How can UN human rights special procedures sharpen ICC fact-finding?

Abstract

This article explores how information gathered or received by the range of United Nations human rights special procedures investigative and monitoring mechanisms can help to improve International Criminal Court (ICC) fact-finding and sharpen the prosecutor's case. The author focuses on how the ICC could draw upon human rights fact-finding mechanisms (whether of the Human Rights Council or the Security Council), highlighting both limitations and potentialities of various fact-finding special procedures as well as those of the United Nations human rights treaty bodies, field presences deployed by the United Nations Office of the high commissioner for human rights and United Nations or regional peace-keeping operations and NGOs. It is argued that human rights fact-finding mechanisms should focus more on the eventuality of international or domestic criminal prosecutions and adjust their working methods accordingly. On the other hand, the ICC prosecutor should adopt a much more coherent, structured and balanced approach to the use of UN human rights fact-finding sources. The author concludes with a set of recommendations on the optimal relation between human rights and prosecutorial fact-finding.

Keywords:

• human rights
• special procedures
• fact-finding
• International Criminal Court (ICC)
• information-gathering
• criminal investigations
• genocide
• war crimes
• crimes against humanity
• International Criminal Tribunal for the Former Yugoslavia
• International Criminal Tribunal for Rwanda
• Darfur
• UN Human Rights Council
• UN Security Council
• prosecutions

Acknowledgements

I am grateful to Dr Morten Bergsmo (former legal advisor to the UN Security Council's Commission of Experts on the Former Yugoslavia and to the prosecutors of the ICTY and ICC) for our stimulating conversation on some of the issues raised in the present article, and to Dr Ilaria Bottigliero (senior researcher, International Development Law Organization) for her very helpful comments on a penultimate draft of this article.

Notes

This article is based on my presentations to: the HURIDOCS conference on ‘Human Rights Council and International Criminal Court: The New Challenges for Human Rights Communications’ held in Geneva from 25–27 February 2009; the International Association of Prosecutors' Ancillary Meeting to the 12th UN Crime Congress held in Salvador, Brazil, on 16 April 2010; and the University of Leeds Centre for International Governance workshop on ‘The Role of the Special Rapporteurs of the Human Rights Council in the Development and Promotion of International Human Rights Norms’.

Statute of the International Criminal Court, adopted on 17 July 1998, entered into force on 1 July 2002, as of 17 October 2010 signed by 139 states and ratified by 114 states; (A/CONF. 183/9).

Article 66 of the ICC Statute, ibid. entitled ‘Presumption of Innocence’ provides that: ‘1. Everyone shall be presumed innocent until proved guilty before the Court in accordance with the applicable law. 2. The onus is on the Prosecutor to prove the guilt of the accused. 3. In order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable doubt.’

See generally Lyal S. Sunga, ‘What Effect If Any Will the UN Human Rights Council Have on Special Procedures?’, in International Human Rights Monitoring Mechanisms, ed. Jonas Grimheden Gudmundur Alfredsson, Bertrand G. Ramcharan and Alfred de Zayas, 2nd ed. (Leiden: 2009) 169–83.

See generally, Ilaria Bottigliero, Redress for Victims of Crimes under International Law (Leiden: Martinus Nijhoff, 2004).

See Morten Bergsmo and William H. Wiley, ‘Human Rights Professionals and the Criminal Investigation and Prosecution of Core International Crimes’, Manual on Human Rights Monitoring: An Introduction for Human Rights Field Officers, 3rd revised ed. (Oslo: University of Oslo Norwegian Center for Human Rights, 2008), 1–30, for a very thorough and comprehensive treatment of international criminal investigations and analysis that explores in depth the elements of building an international case for genocide, war crimes or crimes against humanity.

See Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), International Court of Justice Judgement of 26 February 2007, ICJ Reports 2007, at para. 210.

The Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgement (Merits) of 9 April 1949; ICJ Reports 1949, at 18.

In this sense, Article 12 of the International Law Commission's Draft Articles on State Responsibility says that: ‘There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.’; see Annex to General Assembly Resolution 56/83 of 12 December 2001, corrected by Document A/56/49(Vol. I)/Corr.4.

See ibid. Article 7 entitled: ‘Excess of Authority or Contravention of Instructions’.

See e.g. Ben Fowkes, Ethnicity and Ethnic Conflict in the Post-Communist World (Basingstoke: Palgrave-MacMillan, 2002), 104; or Malcolm N. Shaw, International Law, 5th ed. (Cambridge: Cambridge University Press, 2003), 383.

