Volume 19, Issue 3 - Digital Commons at Michigan State University

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MICHIGAN STATE UNIVERSITY
COLLEGE OF LAW
JOURNAL OF
INTERNATIONAL LAW
Cite as MICH. ST. J. INT’L L.
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MICHIGAN STATE UNIVERSITY COLLEGE OF LAW
JOURNAL OF INTERNATIONAL LAW
MASTHEAD
2010-2011
EDITORIAL BOARD
MICHAEL EPSTEIN
Editor-in-Chief
SCOTT NOWAK
Managing Editor
MATTHEW REINHARDT
Managing Editor
TIMOTHY M. KAUFMANN
Executive Editor
BRIAN SCHMIDTKE
Notes & Comments Editor
HAILEY NOONAN
Articles Editor
RYAN MURPHY
Articles Editor
SENIOR ASSOCIATES
ADAM KAY
ERIN LANE
RYAN PERUSKI
ANUJ VAIDYA
ASSOCIATES
JULIA ALDINI
YELENA ARCHIYAN
ABBY BARFELZ
EMIL JOSEPH
TRAVIS LAVINE
CHRISTINA MAYFIELD
RACHEL MEERKOV
JOSHUA MILLER
COREY NELSON
JARED T. NELSON
BLAKE F. NICHOLS
FACULTY ADVISOR
PROF. BRUCE W. BEAN, A.B., J.D.
POONAM PATEL
SEAN RASSEL
ANGELINA SASICH
JASON SCHMIDT
LAUREN TOMASZCZYK
EMILY ZAINEY
MICHIGAN STATE UNIVERSITY COLLEGE OF LAW
JOURNAL OF INTERNATIONAL LAW
VOLUME 19
2011
ISSUE 3
Table of Contents
ARTICLES
No Transitional Justice without Transition:
Darfur – A Case Study
Brian A. Kritz & Jacqueline Wilson.............................................475
Director Regulation in China: The Sinonization Process
Fidy Xiangxing Hong ...................................................................501
The Caribbean Intellectual Property Office (CARIPO):
New, Useful, and Necessary
Darryl C. Wilson ..........................................................................551
Nationalized International Criminal Law: Genocidal Intent,
Command Responsibility, and an Overview of the South Korean
Implementing Legislation of the ICC Statute
Tae Hyun Choi & Sangkul Kim....................................................589
Judicial Activism in the European Court of Justice –
The Case of LGBT Rights
Henri de Waele & Anna van der Vleuten .....................................639
STUDENT NOTES
Justice in Burma
Scott Nowak .................................................................................667
The Curious Case of Anwar al–Aulaqi: Is Targeting a
Terrorist for Execution by Drone Strike a Due Process
Violation when the Terrorist is a United States Citizen?
Michael Epstein ...........................................................................723
NO TRANSITIONAL JUSTICE WITHOUT
TRANSITION:
DARFUR – A CASE STUDY
Brian A. Kritz* & Jacqueline Wilson†
INTRODUCTION ........................................................................................... 476
I. BACKGROUND ..................................................................................... 476
II. INTERNATIONAL LAW AND THE SITUATION IN DARFUR .................... 481
III. THE HYBRID COURT FOR CRIMES IN DARFUR ..................................... 488
IV. TRADITIONAL MECHANISMS FOR RESOLVING CONFLICT AND
RECONCILIATION ................................................................................ 489
V. RECONCILIATION................................................................................. 493
VI. REPARATIONS ...................................................................................... 495
VII. POTENTIAL SHORTCOMINGS OF THE USE OF TRADITIONAL
MECHANISMS ...................................................................................... 497
CONCLUSION .............................................................................................. 498
The Arabs and the government forces arrived on both sides of the village,
with vehicles, on horseback and on camels, armed with big weapons. I hid
in order to see how many there were. The Arabs cordoned off the village
with more than 1,000 horses. There was also a helicopter and an Antonov
plane. They shelled the town with more than 200 shells. We counted 119
persons who were killed by the shelling. Then the Arabs burnt all our
houses, took all the goods from the market. A bulldozer destroyed houses.
Cars belonging to the merchants were burnt and generators were stolen.
They said they wanted to conquer the whole territory and that the Blacks
did not have a right to remain in the region.
– Testimony of a local chief in the Abu Gamra area (between Tina and
1
Kornoy), describing the extent of the destruction in his village.
* Brian Kritz is a Senior Fellow in the Institute for International Law and Global
Security at Georgetown University, and an Adjunct Lecturer in the Master of Arts Program
in Conflict Resolution and the Department of Government at Georgetown University.
†
Jacqueline Wilson is a Senior Program Officer with the United States Institute of
Peace’s Academy for International Conflict Management and Peacebuilding. She has been
conducting conflict resolution workshops in Sudan since early 2005 including a number in
Darfur and with Darfurians in the diaspora. The views expressed in this article are her own
and do not necessarily reflect the views of the United States Institute of Peace. .
As a primary matter, we would like to acknowledge and express our gratitude to Mr.
Daniel Solomon, National Advocacy Coordinator for STAND: The Student-led Division of
476
Michigan State Journal of International Law
[Vol. 19:3
INTRODUCTION
Testimony such as that above has generated a global, committed, activist
community; diplomatic initiatives; and talk of ending impunity through the
use of international law. This paper examines the response options for
providing justice and accountability in Darfur as it transitions—hopefully—
from war to sustainable peace. In light of the unique cultural and historical
characteristics of the conflict examined in this Article as well as
developments in international law, the Authors suggest that only a
combination of international, national and local, and traditional mechanisms
for accountability can bring true peace to the people of Darfur and the
greater Sudan.
I. BACKGROUND
Darfur, a large, isolated region of western Sudan, has sometimes been
more closely identified with its geographical neighbors (such as Chad and
Libya) than with the Sudanese capital, Khartoum, from which it is detached
geographically, politically, economically, and emotionally. Historically,
even the British were unable to rule Darfur effectively from Khartoum, as
evidenced in a letter from Sir Herbert Kitchener in a proclamation to the
Sheikhs of Kordofan and Darfur in 1898: “I write to inform you that it is the
intention of the Government to resume its authority in the countries of
Kordofan, Darfur, and all the western Sudan; but for the moment I am
occupied in organizing the Nile and the eastern Sudan . . . .”2 This
“distance,” accompanied by political and economic disenfranchisement, has
come to be referred to as “marginalization,” which continues to define
Darfur until today.
The demographics of Darfur are interesting to note, and are important to
understanding the region. The region of Darfur has encountered extensive
demographic change over the past half-century. The population has
increased six-fold since 1973, from 1.3 million to 6.2 million. Nearly half
of this population, which is increasingly linked to Darfur’s urban centers, is
between the ages of zero and sixteen.3 Conflict in the Darfur region has
the Genocide Intervention Network, who provided significant research assistance in support
of this article.
1. Amnesty Int’l, Sudan: Arming the Perpetrators of Grave Abuses in Darfur
Testimonies, AI Index: AFR 54/144/2004 (Nov. 16, 2004) available at
http://www.amnesty.org/en/library/asset/AFR54/144/2004/en/71d39083-fa9e-11dd-999c47605d4edc46/afr541442004en.pdf.
2. A.B. THEOBALD, ALI DINAR: LAST SULTAN OF DARFUR 31 (1965).
3. Rep. of the Office of the U.N. Resident and Humanitarian Coordinator, U.N.
Sudan, Beyond Emergency Relief: Longer-Term Trends and Priorities for UN Agencies in
Darfur,
14-15
(Sept.
2010),
available
at
www.unsudanig.org/docs/
Darfur_LT_100905_med.pdf; Political Map of the Republic of Sudan, NATIONS ONLINE
2011]
No Transitional Justice Without Transition
477
escalated the process of urbanization and destabilized agrarian communities,
largely as a result of migratory flows.4 The ethnically diverse population
boasts between forty and ninety ethnic tribes.5 Despite the region’s ethnic
diversity, both the so-called “African” tribes—the Fur, the Tunjur, Meidob,
and Zaghawa in the north, the Berti and Birgid to the east, and the Masalit
to the west, among others—and the Arab tribes, are almost exclusively
Muslim.
Darfur is still largely a traditional region. Cattle-herding and camelherding nomads or semi-pastoralists coexist with sedentary farmers much as
they have for generations. “Rural livelihoods in Darfur are relatively simple
to understand, in that all tribes, Arab and non–Arab, cultivate crops and
raise livestock to varying degrees.”6 There is no development to speak of
outside of El Fashir, Nyala and Geneina, the capitals of North, South and
West Darfur, respectively, with life largely unaffected by resources from
Khartoum. Even access to education has been extremely limited for
Darfurians:
“Entry to schools was very strictly controlled and largely limited to the
sons of tribal chiefs,” P. Ingleson, the British Governor of Darfur from
1934 to 1941, said at the time: “We have been able to limit education to
the sons of chiefs and [N]ative [A]dministration personnel and can
confidently look forward to keeping the ruling classes at the top of the
7
education tree for many years to come.
Other aspects of marginalization have included restricting access to
health care, jobs, resources, and most importantly, political power; the latter
a crucial factor in post-conflict justice and accountability.8
PROJECT, http://www.nationsonline.org/oneworld/map/sudan_map.htm (last visited Apr. 27,
2011).
4. Id. at 15-16.
5. JULIE FLINT & ALEX DE WAAL, DARFUR: A NEW HISTORY OF A LONG WAR 6
(2008).
6. H. Young, A.M. Osman, et al., Darfur – Livelihoods Under Siege, FEINSTEIN
INT’L FAMINE 2 (2005), available at https://wikis.uit.tufts.edu/confluence/download/
attachments/14553452/Young--Darfur--Livelihoods+Under+Seige.pdf?version=1.
7. Id. at 19 (quoting M.W. DALY, IMPERIAL SUDAN: THE ANGLO-EGYPTIAN
CONDOMINIUM: 1934-1956 (1991)).
8. The installment of one group of proxy rulers drawn from the local population
was a common mechanism for local control in European colonial history. In Rwanda, the
colonial powers established a myth about the Tutsi people’s superiority, in order to establish
their right to rule the majority Hutu on behalf of the colonizers. Similarly, in the Belgian
Congo, King Leopold II used local groups to subdue and control other tribes in order to
expand his control over the vast expanse of his colonial empire. See Jessica Raper, The
Gacaca Experiment: Rwanda’s Restorative Dispute Resolution Response to the 1994
Genocide, 5 PEPP. DISP. RESOL. L.J. 1 (2005) (providing a detailed account of such practices
in Rwanda). And, for the Belgian Congo, see A. HOCHSCHILD, KING LEOPOLD'S GHOST: A
STORY OF GREED, TERROR, AND HEROISM IN COLONIAL AFRICA (1998). Such divisive control
mechanisms by Western colonial powers fostered later distrust of the Northern powers, and
478
[Vol. 19:3
This lack of access to political power for Darfurians was documented in
the politically motivated publication, The Black Book: Imbalance of Power
and Wealth in Sudan, published in 2000 by the anonymous “Seekers of
Truth and Justice.”9 The book documents how Darfurians have been
restricted from power in all its manifestations, from jobs, to distribution of
resources, to the military hierarchy, which had all been kept a closelyguarded commodity by a small, ruling northern elite. Table 10 from The
Black Book demonstrates the power restrictions described above:
Table 10: Constitutional / Ministerial Positions, July 1989December 1999.10
Region
Positions %
Eastern
Northern
Central
Southern
Western
6
120
18
30
28
3%
59.4%
8.9%
14.9%
13.8%
As the above table shows, representation of the Northern Region was 59
percent for a group that constituted only 12.2% only. As such, the destiny
of the remaining 87.8% of the population was subordinate to the will of
the 12.2% who came from the Northern region. The Northern Region
itself was not (still is not) a homogeneous entity. In fact, the North
contained many groups that were subject to same level injustice and
marginalization . . . . In fact, the entire Northern Region was dominated by
11
12
only three ethnic groups which also dominated the whole country.
The current conflict in Darfur ostensibly stems from a joint Sudan
Liberation Army (SLA) and Justice and Equality Movement (JEM) attack
on April 25, 2003, in which they entered al-Fashir and attacked government
also exacerbated the current tribal disputes that linger throughout post–colonial Africa. This
history of abuse and manipulation contributes to the African Union’s discomfort with the
imposition of international justice mechanisms in Sudan.
9. The Black Book: Imbalance of Power and Wealth in Sudan, Part 1
http://www.sudanjem.com/sudanalt/english/books/blackbook_part1/book_part1.asp.htm (last
visited May 6, 2007) [hereinafter Black Book]. See William Wallis, The Black Book History
or Darfur’s Darkest Chapter, SUDAN TRIB. (Aug. 21, 2004), http://www.sudantribune.com/
spip.php?article4868 (synopsizing The Black Book).
10. Id. at tbl. 10.
11. These three ethnic groups, the Shaygia, the Jaalyeen, and the Danagla, are groups
from the Northern Region and constitute approximately five percent of the overall population
of Sudan.
12. Black Book, supra note 9.
2011]
479
forces:13 “Seven hours later, four Antonov bombers and helicopter gunships
were destroyed, by government account, and seven by the rebels.’ At least
75 troops, pilots and technicians had been killed and another 32 captured,
including the commander of the air base, Maj. Gen. Ibrahim Bushra
Ismail.”14
However, history demonstrates that the conflict has much deeper roots.
An excerpt from a Human Rights Watch report from 2004 clarifies the
background of the conflict:
Beginning in the mid-1980s, when much of the Sahel region was hit by
recurrent episodes of drought and increasing desertification, the southern
migration of the Arab pastoralists provoked land disputes with agricultural
communities. These disputes generally started when the camels and cattle
of Arab nomads trampled the fields of the non–Arab farmers living in the
central and southern areas of Darfur. Often the disputes were resolved
through negotiation between traditional leaders on both sides,
compensation for lost crops, and agreements on the timing and routes for
the annual migration.
In the late–1980s, however, clashes became progressively bloodier
through the introduction of automatic weapons. By 1987, many of the
incidents involved not only the Arab tribes, but also Zaghawa pastoralists
who tried to claim land from Fur farmers, and some Fur leaders were
killed. The increase in armed banditry in the region also dates from this
period, partly because many pastoralists lost all their animals in the
devastating drought in Darfur of 1984-1985 and, in turn, raided others to
15
restock their herds.
In response to the 2003 attacks, the government of Sudan mobilized and
armed a proxy militia, called Janjaweed, to retaliate for this initial
aggression. The term Janjaweed requires some clarification:
The label ‘Janjaweed’ is misleading, as it is used differently in Darfur
according to tribal affiliation and political viewpoint. The term is
generally used to describe ‘additional armed forces,’ the militias mobilised
by the government to address the counter-insurgency, whose methods and
violations of human rights are infamous . . . in some circles of the
international community, however, there is the wrong and dangerous
13. Greater details of the history of the conflict are available in J. Flint, Beyond
‘Janjaweed’: Understanding the Militias of Darfur, 16 SMALL ARMS SURVEY (2009); A. de
Waal, Counter-Insurgency on the Cheap, 31 REV. OF AFR. POL. ECON. 716, 723 (2004); and
MAHMOOD MAMDANI, SAVIORS AND SURVIVORS: DARFUR, POLITICS AND THE WAR ON
TERROR (2009).
