAL ASPECTS OF INTERNATIONAL CRIMINAL LAW, supra note ioo, at 419, 424-25; id. at 424 ("[P]racticehas unfortunately shown that the relative inexperience of the
defense counsel can be a great disadvantage."). 113 This episode is discussed in Ellis, supra note 87, at 524-26. At the end of the week, unsatisfied with their progress, Wladimiroff and his co-counsel decided it would be easier simply to retain as co-counsel the British barrister assigned to train them. Id. at 526. The hybrid procedures have proved challenging for common law attorneys as well. See Kitty Felde, 'L.A. Law' at a War
2001]
DEVELOPMENTS -
200I
(e) Conflicts of Interest. - The political nature of international criminaltrials lends itself to lawyer-clientconflicts of interest atypical of those encounteredin domestic criminal trials. For example, the governmentof Yugoslaviahas providedethnic Serb defendantsbefore the ICTY with private attorneysas an alternativeto the indigent deA Serbianjournalistalleged fense counsel providedby the tribunal."14 in a I995 magazinearticlethat severalof these Yugoslavattorneys,including Tadic and Djukic's counsel Milan Vujin, were controlledby the State Security Service and were thereforemore concerned with protectingtheir paymastersin Belgradeby refusingto cooperatewith the prosecutorthan with securingthe best possible deal for their clients."15 In a subsequentcontempt of court hearing against Vujin at the ICTY, the journalist testified that a "groupof lawyers was carefully selected . . . [and] given the task of controlling the accused, . . . of
threateningthem that they should not in their testimonyimplicateothers, to tell them that their families were in Yugoslaviain a difficult
situation.""16
Additionally,the strong financial incentives for representingindigent defendantsat the tribunalsmay contributeto misaligningthe interests of defense attorneysfrom those of their clients. The Registry's discretionin approvingcounsel for indigent defendantsgives it influence over a source of potential patronagefor non-Westernattorneys high."7 A U.N. for whom the uniformpay scale is disproportionately
Tribunal: Clash of Legal Systems, Styles, CHRISTIANSCI. MONITOR,July 3, 1997, at 7 (describing judicial irritation at the objection-heavy style of American attorneys in ICTY cases). 114 D'Amato, supra note 83, at 46i. 115 Witness: Belgrade Threatening Hague War Crime Suspects, WORLDNEWS CONNECTION, Aug. 31, i999, i999 WL 26436895; see also Jerome Socolovsky, Belgrade Lawyer Found in Contempt of Yugoslav Tribunal, ASSOCIATEDPRESS, Jan. 31, 2000, Westlaw, Allnewsplus Database; Prosecutor v. Tadid, Case No. IT-94-I-A, I iii (Int'l Crim. [rib. for Former Yugo(contempt judgment), http://www.un.org/icty/tadic/ slavia App. Chamber Jan. 31, 2000) appeal/vujin-e/index.htm (Tadi6 Contempt Judgment). One attorney at the ICTY, an American representing Milan Kovadevid, made a similar observation. See D'Amato, supra note 83, at 46364; cf. B.V.A. ROLING, THE TOKYO TRIAL AND BEYOND: REFLECTIONS OF A 37 (1993) (noting that Japanese defense attorneys at the Tokyo trial endeavored PEACEMONGER "to protect the honour of the country, of the Emperor and Japan, and not to worry too much about the individual fate of an accused man'). 116 Transcript of Hearing, Prosecutor v. Tadid, Case No. IT-94-I-A, at 6i 7, 11.8-IS (Int'l Crim. [rib. for Former Yugoslavia App. Chamber Aug. 31, i999), http://www.un.org/icty/transeI/ 99o83ied.htm. The chamber subsequently found Vujin in contempt and fined him the equivalent of $6ooo. Tadi6 ContemptJudgment?I I I. The appeals chamber also recommended that the Registrar strike him from the list of approved counsel and report his conduct to his bar association. Id. 117 See supra pp. i996-97. The ICTR Registry's use of this discretion has at times appeared arbitrary, as when it instituted a ban on adding Canadian attorneys to the approved list. For a discussion of this incident from the point of view of a defense attorney who worked with a defense attorneys' group that filed an amicus curiae brief on the issue, see Michail Wladimiroff, The
2002
HARVARD LAW REVIEW
[Vol.
114:1943
internalaudit of the ICTR in i998 suggestedthat the Registryhad expedited payment to certain defense counsel in exchange for a portion of the approveddefensefee."18 Similarly,it appearsthat ICTY defendantsthemselves,authorized to choose counsel from the list, have taken advantage of the situation by agreeingto appoint counselin exchangefor paymentsent to the defendants' families back in Yugoslavia."19 These reportsindicate that at least some attorneyswho representdefendantsat the ICTY and the ICTR are chosen more for their amenabilityto paying kickbacksthan for their legal skills and commitment.'20 D. Structural Reformand Fair Trials As the foregoingsurvey indicates,structuralflaws that reduce the effectivenessof defense counsel may conspireagainst defendantswithout regardto factual guilt. In the absenceof uniformlyeffective representation, even a robustly pro-defendantstatutory and regulatory frameworkwould tend to result in an uneven prosecutorialrecord, prejudicingdefendantswhose attorneysdo not effectivelylitigate their
Assignment of Defence Counsel Before the International Criminal T'bunal for Rwanda, 12 LEIDEN J. INT'L L. 957, 957, 963-64, 968 (i999). 118 Financing of the International Criminal Tribunalfor the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States Between I January and 31 December x994, Report of the Secretary-General on the Activities of the Office of Internal Oversight Services, U.N. GAOR, 52nd Sess., Agenda Items 137 & 143, 1? 83, 85-86, U.N. Doc. A1521784(i998), available at http://www.un.org/Depts/oios/reports/a52-784.htm. 119 Expert Group Report, supra note 56, 1 79. 120 Attorney-client conflicts of interest may have been central in Kambanda v. Prosecutor, Case No. ICTR-97-23-A (Int'l Crim. Trib. for Rwanda App. Chamber Oct. 19, 2000), http:// Jean Kambanda, the prime www.ictr.org/ENGLISH/cases/Kambanda/decisions/IgIooo.htm. minister of Rwanda during the genocide, was sentenced to life imprisonment despite pleading guilty and agreeing to cooperate with the prosecution on the advice of his appointed attorney. Id. 1 2. Kambanda initially chose this attorney because the Registrar had refused to appoint Kambanda's first choice, an attorney who had been blacklisted from the ICTR because of a pay dispute in an earlier case. Id. 1 12. Kambanda appealed and requested a new attorney, resting his appeal partly on an ineffective assistance of counsel claim. Id. I io. He provided the appeals chamber with little substantive evidence of ineffective assistance, however, and after cursory examination of this claim, the judges rejected it as unfounded and affirmed the sentence. Id. ? 28. The ineffective assistance plea therefore remained enigmatic in the tribunal judgment; media reports, however, indicate that Kambanda's substantive claim was that the appointed attorney, who was Cameroonian, had been promoted by the Registrar as a favor to the ICTR's Deputy Prosecutor, himself the former president of the Cameroonian Bar Association. See, e.g., Internews, Kambanda Insists upon the Lawyer of His Choice, AFR. NEWS, Oct. 14, 1998, LEXIS, News Library, Allnws File (quoting a five-page letter from Kambanda to the Registrar making this allegation); see also Internews, Former Rwandan Prime Minister Seeks Withdrawal of Guilty Plea, AFR. NEWS, July 4, 2000, LEXIS, News Library, Afrnws File (repeating Kambanda's assertion that the appointed attorney's assignment was "too much of a coincidence" and that he had "worked for the prosecution"). The appeals chamber never addressed this claim.
2001]
DEVELOPMENTS -
2003
claims and simultaneouslyprivilegingother defendants of equal culpability who can afford, or are fortunateenough to be provided with, more effective attorneys. A defense bar of relatively uniform competence and reliability,however,would ensure that like defendants are treated more or less alike. Designers of internationalcriminal fora could then adjust rights and burdensto achieve the best fit with the goals of international prosecutionas a whole. Such uniformityand effectiveness in internationalcriminal defense could best be achieved of the bar throughprofessionalization (and concomitantspecialization) and the creation of an independentdefense unit at the tribunals and the ICC. I. The Casefor Professionalization. Professionalization of the defense bar would primarilybenefit defendantswho must rely on appointed counsel. As discussed above, the substantive and procedural challengesof litigationat the tribunalsfavor attorneyswith specialized experienceand knowledge. The prosecutionhas implicitly recognized this fact by staffing prominentlywith military lawyers.121Similarly, once defense attorneyshave familiarizedthemselveswith the law and procedures of the tribunals,they have tended to return.'22 The tribunalsseem to have recognizedthat professionalism would benefit them institutionally. The ICTY mandates certain objective qualifications,'23has provided a common law skills training pro121 See SCHARF,supranote 26, at 112. 122 Repeat players include Vujin, presidentof the Serbianbar association,who represented both Djukid and Tadidbefore being convictedof contemptof court, see supra p. 2001; SerbAmericanNikola Kostich, who represented, at various points, Tadid,Erdemovid,and Slavko Dokmanovi6,see Mary Reardon,Impunity for None: But Justicefor All? A Defender'sFears, STAR TRIB. (Minn.),Aug. I3, I998, at Ai8; and MichailWladimiroff, who represented both Tadid at the ICTY,see suprap. 2000, and AlfredMusemaat the ICTR,see ICTR,ICTRDetainees, at http://www.ictr.org/ENGLISH/factsheets/detainee.htm (Feb. 22, 200I). Yet the presenceof repeat playersdoes not itself guarantee effectiveness.Indeed,repeatplayersmay be even moresusceptibleto conflictsof interest,especiallywhen ulteriormotives(forexample,allegianceto countriesratherthanclients)drivethemto becomerepeatplayersin the firstplace. Recognition of the value of specialized knowledgeand repeatplayersin international criminal trials has historicalprecedent: the Americans arranging for defenserepresentation at Nuremberg focusedprimarily on Germanattorneys, who couldnot only communicate with theirclients, but also rapidlycomprehend the vast documentary evidenceand sociopolitical issues that might arise at trial. TAYLOR, supranote 6i, at 29-30. Whenpreparing for the ControlCouncilio trials, the Americans focusedadditionally on the "group of 5o or more"Germanattorneys,already familiarwith both the procedureand the law, who had represented defendantsat the international trial of the twenty-twomajordefendants.Id. at 30. Indeed,when Eichmannwas spirited away from Argentinato Israelin i960, the Israelispresentedhim with a list of three choicesof counsel- a Germanliving in Chile,a New Yorklaw firm (whichhad contactedthe court),and Dr. Robert Servatius, who had contacted Eichmann's stepbrotherin Austria. HANNAH
ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL 243 (rev. and
enlargeded., PenguinBooks I994)(i963). Eichmann choseDr. ServatiuspartlybecauseServatius had represented KarlBrandtat the MedicalTrialin Nuremberg.Id. at 70, 243.
123 See supra p. i996 & n.84.
2004
HARVARD LAW REVIEW
[Vol.
114:I943
gram,124 and has even consulted an advisory group of defense attorneys on certain issues.125 Yet these limited efforts are not adequate for
the large and ever-expanding population of lawyers to whom the international community has entrusted international criminal adjudication. Professor Detlev Vagts notes with reference to international lawyers generally that "[a] small, homogenous group, where the members understand what they owe to their profession and to each other, can police itself informally. Also because they are 'repeat players' confronting one another over and over, they have strong incentives to behave so as to be treated as reliable peers."1126 Yet in the international criminal arena, which brings together diverse ethnicities, higher stakes, and more emotional confrontations, the "almost ... complete vacuum" of attorney regulation127 is a significant liability. Moreover, even defendants who are able to secure effective representation are likely to benefit from a more effective defense bar overall. Many trial issues (such as the validity of the defense of duress) implicate interests that resonate across defendants, and whereas prosecutors brief and argue these issues as part of a uniform administration encompassing the ICTR and the ICTY, each defense team does so alone.128 Indeed, much of the law and procedure of the tribunals develops in everyday motion practice before the judges in the Hague and Arusha.129 Any defense counsel ineffectiveness is likely to redound to the substantive and procedural aspects of the law itself. What is needed, then, is a move to a professionalized bar, a group of attorneys who specialize in international criminal defense work and associate with one another in a specialized bar association. A bar association would offer numerous advantages: opportunities for training and professional development (such as courses on cross-examination or the Kinyarwanda language); gatekeeping for accreditation of applicants; a uniform sanctioning organization to promote professional ethics; and an organizational voice to increase the visibility and lobbying
124 See supra p. 2000. The ICTY may be considering a revival of this program. See Expert Group Report, supra note 56, Ad 2 I4-I5. 125 See ICTY Directive, supra note 84, art. 29; ICTR Directive, supra note 84, art. 32; see also Expert Group Report, supra note 56, 1 223 (considering a proposal by the ICTR Association of Defence Advocates). 126 Detlev F. Vagts, Professional Responsibility in TRansborder Practice: Conflict and Resolution, I3 GEo. J. LEGAL ETHICS 677, 688-89 (2000). Professor Vagts notes as well that the ICJ has rebuked counsel only three times in its history. Detlev F. Vagts, The International Legal Profession: A Need for More Governance?, go AM. J. INT'L L. 250, 260 (i996) [hereinafter Vagts, International Legal Profession]. 127 Vagts, International Legal Profession, supra note I26, at 260. 128 But cf. Herbert Kraus, The Nuremberg Thal of the Major War Criminals: Reflections After Seventeen Years, I3 DEPAULL. REV. 233, 244-45 (i964) (discussing a "motion adopted by all Defense Counsels" at Nuremberg objecting to the criminalization of crimes against peace). 129 See Wladimiroff, supra note 11 2, at 428.
2001]
DEVELOPMENTS -
2005
power of its members.130 The unique circumstances of international prosecution - such as the initial requirement of learning international humanitarian law or the difficulties of community-building when attorneys are based halfway around the world - only make the need for these functions more pressing.131 Even a fully pro2. The Case for an Independent Defense Unit. fessional and well trained defense bar would not be sufficient to counter the institutional bias toward the prosecution that defense counsel have reported at international prosecutions from Nuremberg to the ICTY and the ICTR. With the establishment of the ICC, these institutional biases are likely to entrench themselves further among permanent prosecutorial, judicial, and administrative staff, many of whom will presumably transfer from existing ad hoc tribunals. A transient defense bar, under the administrative and budgetary control of the Registry, may lack the incentives and the wherewithal to challenge a pro-prosecution culture. A permanent defense unit, however, would provide defense attorneys and their administrative arm with an organizational voice, accurate and up-to-date information, and a social presence in the host city to rival and mingle with that of the other branches. Perhaps more importantly, judges have employed their plenary rulemaking authority to formulate procedural regulation without significant input from the defense side of the bar.132 The establishment of a permanent defense unit would provide a structural counterbalance to proposals supported by the prosecution.
130 Bar associations serve all of these functions in national legal systems. For example, in the United States, the American Bar Association offers continuing legal education courses, develops standards for attorneys in criminal cases, coordinates attorney disciplinary proceedings with state governments, files amicus curiae briefs, and lobbies Congress on a variety of issues. See generally AM. BAR ASS'N, OVERVIEW ACTIVITIES(2000), available OF AMERICANBAR ASSOCIATION at http://www.abanet.org/media/ overview/december2000.pdf. 131 The closest thing to an international criminal defense bar association today is the International Criminal Defence Attorneys Association (ICDAA), founded in I997 in Montreal. See Wladimiroff, supra note II2, at 426 & n3o0. The ICDAA has been active in lobbying and advocacy at the ad hoc tribunals and the ICC, see supra note II7 (advocacy as amicus curiae); intra note I34 (lobbying), and currently boasts over one hundred members, see Int'l Criminal Def. Attorneys Ass'n, ICDAA List of Members, at http:/www.hri.ca/partners/aiad-icdaa/memberlistE. shtml (last visited Apr. i8, 200i), although only a handful have represented defendants before the tribunals, see ICTR, ICTR Detainees, at http://www.ictr.org/ENGLISH/factsheets/detainee.htm (Feb. 22, 200I) (listing defense counsel); ICTY, Indictments and Proceedings, at http:// www.un.org/icty/ind-e.htm (last visited Apr. i8, 200I) (listing case documents with names of defense counsel). 132 See Louise Arbour, The Status of the International Criminal Tribunalsfor the Former Yugoslavia and Rwanda: Goals and Results, 3 HOFSTRAL. & POL'YSYMP.37, 45 (I999).
2006
HARVARD LAW REVIEW
[Vol.
II4:I943
Commentatorshave called for such a unit, both at the tribunals notes that "[theICC's] structure and at the ICC.133One commentator could be greatly strengthenedby the creationof a Bureau of Defense which could mainCounsel,analogousto the Office of the Prosecutor," tain the list of approvedattorneys,train them in the specializedprocedures, redressinstitutionalbias, and generally"go far toward guaranteeing that the right to counsel truly means the right to adequate and effective counsel."1134 E. Conclusion As internationalprosecutionbecomesmore establishedand professional, it is internationaldefense that remains ad hoc. Consequently, efforts at expanding the role of internationalcriminal law are hampered by criticismthat defendantsare being denied the right to a fair trial. Internationalcriminal prosecutionsare a distinct breed. They should not be regulatedmerelyby referenceto analogousinternational conventionsand national laws, nor should they all be regulatedalike. Instead, the unique nature of each mass atrocity should be respected by ad hoc tribunalsand by the ICC with flexible rules of procedure that are left open to substantialinterpretation by judges. To avoid unfair adjudicationsand institutional biases that pervert these flexible rules and procedures,however,the defense branch must be strengthened. The developmentof a professionalinternationalcriminal defense bar and the creation of an independentdefense unit would be relatively inexpensivesolutions that would go a long way toward redressing the specific challengesfaced by attorneysrepresentingdefendants in the Hague and Arusha. Following the recommendations in this Part would not only strengtheninternationalcriminal defense; it would also help ensure that internationalprosecutioncan more effectively fulfill its own mandate.
133
(2000); MichaelPlachta,Concerns Aboutthe Independence of DefenseCounselBeforethe (Permanent)International Criminal Court,i6 INT'L ENFORCEMENTL. REP. 576, 576-77 (2000).
134 Gallant, supra note I33, at 42. The ICDAA has lobbied for the creation of an independent defense unit at the ICC as well. See, e.g., ICDAA, Briefing Paper on Establishing an Office of the Defense, at http://www.hri.ca/partners/aiad-icdaa/reports/position.htm (Feb. i8, i999). Neither the ICDAA's proposal nor various state proposals led to the incorporation of such a unit in the ICC draft rules, however. See ICC Draft Rules, supra note 84.
ILSA J. INT'L & COMP.L. 555, 564 (2000); KennethS. Gallant,TheRole and Powersof Defense Counsel in the Rome Statute of the InternationalCriminalCourt,34 INT'L LAW. 2I, 42-44
See, e.g., Diane MarieAmann,TheRightsof the Accusedin a GlobalEnforcement Arena,6
2001]
DEVELOPMENTS -
2007
IV. DEFINING PROTECTED GROUPS UNDER THE GENOCIDE CONVENTION
The Conventionon the Preventionand Punishmentof the Crimeof Genocide(GenocideConvention)'went into effect in I95i, but nearly half a century passed before the internationalcommunity witnessed the first genocidetrial in an independentinternationaltribunal.' The in the mass i998 convictionof a Rwandanofficial for his participation killings in Rwanda, however,opened the floodgates for prosecution.3 During the last three years, there have been numerous indictments, trials, and convictionsin both the InternationalCriminalTribunalfor the FormerYugoslavia(ICTY)4and the InternationalCriminalTribunal for Rwanda (ICTR).5 Given the internationalcommunity'sinitial
1 Convention on the Prevention and Punishment of the Crimeof Genocide,Dec. 9, I948, 78 U.N.T.S.277 [hereinafter Genocide into forceJan. 12, I95 I). Many scholars Convention] (entered arguethat genocide- the intentional destruction of a national,ethnic,racial,or religiousgroup - is the gravestcrimethat an individual can commit. E.g., ALAIN DESTEXHE, RWANDA AND GENOCIDE IN THE TWENTIETH CENTURY 4 (AlisonMarschner trans., i995). The internationalcommunity the gravityof genocideby creatinga separate recognized treaty- the Genocide Convention- that treats genocidemore seriouslythan other types of crime. See WilliamA.
Schabas, Groups Protected by the Genocide Convention: Conflicting Interpretations from the In-
ternational CriminalT7ibunalfor Rwanda,6 ILSAJ. INT'L& COMP. L. 375, 386 (2000) ("Attacks on groupsdefinedon the basis of race,nationality, and religionhave been elevated,by ethnicity, the GenocideConvention, to the apexof humanrightsatrocities, and with good reason.). 2 Prosecutor v. Akayesu, CaseNo. ICTR-96-4-T (Int'lCrim.Trib.for RwandaTrialChamber I Sept. 2, i998), http://www.ictr.org/ENGLISH/cases/Akayesu/judgement/akayooi.htm, was the first genocidetrial and convictionunder the GenocideConvention. Id.; see also Diane F. Orentlicher,Genocide, in CRIMES OF WAR: WHAT THE PUBLIC SHOULD KNOW I53, I53 (Roy Gutman& David Rieff eds., i999) (notingthat a defendantin a previouscase had pleadedguilty to a chargeof genocide,therebyobviatingthe need for a trial);cf. IRVINGLOUIS HOROWITZ,
TAKING LIVES: GENOCIDE AND STATEPOWER 23 (4th expanded and rev. ed.
1997)
("[Tlhe
series of proclamations designedto halt the spreadof genocide,approvedand even ratified,remainedlargelyunenforced.").

3 See, e.g., Report of the International Criminal l7ibunalfor the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territoryof Neighbouring States Between i January and 31 December z994, U.N. GAOR,55th Sess., AgendaItem 53, 1 I, U.N. Doc. A/55/435, S/20001927 (2000)
("During the periodunderreview,[t]heInternational for Rwanda(ICTR),renCriminal Tribunal deredthreejudgements, bringingthe total numberof judgements rendered thus far to seven, involving eight accused persons.); Report of the International 7Tibunalfor the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since I99I, U.N. GAOR,54th Sess., AgendaItem 53, U.N. Docs. A/54/I87, S/I999/846 (i 99) (listing twenty-five public indictments and sixty-five indictees). 4 See Statute of the International Tribunal, 32 I.L.M. II92 [hereinafter ICTY Statute], avail-
able at http://www.un.org/icty/basic/statut/statute.htm, adopted by S.C. Res. 827, U.N. SCOR,

48th Sess., 32I7th mtg. at 6, U.N. Doc. S/RES/827 (I993), 32 I.L.M. I203.
S See Statute of the International Tribunalfor Rwanda,33 I.L.M. I602 [hereinafter ICTR Statute],availableat http://www.ictr.org/ENGLISH/basicdocs/statute.html, adoptedby S.C. Res. 955, U.N. SCOR,49th Sess.,3453dmtg. at 3, U.N. Doc. S/RES/95 (I994),33 I.L.M.I6oo.
2 oo8
HARVARD LAW REVIEW
[Vol.
II4:I943
reluctance to establish independent international tribunals,6 the success of the ICTY and the ICTR in the indictment, prosecution, and conviction of defendants for genocide and other crimes marks a turning point in international criminal law. The ICTY and the ICTR, however, have struggled to overcome the critical challenge of defining and interpreting the term "ethnical group"7as used in the Genocide Convention. In particular, the convention's vague language creates interpretive dilemmas in identifying group status. As a result, judges have considerable discretion in defining and identifying ethnic groups; this discretion allows courts the flexibility to adapt to changing circumstances but also threatens to alter the scope of the Genocide Convention. This Part focuses on the international tribunals' attempts to define "ethnical groups" for purposes of determining the scope of protection of the Genocide Convention. Section A traces the historical development of the Genocide Convention and analyzes the convention's purposes, focusing on its legal provisions and omissions. Section B describes the history and development of both the ICTY and the ICTR and then explores several cases that epitomize recent developments in international law regarding genocide prosecutions. It examines the interpretive problems stemming from the need to give substance to the definition of "ethnical group" under the Genocide Convention. Section C compares the legal tests that the tribunals have adopted in these cases and concludes that although similar, the tests differ notably in the significance that each tribunal chamber accords the concepts of stability and permanence in defining ethnic groups. Section D discusses the ramifications of these differences and observes that the Genocide Convention's ambiguity regarding how to define ethnic groups affords the chambers a significant amount of flexibility in their interpretations. Section D suggests that although this flexibility permits considerable discretion, it is ultimately problematic. Finally, section E concludes that given the gravity of genocide, international tribunals should strive for consistency not only in their conclusions, but also in their legal tests. A. Historical Development of the Genocide Convention
i.
Origins of the Term "Genocide". -
The Genocide Convention
indeed, the term genocide itself
is of relatively recent origin,
even though acts encompassed by the modern definition of genocide
6 See Bartram S. Brown, The International Criminal 7Wibunalforthe Former Yugoslavia, in 3 INTERNATIONAL CRIMINAL LAW489, 489 (M. CherifBassiouni ed., 2d ed. i999). 7 This Part uses the term "ethnic" interchangeably with the Genocide Convention's term "ethnical." See Genocide Convention, supra note i, art. II, 78 U.N.T.S. at 282.
200I]
DEVELOPMENTS -
2009
date back to "the very dawn of civilization."8 Raphael Lemkin, a Polish jurist who served as an advisor to the U.S. War Ministry,9 "coined the term genocide in I943, under the impact of news about the Nazis' murder of European Jews."'0 Lemkin's definition of genocide "centered on the requirement of a coordinated plan to destroy the 'essential foundations' of the life of a group, with the aim of eliminating the
group."
Before the creation of the Genocide Convention, however, genocide was not considered a distinct crime; insteadea, the extermination of national and racial groups was conceptualized as a distinct category of crimes against humanity and war crimes which constituted an exaggerated form of murder."112 Moreover, although the Nazi Holocaust of World War II represents the "paradigmatic case of genocide,"'3 the term never surfaced in the Nuremberg Charter or in the judgment.14 In fact, the only mention of the word "genocide" at Nuremberg came in the indictment. In I946, outraged by the Holocaust, the United Nations General Assembly unanimously passed Resolution 96(I), condemning genocide as a crime under international law and calling for a draft convention
8 WARREN FREEDMAN, GENOCIDE: A PEOPLE'S WILL TO LIVE 37 (I992) ("Genocide has unfortunately been a product of the ages from the very dawn of civilization. Groups of peoples, tribes and clans, peoples and nations, have all resorted to mass annihilation of other peoples for a variety of reasons. Religious persecution was undoubtedly one of the earliest known causes of genocide, but it was not until the modern era that the deliberate destruction of human groups truly became an international concern.");see also, e.g.,LEO KUPER, GENOCIDE: ITS POLITICAL USE IN THE TWENTIETH
CENTURY ii (i98i)
("The word is new, the crime ancient.").

