The 2009 Santa Clara Journal of International Law Symposium

The Future of International Criminal Justice

Friday, March 13, Williman Room, Benson Center (ground floor)
& Saturday, March 14, 2009, Mission Room, Benson Center
Santa Clara University

Santa Clara University School of Law
Santa Clara Journal of International Law
Center for Global Law & Policy
Markkula Center for Applied Ethics
The American Society of International Law

Introduction to the Topic
Keynote Speaker
Speaker Bios

Santa Clara University School of Law is proud to host a symposium on the future of international criminal justice. Our keynote speaker is Professor M. Cherif Bassiouni, one of the world’s leading experts on international criminal law. The conference will feature four papers on the following topics: complementarity and the International Criminal Court; terrorism as an international crime; extra-territorial penal jurisdiction; and collective responsibility for international crimes. The symposium will include four panels, one for each of the papers, in which commentators will provide a range of perspectives on the topics addressed. The symposium will conclude with a roundtable discussion in which panelists will explore how the international legal system may better achieve the goals of international criminal law.

The Santa Clara Journal of International Law will publish a “Symposium Edition” of the Journal comprised of articles by the Symposium panelists.

For more information, contact Katherine O’Connor, Symposium Director,

Introduction to the Topic of International Criminal Law

The international criminal proceedings held in Nuremberg and Tokyo following a global war of catastrophic proportions are credited with launching the modern regime of international criminal law. After a Cold War hiatus, the international community began to build upon this revolutionary postwar legacy in significant ways. Key events are the 1994 establishment of the first ad hoc criminal tribunal, the 1998 launch of a permanent International Criminal Court in The Hague; the 1998 arrest of General Augusto Pinochet of Chile in the United Kingdom in response to an arrest warrant from Spain for him to stand trial for torture, genocide, and other international crimes over which Spain asserts universal jurisdiction; and the 1999 indictment of President Slobodan Miloševic, the first against a sitting head of state.

Notwithstanding these important developments, progress toward a more comprehensive system of international justice has not been linear or continuous. Rather, it has featured a number of oversteps and backslides that include the failure of international troops and domestic officials to arrest key indicted war criminals from the Yugoslav war; the in absentia indictment in Belgium of high-level political figures from powerful states, which resulted in an international backlash and a contrite amendment of Belgium’s universal jurisdiction law; the failure of the East Timor Special Panels to gain jurisdiction over any defendants of real consequence as a result of Indonesian obstructionism and international neglect; and the summary execution of Saddam Hussein after a controversial trial and while important charges remained pending against him. Most important, perhaps, the tragic events of September 11, 2001, led to the creation of “legal black holes” at Guantánamo and elsewhere where pure power for a time had all but eclipsed law.

It cannot be gainsaid that international criminal law has become a regular feature of international relations and part of the repertoire of any transitional government moving from a period of repression and state terror to one in which the rule of law can take root. At the same time, international criminal law is also invoked outside of conflict zones in states with transient custody over offenders, but scant other connection to the crimes in question. Even more controversially, states have attempted to assert jurisdiction over inpiduals who are not in their custody and who have never stepped foot on their territories. These expansive assertions of international and extraterritorial jurisdiction are not without their detractors. In these varied contexts, international actors do not resort to ICL in a vacuum. Rather, choosing to implement a regime of international criminal justice is a political choice, among other available and competing political choices. As such, it is impossible to consider international criminal law without also invoking issues of state sovereignty, national security, and the exercise of power in international relations.

Given the centrality of institutions and processes of international criminal justice to contemporary public international law and international relations, this conference brings together leading academics and practitioners to discuss cutting edge issues associated with international criminal law and its enforcement. These topics include the controversial exercise of universal jurisdiction, the principle of complimentarity before the International Criminal Court, responses to collective and systemic criminal behavior, and the contested crimes of terrorism. Our perspective is expressly forward looking in an effort to anticipate where the field is going in light of its current manifestations. We welcome your contributions to our symposium.

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Michael A. Newton, Professor of the Practice of Law
Vanderbilt University Law School

Prof. Newton’s paper will focus on the principle of “complementarity”—an intellectually simple concept that masks the deep philosophical and political difficulties that the International Criminal Court confronts as it evolves into a mature and effective institution. The Rome Statute nowhere defines the term “complementarity,” but the plain text of Article 1 compels the conclusion that the ICC was intended to supplement the foundation of domestic punishment for violations of international norms, rather than supplant domestic prosecutions. The complementarity principle may well be the fulcrum upon which the weight of legitimacy and utility of the ICC will ultimately rest; and this principle is all the more important because it is designed to provide intellectual and political leverage to move non-States Party towards accession to the treaty. The Rome Statute was designed to curtail sovereign authority by displacing domestic trials only in “exceptional circumstances,” and thus includes a comprehensive set of procedures designed to balance sovereign enforcement against unreasonable extension of ICC jurisdictional primacy. Nevertheless, the presumption in favor of domestic judicial action does not depend on strict compliance with the textual formulation for crimes articulated in the Rome Statute, or with charging those offenses using the precise terms and conditions outlined therein.

