Hello.
I'm Michael Scharf, welcome back to
Internatonal Criminal Law.
In today's class, we're going to be
looking at Special Defenses, that apply
to International Criminal Law Now just to
set this in the context of this course,
as you recall we began with the origins
of international criminal law and we
looked at the count ours and definitions
of the international crimes.
In the last class sessions we looked at
that theories of lability.
Now we're focusing on the types of
defenses that are unique to this field of
law.
The objectives for this session are as
follows: First of all, we're going to
explore the application of the defenses
of mental defect and intoxication.
Next we will be talking about the history
in application of one of the most
controversial of the international
criminal law defenses, the obedience to
orders doctrine.
Then we'll learn about the history and
application of head of state immunity and
how the international community has Nips
this one down so it that it could no
longer be a defense, at least before
international tribunals.
Let's begin with the insanity defense.
In international criminal law, this
defense was first raised at Nuremberg.
What you see here is a picture of Rudolph
Hess, Rudolph Hess was the underfuhrer,
meaning he was number two to Hitler in
the early years of the Third Reich.
In a very weird moment, he left Germany
and showed up in England, and he claimed
to be there to secretly negotiate a peace
treaty between the German government,
Hitler, and the British government.
Now the British government didn't trust
Hitler, they didn't believe this was for
real.
They didn't know whether he was crazy or
whether this was a ruse, but they did
know one thing They weren't going to let
him go, so they put him in jail.
After the war, he was rounded up and
tried together with other Nuremberg
defendants.
And his argument was, that he had such a
mental incapacity.
That it wouldn't be fair for him to stand
trial.
In fact, during the entire trial he had
incredibly bizarre behavior.
In our picture you have an example of
looking at him.
He couldn't form sentences.
He was often just It, it would go into
his own little quiet world and wouldn't
be communicative.
And the Tribunal knew that this was a
case of someone who was suffering from
something.
But they said there was no suggestion
that he was so completely insane at the
time that the charges against him were
committed, that he should be absolved to
responsibility.
Now at the International Criminal Court,
they have developed a statute, that takes
the old Nuerembeg precident, and fast
forwards it through 60 years of legal
developments, and they say that the
defense of insanity is only available If
the person suffers, from a mental disease
or a defect that destroys the person's
capacity to appreciate the unlawfulness
or the nature of his or her conduct, or
the capacity to control his or her
conduct to conform to the requirements of
law.
Now let me explain what this means.
It means that at the time the act was
commited the person has to have this
insanity.
If the person was sane at the time the
act as commited but later becomes insane
maybe because of the guilt or because of
the years that go by when they're on the
run.
That later insanity does not prevent the
person from being held responsible
because, the question is, were you insane
at the time, you committed the act.
The second factor is insanity can have
two factors.
It can go to the person's inability to
understand the nature of what he is
doing, that what he's doing is actually a
crime or it can go to the inability of
the person to control what he is doing so
that his insanity makes him do things
that maybe his brain says, I don't
want to be doing these things, but
>> But he can't stop himself, he has an
irresistible impulse to commit these
atrocities.
So looking at that, there have been
various cases that have come up before
the international tribunals.
And there's also a third type of insanity
that's relevant.
And that is if the person is later so
insane.
That they don't understand the nature of
the proceedings against them.
That doesn't absolve them from guilt.
But it does say that a criminal
prosecution would be unfair at that
point.
Because you're basically dealing with,
what's, in essence, a vegetable.
And you can't prosecute someone who
doesn't understand the nature of what's
going on.
They have to have the due process to be
able to participate in their own defense.
Let's look at a modern day case of this.
The top picture is a picture of the, the
Cambodia tribunal.
Now this is a unique tribunal I spent a
semester on sabbatical working as the
special assistant to the prosecutor of
this tribunal.
What makes it unique in one way is that
all the other tribunal have sort of Small
galleries, maybe 50-100 people can sit,
and you're up against the glass like a
fishbowl.
This one has a huge gallery, because it
used to be a giant public auditorium.
And they've been bussing thousands of
people in, you know, school children go
for their retreats and their field trips
to watch these proceedings that have been
going on for the last three years.
Well, one of the people that's being
prosecuted is.
Madame Ieng Thirith and she was the third
most powerful person during the reign of
Pol Pot and Khmer Rouge.
She really was someone who was highly
responsible for the killing fields
atrocities but based on.
International Tribunal precedent, the
Strugar case, that came up before the
Yugoslavia Tribunal, her defense said she
needed to be examined because she was
suffering from dementia.
And the psychiatrists determined, in
fact, that she probably had advanced
senility caused by Alzheimer's and that
she really wasn't able to understand what
was going on.
And based on that, the Tribunal ordered
her released unconditionally.
So she has Walked away from justice.
In other words, she succeeded on the very
thing that Rudolf Hess tried to
accomplish.
And it raises a couple of questions.
It, it makes you wonder if Rudolf Hess
had been a woman would the case have come
out differently?
If Rudolf Hess had not been the
under-Fuhrer if this had been years later
and it wasn't in the heat of the
aftermath of World War II, would the case
have come out differently?
Or maybe if Rudolf Hess had been tried
today with what Modern pyschiatrists know
about senility, would his case have come
out different?
It's, it's possible.
By all accounts, Hess was really of it
during the entire Nuemeburg proceedings.
But now they're applying this, and it's
not really the insanity defense, it's the
defense that you just aren't able to
appreciate the proceedings and it's not
fair.
Fair to proceed against you.
And in this case it was irreversible, it
wasn't temporary, and therefore they knew
they could never prosecute her.
[SOUND] Let's look at a defense that is
similar to insanity, but it's not brought
on by natural causes, but rather by
intoxication.
by chemicals that enter your system.
And often it's amphetamines that are
involved in this defense.
So, the international criminal court has
defined the intoxication similar to the
defense of insantiy.
It says that you can use this defense,
and you can use it to be absolved of
responsbility if you can prove that the
intoxication destroyed your capacity to
appreciate the unlawfulness.
Or nature of your conduct.
Or the capacity to control your conduct.
And the exception is, if you are
voluntarily intoxicated.
This defense is only for involuntary
intoxication.
Now, Bill[INAUDIBLE] , who's one of the
foremost experts at international
criminal law, actually scoffed when he
heard that they were thinking about
including this defense as a defense to
international criminal activities.
In other words, he says most everybody
who commits atrocities are drunk or
intoxicated when they do so.
And those people shouldn't be absolved
for.
From that, it's that, you know, shot of
courage that they take to commit a crime.
but the international criminal court
thought differently.
And, in many cases around the world,
there is a defense similar to this, but
remember the importance is, it's only for
involuntary intoxication That means
somebody else made you take the drug, or,
when you took the substance you didn't
know, the reaction you would have to it.
So let's look at some examples of where
this has been applied in modern day.
Do you all know the story of Joseph Kony?
This is rather famous but i'll, I'll go
through it.
Basically, in Uganda for the last 30
years, there's been a rebel group called
The Lord's Resistance Army and it's run
by a guy named Joseph Kony who you see in
this photo here.
He has been indited by the International
Criminal Court.
He is also wanted by the Ugandan
government.
What he does, with his little group of
people, is he goes from town to town, in
the bush, on the borders, and he kidnaps
children.
In the last 30 years he's kidnapped
30,000 children.
Now he takes the little girls, and he
makes them bush wives, and we discuss
that crime In an earlier session.
He takes the little boys and he turns
them into killing machines, child
soldiers.
Now, how does he do it?
He does it by getting them hopped up on
drugs and some of these little children
are still drugged as adults because many
of these people have been with him for 30
years.
So.
The question then is if you ever got one
of his lieutenants who began life as a
child soldier and has been drugged all
this time, could they use the
intoxication defense?
Well, let's think about it.
Did the drugs make the person unable to
appreciate that what they were doing is
wrong?
I think clearly when you're talking about
a child who didn't want to kill somebody,
if you drug them up and you turn them
into killing machine, it probably has
that effect.
But, over time, would you say that it
still has that effect on adult?
It's possible and depending on how much
drugs they consume, does it stop the
person from being able to control
themself?
That's not as clear.
And then ultimately, were they taking the
drugs voluntarily?
And in some of these cases they may have
started taking the drugs involuntarily as
children and then they get addicted to
the drugs.
And so their claim is, it was not a
voluntary act.
It was an involuntary addiction.
So, this Joseph Kony Character who's
going to be prosecuted.
And his subordinates are going to create
a avenue for defense to explore the
contours of the intoxication defense.
Now, let's look at a, another case that
has happened relatively recently.
This is the scene of massive Rampage by
an individual soldier in Afghanistan.
basically what he did is he, he had been
there for a long time.
It was his third tour of duty.
He may have been taking drugs.
That's one of the questions that may have
to come out of this trial which will
start next year and he went from.
House to house on a killing spree and
just massacre to murder people for no
reason.
When they finally got him he was fairly
incoherent.
And so he is obviously going to try the
insanity defense but he may also try the
intoxication defense.
What makes this case even more
complicated is that in order for soldiers
to have long patrols, often they are
getting amphetamines from their
superiors.
And this is happening in every army.
And if amphetamines are having also the
effect of making them.
Subject to this kind of rage and killing
spree, then the question is, can these
people be absolved from criminal
responsibility because of their
intoxication?
So the intoxication defense that Bill
Chavis scoffed at is actually something
that we're seeing played out in several
international criminal avenues.
Let's look at a much more interesting and
complicated defense.
The defense of I was only following
orders.
At Nuremburg every defendant.
Except for Goering, who was, Hitler's
second in command.
Claimed that they were only following
orders.
At all of the sub-, the subsequent
proceedings under control council law
number 10.
These mini Nuremberg trials we've been
talking about.
The individuals said, I was only
following orders.
At the Eichmann trial.
In Jeruselum where Adolf Eichmann who we
talked about last class session, the
engineer who made the trains run to the
concentration camps more efficiently.
His excuse?
I was only following orders.
Okay so you get the mantra and you have
to wonder is that going to be a defense
that is accepted under international
criminal law.
Well, at Nuremburg.
Principle number 4 of the Nuremburg
principles that came out of the trial of
Nuremburg, and the Nuremburg charter.
And was codified by the International Law
Commission.
This body of the United Nation that
codifies international law.
It looked at this, and said.
The fact that a person acted pursuant to
order of his government, or of a
superior, does not relieve him from
responsibility, under international law,
provided that a moral choice was in fact
possible to him.
Now, looking at this particular quote,
you see that first, they tried to get rid
of the, the idea of obeying orders.
But at the same time, they left in the
idea of duress.
If you didn't have any moral choice, if
basically someone had a gun to your head,
and you had no way to disobey the order,
they're saying that might be an
exception.
The other thing about this is that
they're saying that you are not relieved
of responsibility, but the principle
doesn't say that the court can't mitigate
your sentence, thinking about the context
that you were following an order.
And finally, it doesn't look at all at
the fact that some orders are clearly
unlawful and some orders may seem
reasonable.
And.
Later application of this doctrine has
made a distinction between the two.
Let's look at some of these cases.