I2-I4.
Kuper
cites the Spanish Inquisition and the Crusades as examples of ancient genocides. Id. at 9 DESTEXHE, supranote I, at 3.
10 MICHAEL R. MARRUS, THE HOLOCAUST IN HISTORY 2I (i987).
The term combines the
Greek word for race or tribe, genos, with the Latin word for killing, cide. RAPHAELLEMKIN, AXIS RULE IN OCCUPIEDEUROPE:LAWSOF OCCUPATION, ANALYSISOF GOVERNMENT, PROPOSALSFOR REDRESS 79 (I944). Lemkin's term received substantial exposure with the publication of his book in I944. See id. Thus, i944 is often the date associated with the origin of the term genocide. See, e.g., STEVEN R. RATNER & JASON S. ABRAMS,ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW:BEYOND THE NUREMBERG LEGACY24 (I997). 1 RATNER& ABRAMS,supranote io, at 24. Lemkin's conception of genocide involved two phases: the "destruction of the national pattern of the oppressed group" and the "imposition of the national pattern of the oppressor." LEMKIN, supra note io, at 79. Lemkin stressed that genocideie is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group."
Id.
12 Matthew Lippman, The Convention on the Preventionand Punishmentof the Crimeof Genocide: Fifty Years Later,is ARiz. J. INT'L & COMP.L. 4I5, 427-28 (i998). 13 Thomas W. Simon, DefiningGenocide, is WIS. INT'L L.J. 243, 243 (i996).
14 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, I945, 59 Stat. I544, 82 U.N.T.S. 279.
20I0
HARVARD LAW REVIEW
[Vol.
II4:I943
the on genocide." Finally,on December9, I948, after severaldrafts,16 GeneralAssemblyunanimously adoptedthe GenocideConvention."7 - (a) LegalProvisions of the Con2. The GenocideConvention. vention. - The Genocide Convention has nineteen articles; the first three comprisethe core of the convention,as they contain the critical provisions and the definitionsof genocide. Article I "confirm[s] that genocide, whether committedin time of peace or in time of war, is a crime under internationallaw which [the contractingparties] undertake to preventand to punish."18 ArticleII defines genocideunderthe conventionby listing both protectedgroupsand criminalized acts:
[G]enocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing membersof the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destructionin whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferringchildren of the group to another group.19
Article III delineatesthe acts punishableunder the convention,which include only the following:genocide, conspiracyto commit genocide, direct and public incitementto commit genocide, attempt to commit genocide,and complicityin genocide.20 (b) Notable Omissions.- The draftersof the Genocide Convention were torn betweenthe specificdesireto censurethe Nazis publicly for the atrocitiesthey committedand the broad "aspirationto craft a conventionwhich was sufficientlyexpansiveto anticipateand prevent future acts of genocide."21 This tension resultedin many compromises
15 G.A. Res. 96, U.N. GAOR, ist Sess., pt. 2, at i88, U.N. Doc. A/64/Add.I (1946). The resolution further recognized: Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. Id. at i88-89. 16 See, e.g., Draft Convention on the Crime of Genocide, U.N. Doc. E/447 (i947). For descriptions of the drafting process, see RATNER & ABRAMS, supra note io, at 25-27; and Lippman, supra note 12, at 449-5i. Records of the U.N. General Assembly reflect significant initial resistance to the idea of a convention on genocide. See id. 17 Genocide Convention, supra note 1, 78 U.N.T.S. 277. 18 Id. art. I, 78 U.N.T.S. at 280. 19 Id. art. II, 78 U.N.T.S. at 280. 20 Id. art. III, 78 U.N.T.S. at 280. 21 Lippman, supra note I 2, at 452.
200I]
DEVELOPMENTS -
20I I
"Whatwas left out within the convention. As one observercomments: of the conventionis as importantas what was included."22 Althoughnotably absent from the final draft of the GenocideConvention, political groups were among the categoriesthat the drafters initially consideredfor protection. During the draftingprocess,opponents of the inclusionof political groupsarguedthat "unlikethe other groups covered by the Convention,political groupsdo not have stable and permanentattributesand that, as voluntary organizations,they are differentfrom the other protectedgroups."23 Accordingto the Soviet delegate, "the real reason for the exclusion of politically-defined groups [was] that their inclusionwould be contraryto the 'scientific' definition of genocideand would reduce the effectivenessof the Convention if it could then be appliedto any politicalcrimewhatsoever."24 A more compellingexplanationfor the exclusion,however,may be that it was a political compromisenecessaryto obtain the signatureof the Soviet Union.25 As one scholarargues,it is likely that the basis for excluding political groups was that "[t]oomany governments,it seemed, would be vulnerableto the chargeof genocideif deliberatedestruction of politicalgroupsfell within the crime'scompass."26 The conventionalso appearsto exclude intentionallythe notion of a concept that posed various problemsduring the cultural genocide,27 drafting process. Opponentsof including cultural groups pointed to "28 the difficulty of precisely defining the term "cultural genocide.
22
Orentlicher, supra note
2,
at
154.
23 RATNER& ABRAMS,supra note io, at 32. 24 DESTEXHE, supra note I, at 5. 25 Diane Marie Amann, Under Deconstruction: International Criminal Law in a Postmodern World, 3 GREEN BAG 369, 369 (2000) (noting Stalin's opposition to including political groups in
the Genocide Convention and the Soviet Union's success in ultimately excluding such groups); see also Orentlicher, supra note 2, at 154 (noting that signatory governments might face liability if the Genocide Convention included political groups). 26 Orentlicher, supra note 2, at 154; cf HOROWITZ, supra note 2, at 12 ("[P]oliticaldefinitions invariably mean what other nations do to subject populations, never what one's own does to its subjects or citizens."). 27 See Orentlicher, supra note 2, at I54 (defining the "concept of cultural genocide [as] destroying a group through forcible assimilation into the dominant culture"). The terms of the convention are narrower than Lemkin's definition of genocide, which encompassed the destruction of a culture. See LEMKIN, supra note io, at 79 (describing the objectives of a genocidal plan as the "disintegration of the political and social institutions, of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups" (emphasis added)). 28 RATNER& ABRAMS,supra note io, at 29. Opponents also worried that cultural genocide claims would prove especially difficult to handle given the convention's intent requirement. Furthermore, cultural genocide does not entail physical destruction of the group in the same way that other forms of genocide do. Rather, in the opinion of the U.N. Secretary-General and the Ad Hoc Committee, cultural genocide "included such acts as prohibiting the use of a language and destroying or preventing the use of libraries, museums, places of worship, or other cultural institu-
20I2
HARVARD LAW REVIEW
[Vol.
114:1943
They feared that its inclusion would lead to spurious claims, which would detractfrom the legitimacyof the convention'soverarchinggoal namely, the preventionof the physical exterminationof protected groups.29 As a result of the opposition and conflict surroundingthe criminalizationof cultural genocide, the drafters ultimately excluded the concept,thus limitinggenocideto "essentially physicalacts."30 B. Enforcement of the GenocideConvention The U.N. SeI. The Establishmentof InternationalTribunals. curity Council establishedthe ICTY and the ICTR to prosecutepersons accused of genocide and other serious crimes.3' The U.N. statutes creatingthe tribunalsdefine genocide(using the same languageas that used in the GenocideConvention)and confer upon the tribunals the power to prosecuteand sentence those who commit genocide and other acts definedin the statutes.32 and the Formation of (a) The Conflict in the Former Yugoslavia the ICTY - Although the conflict that spurredthe formationof the ICTY began in I99I, strainedrelationshave existed and conflictshave erupted both between the Serbs and the Croatiansand between the Serbs and the Bosnian Muslims for centuries.33 The conflict stems a Serfrom the long-held Serbiandesire to form a "GreaterSerbia,"34 bian nation free of all non-Serbs. The Serbsengagedin a campaignof "ethnic cleansing"to effectuate this goal,35and by 1993, more than people had died at the hands of the Serbs.36 The proponents 200,000 of the "GreaterSerbia"plan were also responsiblefor widespreadde-
tions or objects." Id. Many therefore concluded that cultural genocide should be categorized as a crime against humanity or a human rights violation rather than as an act of genocide. Id. 29 Nevertheless, article II(e), which prevents the forcible transfer of children to another group, seems to reflect Lemkin's desire to protect against cultural genocide. See RATNER & ABRAMS, supra note io, at 29 n.24; Orentlicher, supra note 2, at 154. 30 Simon, supra note 13, at 252. 31 The International Criminal Court (ICC) also will possess the jurisdiction and ability to prosecute crimes of genocide. Rome Statute of the International Criminal Court, July 17, i998, art. 6, at 6, U.N. Doc. A/CONF.i83/9 (i998), 37 I.L.M. 999, 1004 [hereinafter Rome Statute] (establishing the ICC), available at http://www.un.org/law/icc/statute/romefra.htm. 32 See, e.g., ICTR Statute, supra note 5, art. 2, 33 I.L.M. at 1602-o3 (using the same language as the Genocide Convention to describe the crime of genocide); ICTY Statute, supra note 4, art. 4, 32 I.L.M. at I193 (same); cf. Rome Statute, supra note 32, art. 6, 37 I.L.M. at i004 (using the same language for the statute establishing the ICC). 33 See Introduction to GENOCIDE: ETHNIC CLEANSING IN NORTHWESTERN BOSNIA 7 (Ante Beljo & Bolica Ercegovoc-Jasmbrovid eds., 1993) [hereinafter ETHNIC CLEANSING].
34 35 36
Id. Id.
David M. Kresock, Note, "Ethnic Cleansing" in the Balkans: The Legal Foundations of For27 CORNELL INT'L L.J. 203, 223 (1994).
eign Intervention,
2001]
DEVELOPMENTS -
2OI3
structionof buildings, culturalmonuments,towns, villages, and natural resources.37 In response to these atrocities, the U.N. Security Council established the ICTY
-
its first-ever judicial body
in I993.38
The pur-
poses of the ICTY "arethreefold:to do justice, to deter furthercrimes, and maintenanceof peace."39 and to contributeto the restoration
(b) The Conflict in Rwanda and the Formation of the ICTR.
Friction between the Hutu and the Tutsi in Rwanda had threatened for decades to break into open conflict. These tensionsfinally reached the surface in i9go, when Hutu radicals, with the help of President Juvenal Habyarimanaand the Rwandan government,began systematically massacringthe Tutsi.40 The violence peaked after the assassinations of PresidentHabyarimanaof Rwanda and PresidentCyprien During the remaining Ntariyamira of Burundi on April 6, I994.41 three weeks of April, approximately ioo,ooo people died.42 The killing continuedthroughJuly i8, i998; final estimatesof the total numberof victims rangefrom 500,000 to I,000,000.43
37 ETHNIC CLEANSING, supra note 33, at 9. 38 Brown, supra note 6, at 489. 39 Annual Report of the International Tribunalfor the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since i99i, Address of Antonio Cassese, President of the ICTY, to the U.N. General Assembly I ii (Nov. 14, 1994), at http:IHwww.un.org/icty/rapportan/first-94.htm. 40 DESTEXHE, supra note I, at 28. Although the names Hutu, Tutsi, and Twa existed prior to colonization, the Rwandans did not distinguish themselves based on their ethnicity before the Belgian implementation of the identity card system. Prosecutor v. Akayesu, Case No. ICTR-96-4T, 1 83 (Int'l Crim. Trib. for Rwanda Trial Chamber I Sept. 2, i998), at http://www.ictr.org/ ENGLISH/cases/Akayesu/judgement/akayooi.htm. In the early twentieth century, while Rwanda was under German and then Belgian colonial rule, "the distinction between the Hutu and Tutsi was based on lineage rather than ethnicity." Id. I 8i. The Tutsi were the nobility, but one could change class through marriage or through the acquisition or loss of wealth. Id. I 8o. Beginning in the 193os, however, the colonizing Belgians formalized the system of ethnic identification through a requirement that each Rwandan carry an identity card denoting his or her ethnicity. Id. 1 83. The Belgians divided the Rwandans by ethnicity: the Hutu represented approximately 84% of the Rwandan population, the Tutsi represented approximately Is%, and the Twa represented the remaining i%. Id. For further detail on the events leading up to the genocide in Rwanda, see id. It 78-iII. 41 DESTEXHE, supra note I, at 31 ("[Ilt is clear that [the presidents' deaths] acted as the fuse for the eruption of the violence which led to the greatest tragedy in the history of the country.'); see also Akayesu I 6.i ("Following the deaths of the two Presidents, widespread killings, having both political and ethnic dimensions, began in Kigali and'spread to other parts of Rwanda."). President Habyarimana's assassination stemmed from his acceptance, under international pressure, of the terms of the Arusha Accords in 1993. DESTEXHE, supra note I, at 31. The Arusha Accords provided for the splitting of power, which diminished the influence of the dominant Hutu. Id. at 28. Thus, the radical Hutu perceived President Habyarimana's signing of the Arusha Accords as an act of betrayal. Id. at 28, 3I. 42 DESTEXHE, supra note I, at 32 ("Africahad never known massacres on such a scale....'2. 43 Akayesu I iiI.
20I4
HARVARD LAW REVIEW
[Vol.
114:1943
In I994, the U.N. SecurityCouncil respondedto these massacres by creating the ICTR.44 The SecurityCouncil's goals for the ICTR, which largelymirrored those for the ICTY, includedseekingjustice for those who were wronged, punishing the wrongdoers,45and "contribut[ing] to the processof nationalreconciliation."46 2. Recent Case Law Regardingthe Prosecution of Genocide. The ICTY and the ICTR have now addressedcharges of genocide, and both have experienceddifficulty providing substance to the ambiguous statutory definition. In several recent cases, the question whether the victim group - particularly,the Tutsi or the Bosnian Muslims - was protectedunder the respectivestatutes governingthe tribunalspresenteda significantinterpretivechallenge. The cases discussed below illustratethe tribunals'struggleto develop standardsfor determiningvictim groupsin genocideprosecutions. (a) The Akayesu Case. - In Prosecutorv. Akayesu,47 the first prosecutionin the newly formedICTR, the prosecutorchargedJeanPaul Akayesu,a Hutu, with the genocideof the Tutsi.48In considering whether to classify the Tutsi as a protectedgroup, the trial chamber enumeratedthe four groups protectedunder section 2(2) of the ICTR
statute
-
national, ethnical, racial, and religious49-
but asked only
whetherthe Tutsi were a distinct ethnic group. The chamber'sdefinition of an ethnic group as "a group whose membersshare a common language or culture"50 presenteda potential problemfor the prosecution because the languageand cultureof the Hutu and the Tutsi were essentiallythe same.5" Accordingly, the chamberdid not characterize the Tutsi as a distinctethnic group. The chamberconsideredwhetherit was strictlylimited by the four protected groups listed in the Genocide Convention and the ICTR statute, and concludedthat it was not.52 Based on its analysis of the travauxpr6paratoires of the GenocideConvention,the chamberinter44 See S.C. Res. 955, supra note 5, 33 I.L.M. at i6oo. 45 Id., 33 I.L.M. at i6oi. 46 Id. 47 Case No. ICTR-96-4-T (Int'l Crim. Trib. for Rwanda Trial Chamber I Sept. 2, 1998), at http://www.ictr.org/ENGLISH/cases/Akayesu/judgement/akayooI.htm. 48 Id. 1 6. The prosecutor also charged Akayesu with crimes against humanity and violations of article 3 common to the Geneva Conventions. Id. 49 Id. 1 5io; see ICTR Statute, supra note 5, art. 2, 33 I.L.M. at I6o2-03; Genocide Convention, supra note i, art. II, 78 U.N.T.S. at 280. 5 Akayesu 1 513. 51 Id. 1 170; see also supra note 41 (discussing the historical lack of ethnic differences between the Hutu and the Tutsi). 52 Akayesu 'I 5i6 ("[T]he question that arises is whether it would be impossible to punish the physical destruction of a group as such under the Genocide Convention, if the said group, although stable and membership is by birth, does not meet the definition of any one of the four groups expressly protected by the Genocide Convention.").
200I]
DEVELOPMENTS -
20I5
preted the convention as protecting"'stable' groups, constitutedin a permanent fashion and membership of which is determined by birth."53Moreover,the chamberfound that the intentionof the Genocide Convention's drafters"was patently to ensure the protection of any stable and permanentgroup."54 In consideringwhether the Tutsi were a "stable and permanent" group, the Akayesu chamber examined many characteristicsof the Hutu and the Tutsi for objective factorsto distinguishthe groups and found "a numberof objective indicatorsof the [Tutsi]as a group with a distinct identity."55 For example, the chamber noted that before I994, every Rwandan was requiredto carry an identity card, which stated, among other information,his or her "ethnic"group - Hutu, Tutsi, or Twa.56 Additionally,the chamberfound that the Rwandan constitutionand laws applicablein I994 referredto Rwandansby their that these legal distinctionswere based on birth, and ethnic groups,57 that a child inherited his or her father's ethnicity in Rwandan society.58 The chamber had noted earlier that defining oneself by one's ethnic group had become ingrainedin Rwandan culture.59 Furthermore, that the perpetratorsperceived the Tutsi as a distinct ethnic group, the chamberasserted,providedadditionalsupportfor the conclusion that the Tutsi were a distinct group.60 Based on these factors, the Akayesu chamberreasonedthat the Tutsi constitutedthe type of stable and permanentgroup that the drafters of the convention intended to protect and thereforefell within the scope of the statute. Once it classifiedthe Tutsi as a protectedgroup,the chamberwas able to find Akayesuguilty of genocide.61 the (b) The Kayishema Case. - In Prosecutorv. Kayishema,62 prosecutioncharged Clement Kayishemaand Obed Ruzindana each with four counts of genocidefor their participationin the massacreof
53 Id. 1 s". 54 Id. 1 516. 55 Id. 170. 56 Id. 57 Id. 58 Id. 1 772. S9 Id. 1I7I; see id. 1 1 72 (stating that because the Belgians imposed the ethnic group classifications, the delineation of the groups had become embedded "to such an extent that this division into three ethnic groups became an absolute reality"(internal quotation marks omitted)). 60 Id. 17 I'. 61 Id. 1 734. The chamber also found Akayesu guilty of seven counts of crimes against humanity and one count of direct and public incitement to commit genocide. Id. The Akayesu case was remarkable not only because it was the ICTR's first genocide conviction, but also because it was the first conviction in an international tribunal for rape as genocide. Id. 1 731. The chamber observed that rape and sexual torture had advanced Akayesu's overall plan to destroy the Tutsi while causing them severe mental and physical pain. Id. 1 733. 62 Case No. ICTR-95-I-T (Int'l Crim. Trib. for Rwanda Trial Chamber II May 21, 1999), http://www.ictr.org/ENGLISH/cases/KayishemaRuzindana/judgement.htm.
20i6
HARVARD LAW REVIEW
[Vol.
II4:I943
thousands of Tutsi.63 As in Akayesu, the chamber had to resolve the threshold question whether the Tutsi were protected under the Genocide Convention and the ICTR statute.64 The Kayishema chamber adopted a combination of the Akayesu chamber's more traditional definition of an ethnic group - a group with members who have a common culture or language65- and a more subjective definition - a group that identifies itself as a distinct group or that others identify as such.66 Like the Akayesu chamber, the Kayishema chamber determined that the Tutsi did not satisfy the first, more objective definition of a distinct ethnic group. Citing prosecution witness Andre Guichaoua's statement that the Hutu and the Tutsi have the same cultural traditions, speak the same language, and believe the same legends, the chamber concluded that "these shared characteristics could be tantamount to a common ethnicity."67 Looking beyond the shared language and culture of the Hutu and the Tutsi, however, the chamber found that the Tutsi satisfied the second, more subjective definition of an ethnic group, primarily because the Rwandan government viewed them as having a distinct ethnicity. The chamber explained that the Rwandan government adhered to the system of identification by ethnic status, which had begun during the Belgian colonization68 and which required all Rwandan citizens to carry identification cards.69 Moreover, the chamber asserted that fromrmits inception, the identification card has been used to facilitate discrimination against one group or another in Rwanda, be it in the implementation of an ethnic based quota system in educational and employment opportunities or in implementing a policy of genocide as was done in I994."70 Further observing that under Rwandan custom ethnicity is derived patrilineally, the chamber concluded that the gov-
64 Decisions of earlier chambers have persuasive, but not binding, authority over later chambers. See, e.g., id. 1 526 (referring to the Akayesu chamber's finding that the Tutsi were an ethnic group). 65 Id. 1 98. By comparison, a racial group "is based on hereditary physical traits often identified with geography. A religious group includes denomination or mode of worship or a group sharing common beliefs." Id. 66 Id. (describing an ethnic group as "a group which distinguishes itself, as such ... or, a group identified as such by others, including perpetrators of the crimes'). 67 Id. 1 34 (noting that before colonization "the line separating the Hutus and Tutsis was permeable as the distinction was class-based"). 68 Id. 1 35. 69 Id. 1 523. 70 Id. 1 35. One of the prosecution's expert witnesses "confirmed that all Rwandans were required to identify themselves by ethnicity on official documents" and stated that "identification based on ethnicity was a highly divisive issue in Rwanda." Id. 1 524.
63 Id. I? 31, 38, 44, 5.
200I]
DEVELOPMENTS -
2OI7
ernment viewed the Tutsi as a distinct ethnic group,71 thereby satisfying the second, more subjective definition. Thus, the chamber held that the Thtsi were protected under the ICTR statute as an ethnic group72and found Kayishema and Ruzindana guilty of genocide.73 (c) The Rutaganda Case. - Prosecutor v. Rutaganda74 also stemmed from the I994 mass killings in Rwanda. In that case, the prosecutor charged Georges Rutaganda with one count of genocide for killing Tutsis.75 Because of the lack of "generally and internationally accepted precise definitions" of the four groups protected under the Genocide Convention, the Rutaganda chamber declared that it needed to define each group in the context of the relevant political, social, and cultural conditions.76 Although the chamber emphasized that "for the purposes of applying the Genocide Convention, membership of a group is, in essence, a subjective rather than an objective concept,"77it also stated that "a subjective definition alone is not enough to determine victim groups, as provided for in the Genocide Convention."78 In particular, the chamber said that a group must also be relatively stable and permanent in order to qualify as a protected group under the convention.79 Under its case-by-case analysis,80the Rutaganda chamber looked to the holdings of other chambers but ultimately assembled its own constellation of arguments.81 The chamber first noted its agreement with the Akayesu chamber that the Tutsi shared the same language and culture as the rest of the Rwandan population, but also found several "objective indicators of the [Tutsi] as a group with a distinct identity."82 Looking to the system of mandatory identity cards, references
71 Id. ? 523-
72 Id. ? 526 ("The Trial Chamber finds beyond a reasonable doubt that the Tutsi victims of the massacres were an ethnical group as stipulated in Article 2(2) of the Statute, and were targeted as such.').
73
74
Id. ? VIII.
Case No. ICTR-96-3-T (Int'l Crim. Trib. for Rwanda Trial Chamber I Dec. 6, I999), 39 I.L.M. 557, available at http://www.ictr.org/ENGLISH/cases/Rutaganda/judgement.htm. 75 Id. ? I.2, 39 I.L.M. at 559-6i. The prosecutor also charged Rutaganda with four counts of crimes against humanity and three counts of violations of article 3 common to the Geneva Conventions. Id. 76 Id. ? 2.2, ? 56, 39 I.L.M. at 568. 77 Id. 78 Id. ? 2.2, 57, 39 I.L.M. at 569. 79 Id. ("It appears, from a reading of the travaux priparatoires of the Genocide Convention, that certain groups, such as political and economic groups, have been excluded from the protected groups, because they are considered to be 'mobile groups' which one joins through individual, political commitment. That would seem to suggest a contrario that the Convention was presumably intended to cover relatively stable and permanent groups." (citation omitted)). 80 Id. ? 2.2, ?1 8, 39 I.L.M.at 569. 81 See id. ? 4.8, It 374, 376, 39 I.L.M. at 615. 82 Id. ? 4.8, 1 374, 39 I.L.M. at 6I5.
20i8
HARVARD LAW REVIEW
[Vol.
II4:I943
to ethnicity in the Rwandan laws and constitution prior to I994, and the custom of patrilineal inheritance of ethnicity,83 the chamber held that ethnic identification had become embedded in Rwandan culture to such an extent that the Tutsi constituted a permanent and stable group.84 The chamber then concluded that "[i]n Rwanda in I994, the Tutsi constituted an ethnic group."85 Furthermore, because all the witnesses "referred to the Tutsi as a particular group and identified themselves before the Chamber by ethnicity,"86 the chamber found that the ethnic distinctions survived the I994 abolition of the official use of ethnicity. Based on this combination of subjective and objective factors, the chamber held that the Tutsi were a protected group under the Genocide Convention - and therefore under the ICTR statute87 and convicted Rutaganda of genocide.88 (d) The Jelisic Case. - In Prosecutor v. Jelisic,89 the trial of the "Serb Adolf,"90Goran Jelisic pleaded guilty to crimes against humanity, which targeted the Bosnian Muslims, and to violations of the laws or customs of war.91 Because a genocide charge remained, the ICTY, like the ICTR, was compelled to address the issue of how to define an ethnic group.92 The Jelisic chamber reviewed the Akayesu and Kayishema decisions, as well as the Genocide Convention and its preparatory material.93 The Jelisic chamber held, in line with the Akayesu chamber, that the "preparatory work of the Convention demonstrates that a wish was expressed to limit the field of application of the Convention to protecting 'stable' groups objectively defined and to which
83 Id.
84 85
Id. Id.
86 Id. ? 4.8, ? 375, 39 I.L.M. at 6I5. The chamber observed that "the Defence did not challenge the fact that the Tutsi constitute a group protected under the Genocide Convention, and further note[d] that the [Kayishema Judgement] and the Akayesu Judgement establish that the Tutsi group is a group envisaged by the Genocide Convention." Id. ? 4.8, ? 376, 39 I.L.M. at 6I5 (citations omitted). 87 88
Id.
Id. ? 6, 39 I.L.M. at 625. The chamber also convicted Rutaganda of two counts of crimes against humanity. Id. 89 Case No. IT-95-Io (Int'l Crim. Trib. for Former Yugoslavia Trial Chamber I Dec. I4, I999), http://www.un.org/icty/brcko/trialci/judgement/index.htm. 90 Id. 1 3 ("Goran Jelisic ... introduced himself as the 'Serb Adolf', said that he had come to Brcko to kill Muslims and often informed the Muslim detainees and others of the numbers of Muslims he had killed."). 91 Id. 1 24. 92 The question whether the victim group was an ethnic group did not figure as prominently in JelisiMas in the other cases discussed above because it was largely uncontested that the Serbs, Croats, and Muslims were members of different ethnic groups. Nevertheless, the Jelisi6 chamber addressed the issue to the extent necessary to determine whether the ICTY statute provided protection to the victims. 93 Id. I 6i.
2001]
DEVELOPMENTS -
2OI9
individuals belong regardless of their own desires."94 Although it determined that the drafters of the convention intended to define protected groups on an objective basis, the Jelisic chamber stated that no appropriate objective criteria for defining national, ethnical, and racial groups existed.95 Moreover, the chamber stressed the perils of an objective approach, noting that it might not comport with the understanding of those affected by the classification.96 Consequently, the chamber turned to subjective factors - particularly, the perspective of the perpetrator of the crime - in its determination of group membership.97 The chamber held that a community's stigmatization of a certain group as a distinct national, ethnic, or racial group is the dispositive factor in judging whether the alleged perpetrators perceive the target group as such.98 The chamber also required the prosecution to prove that the accused "chose his victims discriminatorily."99 The chamber found that Jelisic both knew of and supported the discriminatory aspect of his actions.100 Ultimately, however, the chamber concluded that the prosecutor had failed to prove beyond a reasonable doubt that Jelisic possessed the special intent to conduct an independently planned genocide.101 Rather, the chamber held that Jelisic's actions seemed "to indicate that, although he obviously singled out Muslims, he killed arbitrarily rather than with the clear intention to destroy a group."1102 The chamber therefore acquitted Jelisic of genocide. 103
to Defining Approaches C. A Comparison of the Chambers' of the GenocideConvention the Terms

