This article seeks to give an impression of the way in which domestic courts are contributing to the development of international criminal law. Have they predominantly followed the case law of international tribunals and, by doing so, have they corroborated those standards? Or have they rather ventured in new directions and, as a consequence, been involved in a creative process, establishing and refining international criminal law?
Four different approaches, reflecting the position of domestic courts vis à vis the standards and case law of international criminal tribunals, are identified and analysed: strict compliance, antagonism, judicial construction, and ‘casuistry’. The author concludes that the most important contribution of domestic courts to the development of international criminal law consists of further interpretation of open-ended norms. While this is obviously inherent in the process of ‘judicial creativity’, the feature is reinforced by the non-hierarchical nature of international criminal law. As a consequence, international criminal tribunals lack the power and authority to impose their interpretation of international criminal law on domestic courts. The risk of fragmentation is mitigated, however, by the nature of criminal law, which requires strict and clear standards, and by the increasing interactions between courts at different levels.
1 A clear representative of this position is Cassese Antonio, ‘Reflections on International Criminal Justice’ (1998) 61 Modern Law Review 1, and ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2, 2–3. The term ‘epistemic community’ is borrowed from Alvarez José E, ‘Crimes of States/Crimes of Hate: Lessons from Rwanda’ (1999) 24 Yale Journal of International Law 365, 367.
2 UNSC Res 827(1993), 25 May 1993, UN Doc S/RES/827 (1993); UNSC Res 955(1994), 8 November 1994, UN Doc S/RES/955 (1994). The appeals chamber of the ICTY in the Tadić case made no secret of the legal-political underpinnings of the principle of primacy:
Indeed, when an international tribunal such as the present one is created, it must be endowed with primacy over national courts. Otherwise, human nature being what it is, there would be a perennial danger of international crimes being characterised as ‘ordinary crimes’ (Statute of the International Tribunal, art. 10, § 2(a)), or proceedings being ‘designed to shield the accused’, or cases not being diligently prosecuted (Statute of the International Tribunal, art. 10, § 2 (b)).
ICTY, Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-1, Appeals Chamber, 2 October 1995, . On the principle of primacy, see Brown Bartram S ‘Primacy or Complementarity: Reconciling the Jurisdiction of National Courts and International Criminal Tribunals’ (1998) 23 Yale Journal of International Law 383.
3 Compare Friedmann Wolfgang Gaston, The Changing Structure of International Law (1964) 146–47 with Nollkaemper who, though not adhering to this point of view, observes that ‘also in states with more of a rule-of-law tradition, in all too many instances national courts have sided with their government and refused to review acts by governments against the standards of international law’: Nollkaemper André, National Courts and the International Rule of Law (Oxford University Press 2011) 6.
4 See, for instance, Benvenisti Eyal, ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts’ (1993) 4 European Journal of International Law 159, and Falk Richard A, The Role of Domestic Courts in the International Legal Order (Syracuse University Press 1964). More favourably disposed towards domestic courts as enforcers of international law are, amongst others, Lillich Richard B, ‘The Role of Domestic Courts in Promoting International Human Rights Norms’ (1978) 24 New York Law School Law Review 153; Schreuer Christoph H, ‘The Authority of International Judicial Practice in Domestic Courts’ (1974) 23 International and Comparative Law Quarterly 681; and Knop Karen, ‘Here and There: International Law in Domestic Courts’ (2000) 32 New York University Journal of International Law and Policies 501.
5 Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (ICC Statute). Compare the preamble and arts 1 and 17.
6 In the eight ‘situations’ in eight African countries which are currently under judicial scrutiny of the ICC, charges have been issued against 26 defendants.
7 van der Wilt Harmen, ‘Equal Standards? On the Dialectics between National Jurisdictions and the International Criminal Court’ (2008) 8 International Criminal Law Review 229.
8 Similar questions are addressed by Nollkaemper (n 3) chs 9–11. The literature on fragmentation of international law is abundant. Suffice to mention here, Koskenniemi Martti and Leino Päivi, ‘Fragmentation of International Law? Postmodern Anxieties’ (2002) 15 Leiden Journal of International Law 553.
9 See the contributions in this issue by Trapani Antonietta, ‘Bringing National Courts in Line with International Norms: A Comparative Look at the Court of Bosnia and Herzegovina and the Military Courts of the Democratic Republic of Congo’ (2013) 46 Israel Law Review 233–48, and Zongwe Dunia P, ‘Taking Leaves Out of the International Criminal Court Statute: The Direct Application of International Criminal Law by Military Courts in the Democratic Republic of Congo’ (2013) 46 Israel Law Review 249–69.