Well the most famous modern case of
commander's of obeying orders defense was
the[UNKNOWN] massacre.
If you're not familiar with this, I'll
tell you, go back in time.
It's the Vietnam war.
During the Vietnam war, the Americans
would go from town to town in the
forests, and the rice patties, and the
country side of Vietnam, and often there
would be snipers in these towns, or in
the trees, or outside of the towns.
There was a place called My Lai, which
was near a place where the Americans had
been ambushed by snipers.
And a captain had a meeting with all of
his troops including a Lieutenant who was
his subordinate named Lieutenant Cally
and the Captain Medina said Lieutenant
Cally.
There are snipers in and around My Lai,
what we need to do is clear the town out
because we're going to continue to be
killed from this town, from these
snipers, if we don't do it.
So I want you to go in that town and
clear it out.
Eliminate everybody.
We've announced to the town that if
you're still there we consider you the
enemy and anybody who's still there is a
potential sniper, so snuff them.
So, Lieutenant Calley takes his troops
into My Lai.
And, he comes across, you know, some
adults and he kills them.
He comes across some older people,
elderly, disabled people, and he has them
killed.
He comes across little babies, and he
kills them.
And here you actually have a picture from
My Lai, of people that are literally just
been mowed down by the troops under
Lieutenant Calley's direct command and
the troops kept saying, what are you
asking us to do?
And he says, these are our orders.
These people are potential snipers.
And, and we're talking about little
babies.
So two things happened.
One is, before everybody in the town
could be killed, the helicopters arrived
and one of the helicopter gunships
actually targeted Lieutenant Calley and
the other American troops and this, these
are American helicopters, and they said,
stop killing all the children.
And then the killing stopped.
And so the person who drove the
helicopter, actually was given a medal.
But what do you do poor Lieutenant
Calley?
Well, he goes to his court marshal, and
his defense is, I was only obeying my
orders.
And he also says that he didn't know the
order was unlawful.
He said, look.
They were sniping at us.
I was told to clear them all out.
I asked for clarification.
Captain Medina said yes, everybody.
What choice did I have?
Further, he brings up at his trial that
he graduated last in his class, that he
was probably, in his words, the dumbest
lieutenant in all of the American forces
in Vietnam.
And therefore he shouldn't be held to a
regular reasonable person standard, but
rather a more subjective standard of a
very dumb lieutenant, that was scared to
death and following orders in Vietnam.
Well the court rejected that.
They held him responsible, and they said
the same thing that Nuremberg did.
They said if you are given an order and
they said if it's manifestly unlawful,
you have a duty to disobey the order.
And how do you know if it's manifestly
unlawful?
If a reasonable person, not the dumbest
person in the Vietnam military, but if a
reasonable person would know that the
order is unlawful.
How do you know that this particular
order was lawful, unlawful?
Because in order to kill elderly disabled
people and little babies in order to
protect troops from sniping is obviously
an unlawful order.
So, one of the interesting things that
happened on the court of appeal is that
they made a statement that sort of
captures the philosophy.
Behind the rejection of the Obedience to
Orders defense, in most cases.
And that is they said the obedience of a
soldier is not the obedience of an
automaton.
A soldier is a reasoning agent, obliged
to respond, not as a machine, but as a
person.
So a soldier is not a robot.
If your commander says jump, of course
you're going to say how high.
But if your commander says go kill
innocent babies, you have an obligation
to say wait a minute commander.
Your first, thing you have to do is say I
need clarification.
I thought you said kill all the babies,
and that sounds to me like it would be
unlawful.
Because we're all trained about the rules
of the protection of civilians and
distinction between civilians and
military targets, during training.
And if the commander says oh yeah, you
misheard me, I, I didn't say babies, then
you're fine.
But if the commander says, yes, kill all
the babies then the next thing you have
an obligation to do Is try to appeal the
command.
To go to the superior.
And thirdly, if you're in the bush, you
don't have anybody to appeal to.
Time is of the essence.
Then you have an obligation to disobey an
unlawful order.
Now that's a scary thing because you
could be court martialed.
For disobeying an order, and you're going
to have to defend yourself, by saying,
but it was an unlawful order.
And, basically, use the reverse of
Nuremberg, saying, I wasn't obeying an
order, I was doing my duty as the DC
Court of Military of Appeals said, to not
be an automaton, to disobey an unlawful
order.
Let's test this in a really interesting
recent case.
The year is 1994.
What happened was, the government of
Haiti, as we discussed in an earlier
class, had been overthrown in a bloodless
coup.
And President Aristeed was in New York
trying to get back to Haiti.
And meanwhile, the generals who had done
the coup were given a, a peace for
justice swap, where they were given the
opportunity to go and leave power and
have a comfortable retirement in Panama,
which they accepted.
And then General Aristeed was about to
come back, but before he did so the UN
and the US forces had to come and make
sure that the situation in Haiti would be
calm.
And those first couple of days as they
reentered Haiti, there was a person by
the name of Captain Lawrence Rockwood.
He was an intelligence officer, and part
of his job was to find out what was going
on out there and report it back.
So one of the thing he heard reputable
collaborated reports of is that there
were prisons in Haiti where the generals
had put their political opponents.
These are not criminals.
These are people who were enemies of the
regime and of course, that's a crime
against humanity.
And further, these people who were
reporting to Mr.
Rockwood, to Captain Rockwood, told him
that the plan was to kill all the
political prisoners so that they could
not testify against the military leaders
and the perpetrators at trials.
And this happens, when there's a
transition.
So, Rockwood goes to his commander and he
says we need to go out to this major jail
that's about an hour from our barracks in
the bush in Haiti.
And we need to free the political
prisoners because if we don't get there
within the next couple of hours, they're
all going to be slaughtered.
That's what I'm hearing and his
commanding officer said, well, our
orders, are first to secure the area, and
we don't want to do anything that creates
a conflict, that creates a lot of
fighting.
And so, I tell you, your order is not to
go off and do that, and I'm not sending
anybody else to go off and free the
political prisoners, that's just not our
priority.
Well, Captain Rockwood looked at him and
he said, sir, a thousand people, innocent
people could die, and it is our
responsibility as UN peacekeepers and the
United States operating under a UN
mandate to protect these people.
And I'm telling you I have reliable
information that there are going to be
mass atrocities, and you're telling me
not to lift a finger, you're telling me
that we should in fact be accomplices by
doing nothing to the killing of a
thousand innocents?
Sir, that sounds to me like an unlawful
order.
That sounds to me like what Lieutenant
Calley was given in My Lai, in Vietnam.
And it turns out, interestingly enough,
that Captain Rockwood has a photograph in
his office of the helicopter gun ship
operator who stopped the My Lai massacre,
who I mentioned earlier.
And so, he thought that guy was a hero.
It was someone he worshiped.
And now he's putting himself in that
persons head, in that persons position.
And he say's sir that sounds like an
illegal order.
I want clarification and the commanding
officer said no, I meant what I said,
you're not to go out.
In fact, I'm going to tell you even more
clear, this is the clarification.
If you leave the base, you will be AWOL
means absent without approval and
therefore that's a crime and if you take
any of our equipment like our jeeps to
go, then you're stealing government
property.
I'm ordering you stay put.
And that's the end of it.
Well Captain Rockwood then tried the
second thing.
He tried to appeal it to higher ups.
There wasn't anybody around so he
actually faxed a note to the President of
the United States, Bill Clinton at the
time.
And of course the note just kind of got
stuck in a pile and he didn't get any
immediate response.
So what does he do?
He goes AWOL.
He takes the government jeep.
He goes off and as he's trying to get to
this place, his commanding officer finds
out about it, he sends the troops to
apprehend him, and they apprehend him.
Now there's two things about this case
that make it a little bit hard as a, a
prototypical case to explore this.
One is it turned out that there weren't a
thousand political prisoners at the jail.
In fact, everyone had been released
earlier from that jail.
So his intelligence was wrong, but they
were reliable sources and this was a
reasonable mistake.
So let's assume that his intelligence was
right.
The question then is, at his
court-martial for going AWOL, for
stealing government property, for
disobeying a direct command, can he use
the reverse of the obedience to orders
defense?
He tried to, and in the end, the court,
the military court marshal found him
guilty.
They said the difference between your
case and a case of someone who's given an
unlawful order and disobeys it is that
the unlawful order has to be to do
something affirmative.
To kill babies, to do to something wrong.
In your case your unlawful order that you
claim was simply to do nothing and they
made a distinction between an order to do
nothing and an order to do something
unlawful.
His argument had been, because the US had
a responsibility to protect these people,
in order to do nothing was the same.
But they found that that was not
acceptable.
In fact, they said that his commander was
right, in the context of things the best
way to protect the Haitian population was
to not go and create these kinds of
difficulties by launching, you know off
on these wild goose chases to try to go
by yourself to the prison.
I mean, what would have happened if he
had arrived there, and there had been
guards.
There could have been a firefight, he
could have died.
It could have ignited an entire conflict.
So they ended up giving him a
dishonorable discharge.
But under all the context and
circumstances, they didn't have him do
any time served.
You know, though, for someone like
Rockwood, a Captain who wanted to spend
his whole life in the military, a
dishonorable discharge is really a bad
thing.
Fortunately for him, and here is, sort
of, the coda of this story, he ends up
getting his PhD, he writes a book about
these experiences.
He does a television movie about it.
He has several other books.
One called Walking Away from Nuremberg.
And he's fairly famous, and he's well
off.
And he's done fine.
But the moral of the story is that the
obedience to orders defense, which has on
the other side of the coin, the duty not
to obey unlawful order is limited by this
precedent to an unlawful order to do
something, not an unlawful order to act,
to not act at all.
Let's look at the related defense of
duress.
Remember at Noremberg, they said that the
obedience to order's defense is not
allowed to be used As long as a moral
choice was available.
And what that means is that in a case
where there's no moral choice because of
duress, maybe you can use this.
There is a famous recent case that
explores this.
It's the case of Drazen Erdemovic, he's
the fellow on the right, and his defense
council is on the left Drazen Eerdemovic
was a young 19 year old who joined the
Serb army to be a mechanic, and later he
got transferred to be in the infantry in
a place called Srebrenica Well, that's a
place that sort of lives in infamy, it's
a place that has the name of a town, like
Babi Yar, or maybe the, Pearl Harbor
attacks, that everybody should know
about, because that's the place where the
Bosnian Serbs killed 7,000 men and boys,
that were Muslims.
In a crime against humanity, in a
genocide, during the Bosnian conflict,
and people have been convicted of that.
Well he played his role.
What happened was, one day General Ratko
Mladic who is seen on the slide in the
left shows up, and he says boys, we're
going to kill all the men and young boys
of Muslim age and we have buses that are
busing them out here.
Now the story here is even more
interesting because what happened was,
there was a UN peace keeping force of
Dutch blue helmeted peacekeepers who were
suppose to protect the town of
Sebernitza.
And when Ratko Mladic came rolling in,he
had overwhelming forces.
And they knew that there was no way that
they would be able to withstand him.
So rather than being a trip wire and
fighting him and maybe dying, they ran
away.