14. MANDAMI, supra note 13, at 288.
15. HUMAN RIGHTS WATCH, REPORT 2004: DARFUR IN FLAMES: ATROCITIES IN
WESTERN SUDAN 7 (2004), available at http://www.hrw.org/sites/default/files/reports/
sudan0404.pdf.
480
[Vol. 19:3
assumption that Janjaweed = Arabs = perpetrators of human rights
violations. Among pro-government groups, the term ‘Janjaweed’ is used
to describe bandit gangs . . . who are considered to be criminals and
outlaws, not under the authority or control of any tribe. The ‘additional
armed forces,’ by contrast, are men mobilised by their tribes to receive
military training, who are paid, and who come under the direct control of
16
the government.
Despite the confusion about the nature and role of the Janjaweed, the
group’s attack methods are largely consistent with those used historically in
Darfur.17 A reference to a 1900-1901 expedition against the Bani Halba
tribe, states that “Ali Dinar (the last sultan of the Fur tribe in Darfur) has
beaten the Bani Halba and plundered all their property.”18 In another
example, “[t]he Shaikh of the Zaiadiya stated that 27 villages had been
destroyed by fire; 90 men killed; 85 women and children and 70 slaves
captured, together with 670 sheep, 250 cattle, 50 donkeys and 40 camels.”19
Despite this historical context, the current conflict differs from previous
iterations of violence in Darfur in a number of ways. First, the scale and
scope of the conflict outpaces any previous violence by multiples. A 2005
16. Young, supra note 6, at 23.
17. The “Janjaweed” label has been used, often indiscriminately, by media reports
and advocacy organizations to describe the loose amalgam of militias armed and mobilized
by the Sudanese government. Alex de Waal describes the Janjaweed as an integral
component of the Sudanese government’s “counter–insurgency on the cheap,” which
allowed the Sudanese government to pursue a relatively inexpensive and unaccountable
scorched–earth policy against Darfuri rebels, including the Justice and Equality Movement
(JEM) and Sudan Liberation Army (SLA). De Waal, supra note 13. The recent Janjaweed
militias, however, are the latest incarnation of a strategy of militia warfare used consistently
throughout the last several decades of civil conflict in Southern Sudan, the Nuba Mountains,
and Darfur. Flint, supra note 13, at 16. Organized by Sheikh Musa Hilal Abdalla, a
Mahamid Arab chief in North Darfur, the Janjaweed are closely affiliated with various
paramilitary organizations under the command of the Sudanese regime, including the Popular
Defense Forces (PDF), the Border Intelligence Guards, and the Central Police Reserve. Id. at
18. The PDF began to recruit, train, and arm tribal militias in the aftermath of the April 25,
2003 SLA-JEM attack on the El Fashir airport. The integration of many tribal militias into
the PDF command structure and Darfur’s various inter–tribal conflicts frequently obscured
the identities of various paramilitary and tribal groups in the region, including the Janjaweed.
Jago Salmon, A Paramilitary Revolution: The Popular Defense Forces, 29 SMALL ARMS
SURVEY (2007), available at http://www.smallarmssurveysudan.org/pdfs/HSBA-SWP-10Paramilitary-Revolution.pdf. Sudanese military intelligence and National Congress Party
officials coordinated cross-border Janjaweed mobilization with anti–Déby rebels in Chad, as
well as Sudanese military’s counterinsurgency operations. However, the organization of
Janjaweed militias has shifted significantly as a result of a number of factors, including
funding concerns (initially, counterinsurgents were compensated through booty, rather than
consistent salaries), relations with the PDF, and relations with the Sudanese government in
the aftermath of the ICC arrest warrants. Flint, supra note 14, at 21. The government forces’
control over the Janjaweed militias ebbed as the Darfur conflict continued, prompting
significant intra–Arab land conflict. Id. at 40.
18. THEOBALD, supra note 2, at 44.
19. Id. at 50.
2011]
481
study of the impact on livelihoods in Darfur found that “the non–Arab
population of Darfur has lost between fifty percent and ninety percent of its
livestock to the government’s armed forces.”20
Second, the commonly repeated misperception in much of the Western
media frames the conflict as a religious or racial dispute. As shown
previously, the conflict has many roots: marginalization from resources and
political power, unresolved solutions from drought–related conflict, and a
tradition of revenge and retaliation for raids on villages and livestock, all of
which were exacerbated by the government’s brutal response incorporating
attacks on civilians as a strategy. All of these root causes impact the
feasibility and design of post-conflict justice and accountability
mechanisms.
International law has also changed since the time of previous conflicts in
Darfur, so that genocide, crimes against humanity, war crimes, and use of
atrocities as methods of power and control are no longer acceptable.
Beginning in earnest with the Nuremberg and Tokyo Trials and following
with the International Tribunal for the Former Yugoslavia, the International
Criminal Tribunal for Rwanda, the UN–backed Special Court for Sierra
Leone, the Ad-Hoc Court for East Timor, and the Extraordinary Chambers
in the Courts of Cambodia, the international legal community has made
significant efforts to end the global culture of impunity. State leaders have
faced charges of human right violations committed while in office.21
Secondary leaders and organizers of administrative violence have also been
brought to justice for violations of international human rights law and
violations of domestic criminal law.
II. INTERNATIONAL LAW AND THE SITUATION IN DARFUR
The concept of an international criminal court was first introduced in UN
General Assembly Resolution 95(I) in 1946.22 It took almost fifty–two
years until July 17, 1998 to move the court from concept to reality with the
creation of the Rome Statute of the ICC.23 Mindful of ex post facto
considerations,24 and the need for extensive State buy–in to the concept of
an international court, the Rome Statute did not enter into force until sixty
21. State leaders who have faced charges include Prime Minister Jean Kambanda of
Rwanda, President Slobodan Milošević of Serbia, President Hissène Habré of Chad,
President Saddam Hussein of Iraq, and, most recently, President Alberto Fujimori of Peru.
22. Affirmation of the Principles of International Law Recognized by the Charter of
the Nürnberg Tribunal, G.A. Res 1/95, U.N. Doc. A/Res 41/1 (Dec. 11, 1946).
23. Rome Statute of the International Criminal Court, opened for signature July 17,
1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter Rome Statute].
24. Article 22, Section 1 of the Rome Statute sets forth the basic rule of nullem
crimen sin lege: that no person may stand charge before the ICC for an act unless the act in
question was a crime under the Rome Statute at the time of the commission of the act. Id.
art. 22(1).
482
[Vol. 19:3
States joined the treaty regime, or more specifically, until “the first day of
the month after the 60th day following the date of the deposit of the 60th
instrument of ratification, acceptance, approval or accession with the
Secretary-General of the United Nations.”25
The Rome Statute entered into force as per the above procedure on July
1, 2002, after a ceremonial group ratification brought the total number of
ratifications to sixty-six.26 The Rome Statute now enjoys 114 state-parties,
including thirty African nations.27 The ICC’s establishment trumpets the
fact that neither governments nor individuals can hide behind cover of state
sovereignty when implementing actions that run counter to minimum
standards of behavior set forth in international law.28 The Court has
jurisdiction over four crimes: genocide, crimes against humanity, war
crimes, and the crime of aggression.29
Evidence of atrocities in Darfur leaked out to the world and made its way
to the ICC, despite limitations due to the government of Sudan restricting
access to the region.
In many cases documented by Human Rights Watch, there was little to no
rebel or armed presence in the targeted villages at the time of the attacks,
and the attacks were clearly aimed at the civilian population. Even in
cases where there was a rebel presence, the Sudanese government’s attacks
made no attempt to discriminate between combatants and civilians, or
disproportionately harmed civilians beyond the expected military
advantage of the attack, in violation of international humanitarian law.
The rebel groups in Darfur are also responsible for serious abuses,
including killings, rape and abductions of civilians, attacks on
30
humanitarian convoys, and theft of livestock, that are war crimes.
25. Id. art. 126(1).
26. JOANNE LEE, INT’L CTR. FOR CRIMINAL LAW REFORM & CRIMINAL JUSTICE SOC’Y,
NINTH ICC PREPCOM: 8-19 APRIL 2002, UNITED NATIONS, NEW YORK 7 (2002),
http://www.icclr.law.ubc.ca/Publications/Reports/PrepcomreportApr02-gen2.PDF.
27. The State Parties to the Rome Statute, INTERNATIONAL CRIMINAL COURT (ICC),
http://www.icc-cpi.int/Menus/ASP/states+parties/ (last visited March 12, 2009). Sudan has
signed, but has not ratified, the Rome Statute, and thus is considered a non–party to the
statute.
28. See Rome Statute, supra note 23, art. 1 (stating that the International Criminal
Court “shall be a permanent institution and shall have the power to exercise its jurisdiction
over persons for the most serious crimes of international concern, as referred to in this
Statute, and shall be complementary to national criminal jurisdictions.”).
29. The scope of the crime of aggression is still at issue, and was recently addressed
at the Kampala Conference, which took place in June 2010.
30. HUMAN RIGHTS WATCH, REPORT 2005: ENTRENCHING IMPUNITY: GOVERNMENT
RESPONSIBILITY FOR INTERNATIONAL CRIMES IN DARFUR 10 (2005), available at
http://hrw.org/reports/2005/darfur1205/darfur1205webwcover.pdf.
2011]
483
These and similar findings were confirmed in January 2005 with the
publication of the Report of the International Commission of Inquiry on
Darfur to the United Nations Secretary-General, which stated:
[b]ased on a thorough analysis of the information gathered in the course of
its investigations, the Commission established that the Government of
Sudan and the Janjaweed (a total of 51 individuals) were responsible for
serious violations of international human rights and humanitarian law
amounting to crimes under international law and recommended that the
31
Security Council refer the case to the ICC.
Given evidence that atrocities which violated international humanitarian
law had occurred in Darfur, the UN Security Council took up the case to
determine what action, if any, was to be taken under Chapter VII of the UN
Charter. After a series of resolutions and reports,32 the Security Council, on
March 31, 2005 passed UNSCR 1593, in which it “[d]ecide[d] to refer the
situation in Darfur since 1 July 2002 to the Prosecutor of the ICC.”33 In
June 2005, the ICC Office of the Prosecutor announced that it was
investigating the situation in Darfur for the purpose of determining whether
crimes under the jurisdiction of the court had been committed. In July
2008, the Chief Prosecutor of the ICC filed three counts of genocide, five
charges of crimes against humanity, and two counts of war crimes against
President Bashir, and referred the case to the Pre-Trial Chamber of the ICC
for review and the issuance of an arrest warrant under Article 58.34 On
March 4, 2009, the Pre-Trial Chamber issued an arrest warrant for Bashir.
The warrant included seven counts of crimes under the jurisdiction of the
31. Rep. of the Int’l Comm’n of Inquiry on Darfur, Report of the International
Commission of Inquiry on Darfur to the United Nations Secretary–General, established
pursuant to resolution 1564 (2004) concerning reports of violations of international law in
Darfur, 3, www.un.org/News/dh/sudan/com_inq_darfur.pdf (Jan. 25, 2005).
32. See S.C. Pres. Statement 2004/18, U.N. Doc. S/PRST/2004/18 (May 16, 2004);
S.C. Res. 1547, U.N. Doc. S/RES/1547 (June 11, 2004); S.C. Res. 1556, U.N. Doc.
S/RES/1556 (July 30, 2004); S.C. Res. 1590, U.N. Doc. S/RES/1590 (Mar. 24, 2005); S.C.
Res. 1591, U.N. Doc. S/RES/1591 (Mar. 29, 2005).
33. After referral to the ICC, the UN did not cease its action regarding Darfur. Since
the passage of Resolution 1593, the Security Council followed up with at least eleven
Presidential Statements as well as seven Security Council Resolutions. See S.C. Res. 1593,
U.N. Doc. S/RES/1593 (Mar. 31, 2005); S.C. Res. 1627, U.N. Doc. S/RES/1627 (Sept. 23,
2005); S.C. Res. 1663, U.N. Doc. S/RES/1663 (Mar. 24 2006); S.C. Res 1672, U.N. Doc.
S/RES/1672 (Apr. 25, 2006); S.C. Res. 1679, U.N. Doc. S/RES/1679 (May 16, 2006); S.C.
Res. 1706, U.N. Doc. S/RES/1706 (Aug. 31, 2006) (authorizing action under Chapter VII of
the Charter of the United Nations); S.C. Res. 1713, U.N. Doc. S/RES/1713 (Sept. 29, 2006);
S.C. Res. 1714, U.N. Doc. S/RES/1714 (Oct. 6, 2006).
34. Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Prosecutor’s Application for
a Warrant of Arrest (July 14, 2008), http://www2.icc-cpi.int/NR/rdonlyres/64FA6B33-05C34E9C-A672-3FA2B58CB2C9/277758/ICCOTPSummary20081704ENG.pdf. The court had
earlier issued arrest warrants for Ahmed Haroun, the Sudanese Minister for Humanitarian
Affairs, and Ali Kushayb, a Janjaweed militia leader.
484
[Vol. 19:3
court—five counts of crimes against humanity and two counts of war
crimes. In a two-to-one decision, the court declined to issue an arrest
warrant on the charges of genocide.
The majority of the Chamber, Judge Anita Ušacka dissenting, found that
the material provided by the Prosecution in support of its application for a
warrant of arrest failed to provide reasonable grounds to believe that the
Government of Sudan acted with specific intent to destroy, in whole or in
part, the Fur, Masalit and Zaghawa groups. Consequently, the crime of
genocide is not included in the (initial) warrant issued for the arrest of
Omar Al Bashir. Nevertheless, the Judges stressed that if additional
evidence is gathered by the Prosecution, the decision would not prevent
the Prosecution from requesting an amendment to the warrant of arrest in
35
order to include the crime of genocide.
Immediately after its issuance, President Bashir rejected the validity of
the arrest warrant and ordered most international aid workers to leave
Sudan.36 The African Union objected to the issuance of the arrest warrant
on the grounds that it might frustrate the ongoing peace efforts, noting that
“its request to the UN Security Council to delay Mr. Bashir’s indictment
had been ignored.”37 China, keenly interested in Sudanese oil imports and
also a major exporter of arms and armaments to Sudan, called for a
suspension of the arrest warrant in order to “further the peace process.”38
The Arab League rejected the arrest warrant outright.39
The prosecution subsequently appealed the court’s divided ruling
described above, and requested an amendment to the warrant of arrest to
include the crime of genocide. On July 12, 2010, the ICC Appeals Chamber
reconsidered the Pre-Trial Chamber’s decision and allowed the addition of
three counts of genocide to the Court’s arrest warrant for President Bashir.