Complementarity is in theory an impartial, reliable, and de-politicized process for identifying the cases of international concern, and hence international jurisdiction. However, the thicket of subjective provisions designed to implement complementarity allows treaty opponents to argue that national justice systems are threatened with displacement at the hands of an unrestrained international prosecutor. Early decisions by the Office of the Prosecutor have demonstrated some political deftness, but progress could well be unraveled by a purist application of the admissibility regime. This article will discuss the negotiation history of the admissibility regime and assess its implementation in the early years of the Court. The article will conclude that the ICC should in fact defer to the good faith reasoning of domestic officials applying the law of the sovereign, even where the form of the domestic charges varies from the prosecutorial preferences of the Office of the Prosecutor or the Pre-Trial Chamber. The jurisprudence and practice of the ICC should not evolve to the point that domestic prosecutors make charging decisions in the faint hope that the ICC will accept the form of the charges.

Andre Nollkaemper
Professor of Public International Law and Director of the Amsterdam Center for International Law at the faculty of Law of the Universiteit van Amsterdam

Prof. Nollkaeper’s paper will review the main legal avenues that are available within the international legal order to address the increasingly important problem of system criminality. The term “system criminality” refers to the phenomenon that international crimes—notably crimes against humanity, genocide and war crimes—often are caused by collective entities in which inpidual authors of these acts are embedded. The crimes committed during the ongoing armed conflicts in the Darfur area in Sudan provide a classic example. The Prosecutor of the ICC noted that the facts point to an ongoing pattern of crimes “committed with the mobilization of the whole state apparatus.” This paper explains the concept of system criminality and provides an overview of the main legal responses to situations of system criminality.

Brad Roth
Associate Professor of Political Science and Law
Wayne State University

International law establishes a platform that undergirds peaceful and respectful international relations. To fulfill this function, international law needs to maintain a balance between ideological pluralism and insistence on the inadmissibility of practices reprehended by an overlapping consensus of disparate belief systems. International penal processes, such as those established by the International Criminal Tribunals for the former Yugoslavia and Rwanda and the new International Criminal Court, are appropriate to the latter function. However, voluntaristic assertions by domestic courts of extraterritorial penal jurisdiction over acts of foreign states pose a danger to the balance that international law represents, thereby undermining the international legal order’s indispensable functions of facilitating accommodation and precluding the strong from imposing what they unilaterally perceive as “justice.” Thus, international criminal law, interpreted in light of the purposes and principles of the international system as a whole, should be read to establish only a relatively narrow exception to established constraints on extraterritorial prosecution of foreign-state agents.

Dr. Naomi Norberg
PhD in Law, University of Paris I (Panthéon-Sorbonne)

Dr. Norberg’s paper will focus on the contested crime of terrorism under international law. Unlike crimes against humanity or genocide, there is no wide consensus on a comprehensive definition of terrorism. In addition, terrorism is the subject of continuous preventive policing—and even military action—that is often at odds with fundamental liberties protected by both domestic and international law. The fragmentation and political inconsistency that characterize the struggle against terrorism indicate that states will not soon agree to qualify terrorism as an international crime. This paper will discuss the conundrum of the definition of terrorism and the implications to future developments of international criminal law.

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Keynote Speaker

M. Cherif Bassiouni

M. Cherif BassiouniM. Cherif Bassiouni is a Distinguished Research Professor of Law at DePaul University, where he has taught since 1964, and the President of the International Human Rights Law Institute (since 1990). He is also the President of the International Institute of Higher Studies in Criminal Sciences, Siracusa, Italy (since 1988) and the Honorary President of the International Association of Penal Law, (President 1989-2004) and holds the position of non-resident Professor of Criminal Law at The University of Cairo (since 1996). He was a Guest Scholar at The Woodrow Wilson International Center for Scholars in Washington, D.C. in 1972, Visiting Professor of Law, New York University Law School in 1971 and Fulbright-Hays Professor of International Criminal Law, The University of Freiburg, Germany in 1970, and is a frequent lecturer at universities in the U.S. and abroad.

His legal education was in Egypt, France, Switzerland and the United States where he received the following degrees: LL.B. University of Cairo; J.D. Indiana University; LL.M. John Marshall Law School; S.J.D. George Washington University. In addition, he received several honorary degrees from: National University of Ireland, Galway, Ireland (LL.D.) (2001); Niagara University, USA (LL.D.) (1997); Docteur d’Etat en Droit honoris causa, University of Pau, France (1986); Dottore in Giurisprudenza honoris causa, University of Torino, Italy (1981).