And this was such a terrible thing.
The Dutch government actually fell based
on that.
And there has been liability for the
government of the Netherlands for their
failure to do their job, to protect this
UN safe area.
So, Ratko Mladic comes in, and he needs
all the people he can get because he's
going to kill 7,000 people and that takes
a lot of hands.
So he gets Dražen Erdemović to help out.
And in the picture in the bottom.
You see the actual lining up of the
civilians and people like Trayson
O'Domovich who were asked to shoot them
and in the picture in the upper right you
see them, just their bodies on the side
of the road as photographed by their own
photos.
These are photos that were later captured
and then applied at these trials.
So Erdemovic's defence is, I'm just a
young guy.
I didn't want to do this.
They forced me to do it.
And he testifies at his trial that he
says to Ratko Mladic, sir, I don't want
to kill those people.
I've never killed anybody in my life.
And Mladic says, you either shoot or you
go stand over with them and be shot.
Those were his two options.
Well O'Donovich claims that he was then
handed a machine gun and he emptied it
out, and then he was handed another
machine gun and he emptied it out, and he
did this all day and he estimated that
seven busloads of people were killed at
his hands.
And then his defense says he should be
held not guilty because of the addressed
offense.
Well, wow, if you wanted a case that
really tested this legal doctrine, this
is the case.
Clearly he had no choice.
I mean, I suppose you could say when he
had the machine gun, he could have turn
around and shot Ratko Mladic if he was
still around but probably not.
If everybody else had machine guns, they
would have shot him and he would have
died, so he literally is doing this
criminal act with a gun pointed to his
head.
So, the International Tribunal looks at
the case and they say duress cannot be
used to nullify your criminal
responsibility but, it can reduce your
sentence.
And in this case they decided he would
only be given a sentence of 5 years.
So he did have to do time.
The ICC Statute, this is the more modern
International Criminal Court Statute, has
a...a longer Sentence that describes when
duress can be used to nullify criminal
responsibility, and when it can't.
So let's look at that.
It says, duress can be a complete defense
if the act resulted from a threat of
imminent death, serious bodily harm
against the person or another person.
And, and this is important.
The person acts.
Necesaarily and resonably to avoid that
threat.
And finally, it has to be provided that
the person does not intend to cause a
greater harm than the one sought to be
avoided.
Okay, so let's apply this to the case of
Drazen Erdomovic.
If this was the statute, would he have
walked away instead of getting Found
guilty and having his sentence mitigated
down to five years.
Well, first of all, the duress defense is
not available to somebody who puts them
self in a situation where it's likely
that they're going to be in a position
where they have to do crimes.
Did he do that by joining the
Bosnian-Serb army?
Well, arguably He did because the Bosnian
Serb army was doing all sorts of bad
things.
But on the other hand, his defense
counsel says he only joined to be a
mechanic.
He never wanted to shoot anybody, and he
made that clear.
And then he got dragged into the[UNKNOWN]
massacre.
So, you could see on, on the one hand, he
joined the enterprise.
Voluntarily on the other hand that wasn't
what he intended.
Okay secondly was he threatened with
bodily harm.
Yes they said you either shoot these
people or you go over there and you be
shot with them.
Was that a legitimate threat?
I think it was.
I think in the context of the
paramilitary forces led by Ratko Mladic
that he would have carried out that.
He would have killed them right on the
spot.
Now does he cause more harm than the harm
intended to be avoided?
And there's two ways to look at that.
On the one hand he's playing God and he's
saying, I value my life more than the
several hundred lies I'm about to take.
And that's not acceptable under duress.
But his defence counsel was very savy and
said, that's not the way you look at it.
It wasn't his life versus their lives.
It was If he had gone, said no.
He would have saved.
If, if he had not agreed to shoot these
people not only would he have died, the
other people still would have died.
And then one extra person would have been
killed.
So it's not a situation where he's
trading his life but rather, there was no
way he could have saved those people
under any circumstance and it would have
been worse if he had stood over with them
because one more person would have been
killed.
So you see that the duress defense Can be
raised in an international criminal
proceeding.
There are situations.
And it's often very similar and related
to the obedience to orders defense, but
it has the extra element of this, if you
don't do it, we're going to kill you.
Often at Nuemburg.
Some of, in the post Nuremberg trials
people tried to raise that.
They said it wasn't just that I was
ordered to do it, I knew that if I didn't
do it I would be sent to the Russian
front which was a death sentence.
And so they're arguing that that would be
a form of duress.
But duress requires that it'd have to be
something that is Immediate imminent
threat and that would not of been
imminent enough.
I guess the idea is that, if it's not
imminent.
There are times and opportunities for you
to escape the situation.
There's another reason for the imminent
requirement.
When you think of someone with a gun to
their head.
Are they really voluntarily acting?
There are some hero's, but most ordinary
human beings, when they know their life
is about to be taken, don't really have
much in the way of heroism.
Maybe they wet their pants, maybe they
just do whatever they do at the moment.
But they're not acting voluntary, and in
that way You can't hold them responsible
for what they do, for not being heroes.
And that's part of why there's this
eminent threat but if the threat is in
the future, well people can buck
themselves up after thinking about it and
maybe they can find alternatives.
Let's look at the last of these criminal
defenses that we'll be talking about in
today's session.
The defense of head of state immunity.
In this photograph behind me you see
Louis XIV, who famously said,
"[FOREIGN]," "The state is me." In
international law, states, were immune.
You couldn't sue another government in a
local court of another country because of
comedy, because of the equality of
states.
There was this immunity and the head of
state claimed that the same immunity the
state had, he had to have it.
It comes from Louis the XIV.
So, over the years.
Heads of State have committed atrocities
and claimed that they were immune.
At Nuremberg, the Tribunal rejected that.
If you remember, the Nuremberg Charters
said that we were going to prosecute,
well, Hitler was killed already, he'd
committed suicide.
But Herman Goering- Was really the second
in command and he therefore was in effect
the last head of state.
There was also Admiral Donis, who under
Hitler's, this is just an interesting
side story.
Hitler left a will, a last will and
testament.
And he said, if I ever die, Admiral
Dönitz because the Fuhrer.
This is funny, because Hitler didn't like
Admiral Dönitz, and there's no reason
Dönitz should jump over Guring.
But, some people believe he just did
that, because Hitler figured, if I died,
then let's punish Dönitz in this way.
But, In any event, Admiral Dönitz, who
under the Hitler's will was the Fuhrer,
and Goering, who was second in command
and became the Fuhrer, those people were
tried at Nuremberg and they were not able
to say as Louis said, the state is me.
The Nuremberg principle number says the
fact that a person who committed an act
which constitutes a crime under
international law.
Acted as head of state or responsible
government official.
Does not relieve him from responsibility
under international law.
So that's the law of head of state
immunity as it exist at the Nuremberg
trial.
this law was not clear in its application
for domestic courts.
Nuremberg could have meant that, when it
comes to international crimes.
Head of State immunity never applies
whether it be in an international trial
or a domestic court.
But it's not clear that that's what it
meant.
Maybe it only applied to international
courts.
So this issue was tested in a case that
went to the International Court of
Justice, in the Hague.
That's a court that's not an
international criminal tribunal.
It's a court established in the UN
charter to pross, to try cases between
two countries that agree to its
jurisdiction.
And, this is the famous case of the
Belgium arrest warrant against the Congo
foreign minister named Uridia.
Belgium arr, issues this arrest warrant
in the year 2000 claiming that Mr.
Yerodia is responsible for crimes against
humanity, against the Tutsis.
These are the same victims of the Rowanda
conflict that were also victimized in the
neighboring Congo.
So, immediately afterwards Belgium asks
for, an international arrest warrant to
be issued by Interpol.
These international arrest warrants are
called red notices.
there's a picture here, underneath Mr.
Yerodia's picture, of a typical red
notice.
Then, the government of Congo said, you
can't issue an arrest warrant for our
Foreign Minister.
He's like the head of state.
People at that level get head of state
immunity.
And the International Court of Justice,
in 2002, ruled that sitting heads of
state and.
Foreign ministers get full personal
immunity, as long as they're still in
office they cannot be prosecuted, and a
country cannot issue an arrest warrant
against them because under international
law they have to have the ability to
conduct Foreign relations, to travel
freely around the world.
And if they're worried that they'll be
apprehended by various countries that
have arrest warrants out for them, they
won't be able to do their job.
So the International Court of Justice
says, even if you are accused of the
worst crimes imaginable, crimes against
humanity, you get head of state immunity
in a domestic proceding.
But the court in dicta, which means that
wasn't part of their holding but it was
something they said as well, when on to
say that after Nuremberg, anybody who's
being prosecuted by an international
tribunal like the Yugoslavia tribunal,
and the Rwanda tribunal that was created
by the security council or the
International Criminal Court.
Which was created by a treaty.
It has 122 countries that are party to
it.
Anybody who's prosecuted by an
international tribunal does not get head
of state immunity in an international
proceeding.
So that's where that court left it.
The case did not deal with the immunity
of former heads of state.
Let's say Yerodia had stepped down from
office.
Would he still have had immunity for
things that he did that were official
functions while he was the foreign
minister?
Even if those official functions were
international crimes.
so an important argument.
In that case, comes up in the Pinochet
case.
The tale of Augusto Pinochet.
Mr.
Pinochet is the dictator of Chile from
1973 to 1990.
And like many dictators, he waged war
against the opposition.
What he was famous for was the crime of
disappearances.
disappearances, meaning that he would
make his political opponents disappear.
Basically what he did is he rounded them
up, he put them in helicopters, he took
them out over the ocean and he dropped
them, where their bodies would never be
found.
They'd be eaten by sharks.
or he'd put them in.
These prisons high up in the Andes, and
they would die up there and nobody would
ever know.
And nobody knew what happenned ot their
loved ones, to their spouses to their
sisters and brothers.
He did this to thousands of people.
Now, in 19 90 he steps down from power,
but he becomes what is known in Chile as
a senator for life.
So he has an official position, but he's
no longer head of state.
And in 1998, he goes up to England to
have medical Procedures done on him.
And while he's there, a Spanish judge
issues an arrest warrant and a request
for extradition to the United Kingdom for
Pinochet, based on universal jurisdiction
for crimes against humanity and torture.
Now, this case goes up and down the House
of Lords for several years.
The first thing that happens is the house
of lords in what's known as Pinochet
number one, says that anybody who commits
a crime against humanity, while they're a
head of state can be extriditable and
prosecuted.
If they are no longer the head of state
at the time so penal[UNKNOWN] who is no
longer head of state could be held
responsible for crimes get similarity
that he did while he was the head of the
state and their theory was the crimes get
similarity are so clearly illegal that
it's not illegitimate function for a head
of state and therefore falls outside.
Of the, head of state's functions.
Now the problem with this case, was that
one of the judges was a, card carrying,
dues paying member, of Amnesty
International.
In fact, I think, the judge was also, on
the board of trustees.
An the judge forgot to mention that at
the beginning of the case.