The Appeals Chamber determined that there existed “reasonable grounds”
to suggest that he had perpetrated attacks on the Fur, Masalit, and Zaghawa
35. Press Release, ICC Issues a Warrant of Arrest for Omar Al Bashir, President of
Sudan, ICC Press Release ICC-CPI-20090304-PR394 (Mar. 4, 2009), available at
http://www.icccpi.int/menus/icc/press%20and%20media/press%20releases/press%20releases
%20(2009)/icc%20issues%20a%20warrant%20of%20arrest%20for%20omar%20al%20bashi
r_%20president%20of%20sudan.
36. Sudan Orders Aid Agency Expulsions, CNN (Mar. 4, 2009),
http://www.cnn.com/2009/WORLD/africa/03/04/sudan.expel/.
37. Africa Move on Bashir Dismissed, BBC NEWS (July 5, 2009),
http://news.bbc.co.uk/2/hi/africa/8134718.stm.
38. Igalliot, African Union to Call for Suspension of Bashir Arrest Warrant, FRANCE
24 (June 3, 2009), http://www.france24.com/en/20090305-african-bashir-arrest-sudan-darfurICC-au-agencies-aid-relief.
39. Arab League Rejects ICC Bashir Warrant, SUDAN WATCH (Apr. 1, 2009),
http://sudanwatch.blogspot.com/2009/04/arab-league-rejects-icc-bashir-warrant.html.
2011]
485
ethnic groups in Darfur with the intent to destroy in part these civilian
populations.40
The ICC’s reconsideration of genocide charges against President Bashir
have proved controversial. The U.S. State Department and National
Security Council both expressed the United States’ support for the ICC’s
decision and general accountability in Darfur. However, Scott Gration, the
U.S. special envoy to Sudan at the time, said that the ICC decision would
make the process of conflict resolution in Darfur and Southern Sudan “more
difficult.”41 China established a neutral position on the new genocide
charges. Jean Ping, the chairman of the Commission of the African Union,
criticized the genocide charges against Bashir, noting the potentially
damaging effects of the ICC’s decision on the “democratic transformation
of the Sudan.”42 The Gulf Cooperation Council expressed similar concern
about the status of the peace process in the aftermath of the ICC’s decision.
Since the July 12 decision, the African Union has repeatedly described the
genocide charges as damaging to the peace process in Sudan and a
demonstration of the Prosecutor’s anti-African bias. At the July 2010 AU
summit in Kampala, the heads of states passed a draft resolution
emphasizing non-cooperation with the ICC and condemning MorenoOcampo’s conduct as prosecutor.43 According to the Sudan Tribune, South
Africa, Botswana, and Uganda successfully advocated for a less forceful
resolution on the ICC. Where the original resolution had included a noncooperation clause, the new draft simply expressed concern over the
prosecutor’s conduct.44 Repudiating the AU resolution, South Africa
reiterated its support for the ICC and intent to arrest Bashir if he visits the
country.
In addition to the complexity of dealing with an indicted war criminal as
president of a sovereign state, the ICC’s role in Darfur faces other
challenges. The court can only try a very small number of cases, and
therefore will by necessity limit itself to only the highest level of
perpetrators (the decision–makers and orchestrators of large–scale
40. For an excellent critical analysis of the ICC’s genocide charges against Bashir,
please see, A. T. Cayley, Recent Steps of the ICC Prosecutor in the Darfur Situation:
Prosecutor v. President: The Prosecutor’s Strategy in Seeking the Arrest of Sudanese
President Al Bashir on Charges of Genocide, 6 J. INT’L CRIM. JUST. 829 (2008).
41. U.S. Special Envoy Unhappy About ICC Genocide Ruling Against Sudanese
President, SUDAN TRIB, July 14, 2010, http://www.sudantribune.com/U-S-special-envoyunhappy-about,35657.
42. African Union Chief Criticizes Genocide Charges Against Sudan President,
SUDAN TRIB., July 18, 2010, http://www.sudantribune.com/African-Union-chiefcriticizes,35693.
43. President Bashir did not attend the summit.
44. African Union Moves Aggressively to Shield Bashir from Prosecution, SUDAN
TRIB.,
July
29,
2010,
http://www.sudantribune.com/African-Union-movesaggressively,35786.
486
[Vol. 19:3
atrocities).45 In addition, trials are a time–intensive process, taking years to
complete, delaying justice to a significant degree.46 Another critique of the
court is that The Hague is significantly remote from Darfur, geographically,
politically, and emotionally, that justice in the Hague will not be tangible
for the very destitute people in Darfur for whom an old newspaper is a
luxury.47 Many advocates of justice see the court as a side–show to real
justice, which they say must be conducted closer to the scene of the crime.
Despite the inherent challenges, with the considerable amount of
international buy–in and State commitment to the ICC, it seems likely that
the ICC prosecutions of President Bashir and other Sudanese defendants
will continue, despite calls for the court to withdraw or defer its indictment
and arrest warrant of Bashir under Article 16 of the Rome Statute.48 Neither
the UN Security Council nor Chief Prosecutor Moreno-Ocampo has shown
45. See MARTHA MINOW, BETWEEN VENGEANCE AND FORGIVENESS: FACING HISTORY
AFTER GENOCIDE AND MASS ATROCITIES 31 (1998) (discussing case selectivity and
international criminal courts).
46. Since the ICC has not yet conducted any trial proceedings, we can look to the ad
hoc tribunals for an example of the time–frames involved in an international criminal trial.
As one example, the Slobodan Milošević trial had taken a total of five years when Milošević
died in custody in the Hague. Prosecutor v. Milošević, Case No. IT-02-54-T, Public
Transcript of Hearing, (Int’l Crim. Trib. For the Former Yugoslavia Mar. 14, 2006),
available at http://www.icty.org (follow “Legal Library” hyperlink; then follow “ICTY
Court Records” hyperlink; then register your email/sign in; then from the drop down menu
select “English” in the language box; then select “Milosevic Slobodon” for name of the
accused; then select “transcripts” for type of document; then select “14/03/2006” as the date
to search; then click search). As another example, Colonel Theoneste Bagosora’s trial in
front of the ICTR took over a decade from initial appearance in front of the court in 1997 to
his conviction on December 18, 2008. See Sukhdey Chhatbar, Planner of Rwandan
Massacres Convicted of Genocide, NY DAILY NEWS (Dec. 18, 2008),
www.nydailynews.com/news/national.
47. For a discussion of the limitations of physically distant criminal justice systems,
see, E. NEUFFER, KEY TO MY NEIGHBOR’S HOUSE: SEEKING JUSTICE IN BOSNIA AND RWANDA
266 (2001). Neuffer’s example of the International Criminal Tribunal for Rwanda, which
was based in Arusha, Tanzania, and justice in the aftermath of the Rwandan genocide is
certainly applicable in the context of Darfur.
48. Such calls have been made by members of AU, the Arab League, the greater
international community, and the United States activist community. Scholar and Sudan
expert John Prendergast and activist–actor George Clooney published an opinion piece in an
early June 2010 issue of USA Today, in which they argued for the inclusion of Article 16
within a set of policy incentives towards Sudan. George Clooney & John Prendergast, U.S.
Must Help Stop Sudan’s Slow-Motion War, USA TODAY, June 8, 2010, at 8, available at
http://www.usatoday.com/news/opinion/forum/2010-06-09-column09_ST1_N.htm. Under
the power of Article 16, “[n]o investigation or prosecution may be commenced or proceeded
with under this Statute for a period of 12 months after the Security Council, in a resolution
adopted under Chapter VII of the Charter of the United Nations, has requested the Court to
that effect; that request may be renewed by the Council under the same conditions.” Rome
Statute, supra note 23, art. 16. As per Article 16, the Security Council could adopt a
resolution under the power of Articles 39 and 41 of the United Nations Charter (Chapter 7),
declaring a halt to the Bashir prosecution as a means to restore international peace and
security.
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any inclination to deviate from the present course. In addition, Sudan’s
president Bashir has shown no inclination to accept the court has any
jurisdiction over crimes in Darfur, and in fact has recently boldly flaunted
the risk of arrest by traveling to several African countries.49 Thus, barring a
dramatic change in course, international justice will continue to be part of
the equation in the fight against impunity in Sudan. However, international
trials, on their own, cannot deliver justice and reconciliation in Darfur. In
order to achieve the tripartite goals of truth, justice, and reconciliation, there
is a need for the establishment and implementation of additional tiers of
Sudanese truth and justice mechanisms that are complementary to the ICC.
The following pages will discuss these Sudanese justice and dispute
resolution mechanisms and will assess their ability to seek peace and justice
in the region. These domestic mechanisms will be assessed from the
perspective of the humanitarian and legal concerns of the international
community, who will surely keep a watchful eye on any domestic justice
proceedings for due process and other human rights standards. Without the
49. The indictment, both initial and amended, has not halted President Bashir’s
ability to conduct international relations. He began the year in talks with Saudi Arabian King
Abdullah bin Abdelaziz, during which the two heads of state discussed agricultural
cooperation and food security. He traveled to Addis Ababa, Ethiopia, in January for the
African Union summit. There, he met with UN Secretary General Ban Ki-Moon, as well as
Chadian President Ibris Deby. On July 4, 2010, he arrived in Addis Ababa for an
extraordinary summit on Somalia of the Intergovernmental Authority on Development
(IGAD). He met with IGAD heads of states on the sidelines of the summit to discuss
bilateral and regional relations.
President Bashir has also traveled since the ICC released its reconsideration of the
indictment on July 12. He traveled to the Community of Sahel–Saharan States (CENSAD)
meeting in N’djamena, Chad in late July. Chad assured President Bashir that he would not
face arrest while in the country, and did not effectuate any arrest. On August 3, President
Bashir departed for a two–day visit with Libyan President Muammar al-Qaddafi, where the
two leaders discussed bilateral ties. On August 27, 2010, he traveled to Kenya and attended
a highly public political celebration commemorating the recent national constitutional
referendum, but Kenyan authorities declined to arrest him.
However, President Bashir’s ability to affect international relations with the Republic of
South Africa has been significantly affected. In early June, South African Foreign Minister
Maite Nkoana-Mashabane stated South Africa’s intent to adhere to its Rome Statute
obligations and arrest President Bashir, were he to visit South Africa. President Jacob Zuma
had previously invited President Bashir, along with other African leaders, to attend the FIFA
World Cup Finals.
Also, President Bashir’s ability to travel outside the region has been significantly
impacted. In March, French President Nicolas Sarkozy personally invited Bashir to the 25th
France-Africa summit in Nice, only to later withdraw his invitation. Egypt cancelled its
original hosting of the summit in December 2009, after France insisted that President Bashir
be excluded. Sudan will still participate in the France-Africa summit next May, but will send
a high–level delegation in the president’s stead. In a March interview with the German
magazine Der Spiegel, President Bashir indicated his intention to visit Venezuela, an ICC
state party, after receiving a personal invitation from Venezuelan President Hugo Chavez.
According to the SUDAN TRIBUNE, the Brazilian government is “preparing for the possibility
of Bashir’s plane passing through its airspace on its way to Venezuela and having to
intercept it and take him into custody.”
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combined international, domestic, and regional efforts of all interested
parties, justice and peace for Darfur will remain unrealized goals.
III. THE HYBRID COURT FOR CRIMES IN DARFUR
Recognizing the limitations of international courts, advocates for justice
continue searching for other mechanisms for accountability. The October
2009 report of the African Union High–Level Panel on Darfur (AUPD), led
by former South African President Thabo Mbeki, recommended the
establishment of a hybrid court for Sudan, which would rely on national and
international administrators, as well as a “fusion of domestic and
internationally recognised criminal justice procedures,” to investigate and
prosecute crimes in Darfur.50 The panel recommended the Hybrid Court for
Crimes in Darfur as a complementary and intermediary tier between the
domestic Sudanese judicial system, which confronts low confidence levels
among the Sudanese population, traditional forms of Sudanese justice and
dispute resolution (see infra), and the International Criminal Court.51
Sudan’s Interim National Constitution, which came into force in 2005,
provides for the inclusion of ratified international human rights treaties in
the Sudanese Bill of Rights. However, as the interim constitution came into
force in 2005, the Sudanese criminal justice system’s temporal jurisdiction
does not extend to crimes committed in Darfur between 2003 and 2004.52
The establishment of a Hybrid Court for Crimes in Darfur could provide for
the investigation and prosecution of crimes committed during that period.53
Such a hybrid court, as is clear in the Mbeki report, can provide a
necessary link between strict international and domestic justice, and
increase accessibility and provide transparency of the court proceedings to
ordinary citizens. Surely, the example of the Special Court for Sierra Leone
has not been without its challenges, and the Hybrid Court for Crimes in
Darfur would need to consider such lessons learned, but another level of
justice, more accessible and comprehensible to the people of Sudan, could
only improve the prospects for peace in the nation. However, given that
Bashir remains the president of Sudan, and therefore controls the Sudanese
50. African Union [AU], Report of the African Union High-Level Panel on Darfur
(AIPD), at 64, PSC/AHG/2(CCVII) (Oct. 29 2009) [hereinafter Report of the African Union,
available at http://blogs.ssrc.org/sudan/wp-content/uploads/2009/10/AUPD-Report-FinalOctober-2009.pdf.
51. Id. at 66.
52. Id. at 58-59.
53. Antonio Cassese’s Report on the Special Court for Sierra Leone provides another
example of the potential and possibilities of the hybrid court, specifically the community
outreach provisions of the court structure. Cassese’s full report is available at A. Cassese,
Report on the Special Court for Sierra Leone, SPECIAL COURT FOR SIERRA LEONE, (2006),
http://www.sc-sl.org/LinkClick.aspx?fileticket=VTDHyrHasLc=&.
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489
judiciary, it seems unlikely a hybrid court could function with the
independence needed for true justice.
IV. TRADITIONAL MECHANISMS FOR RESOLVING CONFLICT AND
RECONCILIATION
Yet even this hybrid mechanism could remain far removed from the lives
of average Darfurians. The search continues for mechanisms to bring
justice and accountability even closer to home. Traditional mechanisms of
conflict resolution and customary law have been performed by traditional
leaders and used for resolving conflict in Sudan for generations. In Sudan,
“[c]onflict itself, when it occurs, and its containment and settlement, are
seen as a collective responsibility, drawing the participation of leaders and
members of the community to participate. Most importantly, the resolution
of conflict may take the form of forgiveness and reconciliation instead of
punishment.”54
The British colonial administration in Sudan created a structure utilizing
the traditional tribal chiefs and assigning them specific tasks. This so-called
“Native Administration” required chiefs to:
• assure good management of tribal and local community affairs
• maintain security
• allocate land for agriculture and grazing (under the hakura system)
• settle conflicts over land tenure
• provide communication, at local council and provincial and state levels
• collect taxes and other levies
• mobilise communities, and
55
• chair tribal/sub-tribal local courts (judiyya).
