International Prosecution of Human Rights Crimes (eBook)

(Editors) 3
Preface 5
Table of Contents 7
Part I Fundamental Questions 9
Protection of Human Rights by Means of Criminal Law: On the Relationship between Criminal Law and Politics 10
I. Factors Influencing Protection of Human Rights through 11
I. Factors Influencing Protection of Human Rights through Criminal Law 11
II. Differing Concepts of Human Rights 12
III. Erosion of Human Rights Protections 14
IV. Consequences 16
Global Constitutional Struggles: Human Rights between colère publique and colère politique 20
I. Introduction 20
II. The Sovereignty Paradox 21
III. Global Constitutional Law 22
IV. Global Constitutional Struggles 26
V. Conclusion 33
The Future of Universal Jurisdiction 35
I. Rays of Hope 37
II. Is Universal Jurisdiction Applicable to Perpetrators in Office or Only to Disgraced Perpetrators out of Office? 38
III. Complementarity: Respect for Sovereignty or Escape Hatch? 39
IV. What Is To Be Done? 40
V. Conclusion 42
On the Aims and Actual Consequences of International Prosecution of Human Rights Crimes 43
I. Aims and Effects of Punishment 44
II. Selectivity 52
III. Actual Consequences 55
IV. Conclusion and Alternatives 56
Part II Developments in Law and Practice 59
Prosecuting International Crimes at the National and International Level: Between Justice and Realpolitik 60
I. Introduction 60
II. Initiating an Investigation proprio motu 61
III. State Cooperation in the Investigative Stage 63
IV. Possible Pressure Exercised on States Not Willing to Cooperate 69
V. Complementarity and Criminal Justice Systems 69
VI. Problems with Universal Jurisdiction and the German Solution 70
VII. Conclusion 73
Addressing the Relationship between State Immunity and Jus Cogens Norms: A Comparative Assessment 74
I. The Concept of Jus Cogens Norms 75
II. Judicial Practice on State Immunity versus Jus Cogens 77
III. Why the Approach of the Courts of Dualist States Must Be Brought into Compliance with International Law 83
IV. Attempts to Distinguish between the Availability of Immunity on the Basis of the Type of Proceeding, Civil or Criminal 87
V. Conclusion 89
Universal Jurisdiction: Developing and Implementing an Effective Global Strategy 90
I. What Is the Purpose of Universal Jurisdiction? 90
II. What Are the Obstacles That Victims, Their Families, Police, and Prosecuting Authorities Face and How Should They Be Overcome? 91
III. How Should Cases Be Chosen and Litigated? 94
IV. Is the Proposed Global Strategy Feasible? 96
German International Criminal Law in Practice: From Leipzig to Karlsruhe 98
I. The Leipzig Trials, the Nuremberg Trials, and Beyond: 1919 to 1995 99
II. Yugoslavia and Argentina: Exceptions for the German Justice System 103
III. Practical Application of the Code of Crimes Against International Law (VStGB) 107
IV. Prospects 115
The Pinochet Effect and the Spanish Contribution to Universal Jurisdiction 118
I. The Early Cases 119
II. The Backlash 121
III. A New Turnaround? 124
Implementing the Principle of Universal 129
Jurisdiction in France 129
I. Scope of Universal Jurisdiction in France 129
II. Practical Considerations Concerning the Exercise of Universal Jurisdiction before French Courts 135
III. The Importance of Victims’ Access to Justice for the Implementation of Universal Jurisdiction 139
The Political Funeral Procession for the Belgian UJ Statute 142
I. The Political Funeral Procession 142
II. Personal Observations by a Mourner 147
The Approach of the United Kingdom to Crimes under International Law: The Application of Extraterritorial Jurisdiction 151
I. Introduction 151
II. Criminal Proceedings 152
III. Civil Proceedings 157
IV. In Conclusion 159
Coming to Terms with Genocide in Rwanda: The Role of International and National Justice 161
I. Introduction 161
II. How Best to Judge the Justice and Reconciliation Process in Rwanda? 166
Part III The "War on Terror" in Particular 168
Military Necessity, Torture, and the Criminality of Lawyers 169
I. The Legacy of Washington and Lincoln 170
II. The Kantian Roots of American Military Doctrine 170
III. Clausewitz Reframed 172
IV. Other Kantian Elements of US Military Doctrine 173
V. The Tradition Takes Hold: Lincoln to McKinley to Roosevelt 175
VI. What Happened in 2002? 176
VII. Were Legal Opinions Crafted as a Tool to Coerce Recalcitrant Agencies into Acceptance of Torture? 180
VIII. Can Formulators of Legal Policy be Guilty of War Crimes? 181
The Prohibition of Torture: Absolute Means Absolute 184
I. Introduction 184
II. International Humanitarian Law 187
III. International Human Rights Law 191
IV. Conclusion 198
Litigating Guantánamo 200
I. Early Efforts at CCR 202
II. Earlier Legal Challenges to Detentions at Guantánamo: Haitians & Others
III. Legal Challenges: International Legal Challenges & Early Victories
IV. Legal Challenges: The Supreme Court Victory in June 2004 205
V. Developments After June 2004 Supreme Court Victory 208
Universality, Complementarity, and the Duty to Prosecute Crimes Under International Law in Germany 211
I. Abu Ghraib and the Complaint Against Rumsfeld and Others in Germany 211
II. Universal Jurisdiction and the German Code of Crimes Against International Law (VStGB) 212
III. From Universal to Complementary Jurisdiction: The Prosecutor’s Decision 215
IV. On the Statute-Oriented Interpretation of Domestic Implementing Legislation 216
V. Conflicts of Jurisdiction Between States: Lessons to Be Learned from the Rome Statute 218
VI. Future Perspectives: On the Fates of the Complaint Against Rumsfeld and of the German Code of Crimes Against International Law (VStGB) 219
Contributors 221