So when Pinochet number two, Pinochet's
lawyers, challenged the ruling, on the
basis that one of the judges Was tainted
because Amnesty International is this
organization that believed that he should
be held responsible and the judge should
have disclosed that and having failed to
do so, the whole case is null and void.
Well, the, the court agreed to that and
so it gets re-litigated before the whole
en banc, meaning all of the law lords
which are the highest.
Judges in the UK.
It's like the US Supreme Court.
And in the final 1999 decision, the Law
Lords find that Pinochet could be
extraditable to Spain, that the head of
state immunity doctrine does not protect
him only for the crime of torture.
Not for all the crimes against humanity,
but just for the one crime of torture,
and only after 1994, which was the date
when Chile, the UK and Spain all ratified
the torture convention.
And their theory was that they torture
convetion has a clause that says.
That, being a head of state, does not
absolve you from the crime of torture.
And that all countries are responsible,
they have a duty to prosecute, torturers
found in their territory.
So, the law lords really had a narrow
definition.
They said that a former head of state,
could be prosecuted, only if there is a
treaty.
That strips them of their, immunity.
And, one of the theories is that, Chile,
had, in fact, waived his head of space,
head of state immunity, for purposes of
torture, when it ratified the torture
convention.
In any event, this is, the only high
court decision on the head of state
immunity of a former head of state.
And it's very narrow.
It doesn't allow it to apply to all
international crimes.
But only those crimes like the torture
convention.
I guess it would also apply to grave
breaches of the Geneva convention that
have an absolute obligation to prosecute.
And do not recognize head of state
immunity.
Okay, now the next time this comes up is
in the trial of Charles Taylor.
The story of Charles Taylor is really the
story of neighboring[INAUDIBLE] .
They have a long conflict.
It, it was made famous in movies about
blood diamonds and many people probably
know about This conflict.
the conflict is between rebels who take
over the government and then put the
civilian population to work as slaves in
the diamond mines.
And these are not underground mines but
basically rivers full of diamonds.
So that they're poring through and
finding diamonds.
And then they sell their diamonds to
Charles Taylor, he is the president of
Liberia.
And he gets in a deal where he goes and
he gets weapons from all over Africa and
from East Europe, and he sends them down
to the rebels, and in response they give
him the diamonds.
Now he actually encourages the rebels to
enslave the population, to abuse the
population so that there will be more
diamonds.
And he loves all these diamonds.
So he gets the diamonds and In fact, at
his trial, one of the most interesting
moments is where supermodel Naomi
Campbell testifies at the head, about the
story where she goes and visits him and
some other leaders down in Nelson
Mandela's house in South Africa, and At
the hotel that night.
He shows up and he knocks on her door.
And he says, I, I want to give you a
gift.
And he gives her these uncut rough cut
diamonds which are clearly blood
diamonds.
Now she testifies that she didn't keep
them.
Which is good, but nor did she turn him
in.
but later she had told other people about
this story.
And this all comes out at his trial.
Alright.
So, the big issue, though, for Charles
Taylor, is, he's the president of,
Liberia, and he's going to be prosecuted
by a tribunal, that has jurisdiction over
crimes in Sierra Leon.
Now, one of the things the tribunal
decides, is that, people who are in
Liberia and other countries, that have a
direct affect on Sierra Leon, Can be
prosecuted.
So they're applying their jurisdiction
broadly.
But can you prosecute a sitting head of
state?
Now remember, the international court of
justice in the Yuridia case, in it's
dicta said, before an international
tribunal, there is no head of state
immunity.
That Nuremberg established that.
The question, therefore was, was the
Sierra Leone tribunal an international
tribunal.
And the reason this is an interesting
question is because unlike the Yugoslavia
tribunal and the Rwanda tribunal that
were created by security council
resolutions, this tribunal was literally
created by the government of Sierra Leone
in partnership with the United Nations.
And it's a hybrid tribunal.
It has some judges that are international
and some judges that are domestic.
It has an international prosecutor, it
has some elements that are domestic and
some that are international.
And so the question for the court was,
are we international enough that head of
state immunity doesn't apply?
And they said that they were.
They declared themselves to be an
international court, therefore Charles
Taylor did not have head of state
immunity, he ends up going to trial and
just a, about a year ago He is convicted
he is sentenced to a long prison term and
his appeal will be decided any day now,
maybe by the time this airs.
Alright so again this reaffirms that Head
of State immunity does not apply to an
international court or a hybrid court, a
court that is part international and part
Domestic.
And this is important because more and
more of these international criminal
tribunals are following that hybrid
model.
The Cambodia tribunal is also a mixed
court, and throughout the world whenever
there's a new atrocity and it's a country
that either.
Is not a party to the international
criminal court or for some reason, it's
politically too difficult for the
international criminal court to get
involved, or maybe the[UNKNOWN] predated
the effective date of the international
criminal court which was 2002, and in
those situations we're still seeing the
creation of hybrid courts.
there's recently a court that was created
to prosecute...
The former leader of Chad, Hissene Habre,
and he is being prosecuted in Senegal and
it is a court that is basically an
African-wide court.
Is it international?
Does he not have Head of State immunity?
This precedent seems to indicate that's
the way it would come out.
Alright.
So, 2004, the appeals chamber affirms
that Charles Taylor does not have head of
state immunity.
Let's look at one more case.
This fellow is Al Bashir, the President
of the Sudan.
He has been indicted by the international
criminal court for genocide.
In Darfur, a region of the Sudan where
his opposition has been wiped out by
perpetrators that are loyal to him.
The International Criminal Court has
confirmed the genocide charge, has issued
an international arrest warrant against
him.
Now He's kind of a, a ballsy guy.
He's got a lot of courage, a lot of
chutzpah.
What does he do?
He ignores the international arrest
warrant, and he says, I am a head of
state of a big powerful oil producing
country, and China is my close ally, and
I am going to visit as many countries as
possible, and flout the ICC's arrest
warrant, and prove to the world that I am
stronger Then the ICC, which is a paper
tiger.
So he goes and he visits Egypt and Qatar
and Chad, China, a member of the Security
Council, permanent member with a veto,
and then he goes to Maui.
Or Malawi.
In 2012, the international criminal court
takes a case involving his presence in
Malawi, and they say that he.
Has gone there and that triggered the
responsibility of Malawi to arrest him
and send him to the Hague, and by not
doing so they have violated their duties
Under the international criminal court.
So, and it's not just the international
criminal court.
His case was referred to the court by the
security council.
So they're actually violating not just
the international criminal court statue
but the security council's resolution
that sent his case to the court.
The question then rises: does head of
state immunity Apply to domestic
proceedings to extradite someone to an
international court.
Clearly it applies for the proceedings
before the international court.
And what the ICC, the International
Criminal Court, says is that if it
applies in our proceedings, it has to
also apply in the extradition or
surrender proceedings that.
Get the person to us, because otherwise
we are never going to be able to
prosecute anybody.
I mean it would only leave us the option
of abducting people, and as we going to
see in a couple of sessions, many
countries feel that under almost all
circumstances that's a violation of
international law.
So, the ICC rules that Malawi has
violated its duties and the nice thing
is, he leaves, he goes back to the Sudan.
The next time he goes to Malawi they say,
we don't want you, we're not going to
have the meeting that you're supposed to
go to, because we just don't want to deal
with the problem of being seen as a, a
violator.
Of both the Security Council and the
International Criminal Court.
But he has gone to other countries
including China.
And what this shows is something about
international criminal law and that is,
it's not like domestic law.
These international institutions are not
so strong.
So, the International Criminal Court is
not like Nuremberg, it's not created by
the people, the victorious allies that
have control of Nazi Germany, and can
just scoop people up and bring them to
trial.
The International Criminal Court needs
the cooperation of it's state parties.
And the security council needs the
cooperation of all the countries of the
world when it refers a case to the
International Criminal Court.
And what happens when countries don't
cooperate?
In theory the security council could slap
sanctions on them you know, say they're
not cooperating.
They get an embargo imposed on them but
that's never happened.
And so what this case really does, is it
shows that the international criminal
court is a bit like the emperor with no
clothes.
And it, it really erodes the credibility
of our modern day Nuremberg, of our
modern day international criminal court.
Now having said that Remember that
international justice is patient and
persistent.
Often, it takes many years for someone to
come to justice.
Someday this fellow, Bashir, will not be
in power.
Someday he will travel and a country will
take him into custody and send him to the
Hague if he hasn't died By natural causes
and we see this more and more often, that
these dictators, they live to ripe old
age and somewhere along the line they end
up having to face justice.
Now the most controversial possible case
of head of state immunity is the case
involving the Pope.
Pope Benedict who will have stepped down
by the time this airs was a Cardinal who
was responsible for disciplining other
church leaders and priests when they were
accused of corruption or in this case of
sexual abuses.
And there was a scandal that erupted a
few years ago that many priests, in
Ireland, in Europe, in the United States,
really throughout the world, were
engaging in abuse.
Sexual activties with young boy and other
children.
And that the church was not blowing the
whistle on these people, was not sending
them to be prosecuted.
By local authorities, rather it was
covering it up.
And it was just merely moving them to
another parish where they committed their
crimes all over time.
So while Pope Benedict was pope, there
were civil suits lodged against him in
the United States, in the United Kingdom,
and in other countries.
And he claimed.
That he had head of state immunity,
because, the Vatican is literally under
international law, considered a state.
It's a tiny state, it's only got 1.3
square miles, and it's in the middle of
another state, it's, it's in the middle
of Rome.
But, under international law, it is a
state.
He has control of territory.
It has a government.
He has embassies throughout the world.
He has his own army the Swiss Guard and
so they dismiss those lawsuits against
him.
But now he has stepped down and he is the
only Pope ever to step down.
And so the question is will these suits
resurface?
Well the.
Vatican has announced that even after he
steps down, he's going to be a permanent
guest of the Vatican.
And the reason for that is they don't
want to embarrass the church with the
possibility of these lawsuits going
forward.
So in a way he's sort of a prisoner of a
very small part of the world.
He's an old guy and I'm sure he will
serve an important purposes, a adviser
and as a priest in that area.
But, this is a very interesting case
because it shows, first of all, that head
of state immunity can apply to the Pope.
Who would have thought?
And secondly, that once you step down,
these acts that occurred before he was
head of state, because they predated him
being the Pope, are things that he could
be held responsible for.
But while he was the Pope, He had the
same kind of personal immunity that
Euridia did before the International
Court of Justice in, in the case we
talked about before, the, the Belgium
arrest warrant case.
So that's the story of the Pope.
I know it's very controversial, but it's
also, you know, a good one for exploring
some of these legal issues.
So that concludes our discussion Of the
unique defenses under international
criminal law.
But just because you have a crime and you
have defenses, doesn't mean that you can
go to trial.
And so in our next class session, we're
going to be looking at how do you get the
perpetrator before court, the court, and
we're going to, and specifically be
looking at, first extradition, and then
luring, and then abduction.
And finally, the possibility of targeted
killing as a vehicle to use to eliminate
international perpetrators.
So, please do your readings online, and
do the simulation.
And come prepared for a really exciting
class. Until then, this has been Michael
Shark.
