[MUSIC] 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. [MUSIC] Until then, this has been Michael Shark.