10 ICC Statute (n 5) art 38(1), mentions ‘international custom, as evidence of a general practice accepted as law’ and ‘general principles of law recognized by civilized nations’ as sources of international law under (b) and (c) respectively.
11 A v Minister of Immigration and Integration, Highest Administrative Appeal, Administrative Law Division of the Council of State, 200408765/1; ILDC 848 (NL 2005). Geneva Convention Relating to the Status of Refugees (entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).
12 ibid para 2.4.2.
13 Ituri District Military Prosecutor v Kahwa Panga Mandro, First Instance Decision, RMP No 227/PEN/2006; ILDC 524 (CD 2006).
14 The military court referred to ICTR, Prosecutor v Kayishema and Ruzindana, Judgment, ICTR-95-1-T, Trial Chamber II, 21 May 1999, , and ICTR, Prosecutor v Akayesu, Judgment, ICTR-96-4-T, Trial Chamber I, 2 September 1998, , but apparently misunderstood the former judgment, as the chamber nowhere suggests that ‘widespread’ and ‘systematic’ are mutually exclusive.
15 Presbyterian Church of Sudan and Others v Talisman Energy Inc and Sudan 453 F Supp 2d 633 (SDNY 2006).
16 Zazai v Minister of Citizenship and Immigration, Redetermination of Deportation Order, 2004 FC 1356; ILDC 646 (CA 2005), para 49.
17 Canada (Minister of Citizenship and Immigration) v Mugesera and Others, Appeal to Supreme Court, (2005) 2 SCR 100; ILDC 180 (CA 2005).
18 ibid para 82.
19 The Canadian court referred to ICTR, Prosecutor v Rutaganda, Judgment, ICTR-96-3-T, Trial Chamber I, 6 December 1999, ; ICTY, Prosecutor v Kordič and Čerkez, Judgment, IT-95-14/2-T, Trial Chamber, 26 February 2001, ; and ICTY, Prosecutor v Kupreskič, Judgment, IT-95-16-T, Trial Chamber, 14 January 2000, .
20 R v Finta  1 SCR 701.
21 ibid 817.
22 See, for instance, Bello Judith Hippler and Cotler Irwin, ‘International Decisions: Regina v. Finta’ (1996) 90 The American Journal of International Law 460, 474; and Deschênes Jules, ‘Toward International Criminal Justice’ (1994) 5 Criminal Law Forum 249, 265–66.
23 See also Rikhof Joseph, ‘Hate Speech and International Criminal Law: The Mugesera Decision by the Supreme Court of Canada’ (2005) 3 Journal of International Criminal Justice 1121, 1126–27.
24 Chile v Arancibia Clavel, Appeal Judgment, Case No 259, A 533 XXXVIII; ILDC 1082 (AR 2004), para 13.
25 ibid para 36.
26 S v Williams and Others (CCT20/94)  ZACC 6; 1995 (3) SA 632; 1995 (7) BCLR 861 (CC) (9 June 1995), para 27.
27 ibid para 39.
28 In that sense, Nollkaemper (n 3) 239.
29 Sanchez-Llamas v Oregon, Supreme Court Judgment, 548 US 331 (2006), Dissenting Opinion of Justice Breyer, para 101.
30 R v Jones and Others  UKHL 16, para 28.
31 Public Prosecutor's Office v Scilingo Manzorro, Final Appeal Judgment, No 16/2005; ILDC 136 (ES 2005), B1–B4. The Appeal Court abundantly cited case law of the ICTY, exhibiting the allegiance to the views of international criminal tribunals, as analysed in the previous section. For a more critical view of the court's asserted violation of the nullum crimen principle, see Gil Alicia Gil, ‘The Flaws of the Scilingo Judgment’ (2005) 3 Journal of International Criminal Justice 1082, 1086–87.
32 Re Extradition Request of Republic of Turkey, Judgment of Supreme Court, LJN: AF6988, 02853/02 U; ILDC 142 (NL 2004), para 3.3.7.
33 Public Prosecutor and Others v Van Anraat, Judgment of the Hague Court of Appeal, LJN BA4676, 2200050906-2; ILDC 753 (NL 2007), para 7.
34 On this issue, see Ferdinandusse Ward N, Direct Application of International Criminal Law in National Courts (TCM Asser Press 2006) 126–33, who employs the concepts of ‘underinclusion’ and ‘overinclusion’.
35 Convention on the Prevention and Punishment of the Crime of Genocide, UNGA Res 260(III), 9 December 1948, UN Doc A/RES/260 (1948).