I'm Michael Scharf, welcome back to
Internatonal Criminal Law.
In today's class, we're going to be
looking at Special Defenses, that apply
to International Criminal Law Now just to
set this in the context of this course,
as you recall we began with the origins
of international criminal law and we
looked at the count ours and definitions
of the international crimes.
In the last class sessions we looked at
that theories of lability.
Now we're focusing on the types of
defenses that are unique to this field of
law.
The objectives for this session are as
follows: First of all, we're going to
explore the application of the defenses
of mental defect and intoxication.
Next we will be talking about the history
in application of one of the most
controversial of the international
criminal law defenses, the obedience to
orders doctrine.
Then we'll learn about the history and
application of head of state immunity and
how the international community has Nips
this one down so it that it could no
longer be a defense, at least before
international tribunals.
Let's begin with the insanity defense.
In international criminal law, this
defense was first raised at Nuremberg.
What you see here is a picture of Rudolph
Hess, Rudolph Hess was the underfuhrer,
meaning he was number two to Hitler in
the early years of the Third Reich.
In a very weird moment, he left Germany
and showed up in England, and he claimed
to be there to secretly negotiate a peace
treaty between the German government,
Hitler, and the British government.
Now the British government didn't trust
Hitler, they didn't believe this was for
real.
They didn't know whether he was crazy or
whether this was a ruse, but they did
know one thing They weren't going to let
him go, so they put him in jail.
After the war, he was rounded up and
tried together with other Nuremberg
defendants.
And his argument was, that he had such a
mental incapacity.
That it wouldn't be fair for him to stand
trial.
In fact, during the entire trial he had
incredibly bizarre behavior.
In our picture you have an example of
looking at him.
He couldn't form sentences.
He was often just It, it would go into
his own little quiet world and wouldn't
be communicative.
And the Tribunal knew that this was a
case of someone who was suffering from
something.
But they said there was no suggestion
that he was so completely insane at the
time that the charges against him were
committed, that he should be absolved to
responsibility.
Now at the International Criminal Court,
they have developed a statute, that takes
the old Nuerembeg precident, and fast
forwards it through 60 years of legal
developments, and they say that the
defense of insanity is only available If
the person suffers, from a mental disease
or a defect that destroys the person's
capacity to appreciate the unlawfulness
or the nature of his or her conduct, or
the capacity to control his or her
conduct to conform to the requirements of
law.
Now let me explain what this means.
It means that at the time the act was
commited the person has to have this
insanity.
If the person was sane at the time the
act as commited but later becomes insane
maybe because of the guilt or because of
the years that go by when they're on the
run.
That later insanity does not prevent the
person from being held responsible
because, the question is, were you insane
at the time, you committed the act.
The second factor is insanity can have
two factors.
It can go to the person's inability to
understand the nature of what he is
doing, that what he's doing is actually a
crime or it can go to the inability of
the person to control what he is doing so
that his insanity makes him do things
that maybe his brain says, I don't
want to be doing these things, but
>> But he can't stop himself, he has an
irresistible impulse to commit these
atrocities.
So looking at that, there have been
various cases that have come up before
the international tribunals.
And there's also a third type of insanity
that's relevant.
And that is if the person is later so
insane.
That they don't understand the nature of
the proceedings against them.
That doesn't absolve them from guilt.
But it does say that a criminal
prosecution would be unfair at that
point.
Because you're basically dealing with,
what's, in essence, a vegetable.
And you can't prosecute someone who
doesn't understand the nature of what's
going on.
They have to have the due process to be
able to participate in their own defense.
Let's look at a modern day case of this.
The top picture is a picture of the, the
Cambodia tribunal.
Now this is a unique tribunal I spent a
semester on sabbatical working as the
special assistant to the prosecutor of
this tribunal.
What makes it unique in one way is that
all the other tribunal have sort of Small
galleries, maybe 50-100 people can sit,
and you're up against the glass like a
fishbowl.
This one has a huge gallery, because it
used to be a giant public auditorium.
And they've been bussing thousands of
people in, you know, school children go
for their retreats and their field trips
to watch these proceedings that have been
going on for the last three years.
Well, one of the people that's being
prosecuted is.
Madame Ieng Thirith and she was the third
most powerful person during the reign of
Pol Pot and Khmer Rouge.
She really was someone who was highly
responsible for the killing fields
atrocities but based on.
International Tribunal precedent, the
Strugar case, that came up before the
Yugoslavia Tribunal, her defense said she
needed to be examined because she was
suffering from dementia.
And the psychiatrists determined, in
fact, that she probably had advanced
senility caused by Alzheimer's and that
she really wasn't able to understand what
was going on.
And based on that, the Tribunal ordered
her released unconditionally.
So she has Walked away from justice.
In other words, she succeeded on the very
thing that Rudolf Hess tried to
accomplish.
And it raises a couple of questions.
It, it makes you wonder if Rudolf Hess
had been a woman would the case have come
out differently?
If Rudolf Hess had not been the
under-Fuhrer if this had been years later
and it wasn't in the heat of the
aftermath of World War II, would the case
have come out differently?
Or maybe if Rudolf Hess had been tried
today with what Modern pyschiatrists know
about senility, would his case have come
out different?
It's, it's possible.
By all accounts, Hess was really of it
during the entire Nuemeburg proceedings.
But now they're applying this, and it's
not really the insanity defense, it's the
defense that you just aren't able to
appreciate the proceedings and it's not
fair.
Fair to proceed against you.
And in this case it was irreversible, it
wasn't temporary, and therefore they knew
they could never prosecute her.
[SOUND] Let's look at a defense that is
similar to insanity, but it's not brought
on by natural causes, but rather by
intoxication.
by chemicals that enter your system.
And often it's amphetamines that are
involved in this defense.
So, the international criminal court has
defined the intoxication similar to the
defense of insantiy.
It says that you can use this defense,
and you can use it to be absolved of
responsbility if you can prove that the
intoxication destroyed your capacity to
appreciate the unlawfulness.
Or nature of your conduct.
Or the capacity to control your conduct.
And the exception is, if you are
voluntarily intoxicated.
This defense is only for involuntary
intoxication.
Now, Bill[INAUDIBLE] , who's one of the
foremost experts at international
criminal law, actually scoffed when he
heard that they were thinking about
including this defense as a defense to
international criminal activities.
In other words, he says most everybody
who commits atrocities are drunk or
intoxicated when they do so.
And those people shouldn't be absolved
for.
From that, it's that, you know, shot of
courage that they take to commit a crime.
but the international criminal court
thought differently.
And, in many cases around the world,
there is a defense similar to this, but
remember the importance is, it's only for
involuntary intoxication That means
somebody else made you take the drug, or,
when you took the substance you didn't
know, the reaction you would have to it.
So let's look at some examples of where
this has been applied in modern day.
Do you all know the story of Joseph Kony?
This is rather famous but i'll, I'll go
through it.
Basically, in Uganda for the last 30
years, there's been a rebel group called
The Lord's Resistance Army and it's run
by a guy named Joseph Kony who you see in
this photo here.
He has been indited by the International
Criminal Court.
He is also wanted by the Ugandan
government.
What he does, with his little group of
people, is he goes from town to town, in
the bush, on the borders, and he kidnaps
children.
In the last 30 years he's kidnapped
30,000 children.
Now he takes the little girls, and he
makes them bush wives, and we discuss
that crime In an earlier session.
He takes the little boys and he turns
them into killing machines, child
soldiers.
Now, how does he do it?
He does it by getting them hopped up on
drugs and some of these little children
are still drugged as adults because many
of these people have been with him for 30
years.
So.
The question then is if you ever got one
of his lieutenants who began life as a
child soldier and has been drugged all
this time, could they use the
intoxication defense?
Well, let's think about it.
Did the drugs make the person unable to
appreciate that what they were doing is
wrong?
I think clearly when you're talking about
a child who didn't want to kill somebody,
if you drug them up and you turn them
into killing machine, it probably has
that effect.
But, over time, would you say that it
still has that effect on adult?
It's possible and depending on how much
drugs they consume, does it stop the
person from being able to control
themself?
That's not as clear.
And then ultimately, were they taking the
drugs voluntarily?
And in some of these cases they may have
started taking the drugs involuntarily as
children and then they get addicted to
the drugs.
And so their claim is, it was not a
voluntary act.
It was an involuntary addiction.
So, this Joseph Kony Character who's
going to be prosecuted.
And his subordinates are going to create
a avenue for defense to explore the
contours of the intoxication defense.
Now, let's look at a, another case that
has happened relatively recently.
This is the scene of massive Rampage by
an individual soldier in Afghanistan.
basically what he did is he, he had been
there for a long time.
It was his third tour of duty.
He may have been taking drugs.
That's one of the questions that may have
to come out of this trial which will
start next year and he went from.
House to house on a killing spree and
just massacre to murder people for no
reason.
When they finally got him he was fairly
incoherent.
And so he is obviously going to try the
insanity defense but he may also try the
intoxication defense.
What makes this case even more
complicated is that in order for soldiers
to have long patrols, often they are
getting amphetamines from their
superiors.
And this is happening in every army.
And if amphetamines are having also the
effect of making them.
Subject to this kind of rage and killing
spree, then the question is, can these
people be absolved from criminal
responsibility because of their
intoxication?
So the intoxication defense that Bill
Chavis scoffed at is actually something
that we're seeing played out in several
international criminal avenues.
Let's look at a much more interesting and
complicated defense.
The defense of I was only following
orders.
At Nuremburg every defendant.
Except for Goering, who was, Hitler's
second in command.
Claimed that they were only following
orders.
At all of the sub-, the subsequent
proceedings under control council law
number 10.
These mini Nuremberg trials we've been
talking about.
The individuals said, I was only
following orders.
At the Eichmann trial.
In Jeruselum where Adolf Eichmann who we
talked about last class session, the
engineer who made the trains run to the
concentration camps more efficiently.
His excuse?
I was only following orders.
Okay so you get the mantra and you have
to wonder is that going to be a defense
that is accepted under international
criminal law.
Well, at Nuremburg.
Principle number 4 of the Nuremburg
principles that came out of the trial of
Nuremburg, and the Nuremburg charter.
And was codified by the International Law
Commission.
This body of the United Nation that
codifies international law.
It looked at this, and said.
The fact that a person acted pursuant to
order of his government, or of a
superior, does not relieve him from
responsibility, under international law,
provided that a moral choice was in fact
possible to him.
Now, looking at this particular quote,
you see that first, they tried to get rid
of the, the idea of obeying orders.
But at the same time, they left in the
idea of duress.
If you didn't have any moral choice, if
basically someone had a gun to your head,
and you had no way to disobey the order,
they're saying that might be an
exception.
The other thing about this is that
they're saying that you are not relieved
of responsibility, but the principle
doesn't say that the court can't mitigate
your sentence, thinking about the context
that you were following an order.
And finally, it doesn't look at all at
the fact that some orders are clearly
unlawful and some orders may seem
reasonable.
And.
Later application of this doctrine has
made a distinction between the two.
Let's look at some of these cases.