This basic structure remained in place until the Nimeiry regime of the
early 1970’s replaced the Native Administration with a new system.
Some say this reorganisation was the prime factor in triggering tribal
conflicts on a wider scale in Darfur, as it meant that a locality belonging to
one tribe could be controlled by another. Up to 16 different rural council
border disputes and conflicts occurred in southern Darfur alone soon after
56
it was implemented . . . .
54. Khalid Ali El Amin, Tribal Conferences and Conflict Resolution Experiences
Under British and Sudanese Rule 7 (House of Nationalities Draft, 2005), available at
http://www.houseofnationalities.org/contribution%20by%20Khalid%20alAmin%20on%20th
e%20Tribal%20Conferences%20in%20Sudan%20April%2016%202005.asp.
55. Young, supra note 6, at 29. Authors’ Note: This term judiyya refers to a key
mediator (called ajaweed) role played by the tribal chiefs; see infra Section V. See infra text
accompanying note 60.
56. Id. at 29.
490
[Vol. 19:3
Since then, the Native Administration system has been changed several
other times. Prime Minister Sadiq al Mahdi reinstated it in 1987, only to
have it significantly modified after the 1989 coup in which President Bashir
and the National Islamic Front came to power.57
One of the major underlying root causes of the conflict relates to the
Native Administration and their traditional control of land. The hakura, or
land grant system, was administered by the Native Administration, and the
allocation of this land and land usage disputes became their responsibility
although government frequently intervened. The hakura system means that
some tribes have a dar, or homeland, while others do not.58 The landless
tribes that joined the Janjaweed were told that they would be given land if
they fought on behalf of the government.59 Yet the traditional leaders who
would adjudicate disputes over land tenure and access are the same leaders
who have a vested interest in maintaining the status quo.
Despite changes to the Native Administration system and the roles of
traditional leaders, these men have continued to play a role in resolving
conflicts. “The basis of reconciliation systems in Darfur is judiyya, a
grassroots process whereby belligerents agree to mediation by wise and
respected men—the ajwadi (plural: ajaweed)—consider well versed in
traditional rules for ending disputes.”60 These traditional conflict resolution
mechanisms have also been disrupted and face many challenges.61 The
payment of blood money, or diya, is a crucial conflict resolution technique
in Darfur. It constitutes both a form of accountability as well as reparations
(reparations meaning to repair the social fabric damaged by conflict). It is
part of a process through which traditional leaders come together to discuss
a situation, assess individual or collective guilt, and come to consensus on
the amount of diya to be paid and by whom. According to customary law,
the diya is reserved for certain crimes, including cases of unintentional
killing. In cases where a single perpetrator cannot be determined or there is
group accountability, the payment becomes a collective responsibility. This
payment, called “dusty diya” because it settles over the entire village like
dust, serves a critical reconciliatory function. The village comes together to
gather the resources to pay the diya (which also plays a deterrent function:
57. Id. at 30.
58. See id. at 29-30 for an explanation of the relationship between the hakura system,
changes to the native administration, and conflict.
59. E. Rubin, If Not Peace, Then Justice, N.Y. TIMES (Apr. 2, 2006),
http://query.nytimes.com/gst/fullpage.html?res=9C02E1D61430F931A35757C0A9609C8B6
3&sec=&spon=&pagewanted=4 (providing that “[u]neducated, destitute and landless, they
are motivated mainly by promises made by Sudanese government officials of land and
loot.”).
60. MAMDANI, supra note 13, at 288-89.
61. See Rift Valley Institute report, Local Peace Processes in Sudan: A Baseline
Study accessed at http://www.riftvalley.net/documents/Local_Peace_Processes_in_Sudan__May_2006.pdf “page 88 for details on the distinction between locally run judiyya processes
and government-run judiyya processes.
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491
cows are valuable commodities, and for an entire village to come up with
sufficient numbers of cows or the money to buy them as compensation is a
tremendous collective gesture of the intention not to let this happen again).62
Environmental stresses (including periodic drought) and pressures related to
the conflict have caused large numbers of cow deaths, which put further
pressure on the diya payments.63
These traditional systems have broken down when the government
intruded in the tribal system. The government manipulated the selection of
tribal leaders, circumventing the traditional selection by consensus. In the
1990’s:
64
the government introduced ‘emirates,’ or principalities, in every dar,
appointing its own supporters as emirs and essentially creating a parallel
Native Administration. As one source explained, the objective behind
appointing ‘princes’ is to weaken the structure of the Native
Administration because the regime failed to mobilise [its] support and
65
loyalty.
The government has also “encouraged” tribal leaders to pay the diya in
cases of intentional killing or murder that should legitimately be referred to
the formal justice sector. In cases that qualify for diya, the government has
also at times paid the diya on behalf of some tribes and some villages.
Although the government’s intentions could be well–meaning to help stop
disputes from escalating, the fact that killing without having to pay diya
amounts to killing with impunity is an important factor in the failure to
restrain acts of violence and revenge.
Given the upheaval within the Native Administration structure and
challenges to their traditional mechanisms for resolving conflict, the
question then becomes whether these traditional leaders can play a role in
processes geared toward truth, justice and accountability. As a starting
point, the High Level Panel on Darfur has called for, along with the
aforementioned hybrid court, a truth and reconciliation commission for
Darfur.66
62. Interview by Jacqueline Wilson, Darfur (Mar. 2006) [hereinafter Wilson
Interview].
64. The “dar” (pl. diyaar) in the Arabic language has numerous meaning such as the
halting place (mahallu), the house, abode, residence and the land (balad). See Clarifying the
Meaning of Dar al-Kufr and Dar al-Islam, KHILAFAH (Mar. 28, 2007),
http://www.khilafah.com/index.php/the-khilafah/foreign-policy/225-clarifying-the-meaningof-dar-al-kufr-a-dar-al-islam.
66. AU: Back Mbeki Panel Call for Darfur Prosecutions, HUMAN RIGHTS WATCH,
(Oct. 29, 2009), http://www.hrw.org/en/news/2009/10/28/au-back-mbeki-panel-call-darfurprosecutions.
492
[Vol. 19:3
It was apparent to the Panel that there is still tremendous denial, on all
sides, within Darfur and in Sudan, and unwillingness to concede
culpability for the serious abuses which have so profoundly marked the
people of Darfur. It is not possible, for either Darfur or Sudan, to make a
break with the past without a collective examination of the root causes and
background to the war, the conduct of the war itself and its manifest
consequences. The Panel therefore believes that an independent Truth,
Justice and Reconciliation Commission (TJRC), mandated to probe and
scrutinise all aspects of the relevant events between 2003-2009, would
make an important contribution to healing the wounds of Darfur and the
divisions in Sudan over Darfur. To persuade perpetrators to make full and
truthful confessions, or to accept responsibility for their crimes, there must
be incentives for them to appear before the TJRC and disclose their
67
actions, in order to disown the past and move forward.
Whether the timing of a truth commission is yet at hand remains to be
seen. Perhaps it is too early, as the conflict is still ongoing and over two
million people are displaced. That being said, there is potential for some
so–called Native Administration to play a positive role with respect to a
mechanism to facilitate sharing the truth of what has happened in Darfur.
Some would say that because of the power dynamics between the federal
government and the Native Administration in general, that as long as the
current federal government remains in power, it is highly unlikely that tribal
leaders would be able to make a positive, and unbiased, contribution to
peace.
On the other hand, the situation remains fluid and could go in many
directions. The ongoing changes in places like Egypt and Tunisia are being
watched carefully by all sides in Sudan. There is a renewed sense that the
final stages of implementating the north/south Comprehensive Peace
Agreement, the January, 2011 vote for secession by the south and
impending independence of Southern Sudan expected in July, 2011,, recent
calls by opposition figures for constitutional reform, and the lack of
progress from peace talks in Doha, Qatar, are all factors which could
eventually result in a transformed Sudanese government, which could find a
way to make use of tribal leaders who maintain legitimacy with their
Most
communities to help facilitate justice and reconciliation.68
importantly, a truth commission for Darfur must not be government–run or
sponsored. Archbishop Desmond Tutu’s leadership of South Africa’s Truth
and Reconciliation Commission could be a positive example for Darfur—
and could provide a model for establishing a role for some of the still-
67. Report of the African Union, supra note 50, at 73.
68. For example, Ibrahim Musa Madibo, Nazir (paramount chief) of the Baggara
(cattle-herding) Rezeigat tribe, has resisted government attempts at manipulation and
remains a respected tribal leader. Greater details of the history of the conflict are available in
Flint, supra note 13; De Waal, supra note 13.
2011]
493
respected tribal chiefs in addition to respected individuals. In order to be
successful, however, this process should be largely run by local
community–level councils. Local ownership will allow community leaders
to regain their pride, rebuild relationships, and more accurately reflect the
will of the people with respect to justice and accountability.
Historically, as evidenced by its negative reactions to the gacaca process
in Rwanda, the West has given little credence to African solutions to
African conflicts.69 However, the overall success of the gacaca process, in
that mass violence has not erupted in Rwanda,70 as well as the success of the
Truth and Reconciliation Commission in South Africa in supporting the
peaceful transition from an apartheid regime to a democratic system of
governance, has demonstrated to the West the merit of African solutions to
African problems.71 Thus, it remains possible that the ICC, and the UN as a
whole, would welcome any Sudanese alternative dispute resolution
mechanism that is actually designed to heal the nation, instead of simply
shield alleged perpetrators from international or domestic legal scrutiny.
As stated earlier, such a truth and reconciliation process in Sudan is far
from a reality, and might not be able to operate without regime change in
Khartoum. However, if the will of the people of Sudan, including women,
is expressed in a domestic dispute resolution process, the international
community will embrace such a process as a reflection of the reality that
domestic solutions are preferable to external solutions that may lack
adequate context and cultural competence. So, whether Sudan opts for a
return to traditional Native Administrations, a return to traditional forms
such as judiyya and/or diya, or a novel, hybrid approach to truth and
reconciliation in Darfur, the international community should welcome its
appearance, as long as the chosen process is reflective of the will of the
people of Darfur specifically, and the people of Sudan in general.
V. RECONCILIATION
Reconciliation, in the sense of the word as used in a context of
transforming relationships from a past of conflict and atrocities to a shared
future, possibly involving truth–telling, forgiveness, and a symbolic ritual to
69. Raper, supra note 8, at 34-35.
70. While the performance of the gacaca courts are not, of course, solely responsible
for the relative stability of the Third Republic of Rwanda since the 1994 genocide, the
gacaca courts have released thousands of genocidaires back into society without a return to
significant numbers of revenge killings or the mass violence attendant to the genocide. Such
a return to violence was envisaged by many in Rwanda and the international community.
See Raper, supra note 8, at 2 n.5 (discussing the return to societal violence upon release of
prisoners from the gacaca jurisdictions).
71. This is not to say that the South African TRC does not have its problems. The
issues of reparations and land redistribution remain contentious, and numerous legal hurdles
remain. In that the transition from an apartheid regime to a post-apartheid regime did not
result in mass atrocities, the South African TRC can be considered a success.
494
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bring closure and perhaps memorialize lost loved ones—might be
considered a foreign concept in Darfurian society. The government has
conducted reconciliation conferences, but one gets the sense that the
expectation is that communities will be “reconciled” after a single day of
meetings and dancing, whereas reconciliation can often be a gradual process
that happens over time. The agreement and payment of diya is related to the
concept of reconciliation in that it includes a sense of bringing closure and
stopping the cycle of revenge, and an attempt to leave the past behind. The
concept requires greater understanding in terms of the extent to which it
creates a sustainably transformed relationship between aggrieved parties.
The aforementioned judiyya could prove useful in healing the
relationships between the tribes. “Since their introduction by the British in
the 1920’s and to the present day, this tribal forum, whether judiyya or other
similar process of consensus building, has been adopted as a mechanism to
achieve inter-tribal peace.”72 These conferences have been administered
differently depending upon leadership, and their format makes a tremendous
difference in the outcome. Under the British, the conferences were
convened by a council of notables comprised of tribal leaders, religious
leaders, and other wise men, but the council was no more than about sixteen
men. British government officials sometimes attended the conferences, but
their role was to offer support and also to help assure any agreement would
be implemented and respected. During the conferences, the notables took
several days for intense consultation with their lower ranking tribal leaders,
and often with community members interested in or with knowledge of the
situation, in order to gain a consensus outcome that would allow all parties
to the conflict to achieve their interests as much as possible.73
This traditional form of tribal conference is contrasted with the way the
present–day government reconciliation conferences have been conducted,
when the participants often number over 100.74 Due in part to the large
number of attendees, it is impossible to reach consensus, so the participants
are broken into committees, each to handle a specific topic. The final
agreement is a composite of the outcomes of each of these committees—and
does not represent true consensus. This means that agreements are not
implemented, and eventually the conflict revives—requiring a next
conference to respond to the conflict. In addition, in some of these
conferences, rather than playing a role of neutral guarantor, the government
takes the side of one or another participant, a flagrant violation of the
standards for judiyya and a disruption of the entire conference process.75
Therefore these conferences “have as a consequence been turned from an
adapted form of an indigenous conflict resolution mechanism that functions
72.
73.
74.
75.
El Amin, supra note 54.
Id. at 1-8.
Id.
Id.
2011]
495
bottom-up into a semi-formal governmental ad hoc organisation that
functions top-down.”76 For all of these reasons, any such mechanisms
would careful preparation and management in order to be successful.
Even so, the traditional process of judiyya conducted by wise community
leaders seems to hold great promise for future application in Darfur.77
However, where the tribal leaders have become biased, or where the
government has intervened in or controlled the process—and are guarding
against these future outcomes in new cases—are situations which present an
ongoing challenge. Once again, the judiyya process would be virtually
impossible to make effective if there is no transformation in the relationship
between the federal government and the local leadership. In addition, the
process is not a community–level process, leaving women and youth, for
example, to have been “reconciled” by others on their behalf. The concept
of reconciliation in Darfur likely requires a process uniquely suited to the
experiences of the people of Darfur.
VI. REPARATIONS
Historical references indicate the important role played by tribal leaders
with respect to restoring a balance of resources after conflict. In the 1901
battles in Darfur, victims claimed, “we are unjustly oppressed and appeal to
you, oh promoter of justice, to return to us what has been looted.”78 In
addition to discovering the truth, the question of reparations, of some sort of
compensation, financial or otherwise to “make the victims whole” is
challenging in the context of Darfur.