One of the first questions that each chamber had to address in its evaluation of the prosecution for genocide was whether the alleged vic94 Id. ? 69. 95 Id. I 70. The chamber noted, however, that it was still appropriate to define religious groups on an objective basis. 96 Id. 97 Id. 98 Id. It 70-7I. 99 Id. ? 73. 100 Id. ? 75. For example, the chamber found that the majority of Jelisid's victims were Muslim and that Jelisid often made "scornful and discriminatory remarks about the Muslim population." Id. Jelisid also frequently called Muslims offensive names while he beat them. Id. 101 Id. io8. I 102 Id.; see also id. ? I07 ("In conclusion, the acts of Goran Jelisid are not the physical expression of an affirmed resolve to destroy in whole or in part a group as such.'); id. ? 93 ("One witness stated inter alia that Goran Jelisid seemed to select the names of persons at random from a list.... It is not therefore possible to conclude beyond all reasonable doubt that the choice of victims arose from a precise logic to destroy the most representative figures of the Muslim community in Brcko to the point of threatening the survival of that community." (citations omitted)). 103 Id. Although the chamber found Jelisid not guilty of genocide, it convicted him of fifteen crimes against humanity and sixteen violations of the laws or customs of war. Id. I i09.
2020
HARVARD LAW REVIEW
[Vol.
114:1943
tim group qualified for protection under the tribunal's authorizing statute. 104 Although each chamber claimed to follow Akayesu, their holdings in fact establish different legal tests for delimiting the groups protected under the Genocide Convention. The chambers adopted two basic approaches for making the seemingly political determination of which groups should be protected under the Genocide Convention. The Akayesu chamber interpreted the Rwandans' view that the Tutsi are an ethnic group to be an indication of the Thtsi's status as a stable and permanent group, rather than as an ethnic group, and held that finding sufficient to protect the Tutsi under the Genocide Convention.105 The Jelisic chamber adopted this same expansive approach to defining the group element of genocide.106 Professor Paul Magnarella argues that in so doing, the Akayesu chamber effectively added a new category to the groups protected under the Genocide Convention: "By adding 'stable and permanent group, whose membership is largely determined by birth,' to the four existing categories, . . . the Chamber has significantly expanded the kinds of populations that will be protected by that Convention."107 The other chambers eschewed the Akayesu test, if not its general approach, by fitting the victims into the already enumerated "ethnical" category. Although it based its decision on the same evidence used in Akayesu, the Kayishema chamber concluded that the Tutsi were an ethnic group, without considering whether they were a stable and permanent group.108 The Rutaganda chamber appeared to equivocate between protecting the victims as a stable and permanent group and using stability and permanency as two factors in determining whether they were an ethnic group under the statute. These different tests - looking for stable and permanent groups on the one hand, and relying only on the four specific categories on the other hand - result from the ambiguous definition of the group element of genocide. A clear, standardized international definition would spare the chambers the trouble of guessing whether the Genocide Convention protects the four enumerated groups exclusively or
104 See ICTY Statute, supra note 4, art. 4, 32 I.L.M. at II93; ICTR Statute, supra note 5, art. 2, 33 I.L.M. at I603. 105 Prosecutor v. Akayesu, Case No. ICTR-96-4-T, 7I, 5 i6 (Int'l Crim. Trib. for Rwanda It Trial Chamber I Sept. 2, i998), http:i/www.ictr.org/ENGLISH/cases/Akayesu/judgement/ akayooi.htm. 106 See Jelisic 1? 69. 107 Paul J. Magnarella, Some Milestones and Achievements at the International Criminal Tribunalfor Rwanda: The i998 Kambanda and Akayesu Cases, ii FLA. J. INT'L L. 5I7, 531 (I997). 108 Prosecutor v. Kayishema, Case No. ICTR-95-I-T, ? 5.2, 1 29I (Int'l Crim. Trib. for Rwanda Trial Chamber II May 2I, i999), http:Ilwww.ictr.org/ENGLISH/cases/KayishemaRuzindana/ judgement/index.htm.
2001]
DEVELOPMENTS -
202I
whether it protects any group whose stability and permanency properly compare to those listed in the convention. D. The Effects of Ambiguity The greatest potential benefit of the ambiguous definition of protected groups in the Genocide Convention is that it affords tribunals significant flexibility in their adjudication. This flexibility permits the tribunals to adapt to the changing social and political climate, by allowing them to provide protection to groups that do not fit literally into the four traditional categories of the Genocide Convention. This flexibility reflects a perception that national, ethnical, racial, and religious groups are social constructs that vary based on their social contexts. The categories "not only overlap, they also help to define each other, operating much as four corner posts that delimit an area within which a myriad of groups covered by the Convention find protection."109
However, the ambiguity in the Genocide Convention's definition of protected groups also leaves considerable discretion in the hands of the tribunal chambers. This discretion not only results in disparate holdings, but also creates the risk that political groups might be able to manipulate the chambers' decisions. i. Ramifications of the Conflicting Opinions. - The appearance of confusion and inconsistency among the chambers may undermine the international community's confidence in the tribunals as competent bodies of criminal justice adjudication. Furthermore, inconsistent decisions - especially in the field of human rights - may make the tribunals appear arbitrary,incoherent, and unfair. Lack of confidence in tribunal judgments is particularly problematic because the international tribunals do not function under the auspices of a sovereign; their credibility depends solely on the persuasive value of their reasoning. The absence of coherent and uniform rationales across their holdings prevents the formation of clear precedents, limiting the tribunals' ability to maintain credibility in the eyes of the international community. This issue is especially salient because of the adoption and pending ratification of the Rome Statute establishing the International Criminal Court (ICC).110 In order to garner and sustain support, the ICC must appear to be legitimate and free from the influence of political groups.
109 Schabas, supra note I, at 385 (emphasis omitted) (citation omitted); see id. ("The drafters viewed the four groups in a dynamic and synergistic relationship, each contributing to the construction of the other."). 110 See Rome Statute, supra note 3I, 37 I.L.M. 999.
2022
HARVARD LAW REVIEW
[Vol.
114:1943
The tribunals' creators and administrators have demonstrated that they recognize the importance of precedent. The chambers' opinions likewise reflect an appreciation of the fact that their determinations influence the decisions of future chambers. Moreover, the statute establishing the Special Court of Sierra Leone"'1 specifically provides that the decisions of the ICTY and the ICTR will serve as precedent.112 Thus far, however, consistency has remained elusive. 2. Political Pressure and Institutional Competence. - The ambiguity in the Genocide Convention and the resulting judicial discretion not only has produced inconsistent decisions, but also has opened the door to political pressure. Given the tribunals' particular susceptibility to such pressure, some might question whether the tribunals are the appropriate institutions to interpret the ambiguous terms of the Genocide Convention. (a) Political Pressure from the U.N. - Courts are independent only to the extent that they need not answer to others. The international tribunals, however, are accountable to the U.N., which established the ICTR and the ICTY for the purpose of prosecuting genocide.113 Thus, it was clear from the outset that the international community already suspected that genocide had occurred in Rwanda and the former Yugoslavia.'14 As such, the chambers were under significant pressure both to find that genocide had occurred and to hand down genocide convictions.115 Had the Akayesu chamber, for example, not found that the Tutsi were a protected group, it could not have made a finding of genocide, thus defeating the very purpose of the tribunal. It is not surprising, then, that the chambers of the ICTR and the ICTY found that the Tutsi and the Bosnian Muslims, respectively, were protected groups, allowing the genocide prosecutions to proceed. The tribunals' dependence on the U.N. highlights one risk of interpreting ambiguous statutory language. The risk of political pressure
111 Report of the Secretary-General on the Establishment of a Special Court for Sierra Leone, U.N. SCOR, 55th Sess., U.N. Doc. S/2000/9I5 (2000) [hereinafter Statute of the Special Court for Sierra Leone]. 112 Id. art. 20(3) ("The judges of the Appeals Chamber of the Special Court shall be guided by the decisions of the Appeals Chamber of the International Tribunals for the Former Yugoslavia and for Rwanda."). 113 See Scott T. Johnson, On the Road to Disaster: The Rights of the Accused and the International Criminal Tibunal for the Former Yugoslavia, io INT'L LEGAL PERSP. iii, ii6 (i998) ("The Security Council and General Assembly have the power to appoint and re-appoint judges to the ICTY. The General Assembly approves the ICTY's operational funding on a semi-annual basis."). 114 See S.C. Res. 955, supra note 5, 33 I.L.M. at i6oi; S.C. Res. 827, supra note 4, 32 I.L.M. at
I204. 115 See Johnson, supra note I I3, at ii6 (arguing that the U.N.'s appointment and funding powers over the tribunals "send a clear message to the tribunal to produce results: to prosecute and convict!").
2001]
DEVELOPMENTS -
2023
on the tribunals creates the potential for the perception that the chambers are simply interpreting the language on an ad hoc basis to achieve predetermined results. To the extent that the international community perceives the tribunals as mere puppets of political factions within of the U.N., the tribunals will lose their legitimacy and effectiveness. (b) Political Pressure from Other Sources. - The tribunals also face political pressure from sources other than the U.N. The political and diplomatic uproar that ensued immediately after the ICTR's decision to release a suspect, Jean-Bosco Barayagwiza, because of his excessive pretrial detention116illustrates this pressure. Rwanda threatened to end cooperation with the ICTR - by preventing access to witnesses and evidence - were Barayagwiza actually released.117 In response, the appeals chamber agreed to hear "new facts,"118after which the appeals chamber reversed itself and rescinded Barayagwiza's release order.119 This incident demonstrates the tribunals' particular vulnerability to political pressure: because Rwanda possessed the necessary evidence and because the chamber had no independent mechanism to compel its production, Rwanda had de facto control.120 It is possible that Rwanda felt emboldened to object precisely because the appeals chamber was interpreting ambiguous standards and not applying settled law. Absent such flexibility, there is significantly less danger of political influence. The tribunals' susceptibility to political pressure raises concerns about whether they are the institutions best equipped to define "ethnical groups" for the international community.121 Courts are often regarded as incompetent to make such broad policy decisions; indeed,
116 Prosecutor v. Barayagwiza, Case No. ICTR-97-99, ? 72 (Int'l Crim. Trib. for Rwanda App. Chamber Nov. 3, i999), http://www.ictr.org/ENGLISH/cases/Barayagwiza/decisions/dcs9gI Io3. htm (stating that Barayagwiza was to be released due to "abuse of process"). 117 Barayagwiza v. Prosecutor, Case No. ICTR-97-Ig-AR72, 1 34, 39 I.L.M. ii8i, ii86 (Int'l Crim. Trib. for Rwanda App. Chamber Mar. 3I, 2000), available at http://www.ictr.org/
ENGLISH/cases/Barayagwiza/decisions/dcs2000033I.htm.
118 Id. 1 74, 39 I.L.M. at II93 ("[Although] all violations demand a remedy, . . . the violations suffered by the Appellant and the omissions of the Prosecutor are not the same as those which emerged from the facts on which the Decision is founded. Accordingly, the remedy ordered by the Chamber in the Decision, which consisted in the dismissal of the indictment and the release of the Appellant, must be altered.'). 119 Id. 1 75(2), 39 I.L.M. at II93. 120 In response to Rwanda's threat to withhold evidence, the chamber stated that "the Tribunal is an independent body, whose decisions are based solely on justice and law. If its decision in any case should be followed by non-cooperation, that consequence would be a matter for the Security Council." Id. 1 34, 39 I.L.M. at ii86. Nonetheless, the chamber's decision to release Barayagwiza at least somewhat belied that claim. William A. Schabas, Barayagwiza v. Prosecutor: Decisions of the Appeals Chamber of the International Criminal Tribunalfor Rwanda on Prolonged Detention Prior to Indictment and Appearance Before the Tribunal, 94 AM. J. INT'L L. 563, 5707 I (2000). 121 Another possibility is that the ICC should have the power to define such terms.
2024
HARVARD LAW REVIEW
[Vol.
II4:I943
some might argue that a legislative body, like the U.N., is a more appropriate organ. To reduce their susceptibility to external pressure and to enhance their credibility, it is crucial that the tribunals place an even higher priority on achieving consistency in their tests for what constitutes an ethnic group. E. Conclusion As the recent international tribunal cases illustrate, the Genocide Convention's failure to define precisely its four protected groups national, ethnical, racial, and religious - has led to ambiguity in the tests that the international tribunals apply. Professor William Schabas argues, however, that "difficulty in constructing a definition does not render [a classification] useless, particularly from the legal point of view."'122Similarly, some scholars argue that the absence of a precise definition is not fatal to the interpretation of these terms in the context of the convention.123 In fact, some might argue that the resulting flexibility has been beneficial, in that it has enabled the tribunals to provide protection to groups that otherwise would receive no protection under the Genocide Convention. However, the absence of clear definitions and the resulting divergence in the chambers' decisions has created the potential for inconsistent protection, which undermines the international criminal system. This inconsistency is especially problematic in the arena of international genocide prosecution because the decisions of the tribunals must inspire confidence in order to preserve their legitimacy. Moreover, the international tribunals must strive for consistency in both their legal tests and their legal conclusions. As a starting point, the tribunal chambers should rely more heavily on earlier decisions, treating them as binding rather than as merely persuasive. Although it is likely that this change would necessitate amendments to the ICTY and ICTR statutes, such a policy clearly is not beyond the conception of the U.N., as the U.N. included language making precedent binding in the Statute for the Special Court for Sierra Leone.124 This change in policy would dramatically increase consistency and would represent a step toward inspiring confidence in the international criminal justice system.
122 Schabas, supra note i, at 384. Schabas further posits that a risk lies in the attempt to find independent definitions for each of the four terms: the potential to "weaken the overarching sense of the enumeration as a whole, forcing the jurist into an untenable Procrustes bed." Id. at 386. 123 E.g., id. 124 Statute of the Special Court for Sierra Leone, supra note i ii, art. 20(3).
200I]
DEVELOPMENTS -
2025
V. CORPORATE LIABILITY FOR VIOLATIONS OF INTERNATIONAL HUMAN RIGHTS LAW
A number of multinational corporations have come under fire in recent years for alleged human rights abuses.' Most of the alleged perpetrators are corporations in the energy,2 mining,3 and manufacturing4 industries; the alleged violations range from severe environmental damage and inhumane working conditions to forced labor, torture, and killings. Corporate violations of human rights frequently go unredressed due to significant gaps in domestic and international legal regimes. Host countries are often unwilling or unable to impose criminal sanctions or provide civil remedies, and home countries generally do not exercise jurisdiction over the extraterritorial acts of multinational corporations.5 Most significantly, international law is virtually silent with respect to corporate liability for violations of human rights. International law has neither articulated the human rights obligations of
1 See Human Rights Watch, Corporations and Human Rights, at http://www.hrw.org/wr2k/ Issues-03.htm (last visited Apr. i8, 200I). 2 See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 92-93 (2d Cir. 2000) (alleging Royal Dutch/Shell's complicity in acts of torture, arbitrary arrest, detention, and killing in the Ogoni region of Nigeria); Jota v. Texaco, Inc., I57 F.3d I53, I55-56 (2d Cir. i998) (alleging that Texaco improperly disposed of hazardous waste, causing poisonings and other health problems); Doe v. Unocal Corp., 963 F. Supp. 88o, 883 (C.D. Cal. I997) (alleging Unocal and Total S.A.'s complicity in acts of torture, forced labor, and forced relocation committed by the Burmese military in connection with the construction of an oil pipeline); HUMAN RIGHTS WATCH, THE ENRON CORPORATION: CORPORATE COMPLICITY IN HUMAN RIGHTS VIOLATIONS 3 (i999) (alleging Enron's complicity in violations of freedom of expression, assembly, and movement and freedom from arbitrary arrest and detention); Jason Hoppin, Chevron Hit with Human Rights Claim, NAT'L L.J., Apr. 24, 2000, at Bi (describing allegations of Chevron's complicity in killings committed by the Nigerian military). 3 See Beanal v. Freeport-McMoran, Inc., I97 F.3d i6i, i63 (5th Cir. i999) (alleging that Freeport-McMoran committed human rights violations, environmental torts, genocide, and cultural genocide while conducting mining activities in Indonesia); Elizabeth Amon, Coming to America: Alien Tort Claims Act Provides a Legal Forumfor the World, NAT'L L.J., Oct. 23, 2000, at Ai (describing allegations against Rio Tinto, an Anglo-Australian mining company, for environmental and human rights abuses in Papua New Guinea). 4 See, e.g., Deborah J. Karet, Privatizing Law on the Commonwealth of the Northern Mariana Islands: Is Litigation the Best Channel for Reforming the Garment Industry?, 48 BUFF. L. REV. I047, i06i-69 (2000) (describing allegations of indentured servitude and inhumane working and living conditions in several lawsuits against Saipan-based apparel and footwear manufacturers for large American retailers such as Nordstrom, Wal-Mart, and the Gap). 5 See Sarah Joseph, Taming the Leviathans: Multinational Enterprises and Human Rights, 46 NETH. J. INT'L L. I7I, I75-79 (i999) (describing the general lack of regulation by home states and host states but noting recent developments in British law that permit tort suits against British multinationals for the extraterritorial acts of foreign subsidiaries); Craig Scott, Multinational Enterprises and Emergent Jurisprudence on Violations of Economic, Social and Cultural Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK (Asbjorn Eide, Catarina Krause & Allan Rosas eds., 2d rev. ed., forthcoming 200I) (manuscript at 30-34, on file with the Harvard Law School Library) (describing recent tort actions against multinationals in Australia and the United Kingdom for the extraterritorial acts of foreign subsidiaries).
2026
HARVARD LAW REVIEW
[Vol.
II4:I943
corporations nor provided mechanisms to enforce such obligations. Corporations thus remain immune to liability, and victims remain without redress. Recent developments in American law raise the possibility that American courts may begin to hold corporations liable for human rights violations. The Alien Tort Claims Act (ATCA),6 as interpreted in several recent cases, permits aliens to bring private tort suits against corporations for certain human rights violations committed in the United States or abroad. The first two ATCA cases brought against a corporation were filed in i996 against Unocal for alleged human rights violations committed in connection with the construction of an oil pipeline in Myanmar.7 The plaintiffs, Burmese villagers, claimed that Unocal was liable for acts of torture, rape, forced labor, and forced relocation committed by the Burmese military in furtherance of the pipeline project.8 In 1997, a federal district court in California rejected Unocal's motions to dismiss and ruled that the company could be held liable under the ATCA in both cases.9 These groundbreaking rulings have led to further ATCA cases against multinational corporations.10 None of these cases has yet resulted in a final judgment for a plaintiff, and the district court recently dismissed the pioneering cases against Unocal on summary judgment.11 This Part analyzes and critiques the limited extent of corporate liability under the ATCA and proposes a supplemental multilateral approach to filling the gaps in domestic and international legal regimes that address corporate human rights violations. Section A categorizes and discusses the many human rights that corporations are capable of violating. Section B describes the current gap in the international legal system that leaves corporate human rights violators immune from liability. Section C describes the extent of corporate civil liability under the ATCA by analyzing the requirements of subject matter and
6 28 U.S.C. ? I350 (I994).
7 Doe, 963 F. Supp. at 884-85; Nat'l Coalition Gov't of Burma v. Unocal, Inc. 176 F.R.D. 329, 335-36 (C.D. Cal. I997). Unocal had entered into a joint venture with the French oil company Total S.A. and the Myanmar government to construct a natural gas pipeline from Myanmar to Thailand. Doe, 963 F. Supp. at 884-85. 8 Doe, 963 F. Supp. at 884-85; Nat'l Coalition Gov't, 176 F.R.D. at 335-37. 9 Doe, 963 F. Supp. at 897-98; Nat'l Coalition Gov't, I76 F.R.D. at 344-49, 36o-6i. 10 Some of these cases involve allegations of recent human rights violations. See, e.g., Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Beanal v. Freeport-McMoran, Inc., I97 F.3d i6i (5th Cir. i999); Jota v. Texaco, Inc., I57 F.3d 53 (2d Cir. i998). Others allege human rights violations committed during World War II and its aftermath. See, e.g., In re World War II Era Japanese Forced Labor Litig., II4 F. Supp. 2d 939 (N.D. Cal. 2000); Bodner v. Banque
Paribas, II4 F. Supp. 2d II7 (E.D.N.Y. 2000); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424
(D.N.J. I999); Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248 (D.N.J. I999). 11 Doe v. Unocal Corp., iio F. Supp. 2d I294, I3I2 (C.D. Cal. 2000), appeal docketed, No. oo57I97 (9th Cir. Dec. I2, 2000) (dismissing both cases against Unocal).
200I]
DEVELOPMENTS -
2027
personal jurisdiction - the two most formidable obstacles to bringing a successful ATCA claim - and concludes that the ATCA is likely to provide relief in only a limited set of cases, leaving many victims of corporate violations without effective remedies. Section D argues that despite the ATCA's shortcomings, courts should not unilaterally expand the scope of the ATCA's subject matter jurisdiction to cover a broader range of human rights violations, because doing so would likely violate international law and raise serious policy concerns. Finally, Section E proposes a means to address the corporate liability gap in international law regarding human rights violations: an international treaty that specifies the human rights obligations of corporations and requires states to provide criminal, civil, or administrative remedies to victims of corporate human rights violations. A. The Range of CorporateHuman Rights Violations In recent decades, multinational corporations have achieved unprecedented economic power and geographic scope,12 which have given them enormous influence over the enjoyment of a broad range of human rights. These rights fall into three general categories:13 economic, social, and cultural rights; civil and political rights; and rights protected under international humanitarian law. The sources of these rights include numerous international treaties14 as well as customary international law.15 Some care must be taken in speaking of corporate human rights violations because corporations are generally not seen as bearing legal obligations under international law.16 Setting aside for the moment whether corporate interference with these rights is, or should be, legally actionable under domestic or international law,17this section discusses how corporate activity can interfere with the enjoyment of human rights. i. Economic, Social, and Cultural Rights. - Corporate interference with the enjoyment of human rights probably occurs most fre12 On the growth of multinational enterprises, see PETER T. MUCHLINSKI, MULTINATIONAL ENTERPRISES AND THE LAW I9-33 (I995). 13 These categories are not mutually exclusive and primarily reflect the development of three
analogous, fairly discrete bodies of international law. 14 For the major treaties on civil, political, economic, social, and cultural rights, see BASIC
DOCUMENTS ON HUMAN RIGHTS (Ian Brownlie ed., 3d ed. I992). For the major treaties on international humanitarian law, see DOCUMENTS ON THE LAWS OF WAR (Adam Roberts & Richard Guelff eds., 3d ed. 2000). 15 Customary international law comprises those norms that are demonstrated by the general and consistent practices of states and accepted by them as law. See ROSALYN HIGGINS, PROBLEMS AND PROCESS: INTERNATIONAL LAW AND HOW WE USE IT i8-i9 (I994). Treaties and declarations may serve as evidence of custom. See I OPPENHEIM'S INTERNATIONAL LAW 28 (Robert Jennings & Arthur Watts eds., 9th ed. I992). 16 See infra section B, pp. 2030-33. 17 Sections C-E, pp. 2033-48, below, address these questions.
2028
HARVARD LAW REVIEW
[Vol.
II4:I943
quently in the area of economic, social, and cultural rights.'8 Corporations interfere with the right to "the enjoyment of just and favourable conditions of work" - such as "fair wages and equal remuneration for work of equal value" and "safe and healthy working conditions"'9 when they pay exceedingly low wages, use forced labor, or force employees to work under hazardous conditions without adequate safeguards. Corporations that dump toxic waste or cause widespread pollution interfere with the right "to the enjoyment of the highest attainable standard of physical and mental health."20 Similarly, corporations that destroy the habitats of indigenous peoples interfere with the right of all peoples to "freely pursue their economic, social and cultural development," including the right not to be deprived of their own means of subsistence.2' 2. Civil and Political Rights. - Corporations may also interfere with the enjoyment of civil and political rights, as the allegations against Royal Dutch/Shell in Wiwa v. Royal Dutch Petroleum Co.22 suggest.23 In Wiwa, the plaintiffs alleged that Royal Dutch/Shell recruited the Nigerian military to suppress opposition to the company's oil exploration activities in Nigeria's Ogoni region.24 The plaintiffs further alleged that the Nigerian military repeatedly arrested, jailed, and tortured two leaders of the opposition movement, Ken Saro-Wiwa
18 The discussion that follows draws on the human rights enumerated and defined in the International Covenant on Economic, Social and Cultural Rights, Dec. 06, i966, 993 U.N.T.S. 3 [hereinafter ICESCR] (entered into force Jan. 3, 1976). The United States signed the ICESCR on October 5, I977, but has not ratified it. See International Covenant on Economic, Social and Cultural Rights, at http://untreaty.un.org/English/sample/EnglishInternetBible/partl/chapterIV/ treaty4.asp (last visited Apr. i8, 2001). The ICESCR currently has 142 states parties. Id. For a discussion of the ways in which corporations may violate economic, social, and cultural rights, see Scott, supra note 5, at 3-4. 19 ICESCR, supra note i8, art. 7, 993 U.N.T.S. at 6. 20 Id. art. 12(l), 993 U.N.T.S. at 8. In Jota v. Texaco, Inc., 157 F.3d 53 (2d Cir. 1998), for example, the plaintiffs alleged that they suffered poisoning because Texaco had improperly dumped large quantities of toxic waste into local rivers and because the Tlans-Ecuadoran Pipeline, which Texaco had constructed, had leaked large quantities of oil into the environment. Id. at 155-56. 21 ICESCR, supra note i8, art. I(I), 993 U.N.TS. at 5. In Beanal v. Freeport-McMoran, Inc., 197 F.3d i6i (5th Cir. i999), for example, the plaintiff alleged that the defendant's mining operations in Irian Jaya, Indonesia, had destroyed the habitat and religious symbols of the Amungme people, forcing them to relocate. Id. at 163. 22 226 F.3d 88 (2d Cir. 2000). 23 The discussion that follows draws on the human rights enumerated and defined in the International Covenant on Civil and Political Rights, Dec. i9, i966, 999 U.N.T.S. 171 [hereinafter ICCPR] (entered into force Mar. 23, 1976). The United States ratified the ICCPR on September 8, 1992. U.S. DEP'T OF STATE, TREATIES IN FORCE: A LIST OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS OF THE UNITED STATES IN FORCE ON JANUARY I, 2000, at 392 (2000). The ICCPR currently has i44 states parties. See International Covenant on Civil
and Political Rights, at http://untreaty.un.org/English/millennium/law/iv-4.htm (last visited Apr.