Well the most famous modern case of
commander's of obeying orders defense was
the[UNKNOWN] massacre.
If you're not familiar with this, I'll
tell you, go back in time.
It's the Vietnam war.
During the Vietnam war, the Americans
would go from town to town in the
forests, and the rice patties, and the
country side of Vietnam, and often there
would be snipers in these towns, or in
the trees, or outside of the towns.
There was a place called My Lai, which
was near a place where the Americans had
been ambushed by snipers.
And a captain had a meeting with all of
his troops including a Lieutenant who was
his subordinate named Lieutenant Cally
and the Captain Medina said Lieutenant
Cally.
There are snipers in and around My Lai,
what we need to do is clear the town out
because we're going to continue to be
killed from this town, from these
snipers, if we don't do it.
So I want you to go in that town and
clear it out.
Eliminate everybody.
We've announced to the town that if
you're still there we consider you the
enemy and anybody who's still there is a
potential sniper, so snuff them.
So, Lieutenant Calley takes his troops
into My Lai.
And, he comes across, you know, some
adults and he kills them.
He comes across some older people,
elderly, disabled people, and he has them
killed.
He comes across little babies, and he
kills them.
And here you actually have a picture from
My Lai, of people that are literally just
been mowed down by the troops under
Lieutenant Calley's direct command and
the troops kept saying, what are you
asking us to do?
And he says, these are our orders.
These people are potential snipers.
And, and we're talking about little
babies.
So two things happened.
One is, before everybody in the town
could be killed, the helicopters arrived
and one of the helicopter gunships
actually targeted Lieutenant Calley and
the other American troops and this, these
are American helicopters, and they said,
stop killing all the children.
And then the killing stopped.
And so the person who drove the
helicopter, actually was given a medal.
But what do you do poor Lieutenant
Calley?
Well, he goes to his court marshal, and
his defense is, I was only obeying my
orders.
And he also says that he didn't know the
order was unlawful.
He said, look.
They were sniping at us.
I was told to clear them all out.
I asked for clarification.
Captain Medina said yes, everybody.
What choice did I have?
Further, he brings up at his trial that
he graduated last in his class, that he
was probably, in his words, the dumbest
lieutenant in all of the American forces
in Vietnam.
And therefore he shouldn't be held to a
regular reasonable person standard, but
rather a more subjective standard of a
very dumb lieutenant, that was scared to
death and following orders in Vietnam.
Well the court rejected that.
They held him responsible, and they said
the same thing that Nuremberg did.
They said if you are given an order and
they said if it's manifestly unlawful,
you have a duty to disobey the order.
And how do you know if it's manifestly
unlawful?
If a reasonable person, not the dumbest
person in the Vietnam military, but if a
reasonable person would know that the
order is unlawful.
How do you know that this particular
order was lawful, unlawful?
Because in order to kill elderly disabled
people and little babies in order to
protect troops from sniping is obviously
an unlawful order.
So, one of the interesting things that
happened on the court of appeal is that
they made a statement that sort of
captures the philosophy.
Behind the rejection of the Obedience to
Orders defense, in most cases.
And that is they said the obedience of a
soldier is not the obedience of an
automaton.
A soldier is a reasoning agent, obliged
to respond, not as a machine, but as a
person.
So a soldier is not a robot.
If your commander says jump, of course
you're going to say how high.
But if your commander says go kill
innocent babies, you have an obligation
to say wait a minute commander.
Your first, thing you have to do is say I
need clarification.
I thought you said kill all the babies,
and that sounds to me like it would be
unlawful.
Because we're all trained about the rules
of the protection of civilians and
distinction between civilians and
military targets, during training.
And if the commander says oh yeah, you
misheard me, I, I didn't say babies, then
you're fine.
But if the commander says, yes, kill all
the babies then the next thing you have
an obligation to do Is try to appeal the
command.
To go to the superior.
And thirdly, if you're in the bush, you
don't have anybody to appeal to.
Time is of the essence.
Then you have an obligation to disobey an
unlawful order.
Now that's a scary thing because you
could be court martialed.
For disobeying an order, and you're going
to have to defend yourself, by saying,
but it was an unlawful order.
And, basically, use the reverse of
Nuremberg, saying, I wasn't obeying an
order, I was doing my duty as the DC
Court of Military of Appeals said, to not
be an automaton, to disobey an unlawful
order.
Let's test this in a really interesting
recent case.
The year is 1994.
What happened was, the government of
Haiti, as we discussed in an earlier
class, had been overthrown in a bloodless
coup.
And President Aristeed was in New York
trying to get back to Haiti.
And meanwhile, the generals who had done
the coup were given a, a peace for
justice swap, where they were given the
opportunity to go and leave power and
have a comfortable retirement in Panama,
which they accepted.
And then General Aristeed was about to
come back, but before he did so the UN
and the US forces had to come and make
sure that the situation in Haiti would be
calm.
And those first couple of days as they
reentered Haiti, there was a person by
the name of Captain Lawrence Rockwood.
He was an intelligence officer, and part
of his job was to find out what was going
on out there and report it back.
So one of the thing he heard reputable
collaborated reports of is that there
were prisons in Haiti where the generals
had put their political opponents.
These are not criminals.
These are people who were enemies of the
regime and of course, that's a crime
against humanity.
And further, these people who were
reporting to Mr.
Rockwood, to Captain Rockwood, told him
that the plan was to kill all the
political prisoners so that they could
not testify against the military leaders
and the perpetrators at trials.
And this happens, when there's a
transition.
So, Rockwood goes to his commander and he
says we need to go out to this major jail
that's about an hour from our barracks in
the bush in Haiti.
And we need to free the political
prisoners because if we don't get there
within the next couple of hours, they're
all going to be slaughtered.
That's what I'm hearing and his
commanding officer said, well, our
orders, are first to secure the area, and
we don't want to do anything that creates
a conflict, that creates a lot of
fighting.
And so, I tell you, your order is not to
go off and do that, and I'm not sending
anybody else to go off and free the
political prisoners, that's just not our
priority.
Well, Captain Rockwood looked at him and
he said, sir, a thousand people, innocent
people could die, and it is our
responsibility as UN peacekeepers and the
United States operating under a UN
mandate to protect these people.
And I'm telling you I have reliable
information that there are going to be
mass atrocities, and you're telling me
not to lift a finger, you're telling me
that we should in fact be accomplices by
doing nothing to the killing of a
thousand innocents?
Sir, that sounds to me like an unlawful
order.
That sounds to me like what Lieutenant
Calley was given in My Lai, in Vietnam.
And it turns out, interestingly enough,
that Captain Rockwood has a photograph in
his office of the helicopter gun ship
operator who stopped the My Lai massacre,
who I mentioned earlier.
And so, he thought that guy was a hero.
It was someone he worshiped.
And now he's putting himself in that
persons head, in that persons position.
And he say's sir that sounds like an
illegal order.
I want clarification and the commanding
officer said no, I meant what I said,
you're not to go out.
In fact, I'm going to tell you even more
clear, this is the clarification.
If you leave the base, you will be AWOL
means absent without approval and
therefore that's a crime and if you take
any of our equipment like our jeeps to
go, then you're stealing government
property.
I'm ordering you stay put.
And that's the end of it.
Well Captain Rockwood then tried the
second thing.
He tried to appeal it to higher ups.
There wasn't anybody around so he
actually faxed a note to the President of
the United States, Bill Clinton at the
time.
And of course the note just kind of got
stuck in a pile and he didn't get any
immediate response.
So what does he do?
He goes AWOL.
He takes the government jeep.
He goes off and as he's trying to get to
this place, his commanding officer finds
out about it, he sends the troops to
apprehend him, and they apprehend him.
Now there's two things about this case
that make it a little bit hard as a, a
prototypical case to explore this.
One is it turned out that there weren't a
thousand political prisoners at the jail.
In fact, everyone had been released
earlier from that jail.
So his intelligence was wrong, but they
were reliable sources and this was a
reasonable mistake.
So let's assume that his intelligence was
right.
The question then is, at his
court-martial for going AWOL, for
stealing government property, for
disobeying a direct command, can he use
the reverse of the obedience to orders
defense?
He tried to, and in the end, the court,
the military court marshal found him
guilty.
They said the difference between your
case and a case of someone who's given an
unlawful order and disobeys it is that
the unlawful order has to be to do
something affirmative.
To kill babies, to do to something wrong.
In your case your unlawful order that you
claim was simply to do nothing and they
made a distinction between an order to do
nothing and an order to do something
unlawful.
His argument had been, because the US had
a responsibility to protect these people,
in order to do nothing was the same.
But they found that that was not
acceptable.
In fact, they said that his commander was
right, in the context of things the best
way to protect the Haitian population was
to not go and create these kinds of
difficulties by launching, you know off
on these wild goose chases to try to go
by yourself to the prison.
I mean, what would have happened if he
had arrived there, and there had been
guards.
There could have been a firefight, he
could have died.
It could have ignited an entire conflict.
So they ended up giving him a
dishonorable discharge.
But under all the context and
circumstances, they didn't have him do
any time served.
You know, though, for someone like
Rockwood, a Captain who wanted to spend
his whole life in the military, a
dishonorable discharge is really a bad
thing.
Fortunately for him, and here is, sort
of, the coda of this story, he ends up
getting his PhD, he writes a book about
these experiences.
He does a television movie about it.
He has several other books.
One called Walking Away from Nuremberg.
And he's fairly famous, and he's well
off.
And he's done fine.
But the moral of the story is that the
obedience to orders defense, which has on
the other side of the coin, the duty not
to obey unlawful order is limited by this
precedent to an unlawful order to do
something, not an unlawful order to act,
to not act at all.
Let's look at the related defense of
duress.
Remember at Noremberg, they said that the
obedience to order's defense is not
allowed to be used As long as a moral
choice was available.
And what that means is that in a case
where there's no moral choice because of
duress, maybe you can use this.
There is a famous recent case that
explores this.
It's the case of Drazen Erdemovic, he's
the fellow on the right, and his defense
council is on the left Drazen Eerdemovic
was a young 19 year old who joined the
Serb army to be a mechanic, and later he
got transferred to be in the infantry in
a place called Srebrenica Well, that's a
place that sort of lives in infamy, it's
a place that has the name of a town, like
Babi Yar, or maybe the, Pearl Harbor
attacks, that everybody should know
about, because that's the place where the
Bosnian Serbs killed 7,000 men and boys,
that were Muslims.
In a crime against humanity, in a
genocide, during the Bosnian conflict,
and people have been convicted of that.
Well he played his role.
What happened was, one day General Ratko
Mladic who is seen on the slide in the
left shows up, and he says boys, we're
going to kill all the men and young boys
of Muslim age and we have buses that are
busing them out here.
Now the story here is even more
interesting because what happened was,
there was a UN peace keeping force of
Dutch blue helmeted peacekeepers who were
suppose to protect the town of
Sebernitza.
And when Ratko Mladic came rolling in,he
had overwhelming forces.
And they knew that there was no way that
they would be able to withstand him.
So rather than being a trip wire and
fighting him and maybe dying, they ran
away.