Serb inhabitants of the Republic of Croatia declared their independence from the rump Federation of Yugoslavia on 16 March 1991. Bosnia-Herzegovina declared itself independent in April 1992. A few days later, Serb nationalist militia, including Yugoslav National Army soldiers, marched into parts of Bosnia-Herzegovina. Under Radovan Karadzic, Serb militia occupied 70 per cent of Bosnian territory at some points in time, and perpetrated an aggressive ‘ethnic cleansing’ policy to drive Bosnian Muslims out of the territories it had occupied, comprising systematic and widespread massacres and mass deportations of civilian Muslims.

See George Aldrich, ‘Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia’, American Journal of International Law 90, no. 64 (1996): 64–9; Karine Lescure and Florence Trintignac, International Justice for Former Yugoslavia: The Working of the International Criminal Tribunal of The Hague (The Hague: Martinus Nijhoff, 1996); Virginia Morris and Michael P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, Vol. 1 (Irvington-on-Hudson: Transnational Publishers, 1995); Paul Parin, ‘Open Wounds: Ethnopsychoanalytic Reflections on the Wars in the Former Yugoslavia’, in Alexandra Stiglmayer, ed. Mass Rape: The War against Women in Bosnia-Herzegovina (Lincoln: University of Nebraska Press, 1994), 35–53; Bruce Zagaris, ‘War Crimes Tribunal in Former Yugoslavia’, in The Alleged Transnational Criminal: The Second Biennial International Criminal Law Seminar, ed. R.D. Atkins (The Hague: Martinus Nijhoff, 1995), 9–50.

See Report on the Situation of Human Rights in the Territory of the Former Yugoslavia submitted by Mr Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 14 of Commission Resolution 1992/S-1/1 of 14 August 1992, E/CN.4/1992/S-1/9, 28 August 1992.

Ibid., para. 69.

Ibid., para. 70.

See e.g. E/CN.4/1992/S-1/10 of 27 October 1992, para. 18, as well as Annex II (Statement by Dr Clyde Snow). See also Report of the Special Rapporteur (transmitted by the Secretary-General to the Security Council and General Assembly) A/47/666; S/24809 of 17 November 1992, para. 140, where Mr Mazowiecki stated: ‘There is growing evidence that war crimes have been committed. Further investigation is needed to determine the extent of such acts and the identity of those responsible, with a view to their prosecution by an international tribunal, if appropriate.’

See S/RES/780 (1992) adopted by the Security Council at its 3119th meeting, 6 October 1992. Reprinted in International Legal Materials 31 (1992): 1476.

Almost a year later, owing to the resignation of Mr Kalshoven for medical reasons, and the death of Mr Opsahl, Mr Bassiouni was appointed as Chairman. Ms Christine Cleiren of The Netherlands and Ms Hanne Sophie Greve of Norway were appointed as new members.

See Report of the Secretary-General on the Establishment of the Commission of Experts Pursuant to Paragraph 2 of Security Council Resolution 780(1992), S/24657, para. 7.

Ibid., para. 10.

See UN Doc. S/25274 of 9 February 1993.

See Cherif Bassiouni, ‘The Commission of Experts Established Pursuant to Security Council Resolution 780: Investigating Violations of International Humanitarian Law in the Former Yugoslavia’, Criminal Law Forum 5, nos 2–3 (1994): 279–340, at footnote 28.

Ibid., footnote 26.

Ibid., 291–3.

UNPROFOR is the abbreviation for the UN Protection Force, deployed from February1992 to March 1995 in Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia (Serbia and Montenegro) and the former Yugoslav Republic of Macedonia, headquartered in Zagreb, Croatia, staffed with almost 40,000 military personnel, around 2000 international civilian personnel and more than 2500 staff recruited locally.

Bassiouni, ‘The Commission of Experts Established Pursuant to Security Council Resolution 780’, 300 et. seq. Further, Bassiouni observes that: ‘Governments did not provide any intelligence information in their possession – such as satellite and aerial photographs; intercepted telephone, radio, and cable communications; and other materials that could have revealed the disposition and movement of troops and supplies, particularly important where national borders were crossed. Such information would help to establish the role of different governments in these multiple conflicts, the international character of the conflict, the chain of command, and the apex of command and control.’

The indigenous Twa minority was the first people to populate the area of Rwanda as far back as 2000 BC. Around 3000 years later, a migration of Hutu to the area began. People of Tutsi extraction began to migrate to the area around 1500 AD. Traditionally the Hutu have been agrarian and sedentary whereas the Tutsi have been cattle-owners and nomadic.