i8, 2001).
24
Wiwa, 226 F.3d at 92.
200I]
DEVELOPMENTS -
2029
and John Kpuinen, and that an ad hoc military tribunal convicted and hanged Saro-Wiwa and Kpuinen on fabricated murder charges.25 According to the plaintiffs, Royal Dutch/Shell instigated, planned, and facilitated the human rights abuses that the Nigerian military inflicted on the Ogoni people.26 The company allegedly provided money, weapons, and logistical support to the military and helped fabricate the murder charges against Saro-Wiwa and Kpuinen.27 Those allegations, if credited, would suggest that Royal Dutch/Shell interfered with the plaintiffs' rights to life,28 freedom from torture, freedom from arbitrary arrest and detention,30and a fair trial.31 3. Rights Protected Under International Humanitarian Law.Additionally, corporations may play a variety of roles in the most severe human rights violations, such as genocide, crimes against humanity, and war crimes,32 which generally occur in the context of systematic mass violence. Corporations may, for example, manufacture prohibited classes of weapons, such as biological weapons, for use against enemy troops or civilian populations.33 They may use slave labor in wartime manufacturing.34 Corporations may also involve themselves in warfare itself by selling the services of private security forces,35 which are as capable of committing war crimes as any public
25
Id.
26 Id. 27 Id. at 92-93. 28 ICCPR, supra note 23, art. 6(i), 999 U.N.T.S. at I74 ("Every human being has the inherent
right to life. This right to life shall be protected by law. No one shall be arbitrarily deprived of his life."). 29 Id. art. 7, 999 U.N.T.S. at 175 ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.'). 30 Id. art. 9, 999 U.N.T.S. at I75 ("Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.'). 31 Id. art. I4, 999 U.N.T.S. at 176 ("In the determination of any criminal charge against him ... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."). 32 For definitions of genocide, crimes against humanity, and war crimes, see Rome Statute of the International Criminal Court, July 17, 1998, arts. 6-8, U.N. Doc. A/CONF.i83/9, 37 I.L.M. 999, 1004-09 [hereinafter Rome Statute], available at http://www.un.org/law/icc/statute/ romefra.htm (last visited Apr. i8, 2001). 33 See Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature Apr. 10, 1972, 26 US.T. 583, iOIS U.N.T.S. 163 (entered into force Mar. 26, 1975). The Bacteriological and Toxin Weapons Convention prohibits states parties from developing, producing, stockpiling, or otherwise acquiring or retaining weapons that employ biological agents or toxins. Id. art. I, 26 U.S.T. at 587, 1015 U.N.T.S. at 066. The convention currently has I43 states parties. See U.S. DEP'T OF STATE,supranote 23, at 350. 34 See, e.g., In re World War II Era Japanese Forced Labor Litig., I14 F. Supp. 2d 939, 942 (N.D. Cal. 2000); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 433 (D.N.J. 1999). 35 See Juan Carlos Zarate, The Emergence of a New Dog of War:Private International Security Companies, International Law, and the New World Disorder, 34 STAN.J. INT'L L. 75 (I998)
2030
HARVARD LAW REVIEW
[Vol.
114:1943
army. In addition, corporations - particularly financial institutions may participate in a state's "plunder of public or private property"36 by laundering the proceeds of such acts.37 B. The Gap in International Law Though corporations are capable of interfering with the enjoyment of a broad range of human rights, international law has failed both to articulate the human rights obligations of corporations and to provide mechanisms for regulating corporate conduct in the field of human rights.38 Since the nineteenth century, international law has addressed almost exclusively the conduct of states.39 Traditionally, states were viewed as the only "subjects"of international law, the only entities capable of bearing legal rights and duties.40 Over the last fifty years, though, the gradual establishment of an elaborate regime of international human rights law and international criminal law has begun to redefine the individual's role under international law. It is now generally accepted that individuals have rights under international human
(describing the involvement of international security companies such as Executive Outcomes in international armed conflict).
36 3 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW No. io: NUERNBERG OCTOBER 1946-APRIL 1949, at XIV (195 I) (defining war crimes to include such plunder). 37 A number of recent cases against Austrian, French, German, and Swiss financial institutions
have highlighted the role that financial institutions can play in acts of plunder of public or private property. See, e.g., Bodner v. Banque Paribas, II4 F. Supp. 2d II7 (E.D.N.Y. 2000); In re Holocaust Victim Assets Litig., 105 F. Supp. 2d 139 (E.D.N.Y. 2000); In re Austrian & German Bank Holocaust Litig., 8o F. Supp. 2d i64 (S.D.N.Y. 2000). 38 Beginning in i977, the United Nations attempted to address the problem of corporate human rights violations by drawing up a code of conduct that called on transnational corporations to "respect human rights and fundamental freedoms in the countries in which they operate." Proposed Text of the Draft Code of Conduct on Transnational Corporations, 2nd Sess., Agenda Item 7(d), at 7, U.N. Doc. E/i990/94 (i990). The draft code, which has never been adopted, included only minimal reporting requirements and was thus largely hortatory. See id. at i 7-i8. For a detailed discussion of the draft code, see S.K.B. Asante, The Concept of the Good Corporate Citizen in International Business, in TRANSNATIONAL CORPORATIONS: THE INTERNATIONAL LEGAL FRAMEWORK I69 (A.A. Fatouros ed., 1994). The United Nations has recently undertaken another initiative designed to encourage corporations to respect human rights, but this approach is also merely hortatory. On January 31, i999, U.N. Secretary-General Kofi Annan proposed the Global Compact, a voluntary initiative to promote corporate responsibility with respect to human rights, labor rights, and the environment. See Global Compact, The Global Compact: What It Is and Isn't, at http://www.unglobalcompact. org/gc/UNWeb.nsf/content/whatitis.htm (last visited Apr. i8, 2001). Nongovernmental organizations, including Human Rights Watch, have criticized the Global Compact for containing vague guidelines and for lacking an independent monitoring regime to assess corporate conduct. See Human Rights Watch, Business and Human Rights: The Role of the International Community, at http://www.humanrightswatch.org/wr2ki/special/corporations3.html (last visited Apr. i8, 2001). 39 Marek St. Korowicz, The Problem of the International Personality of Individuals, 5o AM. J. INT'L L. 533, 534 (1956). 40 See HIGGINS, supra note I5, at 49; i OPPENHEIM'S INTERNATIONAL LAW, supra note I5, at i6.
200I]
DEVELOPMENTS -
203I
rights law4' and obligationsunder internationalcriminallaw.42 This redefinition,however,has occurredonly partiallywith respect to legal persons such as corporations: internationallaw views corporationsas possessingcertain human rights,43 but it generallydoes not recognize corporationsas bearersof legal obligationsunder internationalcriminal law.44 The absence of criminal liability results mainly from the different approachesthat national legal systems have taken to corporate criminal liability. Although many common law and some civil law jurisdictionsrecognizecorporatecriminalliability,many do not.45 The disagreementamong states about corporatecriminal liability was apparent at the I998 Rome Conference on an International Criminal Court. The draft statute under considerationat the Rome Conferenceincluded a French proposalto extend the ICC's jurisdiction to legal persons.46Despite three weeks of negotiationson various
41 Although international human rights law grants rights to private individuals, it does not impose direct obligations on nonstate actors. Instead, international human rights law imposes obligations directly on states and requires states to prevent violations by state and nonstate actors. See HENRY J. STEINER & PHILIP ALSTON, INTERNATIONALHUMAN RIGHTS IN CONTEXT: LAw, POLITICS AND MORALS i80-84, 222 (2d ed. 2000). 42 See i OPPENHEIM'S INTERNATIONALLAW, supra note 15, at i6-17; M. Cherif Bassiouni, The Sources and Content of International Criminal Law: A Theoretical Framework, in I INTERNATIONAL LAW3, 12 (M. Cherif Bassiouni ed., i999). CRIMINAL 43 The European Court of Human Rights, for example, has recognized that corporations have certain rights under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). See Editions Periscope v. France, 234 Eur. Ct. H.R. (ser. A) 56, 67 (1992) (holding that France had violated the right of a French company to a hearing within a reasonable time under article 6(i) of the ECHR); Observer v. United Kingdom, 2i6 Eur. Ct. H.R. (ser. A) 6, 39 (i99i) (holding that the United Kingdom had violated two British newspapers' rights to freedom of expression under article io of the ECHR). 44 See Bassiouni, supra note 42, at 17-i8. 45 See Klaus Tiedemann, Rapport G6n6ral, in CRIMINAL LIABILITY OF CORPORATIONS: XIVTH INTERNATIONALCONGRESSOF COMPARATIVE LAW ii, 12-13 (Hans de Doelder & Klaus Tiedemann eds., i996) (noting continuing disagreement among national legal systems with respect to corporate criminal liability, but also describing gradual acceptance of corporate criminal liability, particularly among the member states of the European Union). Although the criminal liability of corporations is well entrenched in the United States, the issue is not without controversy among legal scholars. Compare V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, i09 HARV.L. REV. 1477, 1532-34 (I996) (arguing, on efficiency grounds, that corporate criminal liability serves no useful end), with Lawrence Friedman, In Defense of Corporate Criminal Liability, 23 HARV.J.L. & PUB. POL'Y 833, 857-58 (2000) (arguing that retribution is a sufficient justification for corporate criminal liability). 46 The provision read as follows: The Court shall also have jurisdiction over legal persons, with the exception of States, when the crimes committed were committed on behalf of such legal persons or by their agencies or representatives. The criminal responsibility of legal persons shall not exclude the criminal responsibility of natural persons who are perpetrators or accomplices in the same crimes. Draft Statute for the International Criminal Court, art. 23, 11 5-6, U.N. Doc.
A/CONF.I83/2/Add.I (I998).
2032
HARVARD LAW REVIEW
[Vol.
114:1943
versions of this proposal, delegates failed to reach agreement.47 As a result, the Statute of the International Criminal Court adopted at the conclusion of the Rome Conference provided for jurisdiction only over natural persons.48 Despite the Rome Conference's failure to adopt the proposal on jurisdiction over legal persons, recent developments in treaty law provide a model for the regulation of corporate conduct in the area of human rights. Several multilateral treaties that address bribery, corruption, and organized crime recognize that legal persons can commit international crimes and require that states parties provide legal remedies.49 The most recent example is the United Nations Convention Against Transnational Organized Crime, which was opened for signature on December I2, 2ooo.5? The convention defines the international
47 Andrew Clapham, The Question of Jurisdiction Under International Criminal Law over Legal Persons: Lessons from the Rome Conference on an International Criminal Court, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAw I50 (Stud. & Materials on Settlement Int'l Disputes vol. 7, Menno T. Kamminga & Saman Zia-Zarifi eds., 2000). According to Clapham, some delegations opposed the proposal because the entire notion of corporate criminal responsibility was alien to them. Id. at I57. Others felt that insufficient time remained in the negotiating process to work out all of the remaining areas of dispute. Id. 48 See Rome Statute, supra note 32, art. 25. 49 For example, the Council of Europe Criminal Law Convention on Corruption, opened for signature Jan. 27, i999, Europ. T.S. No. I73, 38 I.L.M. 505, requires states parties to "adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for the criminal offenses of active bribery, trading in influence and money laundering." Id. art. i8, Europ. T.S. No. I73, at 6, 38 I.L.M. at 509. The treaty currently has thirty-eight signatories, including the United States, and nine states parties. See Council of Europe, Chart of Signatures and Ratifications of a Treaty, at http://conventions.coe.int/treaty/en/Treaties/Html/I73.htm (last visited Apr. i8, 200I). The Inter-American Convention Against Corruption, Mar. 29, i996, 35 I.L.M. 724, requires states parties to "prohibit and punish the offering or granting, directly or indirectly, by its nationals, persons having their habitual residence in its territory, and businesses domiciled there, to a government official of another State, of any article of monetary value." Id. art. 8, 35 I.L.M at 730 (emphasis added). Twenty countries, including the United States, have ratified the convention. See Organization of American States, B-58: Inter-American Convention Against Corruption, at http://www.oas.org/juridico/english/Sigs/b-58.html (last visited Apr. i8, 200I). The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, Dec. 17, 1997, http://www.oecd.org/daf/nocorruption/2onovIe.htm (last visited Apr. i8, 200i), defines the offense of bribery of foreign public officials, id. art. i, and requires a state party to "take such measures as may be necessary, in accordance with its legal principles, to establish the liability of legal persons" for that offense, id. art. 2. The United States ratified the treaty on December 8, i998; the treaty currently has twenty-nine states parties. See U.S. DEP'T OF STATE, supra note 23, at 350-5I; Organisation for Economic Co-operation and Development, Implementation of OECD Convention on Combating Bribery of Foreign Public Officials, at http://www.oecd.org/daf/nocorruption/annex2.htm (last visited Apr. i8, 200I). 50 United Nations Convention Against Transnational Organized Crime [hereinafter Organized Crime Convention] (advance copy of the authentic text of the treaty), available at http:// www.uncjin.org/Documents/Conventions/dcatoc/final documents_2/convention-eng.pdf (last visited Apr. i8, 200I). As of December I5, 2000, the treaty had been signed by I23 states, including the United States. See U.N. Office for Drug Control and Crime Prevention, Annex: United Na-
200I]
DEVELOPMENTS -
2033
crimes of participation in an organized criminal group, money laundering, corruption, and obstruction of justice,5" and obliges states parties to establish criminal, civil, or administrative liability for legal persons who commit these crimes.52 Such multilateral treaties mark an important development in international law: they not only recognize that legal persons such as corporations can commit international crimes, but also provide regimes for national enforcement. C. CorporateLiability Under the ATCA The ATCA, as interpreted in recent cases,53 stands in stark contrast to the remedial gap in international law identified in the previous section. The ATCA permits aliens to sue U.S. and foreign corporations for certain gross violations of human rights committed either within the United States or abroad.54 The United States stands alone in permitting such suits.55 The discussion that follows assesses the extent to which the ATCA fills the remedial gap, focusing on the requirements of subject matter and personal jurisdiction, the two most formidable barriers to bringing a successful ATCA claim. i. Background. - The ATCA, originally enacted in I789 as part of the first Judiciary Act,56 grants district courts original jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."57 The ATCA remained largely dormant until i980,58 when the U.S. Court of Appeals for the Second Circuit decided the landmark case of Filartiga v. Pena-
tions Convention Against Transnational Organized Crime and the Protocols Thereto, at http://www.undcp.org/crimecicp-signatures.html (last visited Apr. i8, 200I). 51 Organized Crime Convention, supra note 50, arts. 5, 6, 8, 23. 52 Id. art. ro. 53 Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Jota v. Texaco, Inc., I57 F.3d I53 (2d Cir. i998); Doe v. Unocal Corp., 963 F. Supp. 88o (C.D. Cal. I997). 54 28 U.S.C. ? I350 (I994). The ATCA is the primary, but not the only, basis for jurisdiction over international torts such as human rights violations. "Arising under" jurisdiction under 28 U.S.C. ? I33I, supplemental jurisdiction under 28 U.S.C. ? I367, and the Torture Victim Protection Act of i99i, Pub. L. No. I02-256, io6 Stat. 73 (I992), reprinted in 28 U.S.C. ? I350 note, may provide alternative bases for jurisdiction in certain cases. See BETH STEPHENS & MICHAEL
RATNER, INTERNATIONAL HUMAN RIGHTS LITIGATION IN U.S. COURTS 32-38 (i996).
55 See Lori Fisler Damrosch, Enforcing International Law Through Non-Forcible Measures, in
269 RECEUIL DES COURS: COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW I55, I76-77 (I997). 56 Act of Sept. 24, I789, ch. 20, ? 9(b), I Stat. 73, 77 (codified as amended at 28 U.S.C. ? I350). 57 28 U.S.C. ? I350. 58 Before ig80, only twenty-one cases had invoked jurisdiction under the ATCA. See Kenneth
C. Randall, Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Claims Statute, i8 N.Y.U. J. INT'L L. & POL. I, 4-5 n.I5 (I985). Courts sustained ATCA jurisdiction in only two cases. Id. at 5; see Adra v. Clift, I95 F. Supp. 857, 863-65 (D. Md. i96i); Bolchos v. Darrel, 3 F. Cas. 8io, 8io (D.S.C. I795) (No. 1607).
2034
HARVARD LAW REVIEW
[Vol.
II4:I943
Irala,59 in which two members of a Paraguayan family brought suit against a former Paraguayan police inspector for the torture and death of a third family member.60 The court held that "deliberate torture perpetrated under color of official authority" violates the law of nations, and that ATCA jurisdiction is proper over any alleged torturer "found and served with process by an alien within our borders."'6' In arriving at this holding, the court interpreted Supreme Court precedents as establishing four propositions: first, the law of nations is part of federal common law, and thus cases arising under the law of nations arise under the laws of the United States as required by Article III of the Constitution;62 second, the law of nations "may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law";63 third, a norm must "command 'the general assent of civilized nations"' to be part of the law of nations;64 and fourth, the law of nations must be interpreted "not as it was in I789, but as it has evolved and exists among the nations of the world today."65 The Filartiga decision was highly controversial in scholarly and judicial circles and led to considerable debate about the purpose and scope of the ATCA.66 The Supreme Court has not interpreted the
59 60 61 62
630 F.2d 876 (2d Cir. ig80). Id. at 878-79. Id. at 878. See id. at 886-87.
63 Id. at 88o (quoting United States v. Smith, i8 U.S. (5 Wheat.) I53, i6o-6i (i820)). 64 Id. at 88i (quoting The Paquete Habana, I75 U.S. 677, 694 (I900)).
65 Id.
66 The commentators and jurists writing on the purpose and scope of the ATCA may be divided into two broad camps: those who take issue with Filartiga and argue for a narrow interpretation of the ATCA, and those who support Filartiga and argue for a broad interpretation. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 798-823 (D.C. Cir. i984) (Bork, J., concurring) (arguing that the ATCA provides only a grant of jurisdiction, not a cause of action, and that the statute was intended to cover only the rights of ambassadors), and Joseph Modeste Sweeney, A Tort Only in Violation of the Law of Nations, i8 HASTINGS INT'L & COMP.L. REV. 445, 447, 477-83 (I995) (arguing that the ATCA was intended to apply only to a narrow subset of cases under the law of prize), with Tel-Oren, 726 F.2d at 775-98 (Edwards, J., concurring) (supporting the Filartiga interpretation of the ATCA), Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AM. J. INT'L L. 46i, 475 (i989) (arguing that the ATCA was "a direct response to what the Founders understood to be the nation's duty to propagate and enforce those international law rules that directly regulated individual conduct"), William R. Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, i8 CONN. L. REV. 467, 50I (i986) (arguing that "[t]he absence of a jurisdictional amount limitation, the language of the Act, the legislative precedents, and the general historical background all support a broad and liberal construction of section I350"), William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the "Originalists", I9 HASTINGS INT'L & COMP. L. REV. 22I, 237-56 (i996) (responding to the arguments put forth by Judge Bork and Professor Sweeney and arguing that the Filartiga interpretation of the ATCA is
200I]
DEVELOPMENTS -
2035
ATCA, leaving these debates unresolved. Congress, however, mitigated much of the uncertaintyregardingthe Filartiga court's interpretation of the ATCAwhen it enacted the TortureVictim ProtectionAct of i99i (TVPA).67 The TVPA codified Filartiga's holding and extended to U.S. citizens the ability to bring causes of action for torture killings.68 and extrajudicial The Filartiga decision has given rise to a new stream of transnational public law litigation. The first few cases brought under the statute were, like Filartiga, against foreign government officials.69 until Plaintiffsthen began to sue foreigngovernmentsthemselves70 the SupremeCourt in ArgentineRepublicv. AmeradaHess Shipping Corp.7"restrictedthis strand of ATCA litigation.72 The Court held which esthat the ForeignSovereignImmunitiesAct of I976 (FSIA),73 tablishes the general immunity of foreign states from suit before American courts,74is the "sole basis" for jurisdiction over foreign states.75 The severe limitations that AmeradaHess imposes on the ability to sue foreign states under the ATCA have, in part, led plainallegedlycomplicitin humanrights violatiffs to focus on corporations tions committedby foreigngovernments.
the correct one), and Randall, supra note 58, at i i (arguing that the ATCA was part "of an overall endeavor to establish authority in the federal judiciary over actions involving aliens"). More recently, the scholarly debate has focused on whether and to what extent the law of nations is part of federal common law. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, i io HARV.L. REV. 8I5 (I997); Harold Hongju Koh, Is International Law Really State Law?, iii HARV. L.
REV. i824 (i998).
io6 Stat. 73 (I992), reprinted in 28 U.S.C. ? I350 note (I994). 68 S. REP. No. I02-249, at 4-5 (ig9i); see id. at 4 (explaining that "[t]he TVPA would establish an unambiguous basis for a cause of action that has been successfully maintained under ... the Alien Tort Claims Act [in Filartiga]"). 69 See, e.g., Hilao v. Estate of Marcos, I03 F.3d 767 (9th Cir. i996); Abebe-Jira v. Negewo, 72 F.3d 848 (iith Cir. i996); Forti v. Suarez-Mason, 672 F. Supp. I53I (N.D. Cal. i987). 70 See, e.g., Von Dardel v. Union of Soviet Socialist Republics, 623 F. Supp. 246, 230 (D.D.C.
i985).
67 Pub. L. No. I02-256,
72 Id. at 443.
71 488 U.S. 428 (i989). (I994).
73 28 U.S.C. ?? I330, I332, 1602-16ii
74 Id. ? 1604. There are certain limited exceptions to this general immunity. Id. ?? I605-I607. The exceptions include, among others, cases in which the foreign state has waived its immunity and cases involving commercial activity occurring in or having a direct effect in the United States. Id. ? I605. Most importantly, the FSIA specifies that claims against a foreign state for tortious acts or omissions that lead to personal injury or death are limited to those "occurring in the United States," id. ? i605(aX5), effectively foreclosing most ATCA claims against foreign states. The Antiterrorism and Effective Death Penalty Act of i996, Pub. L. No. I04-I32, ? 22I, Iio Stat. 1241 (x996) (codified in relevant part at 28 U.S.C. ? I605 (I994 & Supp. IV I998)), amended ? I605 by adding an exception that authorizes suits against "state sponsors] of terrorism"for acts of torture, extrajudicial killing, aircraft sabotage, and hostage taking. Id. 75 Amerada Hess, 488 U.S. at 433.
2036
HARVARD LAW REVIEW
[Vol. 114:1943
2. Establishing Subject Matter and Personal Jurisdiction Under the ATCA. - Plaintiffs bringing ATCA claims against corporations face an array of procedural hurdles. This discussion focuses on the requirements of subject matter and personal jurisdiction. There are, however, several additional obstacles: standing,76 the joinder of indispensable parties,77and four abstention doctrines that permit judges to dismiss ATCA claims under certain circumstances even if the requirements of personal and subject matter jurisdiction have been met.78
76 See Gregory G.A. Tzeutschler, Corporate Violator: The Alien Tort Liability of Transnational Corporations for Human Rights Abuses Abroad, 30 COLUM. HUM. RTS. L. REV. 359, 399-40I (I999). 77 Some corporate defendants have sought dismissal of ATCA suits by arguing that foreign governments, which are largely immune from suit under the FSIA, are indispensable parties to the litigation under Rule i9 of the Federal Rules of Civil Procedure. See id. at 40I-02. To date, only one court has dismissed an ATCA suit against a corporation for failure to join an indispensable party, and that court's judgment was reversed on appeal. See Aquinda v. Texaco, Inc., 945 F. Supp. 625, 628 (S.D.N.Y. i996), vacated sub nom. Jota v. Texaco, Inc., I57 F.3d I53, i6i-62 (2d Cir. i998). In light of Jota, it seems unlikely that the indispensable party rule will prove to be a significant roadblock to future ATCA cases brought against corporations, as long as plaintiffs seek a form of relief that can be granted without the involvement of a foreign government or a government-controlled entity. 78 The four legal doctrines are forum non conveniens, international comity, act of state, and political question. Under the forum non conveniens doctrine, a judge may decline to exercise jurisdiction if an adequate alternative forum exists and if the plaintiff's choice of forum would be sufficiently inconvenient or vexatious to the defendant such that adjudication of the claim would be more appropriate in the alternative forum. Gulf Oil Corp. v. Gilbert, 330 U.S. 50I, 507-09 (I947). For a discussion of this doctrine and its applicability in ATCA cases against corporations, see Armin Rosencranz & Richard Campbell, Foreign Environmental and Human Rights Suits Against U.S. Corporations in U.S. Courts, i8 STAN. ENVTL. L.J. I45, I79-87 (i999); and Tzeutschler, supra note 76, at 396-99. Recent appellate court rejections of forum non conveniens arguments have diminished the likelihood that corporate defendants in ATCA cases will be able to rely successfully on the doctrine to escape liability. See Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 99-io8 (2d Cir. 2000); Jota, I57 F.3d at I58-59. The international comity doctrine is premised on the respect of one nation for the legislative, executive, or judicial acts of another nation. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 489-go (D.N.J. i999) (citing Hilton v. Guyot, I59 U.S. II3, i64 (i895)). Under the principles of comity, a U.S. court should dismiss a case if hearing it would require the court to pass judgment on such acts. Id. at 490. Corporate defendants have invoked the comity doctrine in several ATCA cases. See, e.g., Bodner v. Banque Paribas, Ii4 F. Supp. 2d II7, I29-30 (E.D.N.Y. 2000); Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 254, 285 (D.N.J. i999). The doctrine has only resulted in the dismissal of two ATCA cases against corporations. See In re Nazi Era Cases Against German Defendants Litig., Civ. No. 00-5496 (WGB), 2001 WL 20I956, at *i8 (D.N.J. Mar. I, 200I) (dismissing the slave labor claim because thishs court is not in a position to question whether the payment structure under the German Foundation Law is either adequate or legal"); Iwanowa, 67 F. Supp. 2d at 490-9I (holding that international comity dictated that the court "follow the pronouncements of the German Federal Government," which had indicated that German law did not authorize foreign citizens to bring suit for wartime forced labor). The act of state doctrine, which is premised on separation of powers concerns, precludes a U.S. court from adjudicating a case if doing so would require the court to determine that a foreign sovereign's official acts performed on its own territory were invalid under international law. See W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 406 (i990); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 437-38 (1964). Legal scholars have criticized this doctrine heav-
200I]
DEVELOPMENTS -
2037
(a) Subject Matter Jurisdiction. - The ATCA grants federal courts subject matter jurisdiction over torts that violate either the "law of nations" or "a treaty of the United States."79 Although several ATCA cases have involved alleged violations of U.S. treaties,80 most ATCA plaintiffs have sued for breach of the law of nations.81 Courts interpreting the ATCA have generally taken a restrained approach to deciding whether a particular norm is part of the law of nations, following and refining the approach taken in Filartiga. In Forti v. Suarez-Mason,82a federal district court in California interpreted Filartiga to require that an international tort be "definable, obligatory (rather than hortatory), and universally condemned."83 Courts have adopted this test in subsequent cases.84 In the ATCA cases decided to date, courts have held that gross violations of human rights such as summary execution; disappearance; torture; cruel, inhuman, or degrading treatment; prolonged arbitrary detention; genocide; war crimes; and forced labor violate the law of nations.85 Courts, however, have declined to recognize cultural genoily. See, e.g., Harold Hongju Koh, Transnational Public Law Litigation, ioo YALE L.J. 2347, 2362-64 (I991). Only one ATCA case has been dismissed on act of state grounds. Roe v. Unocal Corp., 70 F. Supp. 2d I073, 1076-82 (C.D. Cal. i999) (holding that the act of state doctrine precluded judicial review of the propriety of a Burmese officer's order that his soldiers dig a drainage ditch for a gas pipeline being constructed by Unocal). Under the political question doctrine, a court may decline jurisdiction over a case that raises questions that should be addressed by the political branches of government. See Baker v. Carr, 369 U.S. i86, 2Io-II (i962). Although a number of ATCA defendants have raised the political question doctrine as a defense, courts have generally rejected these claims. See, e.g., Abebe-Jira v. Negewo, 72 F.3d 844, 848 (iith Cir. i996). One important exception is found in cases that deal with war reparations. See, e.g., Iwanowa, 67 F. Supp. 2d at 485-89 (dismissing forced labor claims against Ford because, inter alia, such claims arising out of war are constitutionally committed to the political branches, not the judiciary). 79 28 U.S.C. ? I350 (I994). 80 See, e.g., Dreyfus v. Von Finck, 534 F.2d 24, 26-27 (2d Cir. I976) (alleging violations of the Hague Convention of I907, the Kellogg-Briand Pact, the Versailles Treaty, and the Four Power Occupation Agreement for the occupation of Germany after World War II). 81 STEPHENS& RATNER,supra note 54, at 58-59. 82 672 F. Supp. I53I (N.D. Cal. i987) (Forti I). 83 Id. at I539-40. Some courts have interpreted Filartiga to hold that only those norms that qualify as jus cogens - peremptory norms of customary international law that permit no derogation - fall within the scope of the law of nations under the ATCA. See In re Estate of Ferdinand E. Marcos Human Rights Litig., 978 F.2d 493, 503 (9th Cir. I992); Xuncax v. Gramajo, 886 F. Supp. I62, I84 (D. Mass. I995). 84 See, e.g., Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 370 (E.D. La. 1997). 85 Kadic v. Karadlid, 70 F.3d 232, 24I-43 (2d Cir. I995) (genocide, war crimes); Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. ig80) (torture);Doe v. Unocal Corp., 963 F. Supp. 88o, 892 (C.D. Cal. 1997) (forced labor); Xuncax, 886 F. Supp. at i84-85 (summary execution; disappearance; cruel, inhuman, or degrading treatment; prolonged arbitrary detention); Ford v. SuarezMason, 694 F. Supp. 707, 7Io (N.D. Cal. i988) (Forti II) (disappearance); Forti I, 672 F. Supp. at I542 (summary execution). One court, however, has declined to recognize cruel, inhuman, or degrading treatment as a violation of the law of nations. Forti II, 694 F. Supp. at 7I2. For more detailed discussions of the norms accepted in ATCA cases as part of the law of nations, see Ryan
2038
HARVARD LAW REVIEW
[Vol.
II4:I943
cide; environmentalabuses; restrictionson freedom of speech; price fixing;and ordinarytorts such as libel, fraud, breachof fiduciaryduty, of funds as violationsof the law of nations.86 and misappropriation The courts' restrictivedefinition of the law of nations has significantly limited the human rights claims that plaintiffs may bring against corporations.Althoughcorporations are capable of violating a courtshave recognizedcorporateliabilbroad range of humanrights,87 ity only for the most egregiousviolations of civil and political rights humanitarian law. No court has yet and for violationsof international ruled that economic,social, or culturalrights are actionableunder the ATCA. Althoughthis limitationforeclosesthe possibilityof redressfor many potentialplaintiffs,section D arguesthat courtsshould maintain their restrainedinterpretation of the law of nations. The state action requirement furtherlimits the scope of ATCAsubject matterjurisdiction. Consistentwith recent developmentsin international criminallaw,88courts have held that, with few limited exceptions, the law of nations binds only state actors.89 The exceptions to this general rule, as set forth in Kadic v. Karadici,90 permit suits against nonstate actors for piracy, slave trading, genocide, and war crimes.91 Two legal propositionsemerge from the state action requirementas defined in Kadic: first, if a corporationcommits piracy, slave trading,genocide,or war crimes,then it may be held liable under the ATCA even absent state action;and second, if a corporationcommits other violationsof the law of nations,it may be held liable only if the plaintiffestablishesstate action.92
Goodman & Derek P. Jinks, Filartiga's Firm Footing: International Human Rights Law and Federal Common Law, 66 FORDHAML. REV. 463, 497-5II (I997); and Tzeutschler, supra note 76, at
406-i8.
86 Beanal v. Freeport-McMoran, Inc., I97 F.3d i6i, i66-68 (5th Cir. i999) (cultural genocide, abuses); Hamid v. Price Waterhouse, 5i F.3d i4II, I4i8 (9th Cir. I995) (fraud, breach of fiduciary duty, misappropriation of funds); Kruman v. Christie's Int'l, 129 F. Supp. 2d 620, 626-27 (S.D.N.Y. 2001) (price fixing); Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668,
environmental 671 (S.D.N.Y. i99i) (environmental abuses); Giunto v. Marcos, 654 F. Supp. 276, 280 (S.D. Cal.
i986) (restrictions on freedom of speech); Akbar v. New York Magazine Co., 49o F. Supp. 6o, 63 (D.D.C. 1980) (libel). 87 See supra section A, pp. 202 7-30. 88 See supra p. 2030. 89 See, e.g., Kadic, 70 F.3d at 239-40. 90 7 F.3d 232 (2d Cir. 1995). 91 Id. at 239-43. Courts have followed Kadic when interpreting the state action requirement. See, e.g., Doe v. Unocal Corp., iio F. Supp. 2d 1294, 1304-05 (C.D. Cal. 2000); Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 37I (E.D. La. 1997). However, in In re Estate of Ferdinand E. Marcos Human Rights Litigation, 978 F.2d 493 (9th Cir. 1992), the U.S. Court of Appeals for the Ninth Circuit stated that "[o]nly individuals who have acted under official authority or under color of such authority may violate international law." Id. at 501-02. 92 See Kadic, 70 F.3d at 239-44. In determining whether a private defendant such as a corporation has acted under the auspices of a state, courts have looked to the "color of law" jurisprudence of 42 U.S.C. ? 1983 as a "relevant guide." E.g., id. at 245; see Rosencranz & Campbell, su-
200I]
DEVELOPMENTS -
2039
As the recent summaryjudgment ruling in Doe v. Unocal Corp.93 makes clear, an additionalcomplicationarises when a governmentor its agents, ratherthan a corporatedefendant,commitsthe alleged violations. In Doe, the de facto militarygovernmentof Myanmarallegedly committedthe violationsof slave labor,torture,and forcedrelocation. The questionthus arose whetherUnocal could be held liable for the government'sacts. The districtcourt held that for law of nations violations requiringstate action - in this case, tortureand forced relocation - the plaintiff must show that the private defendant proximately caused the violation by "exercis[ing] control"over the government actor.94The court furtherheld that for law of nations violations
that do not require state action - in this case, slave labor the plain-