And this was such a terrible thing.
The Dutch government actually fell based
on that.
And there has been liability for the
government of the Netherlands for their
failure to do their job, to protect this
UN safe area.
So, Ratko Mladic comes in, and he needs
all the people he can get because he's
going to kill 7,000 people and that takes
a lot of hands.
So he gets Dražen Erdemović to help out.
And in the picture in the bottom.
You see the actual lining up of the
civilians and people like Trayson
O'Domovich who were asked to shoot them
and in the picture in the upper right you
see them, just their bodies on the side
of the road as photographed by their own
photos.
These are photos that were later captured
and then applied at these trials.
So Erdemovic's defence is, I'm just a
young guy.
I didn't want to do this.
They forced me to do it.
And he testifies at his trial that he
says to Ratko Mladic, sir, I don't want
to kill those people.
I've never killed anybody in my life.
And Mladic says, you either shoot or you
go stand over with them and be shot.
Those were his two options.
Well O'Donovich claims that he was then
handed a machine gun and he emptied it
out, and then he was handed another
machine gun and he emptied it out, and he
did this all day and he estimated that
seven busloads of people were killed at
his hands.
And then his defense says he should be
held not guilty because of the addressed
offense.
Well, wow, if you wanted a case that
really tested this legal doctrine, this
is the case.
Clearly he had no choice.
I mean, I suppose you could say when he
had the machine gun, he could have turn
around and shot Ratko Mladic if he was
still around but probably not.
If everybody else had machine guns, they
would have shot him and he would have
died, so he literally is doing this
criminal act with a gun pointed to his
head.
So, the International Tribunal looks at
the case and they say duress cannot be
used to nullify your criminal
responsibility but, it can reduce your
sentence.
And in this case they decided he would
only be given a sentence of 5 years.
So he did have to do time.
The ICC Statute, this is the more modern
International Criminal Court Statute, has
a...a longer Sentence that describes when
duress can be used to nullify criminal
responsibility, and when it can't.
So let's look at that.
It says, duress can be a complete defense
if the act resulted from a threat of
imminent death, serious bodily harm
against the person or another person.
And, and this is important.
The person acts.
Necesaarily and resonably to avoid that
threat.
And finally, it has to be provided that
the person does not intend to cause a
greater harm than the one sought to be
avoided.
Okay, so let's apply this to the case of
Drazen Erdomovic.
If this was the statute, would he have
walked away instead of getting Found
guilty and having his sentence mitigated
down to five years.
Well, first of all, the duress defense is
not available to somebody who puts them
self in a situation where it's likely
that they're going to be in a position
where they have to do crimes.
Did he do that by joining the
Bosnian-Serb army?
Well, arguably He did because the Bosnian
Serb army was doing all sorts of bad
things.
But on the other hand, his defense
counsel says he only joined to be a
mechanic.
He never wanted to shoot anybody, and he
made that clear.
And then he got dragged into the[UNKNOWN]
massacre.
So, you could see on, on the one hand, he
joined the enterprise.
Voluntarily on the other hand that wasn't
what he intended.
Okay secondly was he threatened with
bodily harm.
Yes they said you either shoot these
people or you go over there and you be
shot with them.
Was that a legitimate threat?
I think it was.
I think in the context of the
paramilitary forces led by Ratko Mladic
that he would have carried out that.
He would have killed them right on the
spot.
Now does he cause more harm than the harm
intended to be avoided?
And there's two ways to look at that.
On the one hand he's playing God and he's
saying, I value my life more than the
several hundred lies I'm about to take.
And that's not acceptable under duress.
But his defence counsel was very savy and
said, that's not the way you look at it.
It wasn't his life versus their lives.
It was If he had gone, said no.
He would have saved.
If, if he had not agreed to shoot these
people not only would he have died, the
other people still would have died.
And then one extra person would have been
killed.
So it's not a situation where he's
trading his life but rather, there was no
way he could have saved those people
under any circumstance and it would have
been worse if he had stood over with them
because one more person would have been
killed.
So you see that the duress defense Can be
raised in an international criminal
proceeding.
There are situations.
And it's often very similar and related
to the obedience to orders defense, but
it has the extra element of this, if you
don't do it, we're going to kill you.
Often at Nuemburg.
Some of, in the post Nuremberg trials
people tried to raise that.
They said it wasn't just that I was
ordered to do it, I knew that if I didn't
do it I would be sent to the Russian
front which was a death sentence.
And so they're arguing that that would be
a form of duress.
But duress requires that it'd have to be
something that is Immediate imminent
threat and that would not of been
imminent enough.
I guess the idea is that, if it's not
imminent.
There are times and opportunities for you
to escape the situation.
There's another reason for the imminent
requirement.
When you think of someone with a gun to
their head.
Are they really voluntarily acting?
There are some hero's, but most ordinary
human beings, when they know their life
is about to be taken, don't really have
much in the way of heroism.
Maybe they wet their pants, maybe they
just do whatever they do at the moment.
But they're not acting voluntary, and in
that way You can't hold them responsible
for what they do, for not being heroes.
And that's part of why there's this
eminent threat but if the threat is in
the future, well people can buck
themselves up after thinking about it and
maybe they can find alternatives.
Let's look at the last of these criminal
defenses that we'll be talking about in
today's session.
The defense of head of state immunity.
In this photograph behind me you see
Louis XIV, who famously said,
"[FOREIGN]," "The state is me." In
international law, states, were immune.
You couldn't sue another government in a
local court of another country because of
comedy, because of the equality of
states.
There was this immunity and the head of
state claimed that the same immunity the
state had, he had to have it.
It comes from Louis the XIV.
So, over the years.
Heads of State have committed atrocities
and claimed that they were immune.
At Nuremberg, the Tribunal rejected that.
If you remember, the Nuremberg Charters
said that we were going to prosecute,
well, Hitler was killed already, he'd
committed suicide.
But Herman Goering- Was really the second
in command and he therefore was in effect
the last head of state.
There was also Admiral Donis, who under
Hitler's, this is just an interesting
side story.
Hitler left a will, a last will and
testament.
And he said, if I ever die, Admiral
Dönitz because the Fuhrer.
This is funny, because Hitler didn't like
Admiral Dönitz, and there's no reason
Dönitz should jump over Guring.
But, some people believe he just did
that, because Hitler figured, if I died,
then let's punish Dönitz in this way.
But, In any event, Admiral Dönitz, who
under the Hitler's will was the Fuhrer,
and Goering, who was second in command
and became the Fuhrer, those people were
tried at Nuremberg and they were not able
to say as Louis said, the state is me.
The Nuremberg principle number says the
fact that a person who committed an act
which constitutes a crime under
international law.
Acted as head of state or responsible
government official.
Does not relieve him from responsibility
under international law.
So that's the law of head of state
immunity as it exist at the Nuremberg
trial.
this law was not clear in its application
for domestic courts.
Nuremberg could have meant that, when it
comes to international crimes.
Head of State immunity never applies
whether it be in an international trial
or a domestic court.
But it's not clear that that's what it
meant.
Maybe it only applied to international
courts.
So this issue was tested in a case that
went to the International Court of
Justice, in the Hague.
That's a court that's not an
international criminal tribunal.
It's a court established in the UN
charter to pross, to try cases between
two countries that agree to its
jurisdiction.
And, this is the famous case of the
Belgium arrest warrant against the Congo
foreign minister named Uridia.
Belgium arr, issues this arrest warrant
in the year 2000 claiming that Mr.
Yerodia is responsible for crimes against
humanity, against the Tutsis.
These are the same victims of the Rowanda
conflict that were also victimized in the
neighboring Congo.
So, immediately afterwards Belgium asks
for, an international arrest warrant to
be issued by Interpol.
These international arrest warrants are
called red notices.
there's a picture here, underneath Mr.
Yerodia's picture, of a typical red
notice.
Then, the government of Congo said, you
can't issue an arrest warrant for our
Foreign Minister.
He's like the head of state.
People at that level get head of state
immunity.
And the International Court of Justice,
in 2002, ruled that sitting heads of
state and.
Foreign ministers get full personal
immunity, as long as they're still in
office they cannot be prosecuted, and a
country cannot issue an arrest warrant
against them because under international
law they have to have the ability to
conduct Foreign relations, to travel
freely around the world.
And if they're worried that they'll be
apprehended by various countries that
have arrest warrants out for them, they
won't be able to do their job.
So the International Court of Justice
says, even if you are accused of the
worst crimes imaginable, crimes against
humanity, you get head of state immunity
in a domestic proceding.
But the court in dicta, which means that
wasn't part of their holding but it was
something they said as well, when on to
say that after Nuremberg, anybody who's
being prosecuted by an international
tribunal like the Yugoslavia tribunal,
and the Rwanda tribunal that was created
by the security council or the
International Criminal Court.
Which was created by a treaty.
It has 122 countries that are party to
it.
Anybody who's prosecuted by an
international tribunal does not get head
of state immunity in an international
proceeding.
So that's where that court left it.
The case did not deal with the immunity
of former heads of state.
Let's say Yerodia had stepped down from
office.
Would he still have had immunity for
things that he did that were official
functions while he was the foreign
minister?
Even if those official functions were
international crimes.
so an important argument.
In that case, comes up in the Pinochet
case.
The tale of Augusto Pinochet.
Mr.
Pinochet is the dictator of Chile from
1973 to 1990.
And like many dictators, he waged war
against the opposition.
What he was famous for was the crime of
disappearances.
disappearances, meaning that he would
make his political opponents disappear.
Basically what he did is he rounded them
up, he put them in helicopters, he took
them out over the ocean and he dropped
them, where their bodies would never be
found.
They'd be eaten by sharks.
or he'd put them in.
These prisons high up in the Andes, and
they would die up there and nobody would
ever know.
And nobody knew what happenned ot their
loved ones, to their spouses to their
sisters and brothers.
He did this to thousands of people.
Now, in 19 90 he steps down from power,
but he becomes what is known in Chile as
a senator for life.
So he has an official position, but he's
no longer head of state.
And in 1998, he goes up to England to
have medical Procedures done on him.
And while he's there, a Spanish judge
issues an arrest warrant and a request
for extradition to the United Kingdom for
Pinochet, based on universal jurisdiction
for crimes against humanity and torture.
Now, this case goes up and down the House
of Lords for several years.
The first thing that happens is the house
of lords in what's known as Pinochet
number one, says that anybody who commits
a crime against humanity, while they're a
head of state can be extriditable and
prosecuted.
If they are no longer the head of state
at the time so penal[UNKNOWN] who is no
longer head of state could be held
responsible for crimes get similarity
that he did while he was the head of the
state and their theory was the crimes get
similarity are so clearly illegal that
it's not illegitimate function for a head
of state and therefore falls outside.
Of the, head of state's functions.
Now the problem with this case, was that
one of the judges was a, card carrying,
dues paying member, of Amnesty
International.
In fact, I think, the judge was also, on
the board of trustees.
An the judge forgot to mention that at
the beginning of the case.
