This is the third volume in the International Criminal Law Practitioner Library Series. Volumes I and II dealt with substantive international criminal law, particularly forms of individual criminal responsibility and the core crimes of genocide, crimes against humanity and war crimes. The present volume is devoted to international criminal procedure, the most controversial and most important aspect of international criminal law.

While substantive international criminal law is accepted as a branch of international law, doubts have been raised as to whether there is a body of law that can legitimately be called international criminal procedure. In large measure these doubts arise from the fact that international criminal procedure embraces both the accusatorial system of the common law and the inquisitorial system of the civil law. The argument is made that it lacks coherence and certainty because these two systems are as yet still engaged in a struggle for supremacy. The present careful and comprehensive study of the rules and principles of international criminal procedure refutes this argument and shows convincingly that international criminal procedure is a sui generis system, with a common foundational source – international human rights law and the basic norm of the right to a fair trial.

The authors accept that different international criminal courts are governed by different rules under their different founding Statutes. Indeed, much of the study is dedicated to comparing and contrasting these differences.

INTRODUCTION

Any study of the role of domestic courts in the enforcement of treaties in a particular state is built on the assumption that the state in question is an active member of the international community, with courts aware of the state's international treaty obligations. Such an assumption is certainly true of present-day South Africa, but it was not always so. From 1948 to 1994, while the country pursued the policy of apartheid, South Africa was an isolated pariah state with few treaties and courts largely unconcerned about the country's international obligations. Although South Africa was a party to the Charter of the United Nations – which was not incorporated into domestic law – it refused to become a party to many multilateral treaties, particularly in the fields of African organization, human rights, and humanitarian law. Bilateral treaties were entered into, but even here difficulties were encountered. For instance, most states outside of southern Africa declined to enter into extradition agreements with South Africa or terminated existing agreements. Both the all-white executive and all-white legislature were positively hostile to the international community as it sought to persuade, and later compel, South Africa to abandon apartheid. The courts were likewise unsympathetic to arguments premised on customary international law or treaty obligations. For instance, the South African Appellate Division refused to be guided by the human rights clauses in the UN Charter in its interpretation of the reasonableness of racial discrimination.

International criminal law is a new branch of law, with one foot in international law and the other in criminal law. Until the Nuremberg trial, international criminal law was largely ‘horizontal’ in its operation – that is, it consisted mainly of co-operation between states in the suppression of national crime. Extradition was therefore the central feature of international criminal law. Of course there were international crimes, crimes that threatened the international order, such as piracy and slave trading, but with no international court to prosecute such crimes, they inevitably played an insignificant part in international criminal law. In 1937 came the first attempt to create an international criminal court, for terrorism, but the treaty adopted for this purpose never came into force. The Nuremberg and Tokyo trials mark the commencement of modern international criminal law – that is, the prosecution of individuals for crimes against the international order before international courts. The Nuremberg and Tokyo tribunals have been criticised for providing victors' justice, but they did succeed in developing a jurisprudence for the prosecution of international crimes that courts still invoke today. The Cold War brought this development to an end. Attempts to create a permanent international criminal court failed and it was left to academics to debate and dream about the creation of such a court for the next forty years.

All this changed with the end of the Cold War and the creation of ad hoc tribunals for the former Yugoslavia and Rwanda.

Introduction

Recognition and secession are closely associated. Recognition has provided the imprimatur of statehood to seceding entities for over two hundred years. Early secessions were, however, generally portrayed as assertions of independence from colonial empires or unions rather than as secessions. As international law until recent times did not exalt respect for existing boundaries into a well-nigh absolute rule, secessions were anticipated, if not approved, as a natural consequence of decolonisation and the restructuring of States to correspond to historical realities and ethnic needs. Recognition served as the instrument for the validation of claims to statehood on the part of new entities by existing member States of the community of nations. In exercising their discretion to grant or withhold recognition, States were concerned with the requirements of effective government, independence, absence of control by another State and the ability on the part of the claimant State to conduct foreign affairs with existing States, and not with the question whether the emergence of a new State violated the territorial integrity of the State from which it sought to secede. The main prohibition on recognition was to be found in the rule against premature recognition. This probably explains why neither of the leading English-language treatises on recognition – Hersch Lauterpacht's Recognition in International Law (1947) and Ti-Chian Chen's The International Law of Recognition (1951) – treats secession as a topic worthy of separate attention in the context of recognition.

The position has changed radically since the end of decolonisation.

South Africa, Namibia and Zimbabwe occupy a special place in the history of United Nations action to promote human rights. The perpetuation of white minority rule in these territories in a world order committed to decolonisation, self-determination and majority rule provoked a concerted response from the United Nations, which included economic sanctions and the toleration of military support to national liberation movements. United Nations action against Southern Rhodesia (as it then was) was premised on the denial of self-determination and the perpetuation of minority rule. The international status of South West Africa/Namibia and the failure of South Africa to honour the obligations contained in the Mandate for South West Africa provided the basis for United Nations action against South Africa. In South Africa itself racial discrimination, political repression, military intervention in neighbouring states and minority rule combined to justify United Nations intervention. But in all three cases there was a serious denial of human rights and most of the resolutions adopted by the General Assembly and the Security Council on these three territories castigated the government or the administering authority for its denial of human rights to the majority of the people. The action of the United Nations in the Southern African region can therefore legitimately be characterised as action taken to promote human rights.

It is not surprising that when change came to these territories the national liberation movements involved in the negotiations that led to the establishment of new political orders should insist on constitutions that provided guarantees for human rights.