There seems to be consensus that the janjaweed were motivated by the
guarantee of keeping looted goods.79 In addition to looted goods, there is
the important issue of restoring livestock. According to the 2005 Tufts
University study, Darfur: Livelihoods Under Siege, those who have had
livestock stolen are demanding government compensation, although there
does not seem to be any mechanism or process for providing this remedy. 80
76. Id.
77. Similar to the growing Western acceptance of the traditional Rwandan dispute
resolution mechanism of gacaca, judiyya, with its significant roots in Sudanese legal history,
will be accepted and embraced by the international community. Judiyya will be embraced
especially if it is inclusive of the concerns of all Sudanese, regardless of geography, gender,
and religion. Formal justice mechanisms, whether international or domestic, can only
administer limited numbers of trials, and often do not foster considerable societal
reconciliation. Consequently, the vast majority of reconciliation in a post-conflict society
must be meted out by alternative forums. With its grounding throughout Sudan, judiyya
seems best able to address the concerns and viewpoints of all parties to the conflict in Darfur.
See MAMDAMI, supra note 13, at 288-91, for a further discussion of judiyya’s historical
origins in Darfur.
78. THEOBALD, supra note 2, at 48.
79. See Flint, supra note 13.
80. See Young, supra note 7.
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The study gives four reasons why restocking with donor funds would be
problematic:
First, the scale of the restocking programme will be unprecedented,
involving more than 250,000 households, each requiring a foundation
stock of some 20 sheep and goats. Funding and organisational capacity
may not be available on this scale. Second, the fact of donors sponsoring
restocking would send the wrong signal to the perpetrators. During
restocking, there is a danger that donors may inadvertently buy stolen
animals for distribution (even, perhaps, to their rightful owners), thereby
rewarding those who looted them. This may in turn encourage further
looting. Third, an externally funded process of restocking would not allow
for reconciliation processes to occur between the various parties through
resolution of the livestock issue. Fourth, replenishing looted and lost
assets will not solve the issues of mobility and safe access to trade and
migration routes, which are an essential part of the livestock livelihood
81
system for all groups.
Further, even if the perpetrators can be asked to pay reparations, they may
not have the resources to do so. The ajaweed role performing the judiyya
function may provide the solution to this issue, as this function can also be
used to determine reparations. Just as a council of leaders can come to
consensus on an issue of punishment or diya/blood money, so too could
they use this technique to compensate those whose goods or livestock were
gone. This issue will not be an easy one, however, as noted in the previous
caveats on group size and government intervention. In addition, the process
is different when perpetrators pay reparations from their own stocks versus
outsiders or government paying it on their behalf. That being said, the issue
demands attention. “Conflict and peoples’ livelihoods are inextricably
linked. Livelihoods are integral to the causes of the conflict and the impact
it has had, and therefore will be central to any lasting solutions to the
conflict.”82 The conflict will start to look much different to the displaced
when they are back to their villages in time for a planting season, the annual
Darfurian time of rebirth.83
81. Id. at 110.
82. Id. at 109.
83. Reparations to victims are also a significant part of the justice of the ICC. See
Rome Statute, supra note 23, art. 75(1-2) (“The Court shall establish principles relating to
reparations to, or in respect of, victims, including restitution, compensation and
rehabilitation. On this basis, in its decision the Court may, either upon request or on its own
motion in exceptional circumstances, determine the scope and extent of any damage, loss and
injury to, or in respect of, victims and will state the principles on which it is acting. The
Court may make an order directly against a convicted person specifying appropriate
reparations to, or in respect of, victims, including restitution, compensation and
rehabilitation.”). To assist in the administration of reparations, Article 79 of the statute
establishes a trust fund “for the benefit of victims of crimes within the jurisdiction of the
Court, and the families of such victims.” Id. art. 79.
2011]
497
VII. POTENTIAL SHORTCOMINGS OF THE USE OF TRADITIONAL
MECHANISMS
Before closing, a word must be said about some shortcomings of these
traditional mechanisms. As already mentioned, the extent to which the
ruling regime intervenes to prevent truth telling and justice which might
hold themselves—among other parties—accountable, remains probably the
most challenging hurdle. There is a question about the extent to which there
can be transitional justice without a transition in terms of governance. But
other significant challenges remain. These councils are composed of wise
men, which means there is a dearth of wise women present. Despite the fact
that it runs counter to tradition, there must be a way to involve women in
the process. One idea that has been promulgated is to create “sheikha”
counsels, or groups of wise women who can perform the same kinds of
functions as men but for women’s issues. Particularly in Darfur, where
eighty percent of the displaced are women and children, it is imperative that
women have a voice in the solutions that will impact the rest of their lives.
Another concern relates to the use of rape as a tool of war. Prosecutions
for rape in Darfur under customary law could be problematic under
international law or by contemporary western standards. According to
Physicians for Human Rights, women who come forward to report rape are
often themselves charged with adultery.84 In addition, there are other
challenges related to requirements of shari’a law. “Because of extremely
high levels of proof required (under customary law)—4 male or 8 female
witnesses—rape is extremely difficult to prosecute in Sudan.”85 A
Darfurian expert on customary law has stated that the traditional solution for
rape cases is for the victim to marry the rapist or into the rapist’s family,
thereby circumventing the social norms that would ostracize the woman
completely were she to be tried for adultery.86 A locally–owned process,
one that could accommodate public issues yet keep such sensitive other
issues private, is a requirement in a context such as Darfur, where the status
of women is compromised by their historic lack of participation in local
justice systems.87 Clearly this type of issue will require all the creativity
that Darfurians, men and women, can muster.
Finally, the sheer scope of the conflict in Darfur means that any efforts at
truth, justice, accountability, compensation, reparations or reconciliation
will be extremely challenging. The conflict has affected all tribes. Few
geographic localities remain untouched. Any processes will need to
84. Darfur Survival Campaign: Darfur Fact Sheet, PHYSICIANS FOR HUM. RTS.,
http://www.physiciansforhumanrights.org/students/darfuraction/darfur-fact-sheet.pdf.
85. Id.
86. Wilson Interview, supra note 61.
87. Raper, supra note 8, at 53.
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accommodate millions of victims who have experienced all variety of
losses.
CONCLUSION
Given the unique nature of each country, each situation in which war
crimes, crimes against humanity, or genocide can occur, there is no single
formula that can be applied in every circumstance. That said, the
international community is developing a more robust toolkit with which to
respond to these situations. The ICC, with its burgeoning maturity, is
attempting to tackle the issue of justice and reconciliation in Darfur, and
only time will tell how successful it will be when faced with intransigence,
obfuscation and impediments of the most creative kind. As put in an
address by Judge Philippe Kirsch, President of the ICC at the Third Session
of the Assembly of States Parties in The Hague, “the investigation and
prosecution of cases will not only require the active participation of those
countries where the investigations take place, but will also call upon all
states which may be able to assist by providing information, evidence, or
other forms of cooperation.”88
At present, this cooperation is sorely lacking in Sudan, and a significant
number of its neighbors, allies, and other member states of the UN. This
lack of a unified international response threatens the ability of the court to
function in the interests of ending impunity in the wake of serious crimes of
international concern. Even if the ICC’s search for justice in Darfur is not
derailed by the intersection of law, diplomacy, and geo-strategic politics, the
international community must be aware of the serious limitations on the
capacity of the court to prosecute large numbers of cases, and therefore
challenge the Sudanese jurisprudential community with filling the gap
between international measures and impunity.
This gap will be filled with some unique and culturally appropriate
mechanism that meets the needs of the affected population to learn the truth,
hold people accountable, forgive as they are able, reconcile if possible, but
most certainly to choose a path of looking toward the future. In a country
where a responsible party remains in power and the traditional mechanisms
of reconciliation have been manipulated, as is the case in Darfur, this
challenge is all the more complex. This Article has offered one possible set
of options designed to achieve the goals of holding those responsible for
directing atrocities accountable through international law, transform the
88. Philippe Kirsch, President of the ICC, Address to 3rd Sess. of the Assembly of
States Parties to the Rome Statute of the International Criminal Court (Sept. 6, 2004)
(transcript available at http://www.iccnow.org/documents/KirschAddress_ASP06Sept04_as_
delivered.pdf).
2011]
499
Sudanese judiciary, and empower citizens to both learn the truth and
practice justice in partnership with legitimate, trusted traditional leaders.89
89. For additional resources, see Lisa Clifford, Lisa, Sudan: Executions “Cynical”
Attempt to Hinder ICC, INST. FOR WAR & PEACE REPORTING (May 5, 2007),
http://iwpr.net/report-news/sudan-executions-%E2%80%9Ccynical%E2%80%9D-attempthinder-icc; M.W. DALY, IMPERIAL SUDAN: THE ANGLO-EGYPTIAN CONDOMINIUM: 1934-1956
(1991); Darfur, Sudan – UN Security Council Resolutions and Presidential Statements, U.S.
MISSION TO THE UN (May 6, 2007), http://www.usunnewyork.usmission.gov
/Darfur_in_the_UNSC.pdf; ALAIN DESTEXHE, RWANDA AND GENOCIDE IN THE TWENTIETH
CENTURY (1995); ALEX DE WAAL, ALEX, DARFUR: A SHORT HISTORY OF A LONG WAR 84
(2006); Khalid El Amin & Ali El Amin, Eastern Sudan Indigenous Conflict Prevention,
Management and Resolution Mechanisms: Effectiveness, Continuity and Change, 13
AFRICAN SECURITY REV. 2, 7 (2004); Khalid El Amin & Ali El Amin, Lessons in
Governance: Tribal Conferences for Conflict Prevention and Resolution Under British and
Sudanese Rule (2004) (unpublished manuscript); Jérémie Gilbert, Nomadic Territories: A
Human Rights Approach to Nomadic Peoples’ Land Rights, 7 HUM. RTS. L. REV. 4, 681
(2007), available at http://hrlr.oxfordjournals.org/cgi/content/abstract/ngm030v1; ADAM
HOCHSCHILD, KING LEOPOLD’S GHOST: A STORY OF GREED, TERROR, AND HEROISM IN
COLONIAL AFRICA (1999); Human Rights Watch, Lack of Conviction: The Special Criminal
Court on the Events in Darfur, 1 BACKGROUNDER (2006); Entrenching Impunity:
Government Responsibility for International Crimes in Darfur, 17 HUMAN RTS. WATCH
17(A)
(Dec.
2005),
available
at
http://hrw.org/reports/2005/darfur1205/
darfur1205webwcover.pdf; Human Rights Watch, Sudan: Darfur in Flames: Atrocities in
Western Sudan, 16 HUMAN RIGHTS WATCH 5(A) (Apr. 2004); International Humanitarian
Law: The Essential Rules, INT’L COMM. RED CROSS (Apr. 6, 2004), available at
http://www.icrc.org/Web/Eng/siteeng0.nsf/html/5ZMEEM; Philippe Kirsch, President of the
ICC, Address to 3rd Sess. of the Assembly of States Parties to the Rome Statute of the
International Criminal Court (Sept. 6, 2004) (transcript available at http://www.iccnow.org/
documents/KirschAddress_ASP06Sept04_as_delivered.pdf); Interview with Majoub
Mahmoud, in Washington, D.C. (Sept. 20, 2006); MARTHA MINOW, BETWEEN VENGEANCE
AND FORGIVENESS (1998); Darfur Survival Campaign: Darfur Fact Sheet, PHYSICIANS FOR
HUM. RTS., http://www.physiciansforhumanrights.org/students/darfuraction/darfur-factsheet.pdf; Press Release, ICC, ICC Issues a Warrant of Arrest for Omar Al Bashir, President
of Sudan, (Apr. 24, 2009), http://www.icc-cpi.int/NR/exeres/0EF62173-05ED-403A-80C8F15EE1D25BB3.htm; ICC Press Release ICC-CPI-20090304-PR394 (Mar. 4, 2009),
available at http://www.icccpi.int/menus/icc/press%20and%20media/press%20releases/press
%20releases%20(2009)/icc%20issues%20a%20warrant%20of%20arrest%20for%20omar%2
0al%20bashir_%20president%20of%20sudan; Prosecutor v. Al Bashir, Case No. ICC-02/0501/09, Prosecutor’s Application for a Warrant of Arrest (July 14, 2008), http://www2.icccpi.int/NR/rdonlyres/64FA6B33-05C3-4E9C-A672-3FA2B58CB2C9/277758/
ICCOTPSummary20081704ENG.pdf; Jessica Raper, The Gacaca Experiment: Rwanda’s
Restorative Dispute Resolution Response to the 1994 Genocide, 5 PEPP. DISP. RESOL. L.J. 1
(2005); Ratification Status of the Rome Statute of the International Criminal Court, UN.ORG
(May 6, 2007), http://www.un.org/law/icc/ statute/status.htm; Report of the Int’l Comm’n of
Inquiry on Darfur, Report of the International Commission of Inquiry on Darfur to the
United Nations Secretary–General, established pursuant to resolution 1564 (2004)
concerning
reports
of
violations
of
international
law
in
Darfur,
3,
www.un.org/News/dh/sudan/com_inq_darfur.pdf (Jan. 25, 2005); Rome Statute of the
International Criminal Court, opened for signature July 17, 1998, 2187 U.N.T.S. 90 (entered
into force July 1, 2002) available at http://www.un.org/law/icc/statute/romefra.htm; Amnesty
Int’l, Sudan: Arming the Perpetrators of Grave Abuses in Darfur Testimonies, AI Index:
AFR 54/144/2004 (Nov. 16, 2004) available at http://www.amnesty.org/en/library/
asset/AFR54/144/2004/en/71d39083-fa9e-11dd-999c-47605d4edc46/afr541442004en.pdf;
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Even this relatively simple mix of solutions will be amazingly
challenging to implement, and this process could take years from the time a
comprehensive peace is reached in Darfur.
Even beyond justice,
reconciliation is a process of transforming hearts, a process that can take
generations. For the displaced and abused citizens of Darfur, this process
cannot start too soon.
The Black Book: Imbalance of Power and Wealth in Sudan, Part 1
http://www.sudanjem.com/sudanalt/english/books/blackbook_part1/book_part1.asp.htm (last
visited May 6, 2007) l A.B. THEOBALD, LAST SULTAN OF DARFUR (1965); U.N. S.C. Charter
ch. VII, available at http://www.un.org/aboutun/charter/chapter7.htm; Conflict Resolution
Training Workshop, United States Institute of Peace, Nyala, Sudan (Mar. 13-15, 2006);
Briefing on the ICC Indictments, WAGING PEACE (Apr. 24, 2009),
http://www.wagingpeace.info/?q=node/192; H. Young, A.M. Osman et al., Darfur –
Livelihoods Under Siege, FEINSTEIN INT’L FAMINE 2 (2005), available at
https://wikis.uit.tufts.edu/confluence/download/attachments/14553452/Yong--Darfur-Livelihoods+Under+Seige.pdf?version=1; H. Young, A.M. Osman et al., Livelihoods,
Power and Choice: The Vulnerability of the Northern Rizaygat, Darfur, Sudan, FEINSTEIN
INT’L CTR. (Jan. 2009); H. Young, Abdul Monium Osman, Ahmed Malik Abusin, Michael
Asher & Omer Egemi, Livelihoods, Power and Choice: The Vulnerability of the Northern
Rizaygat, Darfur, Sudan, Feinstein Int’l Ctr. (2009).