So when Pinochet number two, Pinochet's
lawyers, challenged the ruling, on the
basis that one of the judges Was tainted
because Amnesty International is this
organization that believed that he should
be held responsible and the judge should
have disclosed that and having failed to
do so, the whole case is null and void.
Well, the, the court agreed to that and
so it gets re-litigated before the whole
en banc, meaning all of the law lords
which are the highest.
Judges in the UK.
It's like the US Supreme Court.
And in the final 1999 decision, the Law
Lords find that Pinochet could be
extraditable to Spain, that the head of
state immunity doctrine does not protect
him only for the crime of torture.
Not for all the crimes against humanity,
but just for the one crime of torture,
and only after 1994, which was the date
when Chile, the UK and Spain all ratified
the torture convention.
And their theory was that they torture
convetion has a clause that says.
That, being a head of state, does not
absolve you from the crime of torture.
And that all countries are responsible,
they have a duty to prosecute, torturers
found in their territory.
So, the law lords really had a narrow
definition.
They said that a former head of state,
could be prosecuted, only if there is a
treaty.
That strips them of their, immunity.
And, one of the theories is that, Chile,
had, in fact, waived his head of space,
head of state immunity, for purposes of
torture, when it ratified the torture
convention.
In any event, this is, the only high
court decision on the head of state
immunity of a former head of state.
And it's very narrow.
It doesn't allow it to apply to all
international crimes.
But only those crimes like the torture
convention.
I guess it would also apply to grave
breaches of the Geneva convention that
have an absolute obligation to prosecute.
And do not recognize head of state
immunity.
Okay, now the next time this comes up is
in the trial of Charles Taylor.
The story of Charles Taylor is really the
story of neighboring[INAUDIBLE] .
They have a long conflict.
It, it was made famous in movies about
blood diamonds and many people probably
know about This conflict.
the conflict is between rebels who take
over the government and then put the
civilian population to work as slaves in
the diamond mines.
And these are not underground mines but
basically rivers full of diamonds.
So that they're poring through and
finding diamonds.
And then they sell their diamonds to
Charles Taylor, he is the president of
Liberia.
And he gets in a deal where he goes and
he gets weapons from all over Africa and
from East Europe, and he sends them down
to the rebels, and in response they give
him the diamonds.
Now he actually encourages the rebels to
enslave the population, to abuse the
population so that there will be more
diamonds.
And he loves all these diamonds.
So he gets the diamonds and In fact, at
his trial, one of the most interesting
moments is where supermodel Naomi
Campbell testifies at the head, about the
story where she goes and visits him and
some other leaders down in Nelson
Mandela's house in South Africa, and At
the hotel that night.
He shows up and he knocks on her door.
And he says, I, I want to give you a
gift.
And he gives her these uncut rough cut
diamonds which are clearly blood
diamonds.
Now she testifies that she didn't keep
them.
Which is good, but nor did she turn him
in.
but later she had told other people about
this story.
And this all comes out at his trial.
Alright.
So, the big issue, though, for Charles
Taylor, is, he's the president of,
Liberia, and he's going to be prosecuted
by a tribunal, that has jurisdiction over
crimes in Sierra Leon.
Now, one of the things the tribunal
decides, is that, people who are in
Liberia and other countries, that have a
direct affect on Sierra Leon, Can be
prosecuted.
So they're applying their jurisdiction
broadly.
But can you prosecute a sitting head of
state?
Now remember, the international court of
justice in the Yuridia case, in it's
dicta said, before an international
tribunal, there is no head of state
immunity.
That Nuremberg established that.
The question, therefore was, was the
Sierra Leone tribunal an international
tribunal.
And the reason this is an interesting
question is because unlike the Yugoslavia
tribunal and the Rwanda tribunal that
were created by security council
resolutions, this tribunal was literally
created by the government of Sierra Leone
in partnership with the United Nations.
And it's a hybrid tribunal.
It has some judges that are international
and some judges that are domestic.
It has an international prosecutor, it
has some elements that are domestic and
some that are international.
And so the question for the court was,
are we international enough that head of
state immunity doesn't apply?
And they said that they were.
They declared themselves to be an
international court, therefore Charles
Taylor did not have head of state
immunity, he ends up going to trial and
just a, about a year ago He is convicted
he is sentenced to a long prison term and
his appeal will be decided any day now,
maybe by the time this airs.
Alright so again this reaffirms that Head
of State immunity does not apply to an
international court or a hybrid court, a
court that is part international and part
Domestic.
And this is important because more and
more of these international criminal
tribunals are following that hybrid
model.
The Cambodia tribunal is also a mixed
court, and throughout the world whenever
there's a new atrocity and it's a country
that either.
Is not a party to the international
criminal court or for some reason, it's
politically too difficult for the
international criminal court to get
involved, or maybe the[UNKNOWN] predated
the effective date of the international
criminal court which was 2002, and in
those situations we're still seeing the
creation of hybrid courts.
there's recently a court that was created
to prosecute...
The former leader of Chad, Hissene Habre,
and he is being prosecuted in Senegal and
it is a court that is basically an
African-wide court.
Is it international?
Does he not have Head of State immunity?
This precedent seems to indicate that's
the way it would come out.
Alright.
So, 2004, the appeals chamber affirms
that Charles Taylor does not have head of
state immunity.
Let's look at one more case.
This fellow is Al Bashir, the President
of the Sudan.
He has been indicted by the international
criminal court for genocide.
In Darfur, a region of the Sudan where
his opposition has been wiped out by
perpetrators that are loyal to him.
The International Criminal Court has
confirmed the genocide charge, has issued
an international arrest warrant against
him.
Now He's kind of a, a ballsy guy.
He's got a lot of courage, a lot of
chutzpah.
What does he do?
He ignores the international arrest
warrant, and he says, I am a head of
state of a big powerful oil producing
country, and China is my close ally, and
I am going to visit as many countries as
possible, and flout the ICC's arrest
warrant, and prove to the world that I am
stronger Then the ICC, which is a paper
tiger.
So he goes and he visits Egypt and Qatar
and Chad, China, a member of the Security
Council, permanent member with a veto,
and then he goes to Maui.
Or Malawi.
In 2012, the international criminal court
takes a case involving his presence in
Malawi, and they say that he.
Has gone there and that triggered the
responsibility of Malawi to arrest him
and send him to the Hague, and by not
doing so they have violated their duties
Under the international criminal court.
So, and it's not just the international
criminal court.
His case was referred to the court by the
security council.
So they're actually violating not just
the international criminal court statue
but the security council's resolution
that sent his case to the court.
The question then rises: does head of
state immunity Apply to domestic
proceedings to extradite someone to an
international court.
Clearly it applies for the proceedings
before the international court.
And what the ICC, the International
Criminal Court, says is that if it
applies in our proceedings, it has to
also apply in the extradition or
surrender proceedings that.
Get the person to us, because otherwise
we are never going to be able to
prosecute anybody.
I mean it would only leave us the option
of abducting people, and as we going to
see in a couple of sessions, many
countries feel that under almost all
circumstances that's a violation of
international law.
So, the ICC rules that Malawi has
violated its duties and the nice thing
is, he leaves, he goes back to the Sudan.
The next time he goes to Malawi they say,
we don't want you, we're not going to
have the meeting that you're supposed to
go to, because we just don't want to deal
with the problem of being seen as a, a
violator.
Of both the Security Council and the
International Criminal Court.
But he has gone to other countries
including China.
And what this shows is something about
international criminal law and that is,
it's not like domestic law.
These international institutions are not
so strong.
So, the International Criminal Court is
not like Nuremberg, it's not created by
the people, the victorious allies that
have control of Nazi Germany, and can
just scoop people up and bring them to
trial.
The International Criminal Court needs
the cooperation of it's state parties.
And the security council needs the
cooperation of all the countries of the
world when it refers a case to the
International Criminal Court.
And what happens when countries don't
cooperate?
In theory the security council could slap
sanctions on them you know, say they're
not cooperating.
They get an embargo imposed on them but
that's never happened.
And so what this case really does, is it
shows that the international criminal
court is a bit like the emperor with no
clothes.
And it, it really erodes the credibility
of our modern day Nuremberg, of our
modern day international criminal court.
Now having said that Remember that
international justice is patient and
persistent.
Often, it takes many years for someone to
come to justice.
Someday this fellow, Bashir, will not be
in power.
Someday he will travel and a country will
take him into custody and send him to the
Hague if he hasn't died By natural causes
and we see this more and more often, that
these dictators, they live to ripe old
age and somewhere along the line they end
up having to face justice.
Now the most controversial possible case
of head of state immunity is the case
involving the Pope.
Pope Benedict who will have stepped down
by the time this airs was a Cardinal who
was responsible for disciplining other
church leaders and priests when they were
accused of corruption or in this case of
sexual abuses.
And there was a scandal that erupted a
few years ago that many priests, in
Ireland, in Europe, in the United States,
really throughout the world, were
engaging in abuse.
Sexual activties with young boy and other
children.
And that the church was not blowing the
whistle on these people, was not sending
them to be prosecuted.
By local authorities, rather it was
covering it up.
And it was just merely moving them to
another parish where they committed their
crimes all over time.
So while Pope Benedict was pope, there
were civil suits lodged against him in
the United States, in the United Kingdom,
and in other countries.
And he claimed.
That he had head of state immunity,
because, the Vatican is literally under
international law, considered a state.
It's a tiny state, it's only got 1.3
square miles, and it's in the middle of
another state, it's, it's in the middle
of Rome.
But, under international law, it is a
state.
He has control of territory.
It has a government.
He has embassies throughout the world.
He has his own army the Swiss Guard and
so they dismiss those lawsuits against
him.
But now he has stepped down and he is the
only Pope ever to step down.
And so the question is will these suits
resurface?
Well the.
Vatican has announced that even after he
steps down, he's going to be a permanent
guest of the Vatican.
And the reason for that is they don't
want to embarrass the church with the
possibility of these lawsuits going
forward.
So in a way he's sort of a prisoner of a
very small part of the world.
He's an old guy and I'm sure he will
serve an important purposes, a adviser
and as a priest in that area.
But, this is a very interesting case
because it shows, first of all, that head
of state immunity can apply to the Pope.
Who would have thought?
And secondly, that once you step down,
these acts that occurred before he was
head of state, because they predated him
being the Pope, are things that he could
be held responsible for.
But while he was the Pope, He had the
same kind of personal immunity that
Euridia did before the International
Court of Justice in, in the case we
talked about before, the, the Belgium
arrest warrant case.
So that's the story of the Pope.
I know it's very controversial, but it's
also, you know, a good one for exploring
some of these legal issues.
So that concludes our discussion Of the
unique defenses under international
criminal law.
But just because you have a crime and you
have defenses, doesn't mean that you can
go to trial.
And so in our next class session, we're
going to be looking at how do you get the
perpetrator before court, the court, and
we're going to, and specifically be
looking at, first extradition, and then
luring, and then abduction.
And finally, the possibility of targeted
killing as a vehicle to use to eliminate
international perpetrators.
So, please do your readings online, and
do the simulation.
And come prepared for a really exciting
class. Until then, this has been Michael
Shark.
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