36 Compare ICTR, Prosecutor v Akayesu (n 14) 515; ICTR, Prosecutor v Rutaganda (n 19) 57; ICTR, Prosecutor v Musema, Judgment, ICTR-96-13-T, Trial Chamber I, 27 January 2000, ; and ICTY, Prosecutor v Jelisić, Judgment, IT-95-10-T, Trial Chamber, 14 December 1999, .
37 Special Prosecutor v Col Hailemariam and Others, Preliminary Objections, Criminal File No 1/87; Decision of Meskerem 29, 1988 EC (GC) (unreported); ILDC 555 (ET 1995).
38 N and Military Prosecutor of the Military Tribunal of First Instance 2 v Military Appeals Tribunal 1A, Cassation Judgment, ILDC 349 (CH 2001); 12(21) Decisions of the Military Supreme Court.
39 ibid para 9b.
40 ibid para 9d.
41 ICTR, Prosecutor v Akayesu, Appeal Judgment, ICTR-96-4-A, Appeals Chamber, 1 June 2001, .
42 United States v Smith, 18 US (5 Wheat) 153 (1820), para 5.
43 Italy v Abdelaziz and Others, Final Appeal Judgment, No 1072; ILDC 559 (IT 2007).
44 ibid para 2.1. International Convention for the Suppression of the Financing of Terrorism (entered into force 10 April 2002) 2178 UNTS 197; Council Framework Decision on Combating Terrorism,  OJ L 164, 3.
45 Abdelaziz (n 43) para 4.1.
46 That the question of whether terrorism deserves to be classified as such when committed in armed conflict is still highly contested is evidenced by the decision of the Appeals Chamber of the Special Tribunal for Lebanon (STL), denying that this is the current state of customary international law: STL, Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, STL-11-01/I, Appeals Chamber, 16 February 2011, . For a critical appraisal of this point of view, see Gillett Matthew and Schuster Matthias, ‘Fast-Track Justice: The Special Tribunal for Lebanon Defines Terrorism’ (2011) 9 Journal of International Criminal Justice 989, 1005–14.
47 126 S Ct 2749, 2784 (2006).
48 Presbyterian Church of Sudan v Talisman (n 15) para 101.
49 The Pinkerton doctrine has gained currency in American criminal law and was revitalised in United States v Bruno 383 F 3d 65 (2d Cir 2004), para 89.
50 Presbyterian Church of Sudan v Talisman (n 15) para 105.
51 Sokolović, Complicity in Genocide Case, Revision Judgment, 3 StR 372/00; ILDC 564 (DE 2001).
52 See the commentary of ILDC reporter, Birgit Schlütter (ILDC 564 (DE 2001)), who refers to the decision of the trial chamber in Prosecutor v Akayesu and to the decisions of the appeals chamber in Prosecutor v Akayesu and the trial chamber in Prosecutor v Bagilishema, respectively.
53 ICTY, Prosecutor v Jelisić (n 36).
54 ICTY, Prosecutor v Krstić, Judgment, IT-98-33-A, Appeals Chamber, 19 April 2004, .
55 See also Ambos Kai, ‘Immer mehr Fragen im internationalen Strafrecht’ [‘Ever More Questions in International Criminal Law’] (2001) Neue Zeitschrift fur Strafrecht 628, 631–32, who proposes to differentiate as to the required mens rea between common ‘aiders and abettors’ and inciters to genocide:
… in der Regel wird der Aufstachelnde die Zerstörungsabsicht selbst besitzen, ja er wird sie bei den von ihm aufgestachelten unmittelbaren Tätern sogar hervorrufen. Anders sieht es bei den allgemeinen Formen der Beteiligung, insbesondere der völkerrechtlich überaus relevanten Beihilfe, aus. Hier handelt der Teilnehmer in Abhängigkeit von Haupttäter und Haupttat und zwar in der Regel ohne eigenes Zerstörungsinteresse oder eine solche Absicht. [… as a rule, the inciter himself will have the intent to destroy; indeed, he will arouse this intent in the immediate perpetrator whom he incites. In case of the general forms of participation, in particular ‘aiding and abetting’ under public international law, the situation is different. Here the participant acts in dependence of the principal and the principal act, and generally he lacks an interest or intent to destroy.]
56 Lozano v Italy, Appeal Judgment, Case No 31171/2008; ILDC 1085 (IT 2008).
57 ibid para 7.
58 ibid (emphasis added).
59 All categories of war crimes in art 8 of the ICC Statute (n 5) require either a ‘grave breach’ (of the Geneva Conventions) or a ‘serious violation’ of the laws and customs applicable in armed conflict.