See generally Alain Destexhe, Rwanda and Genocide (London: Pluto Press, 1995).

See generally François Misser, Vers un nouveau Rwanda? (Bruxelles/Paris: Editions Luo Pire et Karthala, 1995) for a series of interviews conducted with the Vice-President and Minister of Defense of the Government of Rwanda, Major-General Paul Kagame.

The Report of Mr Bacre Waly Ndiaye on his Mission to Rwanda from 8–17 April 1993, E/CN.4/1994/7/Add.1 of 11 August 1993.

Convention on the Prevention and Punishment of the Crime of Genocide, adopted unanimously 9 December 1948, entered into force 12 January 1951; 78 UNTS 277.

The Report of Mr Bacre Waly Ndiaye on his Mission to Rwanda from 8–17 April 1993, para. 79.

UNAMIR is the abbreviation for the UN Assistance Mission in Rwanda which was vested with authority only to monitor the Arusha Accords with a UN Charter VI mandate. UNAMIR was reduced from 2500 to 270 on 21 April 1994 with the adoption of Security Council Resolution 912.

See Report on the Situation of Human Rights in Rwanda submitted by R. Dégni-Ségui, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 20 of Commission Resolution E/CN.4/S-3/1 of 25 May 1994, UN Doc. E/CN.4/1995/7 of 28 June 1994, para. 24.

Ingvar Carlsson, ‘The UN Inadequacies’, International Journal of Criminal Justice 3 (2005): 837–46.

UN Security Council Resolution 935 adopted unanimously on 1 July 1994; S/RES/1994.

Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935 (1994); UN Doc. S/1994/1405 of 9 December 1994, para. 54

See generally Lyal S. Sunga, ‘The Commission of Experts on Rwanda and the Creation of the International Criminal Tribunal for Rwanda/A Note’, Human Rights Law Journal 16, nos 1–3 (1995): 121–4.

José Ayala-Lasso, the first UN High Commissioner for Human Rights, took up office on 5 April 1994, just one day before the genocide was launched in Rwanda.

The UN Rwanda Emergency Office (UNREO) was set up to coordinate information management in the aftermath of the Rwandan genocide.

Consideration of Reports submitted by States Parties under Article 40 of the Covenant: Concluding Observations of the Human Rights Committee on the Third Periodic Report of the Sudan; UN Doc. CCPR/C/SDN/CO/3 of 29 August 2007 at para. 9.

Decision 2(66) of the UN Committee on the Elimination of Racial Discrimination on the Situation in Darfur; UN Doc. CERD/C/66/DAR/Dec.2 of 11 March 2005.

Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004 (2005).

Report of the High-Level Mission on the Situation of Human Rights in Darfur Pursuant to Human Rights Council Decision S-4/101; A/HRC/4/80 of 9 March 2007, para. 46.

Final Report on the Situation of Human Rights in Darfur Prepared by the Group of Experts Mandated by the Human Rights Council in its Resolution 4/8; A/HRC/6/19 of 28 November 2007.

Amicus Curiae Brief of Antonio Cassese before ICC Pre-Trial Chamber I on Observations on Issues Concerning the Protection of Victims and the Preservation of Evidence in the Proceedings on Darfur Pending before the ICC; ICC-02/05-14 01-09-2006 1/11 EO PT; and Amicus Curiae Brief of Louise Arbour before ICC Pre-Trial Chamber I on Observations on Issues Concerning the Protection of Victims and the Preservation of Evidence in the Proceedings on Darfur Pending before the ICC; ICC-02/05-19 10-10-2006 1/25 CB PT.

See e.g., Louis Charbonneau, ‘Sudan Says to Never Reverse Decision to Expel NGOs’, Reuters, March 20, 2009, http://www.reuters.com/article/idUSN20521830 (accessed October 16, 2010) reporting that: ‘Sudan ordered the aid agencies out of Darfur after the International Criminal Court (ICC) issued an arrest warrant for Sudanese President Omar Hassan al-Bashir earlier this month over alleged war crimes in the western region. Sudan, which does not recognize the ICC, rejects the charge.’

See e.g. the website of the HURIDOCS – Human Rights Information and Documentation Systems, International, http://www.huridocs.org/.

See the Case Matrix Network, http://www.casematrixnetwork.org/; and O. Bekou, A. Jones and M. Bergsmo, ‘Preserving the Overview of Law and Facts: the Case Matrix’, in Collective Violence and International Criminal Justice, ed. Alette Smeulers (2010), 413–35.

See CrimeLink, http://www.pciusa.us/Crimelink.aspx.