tiff must establish that the private defendant participatedor cooperated in the violation.95 Rejecting the plaintiffs' argumentthat Unocal's knowledge and approval of the state's use of forced labor constituted participationor cooperation,the court granted summary judgmentfor the defendants.96 The courts' restrictive definition of the law of nations, together with the state action requirement, limits the violations actionable under the statute primarilyto gross violationsof civil and political rights and to violations of rights protectedunder internationalhumanitarian law. In addition,with the exceptionsnoted above, a court must deem a corporatedefendantto be a state actor in orderto impose liability. (b) Personal Jurisdiction over Corporations. Personaljurisdiction can be a significantbarrierin ATCAcases against foreign corporations.97 Unless a plaintiffestablishesthat a court in one of the fifty
pra note 78, at I59-62; Tzeutschler, supra note 76, at 388-93. The ATCA cases against corporations have relied primarily on the joint action test, see, e.g., Doe v. Unocal Corp., 963 F. Supp. 88o, 890-9i (C.D. Cal. i997), finding state action if a private party is a "willful participant in joint action with the State or its agents," Dennis v. Sparks, 449 U.S. 24, 27 (ig80). Recent cases indicate that a conspiracy to violate the law of nations would clearly constitute joint action, see Bodner v. Banque Paribas, II4 F. Supp. 2d II7, I2 I-22 (E.D.N.Y. 2000), and that a substantial degree of cooperative action may also be sufficient, see Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 445-46 (D.N.J. i999). State acquiescence in or approval of corporate conduct, however, generally does not constitute state action. See Beanal, 969 F. Supp. at 379. 93 i F. Supp. 2d I294 (C.D. Cal. 2000).
94 Id. at I307. 95 Id. at I308-io, I3I2.
96 Id. at I307-io. The plaintiffs argued, based on three decisions issued by U.S. military tribunals, that knowledge and approval of forced labor support a finding of liability. Id. at I309. The court analyzed these cases and held that "liability requires participation or cooperation in the forced labor practices." Id. at I3I0. Another court recently concluded that deriving "[an indirect economic benefit from unlawful state action is not sufficient to support jurisdiction" against the defendant corporation. Bigio v. Coca-Cola Co., 239 F.3d 440, 449 (2d Cir. 200I) (amended opinion). 97 Of the two ATCA cases brought against foreign corporations to date, Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000), cert. denied, 69 U.S.L.W. 3628 (U.S. Mar. 26, 200I) (No.
2040
HARVARD LAW REVIEW
[Vol.
114:I943
states has personal jurisdiction over a corporate defendant and unless exercise of such jurisdiction is consistent with Fifth Amendment due process, the plaintiff generally cannot sue the corporation under the ATCA.98 The main difficulty in establishing personal jurisdiction over foreign corporations in ATCA cases is demonstrating sufficient contacts between the foreign corporation and the forum state. In Doe v. Unocal Corp.,99the trial court dismissed a suit against the French oil company Total S.A. because Total's contacts with California were insufficient to give rise to either specific or general jurisdiction.1l0 The court rejected the plaintiffs' argument that the California contacts of Total's subsidiaries could be attributed to Total itself.101 By contrast, in Wiwa v. Royal Dutch Petroleum Co., the U.S. Court of Appeals for the Second Circuit upheld the trial court's ruling that personal jurisdiction over the defendants, both of whom were foreign corporations, was proper.102 The court agreed with the plaintiffs that the activities of the defendants' investor relations office in New York City were sufficient to establish general personal jurisdiction.103 Although the holdings in these two cases are far from conclusive, they indicate that the personal jurisdiction requirement has the potential to shield foreign corporations from ATCA liability. If personal jurisdiction becomes a major obstacle to plaintiffs' bringing ATCA cases against foreign corporations, then it may confine the applicability of the statute to domestic corporations. This limitation would seriously undermine the efficacy of the ATCA as a mechanism for filling the remedial gap identified in section B. 3. Damages and Deterrence. - Despite the significant obstacles posed by subject matter and personal jurisdiction, ATCA cases against
oo-ii68); Doe v. Unocal Corp., 27 F. Supp. 2d II74, II78 (C.D. Cal. i998), appeal docketed, No. 99-55576 (gth Cir. Feb. I2, i999), one was dismissed by the trial court for lack of personal jurisdiction, see id. at ii90. 98 Personal jurisdiction in ATCA cases is governed by the rules that apply in federal courts generally. A federal court may exercise personal jurisdiction over a defendant "who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located," FED. R. CIV. P. 4(k)(I)(a), provided that the exercise of such jurisdiction is consistent with the Fifth Amendment's Due Process Clause. Wiwa, 226 F.3d at 94.
99 27 F. Supp. 2d II74 (C.D. Cal. i998). 100 Id. at ii90. 101 Id. at I i86-go. Although the plaintiffs advanced both alter ego and agency theories for im-
puting the California contacts of Total's subsidiaries to Total itself, the court rejected both theories. Id. Wiwa, 226 F.3d at 94-99. 103 Id. The court held that the activities of the investor relations office, "which range from fielding inquiries from investors and potential investors to organizing meetings between defendants' officials and investors, potential investors, and financial analysts," id. at 97, were not merely incidental to a listing on the New York Stock Exchange, but instead constituted "a continuous and systematic general business presence in New York," id. at 98 (internal quotation marks omitted).
2001]
DEVELOPMENTS -
2041
corporations have the potential to yield enormous damages awards.'04 A number of ATCA suits against foreign government officials have resulted in damages awards reaching the hundreds of millions or even billions of dollars.105 Although these awards have gone largely unpaid,106 judgments against corporations will probably be enforceable because the corporations must, by virtue of the personal jurisdiction requirement, be either U.S. corporations or foreign multinationals with significant U.S. contacts.107 Even if ATCA cases against corporations never reach final judgments, they may nonetheless yield benefits for the plaintiffs through legal and political settlements. Although no ATCA case against a corporation has yet settled out of court, Texaco reportedly offered a $500 million settlement to the plaintiffs in Jota v. Texaco, Inc.108 In addition to legal settlements, ATCA cases against corporations may facilitate political settlements between the parties. ATCA cases played a central catalyzing role in two groundbreaking settlements between corporations and Nazi-era victims and their heirs: a $I.25 billion settlement with Swiss banks'09 and a $5 billion settlement with the
104 In principle, the ATCA offers plaintiffs both compensatory and punitive damages, as well as equitable relief. No relief has yet been awarded in an ATCA case against a corporation because no such case has reached a final judgment. 105 The largest judgment to date in an ATCA case against a foreign government official is the $4.5 billion award that twenty-three plaintiffs won against Radovan Karadlid in Kadic v. Karadlic. See Bosnian Victims Win $4.5 Billion, N.Y. L.J., Sept. 26, 2000, at 2. An additional $745 million in damages were awarded against him in a related case, Doe v. KaradfcW. See Today's News, N.Y. L.J., Aug. II, 2000, at I. Other cases have yielded significant judgments as well. See Hilao v. Estate of Marcos, I03 F.3d 767, 772, 787 (9th Cir. i996) ($I.2 billion in exemplary damages and $766 million in compensatory damages); Mushikiwabo v. Barayagwiza, No. 94 CIV. 3627, i996 WL i64496, at *3-4 (S.D.N.Y. Apr. 9, i996) ($I05 million); Xuncax v. Gramajo, 886 F. Supp. i62, I97-99 (D. Mass. I995) ($45.5 million). 106 STEVEN R. RATNER & JASON S. ABRAMS, ACCOUNTABILITY FOR HUMAN RIGHTS ATROCITIES IN INTERNATIONAL LAW 2II (I997) (noting that "virtually no judgments under the ATCA .. . have been collected, and many defendants have chosen to flee the United States during the course of the litigation");Jane L. Garwood-Cutler, Enforcing ICL Violations with Civil Remedies: The U.S. Alien Tort Claims Act, in 3 INTERNATIONAL CRIMINAL LAW, supra note 42, at 343, 383-84. 107 There may, of course, be cases in which a corporation subject to U.S. jurisdiction simply has insufficient assets subject to seizure in the United States to satisfy a large damages award. 108 I57 F.3d I53 (2d Cir. i998); see Ecuadorian Indians May Settle Billion-Dollar Suit Against Texaco, AGENCE FRANCE-PRESSE, Jan. I9, 2000, 2000 WL 27i62I9. 109 In late i996 and early I997, numerous class action lawsuits were filed against Swiss banks for "knowingly retaining and concealing the assets of Holocaust victims, accepting and laundering illegally obtained Nazi loot and transacting in the profits of slave labor" in violation of national and international law. In re Holocaust Victim Assets Litig., I05 F. Supp. 2d I39, I4I (E.D.N.Y. 2000). As a result of settlement discussions mediated by government officials, the parties reached a $I.25 billion settlement in August i998. See id. at I42-43; John M. Goshko, Swiss Banks' Pact Ends N.Y Threat of Sanctions, WASH. POST, Aug. I4, i998, at AI4. In July 2000, the district court approved the settlement, and the litigation was subsequently terminated. See Holocaust Victim Assets Litig., I05 F. Supp. 2d at i67.
2042
HARVARD LAW REVIEW
[Vol. II4:I943
Germangovernmentand Germancorporations.110 If plaintiffs win large judgments against corporationsin ATCA cases - which remains only a remote possibility given the jurisdictional hurdlesand the fact that a final judgmentagainst a corporation has yet to be reached11- these judgmentsmay have a generaldeterrent effect on corporateconduct. Any multinationalcorporationsubject to the personaljurisdictionof an Americancourt would be imprudent to disregardpotential ATCA liability. The threat of losing their Americanassets would give such multinationalsa powerful incentive to change their own internalstandardsand methods of operationvoluntarilyin orderto comply with ATCAjurisprudence.It is also possible that the potentialfor ATCAliability would alter corporations'foreign direct investment decisions. Multinationalsmay choose to stay away from countrieswith poor human rights records,fearingthat significantinvolvementwould exposethem to liabilityunderthe ATCA. The potentialeffect of ATCAliability on corporateconduct may in turn influencethe behaviorof host governments. If corporationsbase their foreign direct investmentdecisionsin part on potentialATCA liability,foreigngovernmentstryingto attractcorporateinvestmentmay alter their human rights policies. In this respect, corporateliability under the ATCAmay amountto an indirecteconomicsanctionon foreign governmentsthat participatein grosshumanrightsabuses.112 4. Limitations of the ATCA.- The efficacy of the ATCA as a mechanismfor filling the remedialgap identifiedin section B is limited in two respects. First, the internationalhuman rights norms enforceableunder the statute are restrictedto certain civil and political
110 In the fall of I998, the German government asked a U.S. government official to mediate settlement negotiations in numerous class actions pending in American courts against German companies for the alleged use of slave labor during the Nazi era. In re Nazi Era Cases Against German Defendants Litig., I98 F.R.D. 429, 431 (D.N.J. 2000). In December i999, the parties reached an agreement, under which German industry and government would establish a $5 billion foundation to compensate slave labor survivors. Id. at 431-32; see also John Burgess, U.S., Germany Act To Clear Wayfor Slave-Labor Compensation, WASH. POST, June 13, 2000, at AI5. In August 2000, the German parliament passed a law establishing the foundation, and many of the lawsuits were subsequently dismissed. See Nazi Era Cases Against German Defendants Litig., I98 F.R.D. at 432; William Drozdiak, Germany Sets Fund for Slaves of Nazis; $5 Billion Will Go to Aging Survivors, WASH.POST,July i8, 2000, at AI7. The recent refusal of a federal judge to dismiss a number of lawsuits against German companies despite the establishment of the $5 billion fund has cast doubt on the future of the agreement. See Edmund L. Andrews, New Legal Disputes Put Holocaust Victim Payments in Doubt, N.Y. TIMES, Mar. 9, 2001, at A3. 1 See supra note 104. 112 Robert J. Peterson, Comment, Political Realism and the Judicial Imposition of International Secondary Sanctions: Possibilities from John Doe v. Unocal and the Alien Tort Claims Act, 5 U. CHI. L. SCH. ROUNDTABLE 277, 296 (I998) ("Judicially created secondary sanctions in the form of a finding of joint tort liability against a foreign company ... would create the same effect in some cases as congressionally created secondary sanctions.").
2001
DEVELOPMENTS -
2043
rights and to rights under internationalhumanitarianlaw. Courts have not interpretedthe statute to cover economic,social, or cultural rights. Second, the requirementsof personal jurisdiction limit the numberof corporations that are subjectto suit underthe statute. Foreign corporations that lack sufficientU.S. contactsto supportpersonal jurisdictionare effectivelyimmunefromliability. These limitationsin turn raise two questions:First, can or should U.S. courts interpretthe ATCA more liberallyto expand the types of actionable corporateviolations? Second, what other steps could be taken to fill the remedialgap? Section D addressesthe first question; section E addressesthe second. D. ExpandingSubjectMatterJurisdiction Underthe ATCA Although the requirements of personaljurisdictionare not specific to the ATCA and thus cannot be altered throughjudicial interpretation, courts could broadenthe scope of subject matterjurisdictionunder the statute by interpretingthe "law of nations"more expansively. The question becomes whether doing so would be legally permissible from the perspectiveof internationallaw or desirable as a matter of policy. Althoughbroaderinterpretations of the "law of nations"would probablyprovide remediesto a greaternumberof victims of corporate human rights violations,it would also likely overstepthe bounds of legitimate jurisdictionunder internationallaw, stir up conflict in international relations,and diminish the legitimacyof Americancourts in the eyes of the international community. As discussed in section C, courts have interpretedthe law of nations restrictively,insisting that its norms be "definable,obligatory (ratherthan hortatory), and universallycondemned."113 The rationale that courts have offered for this restrictivedefinition is that under a more permissiveone, "courtsof one nation might feel free to impose idiosyncraticlegal rules upon others,in the name of applying international law."'114 The more expansivea court'sinterpretation of the law of nations, the greaterthe dangerthat the court will impose American, ratherthan universal,normson othercountries. This danger is particularly acute in ATCAactions against corporations because large judgments may effectively force foreign governments to change their domesticpolicies. A state can hardly complain when a foreign court holds a corporationliable for war crimes, geno114
113 Forti I, 672 F. Supp. 1531, 1539-40 (N.D. Cal. i987). Filartiga v. Pena-Irala, 630 F.2d 876, 88i (2d Cir. ig80). In Forti I, the court reasoned that
"[tihe requirement of international consensus is of paramount importance, for it is that consensus which evinces the willingness of nations to be bound by the particular legal principle, and so can justify the court's exercise of jurisdiction over the international tort claim." Forti I, 672 F. Supp. at 1540.
2044
HARVARD LAW REVIEW
[Vol. II4:I943
cide, or torture within that state's territory because these acts are welldefined and universally condemned. By contrast, many economic, social, and cultural norms, despite near universal consensus,1"5remain relatively abstract.116 Developing countries have a legitimate interest in determining their own policies in areas such as economic development and environmental protection.117 One country should not unilaterally impose its goals on another. As the Fifth Circuit Court of Appeals recently observed, "federal courts should exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments."118 If American courts interpret the law of nations to include norms that are not sufficiently defined or universally recognized, they will encroach on the legitimate authority of foreign states and engender conflict and hostility. Adjudicating claims based on poorly defined norms would also violate jurisdictional principles under international law. When American courts assess whether they have jurisdiction under the ATCA, they look to the requirements of domestic law rather than to those of international law. Yet public international law provides a set of principles for the determination of domestic courts' authority to adjudicate cases.119 These principles aim at avoiding conflict by allocating competence among domestic courts. As one commentator has observed, "[t]here is no more important way to avoid conflict than by providing clear norms as to which state can exercise authority over whom, and in
115 See supra note i8 (noting that I42 states are parties to the ICESCR). 116 To say that economic, social, and cultural rights are more abstract is not to say that they are
less important than civil and political rights. As many commentators have convincingly argued, the two sets of rights are interdependent. Civil and political rights have little meaning if basic economic, social, and cultural needs are not met; conversely, economic, social, and cultural rights have little value if civil and political rights are routinely violated. See, e.g., JEREMY WALDRON, LIBERAL RIGHTS: COLLECTED PAPERS i98i-i99i, at 4-34 (I993). Despite this interdependence, economic, social, and cultural rights remain "extremely vague ... when contrasted with the degree of precision with which most civil and political rights have been elaborated," and this vagueness has "tended to encourage the relative neglect" of economic, social, and cultural rights. Report on the Right to Adequate Food as a Human Right, Subcomm'n on Prevention of Discrimination and Protection of Minorities, U.N. Comm'n on Hum. Rts., U.N. ESCOR, 39th Sess., Agenda Item II, at io, U.N. Doc. E/CN.4/Sub.2/I987/23 (I987); see also Martin Schleinin, Economic and Social Rights as Legal Rights, in ECONOMIC, SOCIALAND CULTURAL RIGHTS: A TEXTBOOK 4I, 4I (Asbj0rn Eide, Catarina Krause & Allan Rosas eds., I995) (citing the vague wording of economic, social, and cultural rights as one of the main reasons for their lack of justiciability). 117 See Anne-Marie Slaughter & David Bosco, Plaintiffs Diplomacy, FOREIGN AFF., Sept.Oct. 2000, at I02, III. 118 Beanal v. Freeport-McMoran, Inc., I97 F.3d i6i, i67 (5th Cir. i999). 119 See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES ?? 402, 404 (I987) (defining the six jurisdictional principles under international law: territorial, nationality, protective, passive personality, effects, and universal).
200I]
DEVELOPMENTS -
2045
what circumstances. Without that allocation of competences, all is rancor and chaos."120 Viewed from the perspective of the international legal system, the ATCA is an assertion of universal jurisdiction.121 The universality principle provides all states with jurisdiction over a limited category of crimes deemed to be of universal concern.122 Under this principle, the nature of the offense itself, rather than the location where the offense takes place or the nationality of the perpetrator or victim, entitles a court to exercise jurisdiction.123 Although the universality principle generally concerns criminal jurisdiction,124it may also give rise to civil jurisdiction.125 The ATCA is an example of the latter phenomenon. Courts interpreting the ATCA have not explicitly invoked the universality principle.126 Nevertheless, they have largely remained within its boundaries by limiting the scope of actionable violations to those that are defined, obligatory, and universally condemned.127 If courts
120 HIGGINS,supra note i5, at 56.
See Hari M. Osofsky, Domesticating International Criminal Law: Bringing Human Rights Violators to Justice, 107 YALEL.J. 191, 210 (I997) ("Since the torts being adjudicated often have no connection to the American forum, the only applicable jurisdictional base is universal."). Some may argue that certain ATCA cases are authorized by other bases of jurisdiction. One could argue, for example, that an ATCA case against an American corporation is justified under nationality jurisdiction. But the ATCA does not authorize jurisdiction over nationals alone; it applies to any defendant over whom personal jurisdiction can properly be obtained. Even in a case involving an American defendant, the plaintiff asks the court to recognize certain acts as violations of the law of nations, irrespective of the situs of the offense or the nationality of the offender.
122 KENNETH C. RANDALL, FEDERAL COURTS AND THE INTERNATIONAL HUMAN
121
RIGHTSPARADIGM i63 (1990). 123 Id. In this respect, universal jurisdiction is quite unlike other international jurisdictional principles, which are premised on direct connections between the state's exercise of jurisdiction and the offense or the offender. Id. 124 See, e.g., Demjanjuk v. Petrovsky, 776 F.2d 57I, 582, 584 (6th Cir. i985) (holding that the United States could extradite the defendant to Israel to face charges of mass murder because Israel had universal jurisdiction over the alleged offenses). 125 See RESTATEMENT(THIRD) OF THE FOREIGN RELATIONSLAw OF THE UNITED STATES,? 404 cmt. b (i987) ("In general, jurisdiction on the basis of universal interests has been exercised in the form of criminal law, but international law does not preclude the application of non-criminal law on this basis, for example, by providing a remedy in tort or restitution for victims of piracy.'). 126 There are two notable exceptions: Kadic v. Karadzi6, 70 F.3d 232, 240 (2d Cir. I995), in which the court referred to universal jurisdiction to argue that certain violations of international law do not require state action, and Xuncax v. Gramajo, 886 F. Supp. 162, I93 (D. Mass. I995), in which the court invoked universal jurisdiction to reject the defendant's claim of improper venue.
127 See, e.g., Forti I, 672 F. Supp. I53I, I539-40 (N.D. Cal. i987). According to the Restate-
ment (Third) of Foreign Relations Law, the offenses that give rise to universal jurisdiction are piracy, slave trading, war crimes, genocide, attacks on or hijacking of aircraft, and "perhaps certain acts of terrorism." RESTATEMENT (THIRD) OF THE FOREIGNRELATIONSLAW OF THE UNITED STATES? 404 (I987). Courts interpreting the ATCA have concluded that the law of nations forbids the additional offenses of torture, summary execution, disappearance, and arbitrary arrest and detention. See supra p. 2037. If the Restatement list is taken as definitive, then it would seem that American courts lack jurisdictional authority under international law to hear
2046
HARVARD LAW REVIEW
[Vol.
II4:I943
venture significantlybeyondthis point, they will risk violating international principlesof jurisdictionand may stir up the very "rancorand chaos"that the principlesare designedto avoid. There are strong legal and policy reasons to maintain the current restrictiveinterpretationof the law of nations. Although the ATCA plays an important role in providing remedies for offenses that are subject to universalcondemnation,courts should not employ it to impose the policy choices and values of one countryon another. American courts adjudicatingATCA cases against corporationsshould bear in mind the broaderlegal and policy implicationsof ruling that a particular norm is part of the law of nations. If the ATCA'ssubject matter jurisdiction were expanded, the statute could all too easily turn into an instrumentof imperialism. from a "badgeof honor"128
E. A Multilateral Approach to Filling the Remedial Gap
Given the limitationsimposed by subject matter and personaljurisdictionand the legal and policy concernsraisedby a more liberalinof the law of nations,the ATCAcannot by itself bridgethe terpretation remedialgap identifiedin section B. In additionto the ATCA,a multilateral approachis needed to address the problem of corporatehuman rightsviolations. The most effective multilateralapproachwould be to establish an internationaltreaty that specifies the human rights obligations of corporations and requires states parties to provide criminal,civil, or administrativeremediesfor violations of those obligations.129 The negotiation of such a treaty would not be easy,
these additional claims. Such an argument, however, ignores two realities. First, the list of international crimes subject to universal jurisdiction is not frozen in time. The list has expanded considerably since World War II. See HIGGINS, supra note 15, at 58-59; RANDALL, supra note 122, at i63-93. Second, national courts can play an important role in the expansion of universal jurisdiction. One treatise on international law, for example, cites Filartiga for the proposition that "the most serious violations of human rights such as torture" are now subject to universal jurisdiction. I OPPENHEIM'S INTERNATIONAL LAW, supra note I5, at 470 & n.23 (citing Filartiga v. PenaIrala, 630 F.2d 876, 884 (2d Cir. ig80)). Courts, however, must exercise this authority carefully. The Filartiga court did so by engaging in a careful analysis of the sources of customary international law. The court looked to the U.N. Charter, several U.N. declarations, the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms before concluding that official torture was prohibited under the law of nations. Filartiga, 630 F.2d at 88o-84. Other courts interpreting the ATCA have taken a similarly rigorous approach. See, e.g., Forti I, 672 F. Supp. at 1539-40. 128 See Burley, supra note 66, at 464. 129 There are, of course, other alternatives. One would be to amend the Statute of the International Court of Justice to provide for jurisdiction over legal persons. For a discussion of the amendment process, see Clapham, supra note 47, at 159-60. Given the Rome Conference's failure to adopt the French proposal for jurisdiction over legal persons, see supra p. 203i, an amendment seems unlikely in the foreseeable future. The adoption of such an amendment would be an important step forward in filling the remedial gap in international law, but it would be limited by
200I]
DEVELOPMENTS -
2047
particularlyin light of the internationalcommunity'spast failure even But nearlytwo to agree on a nonbindingcode of corporateconduct.130 decades have passed since that failed attempt, and the international communityhas becomeincreasinglyaware of the problemof corporate human rightsviolations.131 Drafters could model the multilateralagreement on the international treatiesdiscussedin section B that both define the legal obligations of corporationsand mandate some form of national enforcement through criminal,civil, or administrativeremedies.132This approach would avoid the controversy over corporate criminal liability that arose during the negotiationson the InternationalCriminal Court.133 The treaty would requirestates partiesto establishonly those legal enforcementmechanismsappropriateunder domestic law. Thus, states would not parties that do not recognizecorporatecriminalliability134 be requiredto establish it. The disadvantageof this approach,however, is that it would permit significantnational variation in enforcement mechanisms. Any such treaty should at the very least cover the types of egregious human rights violations currentlyactionable under the ATCA. Thus, the treaty should prohibitviolationsof internationalhumanitarian law, such as genocide,war crimes,and crimesagainst humanity,as well as gross violations of civil and political rights, such as killings, torture,disappearance, and arbitraryarrestand detention. The treaty should also proscribeparticularly egregiousviolationsof economic,social, and culturalrights,such as the destructionof indigenouspeoples' habitats or the knowing causation of environmentalpollution that gravely threatenshuman health. The multilateraltreaty negotiations would provide a forum for the partiesto reach consensuson the scope and definitionof violations.
the International Criminal Court's authority to hear only claims of war crimes, crimes against humanity, genocide, and aggression. See Rome Statute, supra note 32, arts. 5-8. Another alternative would be to develop a treaty that establishes an international civil tribunal to adjudicate human rights claims against multinational corporations. See Joseph, supra note 5, at i84-85 (describing such a proposal advanced by the World Development Movement). But this approach would require too great a leap from the status quo. Establishing an international tribunal seems premature given the lack of clearly articulated corporate human rights obligations under international law. The proposal advocated in this section is more measured in that it relies on national enforcement. 130 See supra note 38. 131 See Chris Avery, Business and Human Rights in a Time of Change, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW, supra note 47, at 17, 29-49 (discussing increased societal awareness of corporate human rights violations). 132 See supra p. 2032.
133 See supra
p. 2031.
134 See Tiedemann, supra note 45, at
12-13.
2048
HARVARD LAW REVIEW
[Vol.
II4:I943
The treaty could take a number of different approaches to the question of jurisdiction.135 Territorial jurisdiction would be the approach most likely to garner support. It would, however, have the lowest efficiency because, as contemporary allegations against corporations indicate, the international community cannot rely on host governments to regulate effectively the multinationals operating on their territory. It would be preferable for the treaty to authorize states parties to exercise nationality jurisdiction over multinational corporations. This form of jurisdiction is not without its difficulties,136 but if a significant number of states were to sign and ratify the treaty, the exercise of such jurisdiction would be less controversial than if it were exercised unilaterally. A third option would be universal jurisdiction, but this approach would probably limit the types of violations covered in the treaty to violations of international humanitarian law and certain gross violations of civil and political rights. States parties would likely be reluctant to approve universal jurisdiction over economic, social, and cultural rights. The establishment of such a treaty would provide several important benefits. First, the treaty would expand the number of legal avenues available to victims of corporate human rights violations. All states parties would be obliged to provide domestic remedies for corporate human rights violations. Foreign corporations that are not subject to personal jurisdiction before American courts could be held liable before the courts of another country. Second, the treaty could potentially prohibit a broader array of human rights violations than the ATCA currently does. Third, the treaty would lend increased international legitimacy to ATCA cases against corporations. The United States would no longer be the sole forum for human rights suits against corporations. The ATCA would become one component of a multinational effort to curb corporate human rights abuses. F. Conclusion Corporate violations of human rights are a significant problem facing the international community. Although the ATCA provides remedies to a limited group of victims, it is by no means an adequate response. The requirements of subject matter and personal jurisdiction leave many corporations safe in their impunity and many victims without redress. The answer is not to expand the scope of subject matter jurisdiction by interpreting the law of nations more liberally; doing so may violate international principles of jurisdiction and may lead to international discord. Rather, a multilateral approach is
135
136 See HIGGINS, supra note IS, at 73-74.
See supra note
ii9.
200I]
DEVELOPMENTS -
2049
needed to address the problem of corporate violations of human rights. An effective solution requires international agreement not only on the human rights obligations of corporations, but also on an effective enforcement mechanism. The international community should view the recent ATCA cases against corporations as a call to collective action.
JUDICIAL DIALOGUE: WHEN VI. THE INTERNATIONAL COURTS JOIN THE DOMESTIC CONSTITUTIONAL CONVERSATION
The past few decades have witnessed a tremendous increase in the number of domestic tribunals that look to international and foreign legal sources to inform their interpretations of domestic law.' Domestic courts, when ruling on a particular substantive legal issue, can look for guidance not only to bilateral and multinational treaties that relate to the issue,2 but also to decisions of supranational tribunals3 that have addressed similar legal questions. Conversely, supranational and foreign tribunals faced with analogous legal issues can refer to domestic courts' decisions.4 Justice Claire L'Heureux-Dube of the Canadian Supreme Court has described the current practice of citing, analyzing, relying on, or distinguishing the decisions of foreign and supranational tribunals as a "dialogue."5 This Part builds on the terminology of Justice L'Heureux-
1 See Anne-Marie Slaughter, Judicial Globalization, 40 VA. J. INT'L L. II03, I104-15 (2000) (discussing the increasing interaction between domestic and supranational courts). 2 See Claire L'Heureux-Dub6, The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court, 34 TULSAL.J. I5, 24 (i998). 3 This Part uses the terms "supranational tribunals" and "supranational courts" to refer to courts that do not belong to any particular nation. Recent literature has discussed the relationWITHJUDGship between several supranational courts and domestic courts. See COMPLIANCE COURTS40-42 (M.K. Bulterman & M. Kuijer eds., i996) (discussMENTS OF INTERNATIONAL ing domestic compliance with the rulings of the International Court of Justice); Slaughter, supra note i, at II04-I2 (discussing the increasing influence of the European Court of Justice and the European Court of Human Rights); see also WILLIAMA. SCHABAS,THE ABOLITIONOF THE LAW 284-94 (2d ed. I997) (discussing capital punishDEATH PENALTY IN INTERNATIONAL ment rulings of the Inter-American Commission on Human Rights). 4 See Slaughter, supra note i, at II05 (examining the "cooperative relationship" between the European Court of Justice and domestic tribunals in Europe); sources cited supra note 3. 5 L'Heureux-Dub6, supra note 2, at I7. Justice L'Heureux-Dub6 argues that "until recently" the process was one of "reception":new constitutional courts often applied the reasoning of older Citing cases decided during the tribunals, particularly British and American courts. Id. at I7-i8. i99os in a broad range of jurisdictions (Australia, Canada, Trinidad and Tobago, and Zimbabwe), Justice L'Heureux-Dub6 claims that currentet trends" demonstrate that courts now engage in "dialogue":judges look to a "broad spectrum of sources" and "mutually read[] and discuss[] each others' jurisprudence." Id. at 2i. This Part uses the term "dialogue" in a similar fashion to describe the mutual exchange of ideas through published opinions. For a discussion of the role of civil law countries' courts in this dialogue, see note 66, below.
2050
HARVARD LAW REVIEW
[Vol.
II4:I943
judicial diaDube and refersto this phenomenonas the "international logue"or the "international judicial conversation." The developmentsin internationalcriminallaw describedabove,6 such as the increasingimportanceof internationalcriminaltribunals, are likely to lead to a more sophisticatedjudicial conversationin the realm of criminallaw.7 Supranational criminaltribunalsmay look to domesticlaw in orderto determineproperproceduresand appropriate punishments;8 the decisions of these tribunals may in turn influence the developmentof domesticcriminallaw.9 A major area of criminallaw that has been influencedby the internationaljudicial dialogueis the law of capital punishment.10 Domestic courts, particularlythose that considerconstitutionalquestions, often face issues involving the death penalty. This Part examinesthe recent historical developmentof the dialogue among constitutionalcourts11 and supranational courts by studying various capital punishment cases.12 It analyzesthese death penaltvdecisionsin orderto addressa
6 See supra Parts II-III. 7 Courts engage in the international judicial dialogue in both criminal and civil contexts. See