60 Art 8(1) stipulates that the court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as a part of a large-scale commission of such crimes. See, however, Werle Gerhard, Principles of International Criminal Law (2nd edn, TMC Asser Press 2009) para 685, who argues that ‘the threshold clause (ICC Statute (n 5) art 8) is not a limitation on the substantive requirements for criminality’.
61 Jorgić Case, Individual constitutional complaint, BVerfG, 2 BvR 1290/99; ILDC 132 (DE 2000).
62 ibid para 22a.
63 ibid para 27.
64 ibid para 32.
65 ibid para 33.
66 District Court of The Hague, 23 March 2009, LJN:BK050 (Joseph M) (in Dutch). English translation available at http://www.rechtspraak.nl, LJN BK0520.
67 The 2003 International Crimes Act provides for universal jurisdiction in case of genocide, but the Act could not be applied retroactively to the case at hand.
68 ICTY, Prosecutor v Tadić, Opinion and Judgment, IT-94-1-T, Trial Chamber, 7 May 1997, .
69 ICTR, Prosecutor v Akayesu (n 41) .
70 ICTY, Prosecutor v Kunarac, Kovač and Vuković, Judgment, IT-96-23 & IT-96-23/1-A, Appeals Chamber, 12 June 2002, .
71 ibid .
72 ICTR, Prosecutor v Rutaganda, Judgment, ICTR-96-3-A, Appeals Chamber, 26 May 2003, .
73 Joseph M (n 66) para 45.
74 ibid para 47.
75 ibid paras 60–65.
76 In Akayesu, the trial chamber concluded that ‘although the genocide against the Tutsi occurred concomitantly with the above-mentioned conflict, it was, evidently, fundamentally different from the conflict’ (ICTR, Prosecutor v Akayesu (n 14) para 128) and in ICTR, Prosecutor v Kayishema and Ruzindana (n 14) para 621, the trial chamber held that ‘[the crimes] were committed by the civilian authorities of this country against their own civilian population of a certain ethnicity…were committed as part of a distinct policy of genocide; they were committed parallel to, and not as a result of, the armed conflict’. The district court quoted both findings with approval: Joseph M (n 66) para 59.
77 In a similar vein, van den Herik Larissa, ‘A Quest for Jurisdiction and an Appropriate Definition of Crime: Mpambara before the Dutch Courts’ (2009) 7 Journal of International Criminal Justice 1117.
78 Joseph M (n 66) para 64.
79 Court of Appeal, The Hague, 7 July 2011, LJN: BR0686 (in Dutch, no English translation, http://www.rechtspraak.nl), § 17.3. Author's translation of: ‘Niet alleen waren de afzonderlijke tenlastegelegde feitelijkheden mogelijk geworden door het gewapende conflict, ze waren ook onderdeel van dat conflict’.
80 In a similar vein, Shany Yuval, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005) 16 European Journal of International Law 907, 913, who argues that ‘[p]erpetuating normative ambiguity in these and other areas of the law might encourage states to evade inconvenient legal obligations and render such obligations meaningless’.
81 See the Canadian cases of Zazai and Mugesera, (nn 16–19) and accompanying text.
82 Joseph M (n 66) 30.
83 Nollkaemper (n 3) 222–23.
84 Knop (n 4) 527: ‘Since this disembeddedness lends the resulting norm an air of neutrality and thus legitimacy, its domestic application is assumed to be straightforward. While an international legal norm may leave room for culture – the concept of the “margin of appreciation” in European human rights law is often presented as such – this does not affect the interpretation of the obligation as far as it goes. This particularization is structured as jurisdictional, confining culture to a narrow domain of choice, as opposed to a particularization that permeates the entirety of the interpretation’ (emphasis added).
85 ibid 535.
86 STL, Interlocutory Decision on the Applicable Law (n 46) 19.
87 The appeals chamber quotes with approval Dworkin Ronald, Law's Empire (Belknap Press; Harvard University Press 1986) 352, and Dupuy PM, Droit International Public (9th edn, Dalloz 2008) 448.
88 Knop (n 4) 533.
89 Jennings RY, ‘The Judiciary, International and National, and the Development of International Law’ (1996) 45 International and Comparative Law Quarterly 1, 3.
