The first leader to be arrested under this regime was Slobodan Milosevic in former Yugoslavia. However, he died in prison in The Hague during his trial, which effectively precluded the Court from convicting him. Jean Kambanda was the first non-leader to be imprisoned for life for his role in the Rwanda genocide of 1994. He was a former prime minister, not the head of State.
l by Dr. Ruwantissa Abeyratne
(May 01, 2012, Montreal, Sri Lanka Guardian) Last week, the Special Court for Sierra Leone – an international tribunal established in 2002 sitting in the Hague - convicted former President of Liberia, Charles Taylor, of terrorism, murder, rape, sexual slavery, the use of child soldiers, enslavement and pillage, all of which according to the Court amounted to war crimes and crimes against humanity.
The significance of this decision is that it is the first time that a leader – in this case the President of a country - has been convicted in an international tribunal, of war crimes and crimes against humanity. This sets a precedent and gives effect to the principle enunciated in the Nuremberg trials immediately after the second world war, that there is no immunity attached to persons holding office in government in front of an international tribunal. This seminal principle was held in abeyance due to the fact that for 50 years after the Nuremberg principles were established, no international tribunal was established by the international community to give effect to this rule. It was in the early 1990s that international tribunals were created to prosecute war crimes in Rwanda and Yugoslavia, which were later given international legislative recognition with the adoption of the Rome Statute of the International Criminal Court in 1998, thus paving the way for prosecutions of leaders such as presidents and prime ministers.
The first leader to be arrested under this regime was Slobodan Milosevic in former Yugoslavia. However, he died in prison in The Hague during his trial, which effectively precluded the Court from convicting him. Jean Kambanda was the first non-leader to be imprisoned for life for his role in the Rwanda genocide of 1994. He was a former prime minister, not the head of State.
The International Criminal Court has charged the former President of the Ivory Coast, Laurent Gbagbo with crimes against humanity but his trial has not commenced yet. President Omar Bashir is wanted by the Court for crimes against humanity in Darfur but he has so far evaded arrest.
Although the prosecution had alleged that Charles Taylor had been in command of the militants who committed the heinous crimes and barbaric acts of which Charles Taylor was accused of, the Court found that the prosecution had failed to prove beyond reasonable doubt that the militants had committed such acts under Taylor’s command or that Taylor had participated in such acts. The Court however found that Taylor had participated in planning certain operational aspects of the war during which the acts against civilians were perpetrated.
According to the judgment, delivered by Justice Richard Lussick of Samoa, Taylor will face sentencing in the weeks to come which might see him imprisoned in a British jail (there is no death penalty in international criminal law).
The message modern-day leaders should take from the Taylor conviction is that even their remote involvement in crimes against humanity and war crimes can be impugned in an international criminal tribunal.
The Taylor case also brings to bear the related issue of State responsibility. The fundamental issue in the context of State responsibility is whether a State should be considered responsible for its own failure or non-feasance to prevent a private act of terrorism against civil aviation or whether the conduct of the State itself can be impugned by identifying a nexus between the perpetrator’s conduct and the State. One view is that an agency paradigm, which may in some circumstances impute to a state reprehensibility on the ground that a principal-agent relationship between the State and the perpetrator existed, can obfuscate the issue and preclude one from conducting a meaningful legal study of the State’s conduct.
The Theory of Complicity
At the core of the principal-agent dilemma is the theory of complicity, which attributes liability to a State that was complicit in a private act. Hugo Grotius (1583-1645), founder of the modern natural law theory, first formulated this theory based on State responsibility that was not absolute. Grotius’ theory was that although a State did not have absolute responsibility for a private offence, it could be considered complicit through the notion of patienta or receptus. While the concept of patienta refers to a State’s inability to prevent a wrongdoing, receptus pertains to the refusal to punish the offender.
The 18th Century philosopher Emerich de Vattel was of similar view as Grotius, holding that responsibility could only be attributed to the State if a sovereign refuses to repair the evil done by its subjects or punish an offender or deliver him to justice whether by subjecting him to local justice or by extraditing him. This view was to be followed and extended by the British jurist Blackstone a few years later who went on to say that a sovereign who failed to punish an offender could be considered as abetting the offence or of being an accomplice.
A different view was put forward in an instance of adjudication involving a seminal instance where the Theory of Complicity and the responsibility of states for private acts of violence was tested in 1925. The case (famously called the Jane case) involved the Mexico-United States General Claims Commission which considered the claim of the United States on behalf of the family of a United States national who was killed in a Mexican mining company where the deceased was working. The United States argued that the Mexican authorities had failed to exercise due care and diligence in apprehending and prosecuting the offender. The decision handed down by the Commission distinguished between complicity and the responsibility to punish and the Commission was of the view that Mexico could not be considered an accomplice in this case.