L'Heureux-Dub6, supra note 2, at 2I-22 (noting courts' reliance on outside jurisprudence to determine criminal issues that involve the death penalty or to analyze procedural matters such as the right to counsel); Slaughter, supra note i, at III2-I5 (discussing how the globalization of the economy has forced courts to consider foreign law in rulings that involve domestic corporate law). The trends described in this Development indicate that the international judicial dialogue in the criminal context will become particularly important in the next few years. As international criminal tribunals, such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), increase in number and importance, see supra Part II, p. i980, the decisions of these courts may foster the development of a more sophisticated international judicial conversation on criminal law. 8 See, e.g., supra Part III, pp. i998-99. 9 Cf. United States v. Burns, 200I SCC 7, 1 88 (Can.), http://www.lexum.umontreal.ca/cscscc/en/rec/html/burnsi.en.html (last visited Apr. i8, 200I) (noting that the trend toward abolition of the death penalty led the ICTY and the ICTR to exclude the death penalty from the available punishment options). 10 The worldwide trend toward abolition of the death penalty is intertwined with the international judicial dialogue of constitutional courts. In some nations, courts have declared the death penalty unconstitutional. See, e.g., State v. Makwanyane, 1995 (3) SALR 39I, 45I (CC) (S. Afr.) (holding that the death penalty violates the constitutional prohibition against "inhuman and degrading" punishment). Courts in nations that have eliminated the death penalty must also confront constitutional issues raised by the existence of capital punishment elsewhere, such as the legality of extraditing a fugitive to a nation where he might face a sentence of death. See, e.g., Kindler v. Canada, [I99I] 2 S.C.R. 779, 856 (Can.) (holding that the extradition of two fugitives to the United States would not violate the Canadian Charter of Rights and Freedoms). For an informative discussion of the international trend toward abolition, see SCHABAS, supra note 3. 1l This Part uses the term "constitutional court" to refer to any court that engages in constitutional interpretation, even if that court also engages in other types of legal interpretation. 12 The constitutional context is an appropriate area of focus because the development of the international judicial dialogue parallels the rise in "world constitutionalism." Professor Bruce Ackerman has used the term "world constitutionalism" to describe both the increase in the number of written constitutions since World War II and the increase in the importance of national consti-
200I]
DEVELOPMENTS -
205I
larger issue that seems to arise only when constitutional courts engage in the international judicial dialogue: whether domestic constitutional texts must "license"courts' examination of foreign or supranational jurisprudence.13 This Part assesses why many constitutional courts do not attempt to justify their participation in the international conversation in terms of a constitutional license. Section A scrutinizes the interpretive approach taken by several courts that have engaged in the international judicial dialogue in the capital punishment context. This section contends that the courts' willingness to analyze and then either to follow or disregard foreign and supranational precedents suggests that they do not view domestic law as subordinate to international law. Section A concludes that the supposed superiority of international law does not license engagement in the international judicial conversation. Section B examines various reasons that courts might look to outside jurisprudence and argues that none adequately explains why they do not justify their reliance on foreign and supranational precedents in terms of a textual constitutional license. Section B concludes that the courts of other nations the constitutional traditions of which were formed largely by borrowing from foreign sources - seem to view their domestic charters as having an international character. Section C then analyzes the oftnoted hesitancy of the U.S. Supreme Court to engage in dialogue with its foreign counterparts14 and argues that one explanation for the
tutional courts that interpret these documents. Bruce Ackerman, The Rise of World Constitutionalism, 83 VA. L. REV. 771, 771-72 (I997). 13 See Mark Tushnet, The Possibilities of Comparative Constitutional Law, I08 YALE L.J. 1225, 1231 (i 999) (using the word "license"in the context of comparative constitutional law); infra
pp. 2062-63.
14 Much of the academic scholarship in this area has focused on the wisdom of entering the international conversation. See Heinz Klug, Model and Anti-Model: The United States Constitution and the "Rise of World Constitutionalism", 2000 Wis. L. REV. 597, 6I5; Tushnet, supra note 13, at 1226-27 (noting the current tendency among scholars and judges to encourage American courts to learn from the jurisprudence of foreign jurisdictions); James H. Wyman, Vengeance Is Whose?: The Death Penalty and Cultural Relativism in International Law, 6 J. TRANSNAT'L L. & POL'Y 543, 553-57 (I997); see also Margaret A. Burnham, Cultivating a Seedling Charter: South Africa's Court Grows Its Constitution, 3 MICH. J. RACE & L. 29, 45 (I997) (criticizing the failure of the U.S. Supreme Court to follow a "global jurisprudence" similar to that of the South African Constitutional Court); Charles Fried, Scholars and Judges: Reason and Power, 23 HARV. J.L. & PUB. POL'Y 807, 8I5-I8 (2000) (noting the current debate between Justices Scalia and Breyer over the propriety of using international and foreign legal materials in constitutional interpretation); cf. Carol S. Steiker, Pretoria, Not Peoria: S v. Makwanyane and Another, r995 (3) SA 391, 74 TEX. L. REV. I285, I288 (I996) (arguing that the United States should follow the lead of the South African Constitutional Court by becoming more willing to introduce reforms through the judicial process). But see Seth F. Kreimer, Invidious Comparisons:Some Cautionary Remarks on the Process of Constitutional Borrowing, i U. PA. J. CONST.L. 640 (i999) (advocating a cautious approach to the use of comparative law); Tushnet, supra note I3, at I308 (recommending that U.S. courts exercise care when using nondomestic jurisprudence).
2052
HARVARD LAW REVIEW
[Vol.
II4:I943
Court's behavior is its view of the U.S. Constitution as a document with a singularly American character. This Part proposes that the decision to look to international law when making or interpreting a domestic constitution reflects in part a concept of the constitution as one - but still only one - of many documents embodying the norms of international law. Courts with an internationalist view of their domestic charters do not need an explicit textual license to find that outside precedents, though not always dispositive, are nevertheless pertinent to constitutional interpretation. A. The Process of Incorporation The death penalty cases discussed in this section demonstrate that constitutional courts employ a common interpretive process when they engage in the international judicial dialogue. Although these courts canvass relevant foreign and supranational jurisprudence, they also study applicable domestic law and political concerns to evaluate whether the incorporation of outside legal norms will be compatible with the domestic climate. The willingness of these courts to examine and then either to follow or distinguish foreign and supranational authority indicates that these tribunals do not participate in the international judicial dialogue because they believe that the opinion of the international community supersedes domestic law. Instead, these domestic courts engage in the dialogue because they view outside jurisprudence as a helpful resource that indicates how other courts have dealt with similar legal issues. i. Examining Foreign and Supranational Jurisprudence. - The ways in which two domestic constitutional courts examined the same supranational precedent provides a useful illustration of the interpretive process used by courts that engage in the international judicial dialogue. The Canadian and Jamaican Supreme Courts both analyzed, but treated differently, the decision of the European Court of Human Rights (European Court)15in Soering v. United Kingdom.16 In Soering, the European Court examined whether the United Kingdom's extradition of a fugitive to face a possible death sentence in Virginia would offend article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European
15 The European Court of Human Rights functions independently of the institutions of the European Union. The I949 treaty that established the Council of Europe also created this court to enforce the protections embodied in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Stephen Breyer, Changing Relationships Among European Constitutional Courts, 2I CARDOZOL. REV. I045, I056-57 (2000). The court has jurisdiction over the forty nations that comprise the Council of Europe. Id. In recent years, the European Court has become increasingly influential in the development of international human rights norms. Slaughter, supra note i, at II09-I2. 16 App.No. I4038/88, II Eur.H.R. Rep.439 (i989) (Eur. Ct. H.R.).
200I]
DEVELOPMENTS -
2053
Convention)."7 The court noted that capital defendants in Virginia often remained on death row for six to eight years because of the lengthy appeals process.18 The court found that by subjecting prisoners to "the anguish and mounting tension of ... the ever-present shadow of death,"19extradition of a fugitive to face this "death row phenomenon" violated article 3.20 The Canadian Supreme Court looked to, but declined to follow, Soering when deciding Kindler v. Canada,21 a case that similarly involved the extradition of two fugitives to the United States.22 Like the European Court in Soering, the Canadian court in Kindler analyzed relevant international law and maintained that its ruling was "not out of step with the international community."23 The Canadian court recognized that its decision to permit extradition conflicted with the views of the European Court, but contended that the decision in Soering did not reflect a universally accepted norm.24 Pointing to a decision by the European Commission of Human Rights (European Commission) that allowed the extradition of a fugitive to the United States, the Canadian court argued that the international community was divided on the propriety of extraditing fugitives to face the death penalty.25 The court found that the legal norm reflected in the European Commission's ruling would accord better with Canada's domestic
17 Id. at 464. The European Court noted that article 3 of the European Convention prohibits "inhuman or degrading treatment or punishment." Id. (internal quotation marks omitted). 18 Id. at 475. 19 Id. at 476. 20 Id. at 478. The Soering court canvassed relevant international and regional documents and concluded that the protection in article 3 accorded with international norms on capital punishment. The court noted, for example, that article 3's prohibition of inhuman or degrading punishment mirrored similar provisions in the I966 International Covenant on Civil and Political Rights (ICCPR) and the i969 American Convention on Human Rights. Id. at 467. The protection in article 3 thus seemed to be "an internationally accepted standard." Id. The European Court was careful to ensure, however, that its decision was consistent with the practices of the member states of the European Convention. The court found a "virtual consensus," id. at 473 (internal quotation marks omitted), regarding the invalidity of the death penalty that, it suggested, allowed it to restrict the ability of member states to extradite fugitives, see id. at 473-74. The court noted that in the nations that retained the death penalty, such a sentence, even if imposed, was never carried out. Id. at 473. 21 [I99I] 2 S.C.R. 779 (Can.). 22 See id. at 840. The court considered whether the Canadian Charter of Rights and Freedoms required the Canadian government to seek assurances from the United States that the death penalty would not be imposed. Id. at 839-40. The court noted that article 7 of the Canadian Charter protects "the right to life, liberty and security of the person," while article I2 prohibits "cruel and unusual treatment or punishment." Id. at 843. 23 Id. at 856. 24 Id. 25
Id. (citing Kirkwood v. United Kingdom, App. No. I0479/83, 37 Eur. Comm'n H.R. Dec. &
I58 (I984)).
Rep.
2054
HARVARD LAW REVIEW
[Vol.
II4:I943
needs.26 Thus, even though the Canadian court declined to follow an international norm, it chose to justify its decision in terms of international law. In contrast to the Canadian Supreme Court, the British Privy Council, sitting as the Jamaican Supreme Court in Pratt v. AttorneyGeneral for Jamaica,27 gave more weight to the European Court's analysis in Soering. Pratt involved an appeal brought by two capital defendants who had been on death row for almost fourteen years.28 The defendants argued that such a long detention spent awaiting death constituted "inhuman or degrading punishment" in violation of section I 7(I) of the Jamaican constitution.29 The Privy Council, describing the delay as "shocking,"30 commuted the defendants' sentences to life imprisonment.31 In its opinion, the Privy Council surveyed the international scene and noted the division of opinion among domestic and supranational courts regarding the cruelty of long detentions, particularly when the delay resulted from defendants' discretionary appeals.32 Persuaded by the reasoning in decisions like Soering,33 the Privy Council found that if a prisoner were able to delay his execution for a period of years, the fault would lie with the inefficient appellate process.34 The Privy Council examined the domestic situation in Jamaica and sympathized with the nation's "disturbing murder rate" and "limited financial resources" with which to administer the criminal justice system.35 The
26 The court observed that because of Canada's "long border with the United States," id. at 844, there was a serious concern that if the Canadian government were unable to extradite fugitives, the country "might become a safe haven for criminals ... seeking to avoid the death penalty," id. at 853. 27 2 A.C. i (P.C. i993) (appeal taken from Jam.). [7994] 28 Id. at 33; see also id. at 19-27 (describing the chronology of events in the case). 29 Id. at 27 (internal quotation marks omitted). 30 Id. at 33. 31 Id. at34. 32 Id. at 30-31 (comparing decisions such as Kindler and Richmond v. Lewis, 948 F.2d 1473 (9th Cir. i990), both of which held that a long detention on death row was not cruel or unusual, to the Zimbabwean Supreme Court's decision in Catholic Commission for Justice and Peace v. Attorney-General, 1993 (i) ZLR 242 (S) (Zimb.), which found that prisoners could not be faulted for taking advantage of every opportunity to appeal). The Privy Council also noted that one of the defendants in Pratt had appealed to the Inter-American Commission on Human Rights and the United Nations Human Rights Committee, id. at 21-22, both of which concluded that the sentence should be commuted on humanitarian grounds, id. at 23-25. 33 Id. at 31-33. The Privy Council compared Pratt to Soering as though the latter were a clear precedent for the former and stated that the delay in Pratt's execution was "double the time that the European Court of Human Rights considered would be an infringement of article 3 of the European Convention ... and their Lordships can have no doubt that an execution would now be an infringement of section I7(W) of the Jamaican Constitution." Id. at 33. 34 Id. ("It is part of the human condition that a condemned man will take every opportunity to save his life through use of the appellate procedure."). 35 Id. at 34.
200I]
DEVELOPMENTS -
2055
Privy Council found, however, that Jamaica's colonial history, as well as its own rules of criminal procedure, indicated that Jamaica could comply with what the court considered to be the appropriate international standard.36 A comparison 2. The Increasing Sophistication of the Dialogue. of two other decisions, one by the Indian Supreme Court in i980 and the other by the South African Constitutional Court in I995, illustrates the growing complexity and sophistication of the international dialogue. The enormous increase in the number of supranational and foreign constitutional courts, along with the increasing availability of written opinions from a broad range of jurisdictions, allowed the South African Constitutional Court to examine many more judicial resources than its counterpart in India.37 Yet although the South African Constitutional Court was able to conduct a more expansive and detailed analysis of international law, both courts employed an interpretive approach similar to that used by the Canadian and Jamaican Supreme Courts in the cases discussed above. The Indian Supreme Court's decision in Bachan Singh v. Punjab,38 which upheld the constitutionality of the death penalty,39 illustrates a case typical of those in the early years of the international judicial dialogue. In Bachan Singh, the Indian Supreme Court surveyed foreign practice40 and scholarship.41 It relied in particular on the jurisprudence of the United States and Great Britain, the only two nations whose law reports were widely available.42 Because the Indian court found that many "persons of reason, learning and light" disagreed
36 Id. The Privy Council recalled that the death penalty had always been carried out swiftly in Britain, id. at i7, and scolded that delayly of the character which has occurred in this case had never happened in Jamaica before independence," id. at i9. 37 Modern technology has increased the accessibility of foreign and supranational decisions. See L'Heureux-Dub6, supra note 2, at 25 (noting that advances in technology, such as the Internet, have helped judges access the decisions of courts in other jurisdictions). 38 [I980] 2 S.C.J.475 (India). 39 Id. at 509. 40 Id. at 504-o6, 509. The court stated that its objective in surveying international practice was to demonstrate that "in spite of the Abolitionist movement, only i8 States . . . have abolished the death penalty for all offenses." Id. at 5o6. Listing Russia, the United States, France, Belgium, Malaysia, China, and Japan as nations that retained the death penalty, the Indian court commented that those countries "cannot, by any standard, be called uncivilized nations or immature societies." Id. 41 Id. at 497-500, 502-04. The court observed that there had been few scientific studies on crime in India, id. at 504, demonstrating one of the practical reasons for its decision to use international and foreign sources, see inJfrasection B.i, pp. 2059-62 (discussing practical reasons for the incorporation of international law). 42 Bachan Singh, [I980] 2 S.C.J. at 496-97, 50I, 5I3-I4, see L'Heureux-Dub6, supra 5I8-2I; note 2, at 20. The Indian court's reliance on American law may also be a result of the textual similarities between the American and Indian constitutions. See id. at i8.
2056
HARVARD LAW REVIEW
[Vol.
II4:I943
about the utility of the death penalty, it refused to substitute its opinion for the will of the parliament.43 Even as it discussed international practice and precedent, the Indian Supreme Court maintained that its analysis of international law was consistent with domestic history and tradition." The court highlighted several portions of the Indian constitution that indicated that the "Constitution-makers" favored retention of the death penalty.45 Perhaps most explicitly, the court - even as it relied heavily on American jurisprudence - expressed "grave doubts about the expediency of transplanting western experience in our country."46 The court's reference to India's cultural differences with other nations seems to have been a way of justifying its decision not to incorporate some outside legal standards. Fifteen years later in State v. Makwanyane,47 the South African Constitutional Court considered whether capital punishment constituted "cruel, inhuman or degrading treatment or punishment" in violation of section II(2) of the Interim Constitution of South Africa.48 Before holding the death penalty unconstitutional,49 the South African court conducted an extensive review of international and foreign legal materials pertaining to capital punishment. The Constitutional Court noted that a provision of the South African Interim Constitution required an analysis of international and foreign materials.50 The court
43 Bachan Singh, [I980] 2 S.C.J. at 507. The court emphasized its attitude of judicial restraint and its usual reluctance to hold acts of parliament unconstitutional. Id. at 493, 505. See infra note 78. 44 As it surveyed foreign practice with respect to the death penalty, the court emphasized that "conditions ... in [its] own country" were of particular concern. Id. at 505. Citing the Encyclopedia Britannica (a reference that perhaps, in and of itself, demonstrates the limited nature of judicial communication in i980), the court observed that the violent crime rate was rising rapidly throughout the world but immediately discussed crime conditions in India. See id. 45 Id. at 5o8. The court pointed, for example, to article 72(I)(C) of the Indian constitution, which gives the president the power to commute a death sentence. Id. 46 Id. at 514. The court was referring to the U.S. Supreme Court's holding in Furman v. Georgia, 408 U.S. 238 (I972), that the unfettered discretion given to judges and juries, which led to the arbitrary application of the death penalty, violated the Eighth Amendment. Bachan Singh, [I980] 2 S.C.J. at 5 I3-I4. 47 I 995 (3) SALR 39 I (CC) (S. Afr.). 48 Id. at 403. The Interim Constitution was adopted in I993 after the completion of the defendants' trial but before the end of the appeals process. Id. at 40I. 49 The court concluded that the death penalty was a "cruel, inhuman and degrading" punishment, id. at 434, and that the government had not made a "clear and convincing case" to justify such an infringement of section I I(2) of the South African Interim Constitution, id. at 45 I. So The court quoted section 35(I) of the Interim Constitution: In interpreting the provisions of this chapter a court of law shall promote the values which underlie an open and democratic society .. . and shall, where applicable, have regard to public international law applicable to the protection of the rights entrenched in this chapter, and may have regard to comparable foreign case law. Id. at 4I3 (internal quotation marks omitted). South Africa's current constitution contains a similar provision. See S. AFR. CONST. (Act No. io8, I996), ? 39 (stating that courts, when interpret-
200I]
DEVELOPMENTS -
205
indicated, however, that even absent such a provision, it would have looked to external legal sources because of their "value" in demonstrating how foreign courts had handled similar issues.51 The South African Constitutional Court observed that a general trend toward limiting the use of capital punishment had developed "[a]s societies became more enlightened" in the second half of the twentieth century.52 The court then reviewed the death penalty jurisprudence of several foreign courts53 and supranational tribunals.54 Although the South African court found that the death penalty did not violate public international law per se,55 it noted that the United Nations Committee on Human Rights, the Hungarian Constitutional Court, and three justices of the Canadian Supreme Court56 had declared the death sentence to be a cruel and unusual punishment.57 Even courts that had upheld the death penalty, such as the Supreme Courts of the United States and India, had placed restrictions on its implementation.58 Thus, the bulk of international law, viewed in the context of the worldwide trend toward limiting or abolishing capital punishment, supported the South African court's decision to invalidate the death penalty.
ing the South African Bill of Rights, "(a) must promote the values that underlie an open and democratic society. . . ; (b) must consider international law; and (c) may consider foreign law"). 51 Makwanyane, 1995 (3) SALR at 413; see also infra note 76 (assessing whether the South African court felt it needed a constitutional "license"to conduct an analysis of international law). 52 Makwanyane, I995 (3) SALR at 412-13. 53 The South African Constitutional Court evaluated the jurisprudence of the U.S. Supreme Court. Id. at 415-17, 418, 420, 421-23. The South African court also examined the Canadian Supreme Court's decision in Kindler v. Canada and distinguished it from Makwanyane on its facts. Id. at 423-24 (noting that Kindler involved the validity of the executive's order of extradition, not the constitutionality of the death penalty in Canada). The South African court also examined the Indian Supreme Court's ruling in Bachan Singh, id. at 426-29, and a decision of the Hungarian Constitutional Court, id. at 429-30. 54 The court reviewed rulings of the Human Rights Committee of the United Nations and the European Court of Human Rights. Id. at 425-26, 429. Examining Soering v. United Kingdom, the South African court observed that the European Court of Human Rights had been in a "comparable position." Id. at 426. The South African court characterized Great Britain's dilemma in Soering as a choice between extradition of a fugitive to the United States, which allows the death penalty, and extradition to Germany, which had abolished capital punishment and which could hold its citizens liable for acts committed elsewhere. Id. Similarly, the Makwanyane court explained (implicitly referencing Kindler) that it was choosing between capital punishment and life imprisonment and that it did not face a "choice between freedom and death." Id. 55 Id. at 414. 56 The Canadian parliament eliminated the death penalty for domestic crimes in 1976, Kindler v. Canada, [I99I] 2 S.C.R. 779, 85I (Can.), so the Canadian Supreme Court did not have to decide the constitutionality of capital punishment. The South African court noted that three justices in Kindler nevertheless argued that the death penalty was inherently cruel and unusual. Makwanyane, 1995 (3) SALR at 423, 432. 5 7 Makwanyane, 1995 (3) SALR at 432. 58 Id. at 421,428.
2058
HARVARD LAW REVIEW
[Vol.
II4:I943
Like its counterparts in Canada and India, the South African Constitutional Court was careful to ensure that an invalidation of the death penalty would accord with domestic law.59 The South African court noted that unlike the constitutions of the United States and India, and unlike the European Convention and the International Covenant on Civil and Political Rights (ICCPR), section 9 of the South African Interim Constitution guaranteed an "unqualified right to life."60 The South African court interpreted such important rights broadly in accord with "[t]he very reason for establishing the new legal order," which was to protect the rights of people who have limited control over the political process.61 Because the domestic situation did not reand in fact pointed toward quire retention of the death penalty62abolition - the Constitutional Court adopted the dominant international view and invalidated the death penalty.63 3. The Absence of Legal Hierarchy. - The decisions discussed above demonstrate that even as the international judicial dialogue has increased in complexity and has begun to include participants from a variety of countries, the interpretive process has remained much the
59 The SouthAfricancourtmade it clearthat supranational and foreignlegal sources,even if law we must persuasive, could neverbe dispositive. See id. at 4I5 ("Indealingwith comparative and not an internato construethe SouthAfricanConstitution, bearin mind that we are required of some foreigncountry,and that this has to be done with tional instrument or the constitution and languageof and the structure due regardto our legal system,our historyand circumstances, our own Constitution.').
publicopinionon capitalpunFor this reason,the courtdeclaredthat prevailing ishment could not be dispositive. See id. In the midst of its discussionof the U.S. Supreme Courtacknowledged the SouthAfricanConstitutional Court'scapitalpunishment jurisprudence, somebittertruthsaboutits legalsystem: majorityof those sentencedto death are poor and black. There is [T]heoverwhelming to deathand the Judges an enormous socialand culturaldividebetweenthosesentenced almostall white and middleclass.... The beforewhom they appear,who are presently of the accused ... are particularly relevantwhen the personalcircumstances differences of decidinguponthe sentence. have to be evaluatedfor the purposes Id. at 4I9 n.78. The courtalso notedthat defensecounselwas usually"youngand inexperienced, frequentlyof a differentrace to his or her client, and, if this is the case, usually has to consult Id. at 4i9. The court acknowledged that it was impossibleto ensure throughan interpreter." equalityin the criminaljusticesystemor to avoid all errors,but assertedthat "deathis different." is a greatwrong... the killingof an innocentpersonis Id. at 42 I. Whileunjustutimprisonment indicatethe court'sbelief that the faults of the South Afriirremediable." Id. These statements can criminal the invalidation of capitalpunishment. justicesystemrequired 62 The Constitutional the "highincidenceof violent crime in South AfCourtacknowledged that the deathpenaltywas not the propermethodfor dealingwith rica,"id. at 442, but concluded factorin deterring crimeis the the problem,id. at 443. The courtarguedthat the most important and convicted,and observedthat "[i]tis that which likelihoodthat criminals will be apprehended wouldbe a sufficientdeteris presently lacking."Id. The courtalso foundthat life imprisonment rent of crime. See id. at 445. The courtaccordedeven "lessweight"to the goal of retribution.
Id.
63 Id. at 45I.
60 Id. at 429. 61 Id. at 43i.
200I]
DEVELOPMENTS -
2059
same. If these courts believed that internationallaw were superiorto domestic law, then they would only have to justify a decision not to follow supranationaland foreign law, and it would be easy to understand why none of them seems concernedabout demonstrating that it has a constitutional "license" to look to outsidelegal sources. But none of these courtswas willing to adopt an outside legal norm unless it accordedwith domesticlegal and politicaltraditions. Thus, the interpretive process of these courts indicates that they do not view domestic law as subordinateto international law. The next section examines possible rationalesfor courts' decisions to enter the internationaljudicial dialogue. It argues that none of these reasonsadequatelyexplainsconstitutional courts'lack of concern about the existenceof a constitutional "license" authorizingtheir use of outsidelegal sources.
B. Theoretical Aspects of Incorporation
Constitutionalcourtsthat join the international conversationinvestigate supranationaland foreign legal sources when faced with questions of constitutionalinterpretation. Scholarshave identifiedvarious practicaland politicalreasonswhy courtsmight examineexternallegal sources. The benefitsthat courtsderive from the international judicial dialogue may explain why domesticcourts engage in the conversation despite the inherent difficulties of incorporatinglegal norms from abroad. These recognizedbenefits do not explain, however, why domestic courts are not troubledby anotherissue that arises in the constitutionalcontext:whetherthe constitutionaltext licenses[s" a court's relianceon outsidelegal norms. By reexaminingthe cases discussed in section A, this section explores why the courtsin those cases did not seem troubledby the issue of constitutionallicense. Those courts seemed to assume that international and foreignlegal sourcesshould informthe meaningof their nations' constitutions. This section argues that many courtsjoin the internationaljudicial conversationwith a particularconception of the relationship between internationallaw and their domestic constitutions. Those courts seem to view their domestic constitutionsas part of a family of foreign and supranationaldocuments, each of which serves as a source of general legal norms. Thus, the courts seem to find it not only appropriate, but even natural,to examine(and perhaps that their foreign and supraultimatelyto rely on) the interpretations nationalcounterparts have given to similarconstitutional provisions.
x. Practical and Political Reasons To Join the International Judicial Dialogue. - Just as the framers of a new constitution find it use-
2o60
HARVARD LAW REVIEW
[Vol.
II4:I943
ful to adopt ideas from foreign and supranational documents,64 new constitutional courts find it beneficial to "borrow"65existing doctrine from abroad.66 The reliance of the Indian Supreme Court and the South African Constitutional Court on foreign scholarship and jurisprudence reflected in part this practical concern.67
64 See L'Heureux-Dub6, supra note 2, at i8-i9 (noting the influence of the U.S. Constitution on the Indian constitution and the influence of the Canadian Charter of Rights and Freedoms on other nations' constitutions). Eastern European nations drafting new constitutions looked primarily to Western European nations such as France or Germany. A.E. Dick Howard, Constitution-Making in Central and Eastern Europe, 28 SUFFOLKU. L. REV. 5, 9 (I994); see also A.E. Dick Howard, The Indeterminacy of Constitutions, 31 WAKE FOREST L. REV. 383, 386-87 (i996) (noting that the Universal Declaration of Human Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms, inter alia, have heavily influenced the newer constitutions in Eastern and Central Europe); Imre V6r6s, Contextuality and Universality: Constitutional Borrowings on the Global Stage - The Hungarian View, i U. PA. J. CONST.L. 65i, 654 (i999) (noting that the framers of the Hungarian constitution looked to the U.S., German, French, Spanish, and Italian constitutions and to the constitutional jurisprudence of their respective courts). 65 For uses of the term "borrowing" in the context of the international judicial dialogue, see generally Kreimer, supra note I4; and V6rds, supra note 64, at 655-59. 66 The courts of civil law nations, of course, do not cite other judicial rulings, whether from foreign or domestic courts. See MARTIN SHAPIRO,COURTS:A COMPARATIVE AND POLITICAL ANALYSIS I35-36 (i98i); see also A.N. Yiannopoulos, Jurisprudence and Doctrine as Sources of Law in Louisiana and in France, in THE ROLE OF JUDICIAL DECISIONS AND DOCTRINE IN CIVIL LAW AND IN MIXED JURISDICTIONS 69, 72 (Joseph Dainow ed., 1974) (explaining that jurisprudence, or case law, is not recognized in civil law nations as a source of law because "the legislative function is entrusted to the legislature and the people exclusively"); cf. JOHN HENRY MERRYMAN,THE CIVIL LAW TRADITION 36 (2d ed. i985) (noting that civil law nations have rejected the doctrine of stare decisis). This refusal to rely on precedent may suggest that courts in civil law countries are unable to participate in the international judicial dialogue. Yet civil law nations do have an important role to play. For example, the German constitution ensures that the decisions of the German Constitutional Court are binding precedent. See Donald P. Kommers, German Constitutionalism: A Prolegomenon, 40 EMORYL.J. 837, 840 (I99I). The German Constitutional Court has used this constitutional power to become an important participant in the international judicial dialogue. See Slaughter, supra note i, at 1107-08. Civil law courts in other parts of Europe may also participate because they must enforce the law of the European Union. See Breyer, supra note Is, at I059 (noting that French courts, which have not traditionally had the power of judicial review, must invalidate domestic statutes that conflict with European law). In addition, some scholars in civil law countries such as France argue that although judges do not cite cases, they do in practice rely on the reasoning of past judicial rulings. See MERRYMAN,supra, at 47; Jean Carbonnier, Authorities in Civil Law: France, in THE ROLE OF JUDICIALDECISIONSAND DOCTRINEIN CIVILLAWAND IN MIXED JURISDICTIONS, supra, at 9i, 97. Judges can usually determine, even absent citations, the prior opinions on which a decision relies. SHAPIRO,supra, at 135. Under this analysis, civil law courts can participate in the international judicial dialogue to some extent. Because, however, one focus of this Part is the interpretive process of the international judicial conversation, it focuses on common law courts that do cite precedent. 67 See Makwanyane, 1995 (3) SALR at 414 ("Comparative 'bill of rights' jurisprudence will no doubt be of importance, particularly in the early stages of transition when there is no developed indigenous jurisprudence in this branch of the law on which to draw.");Bachan Singh v. Punjab, 2 S.C.J. 475, 504 (India) (indicating that there had been few empirical studies on crime [i980] within India's own borders and turning to international and foreign sources for that information).
200I]
DEVELOPMENTS -
2o6I