90 Compare ICC Statute (n 5) art 7(1), art 8(2)(b)(xii) and 8(2)(e)(x), and art 25(3)(e).
91 ICTY, Prosecutor v Furundžija, Judgment, IT-95-17/1-T, Trial Chamber, 10 December 1998, .
92 Jennings (n 89) 2–3. Jennings refers to a ‘classic’ article by Lauterpacht Hersch, ‘Decisions of Municipal Courts as a Source of International Law (1929) X British Yearbook of International Law 65, in which Lauterpacht displays a change of opinion.
93 As is well known, such an extensive investigation was conducted by the trial chamber of the ICTR in the Media case: ICTR, Prosecutor v Nahimana, Barayagwiza and Ngeze, Judgment, ICTR-99-52-T, Trial Chamber I, 3 December 2003.
94 In a similar vein, Nollkaemper (n 3) 245: ‘It is a plausible presumption that in certain respects the legal relevance of decisions of domestic courts in regard to international claims may extend, beyond the legal order of the forum state, to the international legal order’.
95 Compare the diverging opinions of Alvarez (n 1) 462 (‘Moreover … local judges may be less politically constrained innovators of international law and more familiar with domestic criminal law that might usefully fill gaps in international humanitarian law’) with Meron Theodor, ‘War Crimes Law Comes of Age’ (1998) 92 The American Journal of International Law 462, 468 (‘It is … in the development and clarification of the applicable law that a standing international criminal court's contribution will be particularly valuable’). A subtle balance is struck by Shany (n 80) 913, 937, who admits the superiority of international courts in ‘law-intensive’ determinations, while acknowledging the capacities of domestic courts in ‘fact-intensive’ determinations.
96 Compare Burke-White William W, ‘A Community of Courts: Toward a System of International Criminal Law Enforcement’ (2002) 24Michigan Journal of International Law 1, 3.
97 On the fear of the ICC arrogating ‘overruling’ powers, see Gurule Jimmy, ‘United States Opposition to the 1998 ICC Statute Establishing an International Criminal Court: Is the Court's Jurisdiction Truly Complementary to National Criminal Jurisdiction?’ (2001–02) 35 Cornell International Law Journal 1, 28: ‘Thus, in essence, the Court functions as a super or supreme international appellate court, passing judgments on the decisions and proceedings of national judicial systems’.
98 art 267 (in the pre-Lisbon era, art 234) of the Consolidated Version of the Treaty on the Functioning of the European Union, 51 Official Journal of the European Union, 2008/C 115/01, gives the European Court of Justice (ECJ) jurisdiction to give preliminary rulings concerning the interpretation of the Treaties (of the European Union) and on the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. Courts and tribunals of Member States are allowed – or even obliged if there is no judicial remedy under national law – to seek such rulings from the ECJ whenever such questions are raised in a case before them.
99 Compare the ECJ in Case C-244/80 Pasquale Foglia v Mariella Novello  ECR-I 3047, , in which it held that the preliminary rulings procedure is ‘in the interest of the proper application and uniform interpretation of Community law throughout all the Member States’. See also von Bogdandy Armin, ‘Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law’ (2008) 6 International Journal of Constitutional Law 397, 406, observing that such instruments are non-existent in order to guarantee legal equality in applying World Trade Organisation law to competitors from different jurisdictions.
100 The problem is well put by Nollkaemper (n 3) 222, who observes that ‘as international law becomes more meaningful and decisive for national legal systems, and increasingly prescribes and supervises national law with a view to achieving common aims, that process will trigger processes of divergent interpretations’.
101 Burke-White (n 96) 79 (emphasis added).
102 For interesting examples, see Nollkaemper (n 3) 239–41.
103 See, by way of example, the extensive examination of national legislation and case law for the purpose of identifying the elements of rape as an international crime in ICTY, Prosecutor v Kunarac, Kovač and Vuković, Judgment, IT-96-23-T & IT-96-23/1-T, Trial Chamber, 22 February 2001, [439–460], and van der Wilt Harmen, ‘National Law: A Small but Neat Utensil in the Toolbox of International Criminal Tribunals’ (2010) 10 International Criminal Law Review 209.
104 Referring to case law from the British military courts for the trials of war criminals after the Second World War, the trial chamber in the Furundžija case observed that the ‘law applied was domestic, thus rendering the pronouncements of the British courts less helpful in establishing rules of international law on this issue’: ICTY, Prosecutor v Furundžija (n 91) para 196.
105 The term ‘community of courts’ is coined by Anne-Marie Slaughter: see Helfer Laurence R and Slaughter Anne-Marie, ‘Toward a Theory of Effective Supranational Adjudication’ (1997) 107 Yale Law Journal 273, 372, and Slaughter Anne-Marie, ‘The Real New World Order’ (1997) 76 Foreign Affairs 183, 187.
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