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A War Crimes Tribunal for East Timor?
Nathan Hancock
Law and Bills Digest Group
19 October 1999
Context
On 27 September the UN Human Rights Commission voted for an international
inquiry into alleged atrocities in East Timor (Resolution
S-4/1). This resolution suggests that the UN will proceed to establish
an international 'war crimes tribunal' to bring those responsible to justice.
This Research Note examines the legal bases of such a tribunal. Three
areas are uncertain: its mandate, its jurisprudence and its jurisdiction.
Mandate
In establishing the International Force for East Timor the Security Council
gave an indication that it contemplated a criminal tribunal. It referred
to 'systematic, widespread and flagrant violations of international humanitarian
and human rights law' and stressed that 'persons committing such violations
bear individual responsibility' (Resolution 1264).
The resolution is silent about whether such a tribunal would be international
or domestic. However, its language is reminiscent of that associated with
the creation of other international criminal tribunals and suggests such
a tribunal in this case.
Precedents
There are notable precedents for the tribunal from the post-Second World
War and post-Cold War eras: the International Military Tribunals at Nüremberg
and Tokyo in 1945 and 1946 respectively and the International Criminal
Tribunals for the Former Yugoslavia and Rwanda in 1993 and 1994 respectively.
The former investigated 'crimes against peace, war crimes and crimes against
humanity'. Inter alia, the latter are investigating war crimes
and crimes against humanity.
Arguably, both were expedient responses to conflicts that pushed out
the frontiers of international law. The former were established by an
agreement among Allied Powers and the latter were established under the
UN Charter on the basis that armed conflicts constitute a threat to international
peace and security (Chapter VII). Both have broken new ground in respect
of their substantive law and procedural law.
International Criminal Court
Recently, there has been a push to establish a permanent international
tribunal. In 1998 the UN adopted a statute of the International Criminal
Court (the ICC). While the ICC Statute has not yet come into force,
it will cover 'genocide, war crimes, crimes against humanity and the crime
of aggression' (Art.5).
Jurisprudence
The nature and scale of the alleged atrocities in East Timor tend to
suggest that genocide and the crime of aggression are not applicable.
Humanitarian Law
There is a long standing prohibition on crimes committed in the context
of international armed conflict. The Hague Conventions of 1889
and 1907 codified a number of war crimes or crimes committed by armed
forces against each other. Geneva Conventions I-IV of 1949 codify
crimes committed by armed forces against civilians during international
armed conflict. The Geneva Conventions (Art. 3) and the
Additional Protocol II of 1977 prohibit acts committed against
civilians in internal armed conflicts.
Crimes Against Humanity
There is now also a prohibition on crimes committed in the context of
a widespread or systematic attack. In the Cold War era there were signs
that the nexus between crimes against humanity and armed conflict was
breaking down. While it is not without controversy, many suggest that
the process has been completed in the post-Cold War era. Thus, the ICC
Statute refers to 'a widespread or systematic attack directed against
any civilian population' (Art. 7). But it defines an 'attack' as 'a course
of conduct involving the multiple commission of acts pursuant to a policy'
(Art. 7(2)). Thus, crimes must be on a large scale, committed as part
of a policy, systematically or across a wide geographic area.
Human Rights Law
In five decades humanitarian and human rights law have converged. In
principle, peace is a precondition to the enjoyment of all human rights.
In practice, armed conflicts that affect civilians will offend a number
of human rights laws. The Genocide Convention (1948) and Torture
Convention (1984) are good examples of humanitarian principles making
their way into human rights law. Parties are obliged to eliminate torture
or genocide even if they are not strictly crimes against humanity.
This has led some to suggest that serious human rights breaches now equate
with war crimes. Thus, it is argued, torture and persecution on political,
racial and religious should mandate international prosecution in the same
way as crimes against humanity. But this may be to mix two distinct areas
of law. Whereas humanitarian law operates generally and imposes criminal
liability and has been used before to establish criminal tribunals, human
rights law operates between parties, rarely criminalises acts and does
not require international prosecution.
Jurisdiction
A wide range of crimes is included in the category of crimes against
humanity. The UN statutes for the tribunals in Rwanda and Yugoslavia include
murder, extermination, enslavement, imprisonment, torture, rape, and deportation.
The ICC Statute also includes forced disappearance, grievous bodily
harm and arbitrary imprisonment.
Individual Responsibility
Breaches of humanitarian law generally entail individual criminal responsibility.
Geneva Conventions I-IV criminalise acts committed during international
armed conflict and impose an obligation to prosecute. They do not criminalise
all acts committed during internal armed conflicts, but those which constitute
'grave breaches' would entail individual responsibility and an obligation
to prosecute. In customary international law, crimes against humanity
also entail individual criminal responsibility but it is unclear whether
there is an obligation to prosecute. The ICC Statute criminalises
many acts including crimes against humanity (Art. 25) but there is no
requirement to refer matters to the prosecutor.
Command Responsibility
International law also imposes liability on commanders in respect of
the acts of subordinates. At least during international conflicts, commanders
may be responsible for widespread crimes by their troops even if they
did not have actual knowledge of them. (For example, senior Japanese commanders
were prosecuted for acts of their troops during World War II). They may
even be responsible for crimes committed by other forces within their
area of responsibility if they were implicated and allowed the crimes
to proceed. (Such a view was taken of Israeli commanders in respect of
incursions by Phalange guerillas into Lebanon in 1982).
This concept applies in relation to international and internal armed
conflicts. It also seems to apply in relation to crimes against humanity.
For example, under the ICC Statute any person is liable who 'orders,
solicits or induces' or 'aids and abets or otherwise assists' the commission
of a crime or otherwise 'contributes to the commission or attempted commission
of such a crime by a group of persons acting with a common purpose' (Art.
25).
Critique
Strong Indications
There are strong suggestions that an international criminal tribunal
for East Timor will be established. The Security Council has declared
that the situation constitutes 'a threat to international peace and security'
(Resolution 1264). The Human Rights Commission has endorsed the
idea (Resolution S-4/1).
There seem to be good precedents for such a tribunal. The ICC Statute
and the Statutes for the International Criminal Tribunals for Rwanda
and the former Yugoslavia suggest that the Security Council will apply
international law to war crimes and crimes against humanity which have
been committed during civil unrest.
Uncertain Foundations
The preceding comments suggest at least a degree of uncertainty about
the mandate, the jurisprudence and the jurisdiction of such a tribunal.
It could be argued that:
- Neither the Security Council nor the Human Rights Commission would
endorse a tribunal in the absence of support from Indonesia or from
an independent East Timor. Joint management has been a critical issue
for the establish-ment of a tribunal in Cambodia.
- There may still be doubts regarding the nexus between armed conflict
and crimes against humanity, the effect of human rights law, the obligation
to prosecute, and the responsibility of 'commanders'.
- There will be doubts about the facts required to sustain the tribunal:
there may not have been a background of armed conflict and the acts
may not have been on a sufficiently large scale so as to constitute
crimes against humanity.
- There will be doubt about the precedents: the ICC Statute has
not yet come into force, the Rwanda Statute and the Yugoslavia
Statute pushed the frontiers of international law and both applied
against a background of armed conflict.
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