DIRECTOR REGULATION IN CHINA:
THE SINONIZATION PROCESS
Fidy Xiangxing Hong*
INTRODUCTION ........................................................................................... 502
I. ESTABLISHMENT OF THE BOARD SYSTEM .............................................. 504
A. Back to the History ...................................................................... 504
B. Legislation in the Early 1990s ..................................................... 505
C. The Borrowed but Unique Board ................................................ 508
D. Rationale for the Uncommon Legal Settings .............................. 512
II. ACTIONS AT THE TURN OF THE CENTURY ............................................. 517
A. Efforts to Promote the Board ....................................................... 517
1. Confirming Powers of the Board......................................... 518
2. Building up Checks and Balances Within the Board ........... 518
3. Strengthening the Duties of Directors ................................. 519
4. Enhancing the Accountability of Directors ......................... 520
5. Improving Incentive Mechanisms ........................................ 522
B. Constant Mixing and Internalization ........................................... 523
C. Dysfunctions and Embedded Problems ....................................... 527
III. PROGRESS IN 2005 AND THEREAFTER .................................................. 533
A. New Changes Made..................................................................... 533
1. Codification in 2005 ............................................................ 533
2. Other Actions Taken ............................................................ 536
B. Lasting Selection and Perseverance............................................. 539
C. Endurance of an Unsatisfactory State of Affairs ......................... 543
CONCLUSION .............................................................................................. 547
ABSTRACT
The convergence or persistence debates as to different corporate
governance models have attracted international attention in the past few
years. This article looks at the development of director regulation in China
in the past two decades to examine the differing standpoints in the debates.
The emergence of a modern board of directors came along with the
enterprise reforms of the early 1990s in China. Thereafter, with the
growing importance of the board in practice, more efforts have been made
to promote its effectiveness. At first sight, the Chinese board system seems
to have moved away from civil law traditions towards common law regimes
in the last two decades, since more Japanese rules have been transplanted
* Fidy Xiangxing Hong, PhD, University of Hong Kong; LLB (Southwest), BA
(SISU), LLM (SCU). The author wishes to express his thanks to Mr. S. H. Goo for his
guidance and comments in composing this Article. All information in this Article is current
as of November 2010.
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into China at the initial stage, whilst later American norms and concepts
have had greater influence. Nevertheless, the skeleton of the Chinese board
is very distinctive from advanced economies, which has persisted—albeit
with some changes—through the years. Hence, it is argued that the process
of adopting foreign norms and mechanisms for director regulation in China
can neither be conceptualized as convergence nor persistence. Rather, it is a
process of sinonization in which foreign norms and institutions are filtered
and localized into the Chinese context.
INTRODUCTION
In the dynamic world of corporate governance reform, both business and
academic circles have become increasingly interested in the future of
different corporate governance models. In the past few years, the
convergence or persistence debates have fueled a new wave of corporate
governance research upsurge. While convergence optimism argues for the
superiority of the Anglo–American model of shareholder capitalism over
other alternatives,1 the path dependence theorists emphasize the determining
nature of both history and politics in the evolution of corporate governance.2
This Article focuses on the development of director regulation in the context
of the corporate governance reforms in China as a case to examine the
differing standpoints in the convergence or persistence debates. It is argued
that the process of adopting foreign norms and mechanisms for director
regulation in China can neither be conceptualized as convergence nor
persistence. Rather, it is a process of sinonization in which foreign norms
and institutions are filtered and localized into the Chinese context.
Corporate governance in China has experienced a number of changes in
the past two decades. Among them, regulation of the board of directors3 is
one classic field in modern corporate governance that Chinese laws have
stepped into and developed length by length. The emergence of a modern
1. Henry Hansmann & Reinier Kraakman, The End of History for Corporate Law,
89 GEO. L.J. 439, 440 (2001).
2. Lucian Arye Bebchuk & Mark J. Roe, A Theory of Path Dependence in
Corporate Ownership and Governance, 52 STAN. L. REV. 127 (1999).
3. The “board” is understood in the narrow sense in this Article, which only refers
to those members with management powers. Those members of the board whose major task
is monitoring, such as the supervisory board in civil law and the independent directors in
common law, are not featured in the discussions here. The sphere of director regulation in
this Article involves a number of legal mechanisms which both constrain their behaviors and
mold their incentives so as to align their interests with the owners, such as the appointment
and removal of directors, powers of the board, civil liabilities of the board of directors, and
regulations of the remuneration packages. Since directors in a company are regulated both
individually and collegially, there are two layers of discussions in the article: first, the
powers and rights of the board of directors; second, the duties and incentive stimulating
mechanisms of the directors. Both of them are observed from the perspective of the
principal–shareholders and agent–directors relationship.
2011]
Director Regulation in China
503
board of directors comes along with the enterprise reforms of the early
1990s in China. Thereafter, with the growing importance of the board in
practice, more efforts are made to promote its effectiveness. At first sight,
the Chinese board system seems to have moved away from civil law
traditions towards common law regimes in the last two decades, since more
Japanese rules have been transplanted into China at the initial stage, whilst
later American norms and concepts have had greater influence.
Nevertheless, a more detailed review reveals that such an observation is
very shallow. What China has borrowed from developed countries are only
forms and details rather than substances and structures, and the skeleton of
the Chinese board that is very distinctive from advanced economies has
persisted albeit with some changes through the years. The trajectory of the
evolution of the Chinese board is better described as a process of
sinonization. On one hand, although a great deal of foreign regulation is
imported, the substantive infrastructure established in China is unique
compared with other jurisdictions. On the other hand, the effectiveness of
the Chinese board is doubtful, owing to the embedded political, social and
economic conditions. Hence, it is concluded that, in terms of director
regulation, China is not moving towards a particular model from any other
countries. Sinonization is a more appropriate description of the corporate
governance reforms in China.
This Article first briefly traces the history of the board of directors and
reviews the legal framework for the board of directors in the early 1990s.
With real–time comparative analysis of the equivalent rules in Germany,
Japan, the UK, and the US, it is discovered that Chinese legal arrangements,
although borrowing more rules from Japan than other countries, form a
self–contained camp due to their structural peculiarities. Rationales for
such uncommon legal settings are subsequently elaborated. Then the
Article assesses the efforts made at the turn of the new millennium to
promote the board of directors, and considers the constant mixing nature of
these new developments. It is conceived that at this stage, more US–style
mechanisms have been adopted in China, but the basic structure of the
Chinese board has not been substantively changed. The dysfunctions of the
board after all these reforms are examined and the causes giving rise to
these issues are analyzed. Followed this assessment is an analysis of the
progress in 2005 and thereafter. The major legislative movements are
studied, and the uniqueness of the adjusted framework is also addressed.
The Article then further examines the ineffectiveness of the board of
directors due to pitfalls in the law and the unchanged institutional
background. Finally, the Article summarizes the full analysis of boards of
directors in the whole Article with a description of sinonization of corporate
governance.
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I. ESTABLISHMENT OF THE BOARD SYSTEM
A. Back to the History
The development of a separate board of directors was accompanied by
the emergence of modern corporate laws. Tracing back the historical roots,
today’s corporate board found its antecedents simultaneously in England
and continental Europe during the fourteenth to sixteenth centuries.4 Later,
the norm of using a governing board was reinforced and spread to other
countries such as the U.S. and Japan in the colonization process and with
the introduction of western technology and ideas. 5 At the turn of the
twentieth century, the board of directors, through a series of legal reforms
and legislative movements, became free from interference from
shareholders in the general meeting and gradually earned its independent
status as a corporate organ.6 In China, the large scale of the introduction of
western civilization and institutions after the Opium War also brought about
the modern corporate system, of which the board system was an
indispensable part. However, the board of directors was not completely
separate from the shareholders at that time, because the principle that
“corporate directors should be elected from members of the corporation by
the general assembly” had been maintained in corporate law revisions
through the years.7 After the founding of new China in 1949, particularly
after the completion of the socialist transformation in 1956, the board
system was abandoned with the demolition of modern corporate governance
in China. It was not until the preliminary stage of the enterprise reforms in
the 1980s that the theme of “separation between ownership and
management” was picked up again.8 Unfortunately, reform measures taken
in this period, such as the factory manager responsibility system
(
), despite the involvement of autonomy expansion for
enterprises, did not have the features of a modern board system.9
4. See Franklin A. Gevurtz, The Historical and Political Origins of the Corporate
Board of Directors, 33 HOFSTRA L. REV. 89 (2004).
5. See Franklin A. Gevurtz, The European Origins and the Spread of the Corporate
Board of Directors, 33 STETSON L. REV. 925 (2004).
6. See, e.g., PAUL L. DAVIES, GOWER AND DAVIES’ PRINCIPLES OF MODERN
COMPANY LAW 300-01 (2003); 1 JAMES D. COX & THOMAS LEE HAZEN , COX & H AZEN ON
CORPORATIONS 410 (2d ed. 2003).
7. See ZHANG ZHONGMIN, JIANNAN DE BIANQIAN: JINDAI ZHONGGUO GONGSI ZHIDU
YANJIU [DIFFICULT CHANGES: RESEARCH ON CORPORATE SYSTEM IN MODERN CHINA (18421949)] 431 (2002).
8. See Chen Qi, Woguo Guoyou Qiye Gaizhi De Lishi Huigu Ji Quxian MBO De
Kexingxing Sikao [The History of China’s State-owned Enterprise Restructuring and the
Feasibility of Curved MBO], 2 BEIFANG JINGJI [NORTHERN ECON.] 20 (2006).
9. For the features and problems of the factory manager responsibility system, see
Wang Yanlin & Tian Yinzhi, Guanyu Changzhang Fuzezhi De Ruogan Wenti [Issues
Regarding the Factory Manager Responsibility System], 2 FAXUE PINGLUN [L.REV.] 44
2011]
505
B. Legislation in the Early 1990s
In 1992, the first batch of national corporate laws was promulgated by a
number of governmental bodies. Among them stood out the Joint–Stock
) (“JCRO”) which,
Companies Regulatory Opinions (
for the first time in China, regarded the board of directors as completely
separate from the shareholders. The law provided a number of rules
governing this independent corporate organ, such as the legal status,
composition, and powers of the board; the calling of board meetings; the
appointment and powers of the chairperson; the appointment, term,
qualifications and duties of the directors; and the restrictions on share
transfers of the directors.10 Particularly, the board of directors was hailed as
the standing corporate authority and should be accountable to the
shareholders’ meeting.11
After the test of these laws, Company Law 1993 (“CL 1993”), together
with Provisional Regulations on the Management of the Issuing and Trading
of Shares (
) (“PRMITS”), and Decision
Concerning the Criminal Punishment of Violations of Company Law
) (“DCPVCL”), succinctly laid down the
(
legal basis of the board of directors in China which had profound influence
thereafter. Below is an investigation of three major facets of this system at
that time, including the board of directors as a whole, the chairperson of the
board, and individual directors.
Above all, the board of directors, which should be composed of five to
nineteen members, was the mandatory corporate organ of all joint–stock
companies (and therefore of all listed companies) and could have been held
accountable to the shareholders’ general meeting. 12 Generally speaking,
two main aspects of the board of directors, the statutory powers of the board
and board meetings, were regulated in the laws. The statutory powers of the
board of directors, collectively exercised, were stated, and included a
number of procedural and substantive matters, such as to convene the
shareholders’ general meeting and report on its work to the shareholders’
general meeting; to carry out the resolutions of the shareholders’ general
(1986). For the failure of old reform measures in improving the intrinsic efficiency of the
enterprises, see Jean Jinghan Chen, Corporatisation of China’s State-owned Enterprises and
Corporate Governance, in DAVID H. BROWN & ALASDAIR MACBEAN, CHALLENGES FOR
CHINA’S DEVELOPMENT: AN ENTERPRISE PERSPECTIVE 59-60 (2005).
10. See Gufen Youxian Gongsi Guifan Yijian [Joint-stock Companies Regulatory
Opinions] & Guojia Tizhi Gaige Weiyuanhui [State Commission for Restructuring the
Economic System] (promulgated by the Standing Comm. Nat’l People’s Cong. May 15,
1992, effective May 15, 1992), arts. 30(6), 52-59, 61-62 (China) [hereinafter JCRO].
11. See JCRO, at art. 52.
12. See Gongsi Fa [The Company Law of the Peoples Republic of China]
(promulgated by the Standing Comm. Nat’l People’s Cong. Dec. 29, 1993, effective July 1,
1994), art. 112 [hereinafter CL 1993].
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meeting; to draft and formulate a number of important plans and basic
administrative systems for the company; to decide on the operational plans,
investment schemes, internal organizational structure of the company; and
to appoint and dismiss the senior management.13 Contrary to what pertained
to limited liability companies, the board of directors of joint–stock
companies (and therefore all listed companies) was also responsible for the
formulation of plans for the issuance of debentures. 14 As for the board
meetings, it was required that the board should have held at least two
meetings each year, the date of which should have been made known to all
directors ten days prior to the meeting, except for a provisional meeting. 15
The meeting could only have been held on condition that no fewer than half
of the directors were present, and the resolution of the board required the
approval of no fewer than half of all directors.16 The minutes of the board
meeting had to be signed by the directors present at the meeting.17
Next, the chairperson of the board, who was designated as the legal
representative of the company,18 was conferred with a great deal of statutory
powers under the legal framework of CL 1993. Other than procedural
powers (such as presiding over the general meeting and board meetings,
signing share certificates and debentures),19 the chairperson also had a lot
of substantive powers, such as inspecting the implementation of resolutions
of the board, calling for a board meeting,20 and other functions authorized
by the board collectively.21
Third, the nominations, qualifications, terms, duties, and liabilities of the
directors were also provided. The directors were appointed and replaced by
shareholders in the shareholders’ general meeting, 22 and could not be
removed from office before the expiry of their terms by the shareholders’
general meeting without cause. 23 And there was a list of passive
qualifications which prevented a person from being appointed as a
director.24 The term of office of directors was limited to no more than three
years, but reappointment was permitted. Furthermore, there were a number
of articles concerning the statutory duties of directors. Directors were
required to perform their duties faithfully, to uphold the interests of the
company, and to refrain from illegal conduct. Examples of this included
using their position for personal gain; taking bribes or accepting other
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
See CL 1993.
See Id. at art. 112(6).
See Id. at art. 116.
See CL 1993, at art. 114.
Id.
See Id. at arts. 57, 58.