The Complicity Theory, particularly from a Vattellian and Blackstonian point of view is merely assumptive unless put to the test through a judicial process of extradition. In this Context it becomes relevant to address the issue through a discussion of the remedy.
The Condonation Theory
The emergence of the Condonation Theory was almost concurrent with the 1925 Jane case which emerged through the opinions of scholars who belonged to a school of thought that believed that States became responsible for private acts of violence not through complicity as such but more so because their refusal or failure to bring offenders to justice was tantamount to ratification of the acts in question or their condonation. The theory was based on the fact that it is not illogical or arbitrary to suggest that a State must be held liable for its failure to take appropriate steps to punish persons who cause injury or harm to others for the reason that such States can be considered guilty of condoning the criminal acts and therefore become responsible for them. Another reason attributed by scholars in support of the theory is that during that time, arbitral tribunals were ordering States to award pecuniary damages to claimants harmed by private offenders, on the basis that the States were being considered responsible for the offences.
The responsibility of governments in acting against offences committed by private individuals may sometimes involve condonation or ineptitude in taking effective action against terrorist acts, in particular with regard to the financing of terrorist acts. The United Nations General Assembly, on 9 December 1999, adopted the International Convention for the Suppression of the Financing of Terrorism, aimed at enhancing international co-operation among States in devising and adopting effective measures for the prevention of the financing of terrorism, as well as for its suppression through the prosecution and punishment of its perpetrators.
The Convention, in its Article 2 recognizes that any person who by any means directly or indirectly, unlawfully or wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out any act which constitutes an offence under certain named treaties, commits an offence. One of the treaties cited by the Convention is the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997.
The Convention for the Suppression of the Financing of Terrorism also provides that, over and above the acts mentioned, providing or collecting funds toward any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in the situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act, would be deemed an offence under the Convention.
The United Nations has given effect to this principle in 1970 when it proclaimed that every State has the duty to refrain from organizing or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.
Here, the words encouraging and acquiescing in organized activities within its territory directed towards the commission of such acts have a direct bearing on the concept of condonation and would call for a discussion about how States could overtly or covertly encourage the commission of such acts. Steven Metz identifies three categories of such support: Category I support entails protection, logistics, training, intelligence, or equipment provided terrorists as a part of national policy or strategy; Category II support is not backing terrorism as an element of national policy but is the toleration of it; Category III support provides some terrorists a hospitable environment, growing from the presence of legal protections on privacy and freedom of movement, limits on internal surveillance and security organizations, well-developed infrastructure, and émigré communities
Another view is that the separate delict theory’ in State responsibility applies in instances whereby the only direct responsibility of the State is when it is responsible for its own wrongful conduct in the context of private acts, and not for the private acts themselves. This view also contends that indirect State responsibility is occasioned by the State’s own wrongdoing in reference to the private terrorist conduct. The State is not held responsible for the act of terrorism itself, but rather for its failure to prevent and/or punish such acts, or for its active support for or acquiescence in terrorism. Arguably the most provocative and plausible feature in this approach is the introduction by the commentator of the desirability of determining State liability on the theory of causation. He emphasizes that the principal benefit of the causality based approach is that it avoids the automatic rejection of direct State responsibility merely because of the absence of an agency relationship. As a result, it potentially exposes the wrongdoing State to a greater range and intensity of remedies, as well as a higher degree of international attention and opprobrium for its contribution to the private terrorist activity.
The Role of Knowledge
Another method of determining State responsibility lies in the consideration whether a State had actual or presumed knowledge of acts of its instrumentalities, agents or private parties which could have alerted the State to take preventive action. could be imputed to a State. Imputability or attribution depends upon the link that exists between the State and the legal person or persons actually responsible for the act in question. The legal possibility of imposing liability upon a State wherever an official could be linked to that State encourages a State to be more cautious of its responsibility in controlling those responsible for carrying out tasks for which the State could be ultimately held responsible. in State responsibility could be applied to an instance of an act or omission of a public or private official providing air navigation services.
Conclusion
It is not improbable that the aforementioned theories will be considered and applied in analogy by an international tribunal when adjudicating on individual responsibility and liability for war crimes and crimes against humanity. The Charles Taylor verdict is a good example of what I call the law of outrage in action. It certainly looks as though the outcry of the international community after the holocaust of the Second World War – “never again” - is finally being given effect.
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