He is the author of 27 and editor of 48 books on International Criminal Law, Comparative Criminal Law, Human Rights, and U.S. Criminal Law; and the author of 240 articles published in law journals and books in the U.S. and other countries. These publications have been written in Arabic, English, French, Italian and Spanish. Some of them have been cited by the International Court of Justice; the International Criminal Tribunal for the Former Yugoslavia (ICTY); the International Criminal Tribunal for Rwanda (ICTR); the United States Supreme Court; the United States Circuit and Federal District Courts and various State Supreme Courts. Several of his works have been translated into: Arabic, Chinese, Farsi, French, German, Hungarian, Italian, Portuguese and Spanish.

Between 1975-2005, he served in the following United Nations positions: Independent Expert on Human Rights in Afghanistan, Commission (2004-05); Independent Expert on The Rights to Restitution, Compensation and Rehabilitation for Victims of Grave Violations of Human Rights and Fundamental Freedoms (1998-2000); Chairman, Drafting Committee, United Nations Diplomatic Conference on the Establishment of an International Criminal Court (1998); Vice-Chairman, General Assembly’s Preparatory Committee on the Establishment of an International Criminal Court (1996-98); Vice-Chairman, General Assembly’s Ad Hoc Committee on the Establishment of an International Criminal Court (1995); Chairman of the United Nations Commission of Experts Established Pursuant to Security Council 780 (1992) to Investigate Violations of International Humanitarian Law in the Former Yugoslavia (1993-94), and the Commission’s Special Rapporteur on Gathering and Analysis of the Facts (1992-1993); Consultant to the Sixth and Seventh United Nations Congress on Crime Prevention (1980 and 1985); Consultant to the Committee on Southern African, Commission on Human Rights (1980-81); Co-chairman of the Independent Committee of Experts on drafting the Convention on the Prevention and Suppression of Torture (1978); Honorary Vice-President, Fifth United Nations Congress on Crime Prevention (1975).

He also served, between 1973-1980, as a consultant to the U.S. Departments of State and Justice on projects relating to international traffic in drugs (1973) and international control of terrorism (1975 and 1978-79) and as a consultant to the Department of State on the defense of the U.S. hostages in Iran (1979-80).

Among the distinctions and awards he received are: Nomination to the Nobel Peace Price (1999); Special Award of the Council of Europe (1990); Defender of Democracy Award, Parliamentarians for Global Action (1998); the Adlai Stevenson Award of the United Nations Association (1993); the Saint Vincent DePaul Humanitarian Award (DePaul University 2000); the Hague Prize for International Law (2007).

He received the following medals from Austria, Egypt, France, Germany, Italy and the United States: Order of Merit of the Republic, Italy (Cavaliere di Gran Croce) (2006); Ordre des Palmes Académiques, Republic of France (Commander) (2006); Grand Cross of the Order of Merit, Federal Republic of Germany (2003); Legion d’Honneur (Officier), France (2003); Order of Lincoln, Illinois, USA (2001); Grand Cross of the Order of Merit of the Austrian Republic (1990); Order of Scientific Merit (First Class), Egypt (1984); Order of Merit of the Republic, Italy (Grand’Ufficiale) (1977); Order of Merit of the Republic, Italy, (Commendatore) (1976); Order of Military Valor, Egypt (1956).

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Speaker Bios

FRIDAY, MARCH 13, 2009 (Williman Room, ground floor of Benson Center)

8:30 to 9:30 AM: Registration and Breakfast

9:30 to 9:45 AM: Opening Remarks
Ann Marie Ursini, Santa Clara Journal of International Law

9:45 to 11:15 AM:

Naomi Norberg, University de Paris (Sorbonne-Pantheon)

Steve Vladeck, American University Washington College of Law
Jordan Paust, University of Houston Law Center
Luz Estrella Nagle, Stetson University College of Law

Moderator: Kathleen Maloney-Dunn, Former Visiting Professional, International Criminal Court

11:45 to 12:45 PM:

Dapo Akande, Yale Law School (visiting)

1:00 to 2:30 PM:

Michael Newton, Vanderbilt University School of Law

Linda Keller, Thomas Jefferson School of Law
Linda Carter, University of the Pacific, McGeorge School of Law
Ron Slye, University of Seattle School of Law

Moderator: Beth Van Schaack, Santa Clara University School of Law

3:00 to 4:30 PM:

Brad Roth, Wayne State University

Wolfgang Kaleck, European Center for Constitutional and Human Rights
Laura Dickinson, Arizona State University Sandra Day O’Connor College of Law
Jamie Mayerfeld, University of Washington

Moderator: Jenny Martinez, Stanford Law School

4:45 to 6:00 PM:
Keynote Speech:
M. Cherif Bassiouni
DePaul University

6:00 to 7:00 PM: Reception

SATURDAY, MARCH 14, 2009 (Mission Room, basement of Benson Center)

9:00 to 10:30 AM:

Andre Nollkaemper, Universiteit van Amsterdam

Mark Drumbl, Washington & Lee University School of Law
Julian Ku, Hofstra University School of Law
Allen S. Weiner, Stanford Law School

Moderator: David Sloss, Santa Clara University School of Law

10:45 to 12:15 PM: Round Table Discussion Involving All Panelists

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