2011]
507
unlawful monies; misappropriating or embezzling company assets; using
corporate property to provide loans for other parties or to provide
guarantees for the debts of shareholders or other individuals; engaging in
business competition or self–dealing; and disclosing company secrets. 25
Directors were also required to sign the minutes of the shareholders’ general
meeting, which were related to corporate decision making.26 In addition,
they were required to report to the company on the quantity of shares they
held, and the shares concerned could not be transferred during their terms of
office.27 As for listed companies, a reporting system to China Securities
Regulatory Commission (“CSRC”) was adopted, 28 and CSRC, after
receiving this information, was required to release the reports to the public
and the investors for reference.29 Liabilities were imposed where behaviors
of the directors violated these provisions. It was broadly expressed that
directors were liable to compensate the company if they breached laws,
administrative regulations, or the articles of association and caused damage
to the company.30 In the event that the resolutions of the board contravened
laws and administrative regulations and infringed the legal interests and
rights of shareholders, shareholders were conferred with the right of action
to stop such breach and infringement.31 Directors might also be responsible
for the resolutions of the board and might be liable for any resulting
compensation if the resolutions of the board violated laws, administrative
regulations, or articles of association and caused damage to the company,
except for the dissenting directors, whose opinions were recorded in the
minutes of the board meeting. 32 To prevent severe misconduct by the
directors, criminal liability by the directors for bribery, embezzlement, and
misappropriation by taking advantage of their offices was provided for by
the Standing Committee of the National People’s Congress (“SCNPC”).33
With these laws and regulations, the board of directors was established in
China. And it should be noted that this was the first time that a board
system independent from shareholders was introduced in China. Before
that, the board system had been either nonexistent or not completely
25. See CL 1993, at art. 59-62.
26. See Id. at art. 109.
28. Gupiao Faxing Yu Jiaoyi Guanli Zanxing Tiaoli [Provisional Regulations on the
Management of the Issuing and Trading of Shares], (promulgated by St. Council, Apr. 22,
1993, effective Apr. 22, 1993) art. 62 (China) [hereinafter PRMITS].
30. See CL 1993, at art. 63.
31. See CL 1993, at art. 111.
32. See CL 1993, at art. 118.
33. See Guanyu Chengzhi Weifan Gongsifa de Fanzui de Jueding[Decision
Concerning the Criminal Punishment of Violations of Company Law] (promulgated by The
Standing Comm. Nat’l People’s Cong. (Quanguo Renda Changweihui), Feb. 28, 1995,
effective Feb. 28, 1995), arts. 9-11 [hereinafter DCCPVCL].
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separate from the shareholders, due to overlapping identities of shareholders
and directors.
C. The Borrowed but Unique Board
Relatively speaking, Chinese law pertaining to the board of directors in
this period adopted a lot more from civil law jurisdictions than from
common law regimes. On one hand, some Anglo–American features were
shared by Chinese law, as some provisions in CL 1993 copied almost
exactly the corresponding articles in common law countries. For example,
the liability exemption for dissenting directors in the board meeting in
China appeared to closely follow the rule of the Model Business
Corporation Act in the U.S. 34 On the other hand, civil law traditions
demonstrated more effect on shaping the Chinese board system. For
example, the straightforward approach taken as to the term of office for
directors in China resembled the normal practice in civil law jurisdictions.
In Germany, members of the management board (i.e. the counterpart board
of directors in Germany) were appointed for a period not exceeding five
years, 35 and the Japanese maximum was two years. 36 Nevertheless, in
common law jurisdictions, the term of office for directors was more
complicated. In the UK, the term was determined by how the board
directors were “retired by rotation,”37 and in the U.S., it was decided by how
the terms were “staggered into groups.” 38 In these countries, the total
number of directors was divided into several groups, and at each annual
general meeting, the term of one group of board members expired and the
same number of new directors was chosen. Therefore, the term of directors
depended on how many groups the directors were divided into.
Comparatively speaking, Chinese law was as straightforward as civil law
jurisdictions in the sense that it spelled out directly the definite maximum
term of office.39
Particularly, the newly born legislation in China shared a certain degree
of similarity with Japanese law in terms of the details of legislative
techniques. For example, corporate laws in both countries specified the
minimum notice period for board meetings. Chinese companies were
34. See MODEL BUS. CORP. ACT § 8.24(d) (1984). It was stipulated that unless the
dissent of the director present at the board meeting was entered in the minutes of the
meeting, the director was deem to have assented to the corporate action taken. This section
is current through the 2007 edition.
35. See s. 84, para. 3, Aktiengesetz [AktG] [Stock Corporation Act], Sept. 6, 1965,
BGBL. I, last amended by Vorst [AG], July 31, 2009 (Ger.), available at
http://www.bundesrecht.juris.de/aktg/.
36. See SHŌHŌ [COMM. C.] art. 256. (Japan).
37. See, e.g., Companies Act, 1985, c. 6, tbl. A, art. 73 (Eng.).
38. See, e.g., MODEL BUS. CORP. ACT § 8.06.
39. See CL 1993, at art. 115.
2011]
509
required to have a ten day notice period,40 while the requirement in Japan
was one week. 41 In contrast, other countries (including other civil law
countries) usually left it for the corporation to decide how long such a
period should be. German law stated that the working methods of the board
were provided by the bylaws issued by the management board, implying
that there was no mandatory notice period for a board meeting.42 And in
common law regimes, the notice period for a board meeting was not
prescribed in the statutes, either. In both the UK and the U.S., a
reasonableness test is laid down in case law pertaining to the minimum
period of notice for a board meeting. The “reasonable” period could be a
matter of days, hours, or even minutes, depending on the circumstances.43 It
was concluded that both Japan and China regulated matters regarding the
board more strictly. The similarities of the board system in both countries
could further be witnessed by their regulatory approach to the duties of
directors, where the duty of loyalty was underscored and placed at the
centre of the rules governing director behaviors. In common law countries
including the UK and the U.S., duties of the directors were usually
categorized into several types, such as the duty of loyalty and the duty of
care.44 In contrast, civil law countries usually stressed one kind of duty that
was supposed to be able to cover others. In Germany, the duty of care stood
out to be the general principle of the duties of the directors, which covered a
number of more specific applications of this general duty.45 In Japan, the
duty of loyalty was regarded as the general principle which included other
rules as to director behavior in corporate legislations.46 By this comparison,
it was noted that Chinese company law adopted the same approach as its
Japanese counterpart, where only a duty of loyalty could be found in
company law while a duty of care was absent.47 In sum, more features of
Japanese law were learned by the Chinese legislature than those of other
countries.
More commonalities between the Chinese board and the board in civil
law countries, nevertheless, did not mean that Chinese law governing the
board of directors was converging towards civil law, or more specifically,
Japanese law, because these similarities were only in form and detail rather
See SHŌHŌ [COMM. C.] art. 259, para. 2 (Japan).
See AktG, § 77.
See Denis Keenan, SMITH & KEENAN’S COMPANY LAW 398 (12th ed. 2002); COX
& H AZEN , supra note 6, at 422.
44. See DAVIES, supra note 6, at 370-71, 380; COX & HAZEN , supra note 6, at 476.
45. See AktG §§ 77, 93.
46. See Hideki Kanda & Curtis J. Milhaupt, Re-examining Legal Transplants: The
Director’s Fiduciary Duty in Japanese Corporate Law, 51 AM . J. COMP. L. 887, 894
(2003).
47. Actually, the duty of care could also be found in the Japanese Civil Code, but this
duty is only in a general sense instead of aiming at the duty of a director. See NIPPON NO
MINPŌ [CIV. C] art. 644 (Japan).
40.
41.
42.
43.
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than in substance and structure. In fact, the differences between the board
system in China and that of developed countries were so acute that they
gave the Chinese legal arrangement its own distinctive features and placed it
in a camp of its own. At the board level, the Chinese board had far fewer
powers than its equivalents in advanced economies.48 In the UK, directors
might “exercise all the powers of the company” unless there were
limitations in the law or the memorandum and articles, and directions given
by special resolutions.49 In the U.S., similar provisions could be found in
Delaware General Corporation Law50 and the Model Business Corporation
Act. 51 In Germany, the Stock Corporation Act conferred on the
management board the sole duty to manage the corporation which could not
be delegated to others apart from a few exceptions.52 In Japan, the Reform
of Commercial Code in 1950 had created a board of directors which
managed all the business affairs of the company except for those under the
scope of powers of the shareholders’ general meeting.53 It was noteworthy
that boards of directors in these countries were all treated as the final,
decisive authority of a very broad scope of corporate affairs superior to the
general assembly. This was the so–called “board centralism.”54 In contrast,
the Chinese board did not have a range of decision–making powers and
rights as such. Under the legal framework of CL 1993, the shareholders’
general meeting was empowered with the rights of deciding the business
policies and investment plans, 55 while the board of directors was only
entitled to the rights as to business plans and investment programs.56 These
wordings implied that the general assembly, rather than the board of
48. See Wu Jianbin, Gouzhu Woguo Xiandai Qiye Zhidu De Kexue Falv Jichu:
Jianlun Jinyibu Wanshan Woguo Gongsi Lifa De Jige Wenti [Building up a Scientific Legal
Basis of China’s Modern Enterprise System: Also on Several Issues as to the Further
Improvement of China’s Corporate Legislations], 1 ZHONGGUO FAXUE [CHINESE LEGAL SCI.]
30, 32-34 (1998).
49. See Companies Act, 1985, c. 6, tbl. A, art. 70 (Eng.).
50. See DEL. CODE ANN. tit. 8, § 141(a) (2010). It was stated that the business and
affairs of every corporation should be, generally speaking, managed by or under the direction
of the board of directors saving the exceptions in the laws or the certificate of incorporation.
51. See MODEL BUS. CORP. ACT § 8.01(b). The idea of this section was generally the
same as Delaware General Corporation Law.
52. See Martin Gelter, The Dark Side of Shareholder Influence: Managerial
Autonomy and Stakeholder Orientation in Comparative Corporate Governance, 50 HARV.
INT’L L. J. 129, 157-60 (2009).
53. See Zenichi Shishido, Reform in Japanese Corporate Law and Corporate
Governance: Current Changes in Historical Perspective, 49 AM. J. COMP. L. 653, 662-65
(2001).
54. See Wu Jianbin, Xiandai Gongsi Zhili Jiegou De Xin Qushi [New Trends of
Modern Corporate Governance], 4 FAXUE ZAZHI [L. SCI. MAG.] 16 (1996). See also Michael
J Whincop, The Role of the Shareholder in Corporate Governance: A Theoretical Approach,
25 MELB. UNIV. L. REV. 418, 442-45 (2001); SHANGSHI GONGSI FALV GUIZHI LUN [ON THE
LEGAL REGULATIONS OF LISTED COMPANIES] 26-29 (Zhou Yousu ed., 2006).
55. See CL 1993, at art. 103.
56. See CL 1993, at art. 112.
2011]
511
directors, was the ultimate authority for making corporate strategies. Most
of the powers of the board were very soft, since the preliminary plans and
schemes made by the board 57 were subject to the approval of the
shareholders’ general meeting. 58 And the board of directors was also
required to report on its work to the shareholders’ general meeting and
implement the resolutions passed by the shareholders’ general meeting, 59
which meant that the residual powers as to the business operation of the
company not listed in the Law belonged to the general assembly rather than
to the board. From these prescriptive articles, it was found that the board of
directors in China was chiefly charged with the implementation of
shareholders’ resolutions and was not in the center of corporate
management. 60 Therefore, the legal setting in China was “shareholders
centralism” rather than “board centralism” and should be distinguished from
that of other countries.
Another important aspect that sets the Chinese board apart from other
jurisdictions is the legal representative system. In many jurisdictions, the
function of externally representing the company in dealings with third
parties was achieved by the board of directors collegially, which in turn
could authorize one or more directors to represent the company on
occasions at discretion. In the UK, the board as a whole acted as the
external representative of the company, 61 and might delegate any of their
powers to any managing director as they considered desirable.62 In the U.S.,
the board of directors collectively was thought of as the primary agent with
powers as extensively as the objects and purposes of the corporation
required.63 In theory, every director was entitled to represent the company
externally. 64 In Germany, the power of externally representing the
corporation was given to the management board collegially, and the articles
of incorporation or internal management (or job) allocations could entrust
individual members to execute certain specific managerial functions.65 In
Japan, the function of externally representing the company was fulfilled by
the representative director system (
or daihyō torishimariyaku)66
57. Id.
58. Id.
59. Id.
60. Chenxia Shi, What Matters in the Governance of the Board?—A Comparative
Perspective, 17 AUSTL. J. CORP. L 1, 14 (2004).
61. See K. L. ALEX LAU, A COMPARATIVE STUDY BETWEEN THE BOARDS OF
DIRECTORS IN MAINLAND PEOPLE’S REPUBLIC OF CHINA AND HONG KONG 8 (2005).
62. See Companies Act ,1985, c. 6, tbl. A, art. 72 (Eng.).
63. See COX & H AZEN , supra note 6, at 453.
64. See Gan Peizhong, Gongsi Daili Zhidu Lunlüe [Analysis of the Company Agency
System], 6 ZHONGGUO FAXUE [CHINESE LEGAL SCI.] 71, 72 (1997).
65. See JEAN J. DU PLESSIS ET AL., GERMAN CORPORATE GOVERNANCE IN
INTERNATIONAL AND EUROPEAN CONTEXT 50-51 (2007).
66. Andreas Moerke & Harald Dolles, Corporate Governance in Multinational
Corporations During Turbulent Times—Cases from the Automotive Industry 17 (Deutsches
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after the Reform of Commercial Code in 1950. The board, by its resolution,
could designate one or more directors as the representative director of the
company, and a company could appoint several representative directors at
the same time to represent the company separately.67 In sum, the law in
advanced economies usually assigned the board to represent the company
collectively. Flexibilities were provided so that the particular director and
the scope of authority to represent the company could be determined by
internal corporate decisions.68 In this regard, the legal representative system
in China was extraordinary, due to its singular and statutory nature. Under
the Chinese system, the legal representative was a natural person authorized
either by law or the articles of association of a company to act on behalf of
and to bind the company.69 Only one director could be appointed statutorily
as the legal representative and had the right to conduct business with
outsiders on behalf of the company, even if there were several directors in
the company. The purview of the legal representative was stipulated by the
laws, leaving no room for corporate autonomy to step in. So, the flexible
board representation and delegation system in other countries was replaced
by the one–person and stereotyped legal representative system in China that
should be distinguished from other jurisdictions. In general, the board
system established in this period was featured with Chinese characteristics
in the sense that on one hand, the board of directors was inferior to the
shareholders’ general meeting; but on the other hand, within the limited
powers of the board, the legal representative, by controlling the power to
conduct external transactions with third parties on behalf of the company,
dominated a substantial portion of them.