This process of borrowing results from more than just the need for legal sources. Many countries have significant political reasons for incorporating outside legal norms. Some countries with unfortunate international reputations join the international judicial dialogue to improve their status in the world community. For example, South Africa, which once permitted apartheid, has relied on the jurisprudence of its Constitutional Court to help demonstrate the nation's renewed commitment to civil rights.68 Other nations enter the international judicial dialogue to increase their influence over the creation of international norms. A desire for an authoritative role in the formation of international legal rules and standards seems to have motivated the participation of the Canadian Supreme Court69 and some European constitutional courts.70 The South African Constitutional Court's decision in Makwanyane illustrates that participating in the dialogue can help a national court gain international influence. In discussing (and distinguishing) the Indian Supreme Court's jurisprudence on capital punishment, the South African Constitutional Court compared its overview of international jurisprudence to that of the Bachan Singh court.7' The Makwanyane court's analysis suggests that courts that engage in the international judicial conversation help to define the predominant international judicial opinion on a particular legal question. This development has significant implications for courts that decline to engage in the international dialogue. Although the ruling of any national court that deals with a substantive legal issue (such as the propriety of extraditing a fugitive to face the death penalty) may influence other courts that deal with analogous legal questions, only courts that engage in the interna68 See Hoyt K. Webb, The Constitutional Court of South Africa: Rights Interpretation and Comparative Constitutional Law, I U. PA. J. CONST. L. 205, 232 (I998). Similarly, after World War II the German Constitutional Court used its jurisprudence to overcome the stigma of the war and to demonstrate Germany's concern for human rights to the international community. See Ackerman, supra note I2, at 779-80. Also for political reasons, the nations of the former Soviet bloc altered their domestic law to integrate with their Western European counterparts. See Tushnet, supra note 13, at I303 n.353; cf. Jean-Marie Henckaerts & Stefaan Van der Jeught, Human Rights Protection Under the New Constitutions of Central Europe, 20 LoY. L.A. INT'L & COMP.L.J. 475, 480 (I998) (noting that the constitutions of the Czech and Slovak Republics explicitly ban capital punishment and that one of the early decisions of the Hungarian Constitutional Court invalidated the death penalty); Ruti Teitel, Post-Communist Constitutionalism: A Transitional Perspective, 26 COLUM. HUM. RTS. L. REV. i67, i68-69 (1994) (arguing that the jurisprudence of the newly formed constitutional courts helped realize the protections listed in the texts of the constitutions of the former communist bloc). 69 L'Heureux-Dub6, supra note 2, at 37; see id. at 38 ("In my view, the most useful judgments for courts looking to comparative sources are those that use comparative materials themselves .... Decisions which look only inward ... have less relevance . ..."). 70 Slaughter, supra note i, at II07-o8 (describing the competition for influence between European supranational and national courts). 71 Makwanyane, I995 (3) SALR at 427-29.
2062
HARVARD LAW REVIEW
[Vol.
114:1943
tional judicial conversationcan contributeto the definitionof the predominant internationaljudicial norm and shape the development of law.72 international A Possible Needfor a Consti2. The Difficulties of Incorporation: Section B.i suggests why national courts might tutional "License." judicial dialogue by not be deterredfrom engagingin the international some of the usual difficultiesof comparativelegal analysis - for example, problems created by differencesin language, history, culture, and tradition.73 The cases discussedin section A illustratehow courts only those outside lecan overcomethese difficultiesby incorporating gal standardsthat accordwith domesticpoliticaland legal traditions.74 judicial conversation The benefits of participatingin the international do not explain, however,why courts that engage in constitutionalinterpretationdo not attempt to show that their constitutionsexplicitly permittheir relianceon outsidelegal sources. ProfessorMark Tushnet contends that a constitutionalcourt may before it can engage in the internationaljudineed a textual "license" cial dialogue.75In light of this argument,it is curiousthat none of the courts discussedin section A felt compelledto demonstratethat it had
72 Cf. L'Heureux-Dub6, supra note 2, at 39 (arguing that "considering and comparing judgments from various jurisdictions makes for stronger, more considered decisions, even if the result is the same'). For a discussion of the implications of this development for the U.S. Supreme Court, see note II 7, below. 73 See MARY ANN GLENDON, MICHAELWALLACE GORDON& CHRISTOPHER OSAKWE, LEGALTRADITIONS4-5 (2d ed. I994) ("Variationsin the political, moral, social COMPARATIVE and economic values which exist between any two societies make it hard to believe that many legal problems are the same for both except on a technical level."); Kreimer, supra note I4, at 647 (noting problems of translation and arguing that even when nations use the same language, "verbal similarities may be misleading");Tushnet, supra note I3, at I265-69 (explaining that the existence of multiple variables in comparative constitutional analysis makes it difficult for nations to learn from each other); cf. Wyman, supra note I4, at 56o, 564-65 (noting, though criticizing, the argument that cultural differences with abolitionist nations justify the use of the death penalty in China and in Islamic states). 74 Courts also avoid the problems of comparative law by looking to decisions of courts from nations with similar constitutional texts and legal histories. See L'Heureux-Dub6, supra note 2, at (noting the tendency of courts to rely on decisions that interpret similar textual provisions); 3I-32 see also Sujit Choudhry, Globalization in Search of Justification: Towarda Theory of Comparative Constitutional Interpretation, 74 IND. L.J. 8i9, 87i-85 (i999) (arguing that because of the countries' shared historical and legal background, the Canadian Supreme Court could rely on the U.S. Supreme Court's Native American jurisprudence when deciding aboriginal rights cases). Professor Mary Ann Glendon argues persuasively that even when nations do not borrow legal rules from other nations, they may learn important lessons about domestic culture. See MARY ANN GLENDON, ABORTIONAND DIVORCEIN WESTERN LAW 8-9 (I987). For an insightful discussion of some of the difficulties with this use of comparative law, see Tushnet, su-
pra note I3, at I269-8i.
7 Tushnet, supra note I3, at I231 ("Wemight say that the Constitution must license the use of comparative material for the courts to be authorized to learn from constitutional experience elsewhere.").
2001]
DEVELOPMENTS -
2063
permissionto engage in comparativeanalysis.76 Because the concern about a textual license may be based on separationof powers theory,"7 courts that do not have a strict view of their judicial roles would not be expected to worry about the issue. Yet even courts that claim to practicejudicial restraint,such as the Canadianand Indian Supreme Courts,78seem unconcernedwhether their constitutionslicense their examinationof foreign and supranationallegal sources. In the cases discussedin section A, both of these courtsassumedthat international without recognizlaw should informtheir constitutional interpretation, ing that there might be a need to justify that assumption. 3. An International View of the Domestic Constitution.- The willingness of domestic constitutionalcourts to look to international law without justifying that interpretiveapproach suggests that they view their constitutionsas componentsof a larger body of international legal documents. To the constitutionalcourts of Canada, Jamaica, India, and South Africa, their constitutionsare not simply domestic chartersthat reflect the values of Canadian,Jamaican,Indian, or South Africansociety,but examplesof many world documentsthat
76 The South African Constitutional Court did note that a provision in its constitution seemed to require (and thus license) the examination of international and comparative law. Makwanyane, I995 (3) SALR at 4I3; see supra pp. 2056-57. Yet the court insisted that the provision was not dispositive. Makwanyane, I995 (3) SALR at 4I3 ("The international and foreign authorities are of value because they ... show how Courts of other jurisdictions have dealt with [the] vexed issue [of the death sentence]. For that reason alone, they require our attention.'). Other constitutions also provide what is arguably a textual license for international and comparative analysis. See Henckaerts & Van der Jeught, supra note 68, at 504 (observing that article 7 of the Hungarian constitution states that domestic law must adopt international norms). 77 See Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, iio HARV.L. REV. 8I5, 86i (I997) ("The federal common law of foreign relations is based on the principle that the federal political branches, and not the courts, are constitutionally authorized and institutionally competent to make foreign relations judgments."). One of the concerns may be that the judiciary does not have a tremendous amount of guidance regarding how to apply international law, and thus may go beyond the proper judicial function. Cf. H.L.A. HART, THE CONCEPT OF LAW 214 (2d ed. I994) ("[Ilnternational law ... [lacks] a unifying rule of recognition specifying 'sources' of law and providing general criteria for the identification of its rules."). The problem may also involve democratic theory: one nation's courts should not rely on the decisions of judges whom that nation's citizens did not have even an indirect voice in selecting. Cf. Karen Knop, Here and There: International Law in Domestic Courts, 32 N.Y.U. J. INT'L L. & POL. 50I, 504 (2000) (The application of international law is thus fraught with the anxiety of imperialism: how can international law be perceived as legitimate by a community that has not participated equally in its creation or does not see its own reality reflected in international law?"). 78 While looking to foreign materials, the Indian Supreme Court emphasized its attitude of judicial restraint and its usual reluctance to hold acts of parliament unconstitutional. See Bachan Singh v. Punjab, [I980] 2 S.C.J. 475, 493, 505 (India). The Canadian Supreme Court similarly declared its commitment to judicial restraint in matters of foreign affairs. See Kindler v. Canada, 2 S.C.R. 779, 849 (Can.) ("In recognition of the various and complex considerations which [I99I] necessarily enter into the extradition process,... judicial scrutiny should not be over-exacting.').
2 o64
HARVARD LAW REVIEW
[Vol. 114:1943
reflect general legal norms. Justice Kirby of the Australian Supreme Court explains:
To the full extent that its text permits, Australia's Constitution ... accommodatesitself to internationallaw, including insofar as that law expresses basic rights. The reason for this is that the Constitution not only speaks to the people of Australia .... It also speaks to the international community as the basic law of the Australian nation which is a member of that community.79
Most of the world's constitutions were written, and most of its constitutional courts were created, within the context of the international constitutional dialogue.80 The Indian constitution (I949), the Jamaican constitution (i962), the Canadian Charter of Rights and Freedoms (i982), and the South African Interim Constitution (I993) were drafted largely by looking to foreign and international experience.8' Similarly, the constitutional courts, when interpreting the new constitutional provisions, relied on foreign and international precedents. The constitutionalism of these countries developed around an international judicial (and nonjudicial) conversation. Thus, it seems that to be an Indian, Jamaican, Canadian, or South African believer in constitutionalism is to be a believer in international constitutionalism. C. The American Anomaly The U.S. Supreme Court has been notably absent from the international judicial dialogue. Even as its opinions are cited by constitutional courts all over the world,82the U.S. Supreme Court continues to look inward. Recently, Justice Stephen Breyer's judicial opinions have advocated the use of comparative and international legal sources,83but other Justices have endorsed the international judicial dialogue only in
79 Newcrest Mining (WA) Ltd. v. Australia, (i997) I47 A.L.R. 42, I48 (Austl.). 80 See generally Ackerman, supra note I2 (describing the rise in the number of countries with written constitutions and constitutional courts). 81 See L'Heureux-Dub6, supra note 2, at i8-i9 (explaining the reliance of the framers of the Indian constitution and the Canadian Charter of Rights and Freedoms on international and foreign sources); see also Pratt v. Attorney-General for Jamaica, [I994] 2 A.C. i, i8-i9 (P.C. I993) (appeal taken from Jam.) (noting the influence of British tradition on Jamaican law after independence); cf. Tushnet, supra note I3, at I237 (noting the tendency to look to foreign experience when drafting a national constitution). 82 See, e.g., supra section A.2, pp. 2055-58 (noting the reliance of the Indian Supreme Court and the South African Constitutional Court on decisions of the U.S. Supreme Court). The decisions of the Warren and Burger Courts, and particularly decisions like Brown v. Board of Education, 347 U.S. 483 (I954), and Miranda v. Arizona, 384 U.S. 436 (i966), "have had a large impact on the spirit and development of human rights protections worldwide." L'Heureux-Dub6, supra note 2, at 20. The Rehnquist Court has made less of an international impact. Id. at 30. 83 See Breyer, supra note IS, at io6o; see also Fried, supra note I4, at 8i8 (noting the significance of the fact that Justice Breyer has brought the debate over the propriety of using outside legal materials from law review articles into the Court's official opinions).
2001]
DEVELOPMENTS
INTERNATIONAL
CRIMINAL LAW
2o65
unofficial contexts.84 This section suggests that the Court's reluctance to rely on the precedents of foreign and supranational tribunals stems from its belief in the purely American character of the U.S. Constitution. i. One Justice's Attempt To Join the International Judicial Dialogue. - The U.S. Supreme Court's death penalty jurisprudence illustrates some willingness to examine the practices of the international community.85 In Thompson v. Oklahoma,86 the Court identified the reason that it has looked to international opinion in capital cases:87 the Eighth Amendment's prohibition of "cruel and unusual" punishment is informed by the "evolving standards of decency that mark the
84 Several Justices have expressed interest in the international judicial dialogue. See Slaughter, supra note i, at iii8-i9; see also Breyer, supra note I5, at I045 n.i (describing his recent trip to Europe to meet with judges of various constitutional courts, and noting that Justices O'Connor, Kennedy, and Ginsburg accompanied him). In a I989 speech, Chief Justice Rehnquist stated: [N]ow that constitutional law is solidly grounded in so many countries, it is time that the United States courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process. The United States courts, and legal scholarship in our country generally, have been somewhat laggard in relying on comparative law and decisions of other countries. But I predict that with so many thriving constitutional courts in the world today ... that approach will be changed in the near future. William Rehnquist, Constitutional Courts - Comparative Remarks, in GERMANY AND ITS BASIC LAw: PAST, PRESENT, AND FUTURE - A GERMAN-AMERICAN SYMPOSIUM 4II, 4I2 (Paul Kirchhof & Donald P. Kommers eds., I993). The Chief Justice has taken a few steps toward engaging the international judicial dialogue (thus far, outside the context of capital punishment). See Raines v. Byrd, 52I U.S. 8ii, 828 (I997) (Rehnquist, C.J.) ("There would be nothing irrational about a system that granted standing [to legislators]; some European constitutional courts operate under one or another variant of such a regime.... But it is obviously not the regime that has obtained under our Constitution to date.'); Planned Parenthood v. Casey, 505 U.S. 833, 945 n.i (I992) (Rehnquist, C.J., dissenting) (citing without discussion the West German Constitutional Court's decision declaring unconstitutional a law that permitted abortion and a Canadian court's decision invalidating a restriction on abortion). 85 In Coker v. Georgia, 433 U.S. 584 (i977), when analyzing the validity of capital punishment in rape cases, the Court stated that it was "not irrelevant" that much of the rest of the world had abolished the death penalty in such cases. Id. at 596 n.io. A few years later in Enmund v. Florida, 458 U.S. 782 (i982), which involved the imposition of the death penalty for felony murder, the Court reiterated the view that "international opinion" might be relevant to the determination of the Eighth Amendment's meaning. Id. at 796 n.22; see Wyman, supra note I4, at 554 (arguing that the Enmund Court "explicitly adopted consideration of international opinion as part of its 'disproportionality analysis' concerning capital punishment"). 86 487 U.S. 8I5 (1988). 87 In Thompson, in which the Court declared the death penalty an inappropriate punishment for juveniles below the age of sixteen, id. at 838, the plurality conducted a survey, more elaborate than in previous decisions, of international opinion. The Court noted that many countries, including West Germany, France, Portugal, the Netherlands, and the Scandinavian countries, had abolished the death penalty. Id. at 83I. Other nations, such as Canada, Italy, Spain, and Switzerland, had significantly limited the use of capital punishment. Id. Even nations retaining the death penalty, including Great Britain, New Zealand, and the Soviet Union, had prohibited the death penalty in cases involving juveniles. Id. at 830-3I.
2 o66
HARVARD LAW REVIEW
[Vol.
I I4:1943
progressof a maturingsociety."88The practicesof foreign countries, particularlyWesternEuropeandemocracies,were relevant to the determinationof those evolving standards.89 As Justice Breyer has recently suggested in a case involving the "deathrow phenomenon," the same rationalecould supporta reliance on foreign and supranationaljurisprudence. In Knight v. Florida,90 the Court refusedto hear a petitioner'sclaim that his twenty-five-year in detentionon death row constituted"crueland unusualpunishment" violation of the Eighth Amendment.91 Justice Breyer,dissentingfrom the Court's denial of certiorari,conducteda survey of foreign and supranationaljurisprudence that in many ways mirroredthe interpretive process of the Indian, Jamaican, Canadian, and South African courts.92 Justice Breyer argued that the U.S. SupremeCourt should considerthe decisionsof the BritishPrivy Councilin Pratt v. AttorneyGeneral for Jamaica and the EuropeanCourt of Human Rights in Soering v. United Kingdom, both of which supported the petitioners' claims that their detentionswere cruel and unusual.93 Although Justice Breyer acknowledged that the Canadian Supreme Court had reached a contraryconclusionin Kindler v. Canada,he distinguished that decisionon its facts.94 Justice Breyer,like his foreignjudicial counterparts, was careful to demonstratethat grantingthe defendant'spetitionon the meritswould accord with Americantraditions. He stressed that his opinion relied primarily on rulings from jurisdictions with similar legal back88 Id. at 82I (quoting PTopv. Dulles, 356 U.S. 86, IOI (1958)). In PTopv. Dulles, the Court barred the use of denationalization to punish a serviceman who had deserted his company during World War II. Trop, 356 U.S. at I02. In discussing its "evolving standards" analysis, the Court indicated that international opinion and practice were relevant to determining those evolving standards. Id. at ioi; see id. at I02-03 ("The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.... [A] United Nations' survey ... reveals that only two countries, the Philippines and Turkey, impose denationalization as a penalty for desertion.). 89 Thompson, 487 U.S. at 830-3 I. 90 528 U.S. 99o (i999). 91 Id. at 994 (Breyer, J., dissenting from denial of certiorari) (noting the length of detention). In a companion case to Knight, the defendant protested a delay of nineteen years. Id. at 993. 92 See id. at 995-96. 93 Id. Justice Breyer also referred to similar limitations that the Indian and Zimbabwean Supreme Courts put on the length of death row detention. Id. The year before, in another case involving the death row phenomenon, Justice Breyer had similarly referred to the European Court of Human Rights's decision in Soering as well as another decision of the British Privy Council. See Elledge v. Florida, 525 U.S. 944, 944 (I998). 94 Knight, 528 U.S. at 996 (Breyer, J., dissenting from denial of certiorari). Justice Breyer observed that the delays involved in Knight and its companion case were much longer than the delay in Kindler. Id. Noting that the Canadian Supreme Court was divided 4-3 in Kindler, Justice Breyer wondered if the court would have reached the same substantive conclusion if faced with a case involving delays of nineteen and twenty-five years. Id.
200I]
DEVELOPMENTS -
2067
grounds.95 Justice Breyer pointed out that judges of the courts to which he referred,like a majorityof the membersof the U.S. Supreme Court, "accept or assume the lawfulness of the death penalty."96 He also drew support from legal systems that, like that of the United States, are rooted in the common law tradition of the United Kingdom.97 Justice Breyerstressedthat he did not considerforeignor supranato be binding.98 His analysis indicates, however, tional jurisprudence of that he viewed such materialsas helpful tools for the interpretation the U.S. Constitution. The next section examines why other Justices do not seem to share Justice Breyer'senthusiasmfor the international judicial conversation.
2.
logue.
The Court's Reluctance To Join the International Judicial DiaStanford v. Kentucky,99 which involved the constitutionality
of imposing the death penalty on juveniles, may shed light on the Court'sreluctanceto analyzeforeignand supranational jurisprudence. In an opinion by JusticeAntoninScalia, an ardentopponentof the use of outside jurisprudence,100 the Court, while acknowledging the "evolving standards" analysis in its Eighth Amendment jurisprudeclaredthat "it is American conceptionsof decency that are dence,101 Justice Scaliaexplained: dispositive."1102
While "[t]hepractices of other nations, particularlyother democracies,can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so 'implicit in the concept of ordered liberty' that it occupies a place not merely in our mores, but, text permitting, in our Constitution as well," they cannot serve to establish the first Eighth Amendment prerequisite,that the practice is accepted among our Deonle.103
9' Id. at 997-98. 96 Id. at 995.
97 See id. at 997. CitingThompson, Enmund,Coker,and PTop, JusticeBreyernoted that the U.S. SupremeCourthad previously "foundparticularly instructiveopinionsof formerCommonwealth nations insofar as those opinionsreflect a legal traditionthat also underliesour own EighthAmendment."Id. JusticeBreyeralso emphasized that holdinglong detentionsunconstitutionalwould not conflictwith varioustreatyprovisions insertedat the behestof the U.S. Senate to exemptthe UnitedStatesfromcertainlimitations on capitalpunishment.Id. at 996-97. 98 Id. at 996 (emphasizing that "we are interpreting a 'Constitution for the United States of America"(quotingThompson v. Oklahoma, 487 U.S. 8I5, 868 n.4 (I988) (Scalia,J., dissenting))).
99 492 U.S. 36i (i989). 100 See Kreimer, supra note x4, at 649; Tushnet, supra note I3, at x28x.
101
102 Id. at 369 n.i. The dissentstronglydisputedthis claim. Id. at 389 (Brennan, J., dissenting) ("Our cases recognize that objectiveindicators of contemporary of decencyin the form standards in othercountries of legislation is [sic]also of relevance to EighthAmendment analysis."). 103 Stanford, 492 U.S. at 369 n.x (quotingThompson, 487 U.S. at 868 n.4 (Scalia,J., dissenting)
(quoting Palko v. Connecticut, 302 U.S.
319,
Stanford, 492 U.S. at 369.
325 (i937))) (internal citations omitted).
2068
HARVARD LAW REVIEW
[Vol.
II4:I943
Justice Scalia seems to be saying that before the Court may even mention the practices of other nations, it must satisfy the "prerequisite" of showing that a similar American practice exists. He appears to believe that before looking abroad the Court must establish that American experience already mandates its decision, thereby demonstrating that comment on foreign or supranational practice is unnecessary to a holding of the Court.104 The Court's previous capital punishment cases support the claim that the Court must first establish a basis for its decisions in American practice and precedent.105 In Thompson v. Oklahoma, the Court again stated that the proper mode of analysis in Eighth Amendment cases is to look first to the opinions of state legislatures and then to the practices of sentencing juries, both of which are important "indicators of contemporary standards of decency."1106 Although the Thompson Court later noted the relevance of international opinion,107it did so only after conducting a long and detailed survey of American opposition to the execution of those below the age of sixteen.108 According to the majority in Stanford, Justice Scalia's "prerequisite"could not be satisfied because there was no American consensus on the execution of sixteen104 Because Justice Scalia states in Stanford that the practices of other democracies may sometimes be "relevant," he seems to acknowledge the usefulness of comparative analysis in constitutional interpretation. But his recent statements in Printz v. United States, 52I U.S. 898 (I997), which involved the constitutionality of the Brady Handgun Violence Prevention Act, suggest otherwise. In Printz, the Court invalidated, as an intrusion on state sovereignty, provisions of the Brady Act that state and local law enforcement officers were required to carry out. See id. at 935. Justice Scalia, responding to the argument in Justice Breyer's dissenting opinion that European practice might support the constitutionality of the Act, stated unequivocally: "We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one." Id. at 92i n. ii. The quotation from Printz suggests that Justice Scalia no longer agrees with his own claim that foreign practice may occasionally be "relevant." Perhaps his statements in Stanford are best understood as an attempt to reconcile his opinion with, while at the same time giving a limiting construction to, the Court's discussion of foreign practice in Coker, Enmund, and Thompson. Cf. i LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW ? i-i6, at 83 (3d ed. 2000) (arguing, and noting Justice Scalia's agreement, that "the principle of stare decisis must with some frequency require a judge to follow ... constitutional precedents that the same judge would overrule if ... unconstrained by the pull of previously decided cases'). 105 In Coker v. Georgia, the Court, before noting international practice, surveyed the practice of various states and found a broad American consensus that the death penalty was an inappropriate punishment for rape. Coker v. Georgia, 433 U.S. 584, 593-97 (i977). The Court noted that although many states attempted to reinstate capital punishment after the Court invalidated the death penalty in Furman v. Georgia, few had done so in the case of rape. Id. at 594. In Enmund v. Florida, the Court similarly examined American practice before commenting on international opinion. Enmund v. Florida, 458 U.S. 782, 794-96 (i982) (surveying the tendency of American juries not to impose the death penalty on defendants who were not directly responsible for the taking of life). 106 Thompson v. Oklahoma, 487 U.S. 8i5, 823 (i988). 107 Id. at830-3 I 108 See id. at 823-29.
200I]
DEVELOPMENTS -
2069
and seventeen-year-olds.109 Thus, any international viewpoint was irrelevant. I 10
Perhaps Justice Scalia's reasoning in Stanford could be understood as an attempt to avoid the substance of international legal opinion, which almost universally opposes the imposition of the death penalty on minors."' Yet such an interpretation would be overly simplistic. As the analysis in section A indicates, the majority in Stanford could have arrived at its result without avoiding foreign and supranational jurisprudence. The Court could have surveyed international views on the juvenile death penalty but then explained that domestic conditions (specifically, the fact that many states continue to impose the death penalty on minors) were such that it could not follow the international
trend. 12
Perhaps the Stanford Court's insistence on first establishing an American tradition is better understood in relation to the Court's view of the U.S. Constitution. As section B shows, the drafters of many constitutions relied on supranational and foreign legal sources during 13 Similarly, newly formed constitutional courts, the drafting process.' when interpreting their constitutional texts, have taken advantage of the existing precedents of supranational courts and foreign courts such as the U.S. Supreme Court."14 The constitutional traditions of these nations, therefore, seem to have developed around an international judicial (and nonjudicial) dialogue. The constitutional history of the United States is quite different. For over two hundred years, the nation has developed and nurtured a
109 See Stanford v. Kentucky, 492 U.S. 361, 380 (1989). Justice Scalia observed that of the thirty-seven states that then authorized capital punishment, twenty-two states imposed it on sixteen-year-olds. Id. at 370. Justice Scalia concluded that the apparent reluctance of juries to impose the death penalty on young people did not constitute a sufficient basis to invalidate numerous state laws. Id. at 373-74. 110 Justice Thomas, concurring in the denial of certiorari in Knight, used a similar rationale for rejecting international opinion. He commented that "were there any . .. support [for the petitioners' claim] in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights ... or the Privy Council." Knight v. Florida, 528 U.S. 990, 990 (i999) (Thomas, J., concurring in denial of certiorari). 111 See Connie de la Vega & Jennifer Fiore, The Supreme Court of the United States Has Been Called upon To Determine the Legality of the Juvenile Death Penalty in Michael Domingues v. State of Nevada, 2 1 WHITTIERL. REV. 215, 2 I5-i6 (I999) (noting that only six countries, including the United States, have imposed the death penalty on minors since 1990). 112 The Court could have used reasoning analogous to that of the Indian Supreme Court in Bachan Singh, which relied on the text of the Indian constitution and on the apparent views of its framers to explain the inapplicability of outside precedent. See supra p. 2056. The cases discussed in section A, pp. 2052-59, above, demonstrate that it is possible to recognize an international legal view without adopting it. 113 See sources cited supra note 64. 114 See L'Heureux-DubW, supra note 2, at 20 (noting that because the only law reports available in the early days of the international judicial dialogue were those of British and American courts, young constitutional courts were in large part limited to the precedents of those jurisdictions).
2070
HARVARD LAW REVIEW
[Vol.
II4:I943
domestic constitutional tradition.115 Perhaps that is one reason that the U.S. Supreme Court resists the international judicial dialogue. To cite foreign jurisdictions, to examine and distinguish their cases as precedents, is to admit that the U.S. Constitution is but one (even if an important one) of many instruments that define general legal norms. As the Australian justice quoted in section B indicated,116to join the international dialogue is to concede that the rest of the world's constitutions and other international documents "speak to," and thereby help determine the content of, domestic constitutions.'17 Perhaps the above analysis helps to explain why Justice Scalia emphasized the order of the Court's analysis. If the Court were first to establish the basis for a decision by examining American practices, then any reference to foreign or supranational rulings would merely reaffirm the propriety of American legal norms. Yet if the Court were first to examine foreign or supranational decisions, even if it were to
115 See generally MICHAEL KAMMEN, A MACHINE THAT WOULD Go OF ITSELF: THE CONSTITUTIONIN AMERICAN CULTURE (I994) (cataloguing the culturaland popularaspects
of Americanconstitutionalism).Kammenobservesthat in the mid-nineteenth century,Daniel Webster that the U.S. Constitution remarked "isall that gives us a NATIONALcharacter." Id. at 94 (internalcitationsomitted). In i98i, SenatorLowell P. Weickerof Connecticutsimilarlyremarked: is] what holdsus all together." Id. at 398;cf Kreimer, "[Constitutionalism supranote I4, at 648 ("A constitutionmay 'constitute'the commitmentsthat define a national identity.... can embodythe civil religionof the nation."). [T]hesecommitments potentialreasonsfor the Court'sresistanceto joining the international judicial conversation. Vicki C. Jackson,Ambivalent Resistanceand Comparative Constitutionalism: Opening up the Conversation on "Proportionality,"Rights and Federalism, I U. PA. J. CONST.L. 583, 592-99 (i999) (observing that Americancourts'resistance may
116 See Supra p. 2064. 117 Professor VickiJacksonidentifiesother
be relatedto the inadequate teachingof foreignlaw in American law schoolsand the currentSupremeCourt'sfocus on interpreting the Constitution in accordwith the views of the American Framers). The Court'sreticence may also stem fromthe fact that some of the reasonsthat other courtsjoin the international judicialdialoguedo not apply to the U.S. SupremeCourt. For example,a courtmay fear that abstaining fromthe international will decrease judicialconversation its international influence. This concerndoes not yet applyto the U.S. SupremeCourt,however, as many foreignconstitutional courtscite the Court'srulingsdespiteits unwillingness to join the dialogue. But see L'Heureux-Dubd, supranote 2, at 30, 37-38 (notingthat foreigncourtscite decisions of the RehnquistCourtless often than they do those of its predecessors, the Warrenand BurgerCourts,and speculatingthat this decline in influencemay be relatedto the Rehnquist Court'sfailureto engagein the international dialogue). Yet even if otherconstitutional courtscontinueto examinethe U.S. SupremeCourt'sjurisprudence,the Court'sisolationism is likely to limit its international influence. As section B discusses, the South AfricanConstitutional Court in Makwanyane looked to the Indian Supreme Court'sdecisionin Bachan Singh, not only for its substantiveanalysisof the death penalty,but also for its examinationof international opinion. See supra pp. 206I-62. The South African court'sfocuson the Indiancourt'sexamination of outsidelegal normssuggeststhat courtsmay be developinglegal rulesfor identifying predominant international judicialnorms. To the extentthat the U.S. SupremeCourtchoosesnot to engagein international and comparative analysis,it will be unableto influencethe debateover whatconstitutes the international normin a particular area of law. If the U.S. SupremeCourtlaterdecidesto join the international dialogue,it may face the prospect of incorporating substantive international normsthat it did not help to create.
200I]
DEVELOPMENTS -
207I
distinguish them by pointing to a conflicting American practice, the act of analyzing outside precedents would itself indicate that taking account of the views of the international community is appropriate to the interpretation of the U.S. Constitution. Under this view, by taking part in the international judicial conversation, the Justices would strip the U.S. Constitution of its purely American character. D. Conclusion Over the last twenty years, the international judicial dialogue has evolved from a simple conversation (in which courts relied primarily on the published reports of the United States and Britain) to a complex dialogue involving citations to courts throughout the world. Joining this increasingly sophisticated dialogue provides a constitutional court with an opportunity to influence the development of international law. Conversely, as Canadian Supreme Court Justice L'Heureux-Dube has argued, not joining the dialogue may limit a court's capacity to shape international debate."18 The Canadian Supreme Court's recent ruling in United States v. Burns,"19which involved the extradition of two fugitives to face possible capital sentences in the United States,'20 supports Justice L'Heureux-Dub6's claim. In Burns, the Canadian Supreme Court reaffirmed its holding in Kindler v. Canada that the Canadian constitution does, in some cases, permit the extradition of fugitives to face the death penalty.121 However, the court's survey of the abolitionist tendencies in international and domestic opinion in the years since Kindler convinced it that current constitutional principles required that the Canadian government meet a higher burden - perhaps by demonstrating necessity - to justify the extradition of a fugitive without requesting assurances from the recipient nation that it would not seek the death penalty.122 Citing in particular the British Privy Council's decision in Pratt v. Attorney-Generalfor Jamaica and Justice Breyer's
118 119
L'Heureux-Dubd, supranote 2, at 37;see supranote 69. 200I SCC 7 (Can.),http://www.lexum.umontreal.ca/csc-scc/en/rec/html/burnsi.en.html (last

200I).
visited Apr. i8,

120
The UnitedStatessoughtthe extradition of two fugitivesfor two murders committed in the state of Washington.Id. 11 I I-I3. 121 Id. 1 67 ("(Wke affirmthat the 'balancingprocess'set out in Kindler... is the correctapproach... ."). The courtwas carefulto stressthat Kindlerdoes not "provide[] a blanketapproval to extraditions to face the deathpenalty." Id. 1 64. 122 Id. ? I3. Notably,the court observedthat the U.N. SecurityCouncilhad chosen to exclude the death penaltyfrom the possiblepunishments of the ICTY and the ICTR "despitethe heinousnatureof the crimesalleged against the accusedindividuals."Id. 1 88; see also supra note 7 (notingthe potentialfor the new international criminal tribunals to increasethe complexity and sophistication of the international judicialdialogue). The courtfoundthat domesticopinion in Canadahad, since Kindler,turneddecidedlyagainstthe death penalty. Burns, 2001 SCC 7, ?l 85, 96-I04.
2072
HARVARD LAW REVIEW
[Vol.
II4:I943
dissenting opinion in Knight v. Florida, the court found that the international view of the "death row phenomenon" accompanying capital cases counseled against extradition without assurances in cases that were likely to involve a long detention.123 The Canadian court's citation in Burns to Justice Breyer's dissent, rather than to any other recent U.S. state or federal court decision regarding the death row phenomenon,124suggests that Justice Breyer's willingness to look to outside jurisprudence renders his opinions more influential in foreign and supranational jurisdictions. Conversely, the U.S. Supreme Court's failure to engage in the international judicial dialogue may cause other nations to be less willing to rely on its rulings. The cases discussed in this Part illustrate how the dialogue among domestic and supranational courts has contributed to the formation of legal norms for death penalty cases, and it seems likely that the international judicial conversation will similarly influence the development of other international norms. Cases such as Burns raise the question whether the U.S. Supreme Court's reluctance to engage in dialogue with its foreign counterparts will reduce its ability to shape the conversation about legal norms. Many constitutional courts have been eager to engage in the international judicial dialogue and to take advantage of the opportunity to influence the development of international law, but the U.S. Supreme Court has remained reticent. If taking part in the dialogue allows a court to influence the development of international law, it may seem surprising that the U.S. Supreme Court would be so reluctant to join the conversation. But perhaps the willingness (or unwillingness) of constitutional courts to look to foreign or supranational jurisprudence is explained in part by the way that particular courts view their domestic constitutions. The U.S. Supreme Court seems to regard the
123 Burns, The Canadian Supreme Court cited Justice Breyer's dis200I SCC 7, It I20-I22. sent in Elledge v. Florida. Id. I I22. The Canadian court also cited the South African Constitutional Court's decision in Makwanyane to support its assertion that the "balancing process" in Kindler did not include a consideration of public opinion. Id. 1 67. 124 See Knight v. Florida, 528 U.S. 99o, ggo-gi (i999) (citing federal and state court rulings that rejected appeals based on the death row phenomenon); see also Recent Case, II4 HARV.L. REV. 648 (2000) (discussing an Illinois Supreme Court decision holding that the death row phenomenon is not cruel and unusual). The South African Constitutional Court's decision in Makwanyane as well as the Indian Supreme Court's ruling in Bachan Singh suggest that it is not unusual for foreign courts to cite American state supreme court decisions. See State v. Makwanyane, I995 (3) SALR 39I, 42i n.82 (CC) (S. Afr.) (citing a decision of the Supreme Judicial Court of Massachusetts); id. at 416 n.62 (citing a decision of the California Supreme Court); id. at 42i n.84 (citing a decision of the U.S. Court of Appeals for the Ninth Circuit); Bachan Singh v. Punjab, [I980] 2 S.C.J. 475, 5i8-20 (India) (mentioning decisions of the Florida and Georgia state supreme courts); see also supra note 32 (observing that the British Privy Council cited a decision of the Ninth Circuit). The only other citation in Burns to American jurisprudence was a reference to a dissenting opinion by Justice Frankfurter in Solesbee v. Balkcom, 339 U.S. 9 (I950). Burns, 200I SCC 7, 1 I22.
200I]
DEVELOPMENTS -
2073
U.S. Constitution as a document with a uniquely American character, and thus, a document that should not be informed by outside jurisprudence. Courts that have joined the international judicial dialogue, by contrast, seem to perceive their constitutions as documents that "speak to," and listen to, the entire international community.

Developments in The Law International Criminal Law

Загружено:

Сведения о документе

Оригинальное название

Авторское право

Доступные форматы

Поделиться этим документом

Поделиться или встроить документ

Параметры публикации

Этот документ был вам полезен?

Это неприемлемый материал?

Авторское право:

Доступные форматы

Developments in The Law International Criminal Law

Загружено:

Авторское право:

Доступные форматы

Developments in the Law: International Criminal Law Reviewed work(s): Source: Harvard Law Review, Vol. 114, No.

DEVELOPMENTS IN THE LAW

INTERNATIONAL CRIMINAL LAW

reprinted in THE NURNBERG CASE 30, 34 (I947)

United Statesv. Then, 56 F.3d464, 469 (2d. Cir. I995)

HARVARD LAW REVIEW

I958 i96I i96 i962 i963 9 I66

I97 I976 I76

Ramifications of the Conflicting .................................................................202 I Opinions

2. Political Pressure and Institutional Competence

E. Conclusion .................................................................. V. CORPORATELIABILITY FOR VIOLATIONSOF INTERNATIONAL

VI. THE INTERNATIONAL JUDICIAL DIALOGUE: WHENDOMESTIC

A. The Process of Incorporation.................................................................

Examining Foreign and Supranational Jurisprudence............................................2052

HARVARD LAW REVIEW

HARVARD LAW REVIEW

duct of armed conflict." Id. (emphasis omitted).

A HISTORY OF MY TIMES (HELLENICA) 103 (Rex Warner trans., Penguin Books

HARVARD LAW REVIEW

HARVARD LAW REVIEW

Nov. 30, 1973,

HARVARD LAW REVIEW

nal Reportof the Commission of ExpertsEstablished Pursuantto SecurityCouncilResolution780

50 See suprap. I947.

HARVARD LAW REVIEW

HARVARD LAW REVIEW

HARVARD LAW REVIEW

B. The Asserted Goals of Prosecution

HARVARD LAW REVIEW

the Former Yugoslavia Since

A1521375, S/1997/729 (1997) [hereinafter I997

HARVARD LAW REVIEW

achieve general deterrencein the short term.49 In

and i999, de-

Docs. A/53/2I9, S/i998/737(i998).

HARVARD LAW REVIEW

HARVARD LAW REVIEW

Tribunal affiliates claim a retributive aim almost

HARVARD LAW REVIEW

note 58; infrap. 1979.

See Prosecutor v. Erdemovid, Case No. IT-96-22-T, ? 65,

HARVARD LAW REVIEW

HARVARD LAW REVIEW

indeed, even the threat of international prosecution

See supra Part I, p. I954 & n-49.

HARVARD LAW REVIEW

HARVARD LAW REVIEW

without needing to muster resources more suitable to the task at

HARVARD LAW REVIEW

(describing the jurisdictional compromise).

HARVARD LAW RE VIEW

III. FAIRTRIALSAND THE ROLE OF INTERNATIONAL

HARVARD LAW REVIEW

HARVARD LAW REVIEW

HARVARD LAW RE VIEW

HARVARD LAW REVIEW

HARVARD LAW RE VIEW

HARVARD LAW REVIEW

HARVARD LAW REVIEW

Id. 1 3, io8 I.L.R. at i83-84.

HARVARD LAW REVIEW

HARVARD LAW REVIEW

HARVARD LAW REVIEW