D. Rationale for the Uncommon Legal Settings
The Chinese–style legal settings as to the board of directors should be
read in the socio–economic context at that time. Above all, abandoning
board centralism did not mean that Chinese policymakers were not aware of
the international prevalence of this trend in the drafting of company laws in
the early 1990s. In fact, they were very hesitant to empower the board, as
could be seen by the deviations between JCRO and CL 1993. Although it
Institut Für Japanstudien, Working Paper No. 04/3, 2004), available at http://cosmic.rrz.unihamburg.de/webcat/hwwa/edok05/f10908g/WP04-03.pdf.
67. See SHŌHŌ [COMM. C.] art. 261 (Japan).
68. See Yang Ji, Zhongguo Gufen Gongsi Fading Dabiaoren Zhidu De Cunfei [The
Maintanence or Abolition of the Legal Representative System in Chinese Joint Stock
Corporations], in ZHUANXING ZHONG DE GONGSIFA DE XIANDAIHUA [MODERNIZING
COMPANY LAW IN TRANSFORMATION] 137 (Wang Baoshu ed., 2006).
69. See Minfa Tongze, Diliujie Quanguo Renmin Daibiao Dahui Changwu
Weiyuanhui [General Principles of Civil Law] (promulgated by the Standing Comm. of the
Nat’l People’s Congress, Apr. 12, 1986, effective Apr. 12, 1986), art. 38 (China) [hereinafter
GPCL].
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513
was clearly stated in the former that the board of directors was the standing
corporate authority, 70 this expression was removed in the latter and
substituted with the provision that the general assembly was the corporate
authority.71 This change signaled the truth: that the transferring of powers
from the board to the shareholders’ general meeting was deliberate and
purposeful. Generally speaking, the powerlessness of the board reflected
the fact that the government did not have full confidence in this corporate
organ due to a number of reasons.
First, empowerment of the board did not fit into the need for the
protection of state–owned assets.
Undeniably, corporate legislative
movements in the early 1990s were to facilitate the establishment of a
modern enterprise system in state–owned enterprises (“SOEs”). As the
most important feature, state–owned assets took up the vast majority of the
total assets of SOEs, and protection of these assets was one of the major
concerns during the law drafting process. 72 Legal arrangements for the
board of directors, especially the range of its rights and powers, should also
serve the purpose of transforming SOEs into modern enterprises and should
not conflict with the protection with state–owned assets. If the board
centralism model utilized in other countries were adopted by China, the
Chinese board would have the final decision–making powers on the vast
majority of corporate matters and become the corporate organ, which, at
least in law, actually directed the SOEs. However, such arrangements were
not desirable in the Chinese context, because it implied that hundreds of
billions of state–owned assets would be in the hands of the board. In so
doing, the board might hold discretion to sell, or even dispose of, state–
owned assets where such a decision was thought to accord with the business
strategies of the company. Regardless of whether such business behaviors
would benefit the incorporated SOEs or not, the direct result of them would
have been the loss of state–owned assets, or reduction of the total quantity
of state–owned assets in the whole economy, which might eventually
threaten the cornerstone of socialism, where public ownership dominated by
state ownership should account for the majority position of the whole
economy.73 Furthermore, it would also open the door for misappropriation
and encroachment of state–owned assets by the directors. Although ex post
70. See JCRO, at art. 52.
71. See CL 1993, at art. 112.
72. See Ma Zhen-Jiang, Goujian Dongshihui Zhongxin Zhuyi De Gongsi Faren Zhili
Jiegou [Establishing Corporate Governance Structure Centered with Board of Directors], 2
DONGBEI SHIDA XUEBAO (ZHEXUE SHEHUI KEXUE BAN) [J. NORTHEAST NORMAL UNIV. (PHIL.
& SOC. SCI)] 75, 77 (2009).
73. Guanyu Jianli Shenhuizhuyi Shichangjingji Tizhi Ruogan Wenti de Jueding
[Decision on Some Issues Regarding the Establishment of a Socialist Market Economic
System] (promulgated by 3rd Plenary Meeting of the 14th Session of the Standing Comm. of
the Chinese Communist Party, Nov. 14, 1993, effective Nov. 14, 1993), arts. 8-9 [hereinafter
DSIRESMES].
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administrative and judicial actions to correct these misbehaviors made
disgorgement likely, these actions could be ineffective, incomplete, or even,
in some cases, fruitless. The disadvantages of ex post actions to curb
directors’ misbehaviors rendered the empowerment of the board
inappropriate in China. In this regard, to put state–owned assets in the
hands of the managing directors would possibly not be in line with the
sanctity of public property, on which there was an emphasis in a socialist
economy like China. 74 If board centralism was not introduced, this evil
door would be closed, or at least not open so widely because the board was
not at the power center of dealing with state–owned assets. Hence,
empowerment of the board of directors was not regarded as advantageous.
Instead, it was thought safer to confine the rights and powers of the board to
avoid any trouble.
Second, the witnessed tension between empowerment of the board of
directors and the appropriate constraints over them in developed countries
also discouraged the establishment of a powerful board. Obviously, if board
centralism was set up as the general principle, then the law had to be
concerned with providing a framework of rules which constrained the
potential abuse of powers by directors. Unfortunately, the right balance
between these two ends was not struck in an appropriate manner even in
advanced economies with hundreds of years of corporate law practice.
Actually, this had been an age–old problem which was constantly revisited
by generations of rule makers, who usually changed company law in order
to address the last corporate scandal rather than successfully identify where
the next risk would come from.75 And in the years before the drafting of CL
1993, the defects of board centralism were gradually exposed by the abuse
of powers of directors case by case in other jurisdictions. To remedy the
deficiencies reflected, the board centralism model, though not abolished,
was being modified by setting up more checks and balances in corporate
governance, such as interference of institutional shareholders in insider
control, employee participation in corporate governance, and supervision of
banks and other financial institutions. 76 However, the hot debates that
drastically increased from 1980s onwards still did not have any definite
conclusions by the early 1990s. In the UK, the significant Cadbury Report
came out in 1992, with the longest chapter discussing various aspects of the
74. See XIANFA art. 12 (1982) (China); XIANFA art. 12 (1993) (China).
75. See DAVIES, supra note 6, at 370; Gordon Walker, Corporate Governance in
East Asia: Prospects for Reform, in CORPORATE GOVERNANCE: AN ASIA-P ACIFIC
CRITIQUE 589-90 (Low Chee Keong ed., 2002).
76. See Zhu Bo–Yu, Gongsi Faren Zhili Jiegou De Lishi Yanbian Ji Dianxing Moshi
[The Historical Evolution and the Typical Model of Corporate Governance Structure], 6
SHANDONG DAXUE XUEBAO (ZHEXUE SHEHUI KEXUE BAN) [J. SHANDONG UNIV. (SOC. SCI.)]
66, 69-70 (2001).
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515
board,77 but the feasibility and impact of this report was yet to be seen at
that time. And in the U.S. (the origin of the debates on corporate
governance movements), although corporate law amendments had taken
place in some of the states,78 a nationwide consensus— a product of years of
development and preparation—was still on its way. 79 Against the
background that the board centralism model in other countries was facing
unprecedented challenges, it would be understandable that China did not
adopt this model immediately since this model might or might not be
retained in the near future in advanced economies. Particularly, as a
country where the modern corporate system was only in place for a few
years and corporatization was still in its infancy, it would have been too
demanding for China to foresee the future of the retaining but modified
board centralism. 80 Taking all these elements into consideration, a
conservative but safe measure was not to strengthen, but to weaken the role
of the board of directors.
In addition, the legal representative system was a continuation of the
previous factory manager responsibility system in SOEs. In the 1980s, the
ambiguous responsibility systems were identified as one of the roots of the
low efficiency of SOEs. To change this vague status, the simplest method
was to center all the responsibilities on one person. And as a necessary
condition for the establishment of this mechanism, all powers should also be
concentrated on one person. The product of this idea was the factory
manager responsibility system, which was pushed forward to the frontier of
SOE reforms swiftly during the whole of the 1980s. Under this system,
powers and responsibilities in the management of SOEs were all centered in
one person, i.e. the factory manager. By occupying the central position in
the firm, this leader was then the single head of the enterprise and
responsible for the whole system of production, operation and
77. See COMM. ON THE FIN. ASPECTS OF CORPORATE GOVERNANCE & GEE & CO.,
LTD. REPORT OF THE COMMITTEE ON THE FINANCIAL ASPECTS OF CORPORATE GOVERNANCE
(1992) [hereinafter FINANCIAL ASPECTS].
78. In 1983, Pennsylvania was the first state that passed a constituency statute which
permitted the exercise of fiduciary duties with regard to the effects on stakeholders for the
sake of the modification of board centralism. This was followed by twenty-eight other states
over the next decade. See Adam Winkler, Corporate Law or the Law of Business?:
Stakeholders and Corporate Governance at the End of History, 67 LAW & CONTEMP. PROBS.
109, 123 (2004).
79. The major report from the American Law Institute, namely PRINCIPLES OF
CORPORATE GOVERNANCE: ANALYSIS AND RECOMMENDATIONS, which had a standing on the
legal functions, powers and duties of the board of directors, was published in 1994, one year
after the promulgation of CL 1993. See generally A.L.I., PRINCIPLES OF CORPORATE
GOVERNANCE, ANALYSIS AND RECOMMENDATIONS (1994).
80. For an analysis of the modified board centralism model, see Bo–Yu, supra note
76, at 70.
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management.81 As part of the major management powers of the company,
the power to represent the company was also exclusively given to the
factory manager. 82 Later, this kind of representation was legitimately
confirmed as the legal representative system in GPCL,83 which designated
one person to enjoy the unique power to represent the company externally.
Owing to the broad scope of application of this piece of basic law, the
legal representative system was, at this time, made applicable to all legal
entities in China in addition to SOEs. Corporate legislation in the early
1990s went on with this special representation system, which reflected the
fact that Chinese policymakers did not completely emancipate from the old
system that emphasized the leading role of a single head in the power
structure of corporate management and operation.
Although the
introduction of a board of directors under CL 1993 made collective exercise
of corporate management powers a necessary requirement, with the
maintenance of the legal representative system, power concentration in one
person was maintained to a large extent. Under the legal arrangement of
this Law, one single board member attained a legal status superior to that of
other directors due to the unique and extensive powers in representing the
company externally. In so doing, a substantive amount of power of the
board was concentrated on a single person, which partially mirrored the old
practice. Possibly, apart from the inertial thinking about enterprise
management, the preservation of the idea of a single leader was to reduce
the pain in the reform process. Under this legal setting, the former factory
manager could be easily transformed into the legal representative of the
company, and therefore his central position in the enterprise, by
monopolizing the power to deal with external business with third parties,
was sustained. 84 In short, the legal representative system reflected the
endurance of the old factory manager responsibility system and the
continuity of the systems before and after reform.
81. See Quanmin Suoyouzhi Gongye Qiyefa [Law of Industrial Enterprises Owned
by the Entire People] (promulgated by 1st Mtg. Nat’l People’s Cong. [Diqijie Quanguo
Renmin Daibiao Dahui Diyici Huiyi], Apr. 13, 1988, effective Aug. 1, 1988) art. 45 (China).
82. See Liu Jing-wei, Lun Fading Daibiaoren [On Legal Representative], 2 GUIZHOU
DAXUE XUEBAO (SHEHUI KEXUE BAN) [J. GUIZHOU UNIV. (SOCIAL SCIENCE)] 13, 17-19
(2002); LIU JINGWEI, DANGDAI ZHONGGUO MINSHI LIFA WENTI [ISSUES OF CIVIL
LEGISLATIONS IN MODERN CHINA] 70-73 (2005).
83. GPCL, at art. 38
84. See Xu Yanbing, Lun Fading Daibiaoren Zhidu De Biduan Jiqi Wanshan [On
the Drawbacks and Improvement of the Legal Representative System], in GONGSI ZHILI:
GUOJI JIEJIAN YU ZHIDU SHEJI [CORPORATE GOVERNANCE: INTERNATIONAL REFERENCE AND
INSTITUTION DESIGN] 1 (Bintian Daodai & Gu Gongyun eds., 2005).
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II. ACTIONS AT THE TURN OF THE CENTURY
A. Efforts to Promote the Board
The limited legal position of the board of directors in black letter law did
not necessarily mean that the board was powerless in reality. According to
two surveys of the companies listed on the two domestic stock exchanges,
the Chinese board had a much more important role in the governance of
many listed companies than prescribed in the laws. In a survey of the
companies listed in Shanghai, 71.7% of the interviewed companies thought
that the board of directors was the key to the promotion of corporate
efficiency and competitiveness, and 50.3% of them chose the board of
directors as the proper organ to be responsible for the drafting of corporate
development strategies. 85 Another survey of the companies listed in
Shenzhen found that 42% of the boards of directors in the investigated
companies had relatively broad investment decision–making powers, and
these companies had better corporate performance.86 This implied that a
more powerful board could contribute to superior corporate performance.87
Furthermore, with the continuous authority expansion of the board, the
practical position of the monopolistic legal representative in corporate
governance was also upgrading. Without proper checks and balances, this
key player in the company might abuse the exclusive powers in dealing with
third parties. Responsive to the potential problems associated with the
gradual empowerment of the board in practice, more laws and rules
followed. Among them, the Guidelines for the Articles of Association of
Listed Companies 1997 (“GAALC 1997”) and Code of Corporate
Governance for Listed Companies (“CCGLC”) stood out. These rules,
generally speaking, dealt with issues regarding two layers of the board
system: the board as a whole and the individual board members. These
aspects of the reform are now reviewed in turn.
85. Shanghai Zhengquan Jiaoyisuo [Shanghai Stock Exchange], Shangshi Gongsi
Zhili Wenjuan Diaocha JieguoYu Fenxi [Results and Analysis of the Survey of Corporate
Governance for Listed Companies], 12 SHANGSHI GONGSI [LISTED COMPANIES] 11, 25
(2000).
86. See He Weidong, Shenjiaosuo Shangshi Gongsi Zhili Zhuangkuang Diaocha
Fenxi Baogao [Report on the Survey of Corporate Governance for Listed Companies of
Shenzhen Stock Exchange], ZHENGQUAN RIBAO [SEC. DAILY], Dec. 18, 2003.
87. The value orientation of the board of directors is efficiency. A corporate power
structure centralized on the board is advantageous to quick response to the ever–changing
market. See Huang Zikai, Dongshihui De Zhidu Jiazhi: Gongsi Liyi [Institutional Value of
the Board of Directors: Corporate Interests], 3 ZHEJIANGSHENG ZHENGFA GUANLI GANBU
XUEYUAN XUEBAO [J. ZHEJIANG C. POL. & L.] 22 (2001). Therefore, the gap between law
and practice of the Chinese board could be understood in the sense that, with the deepening
of market–oriented reform, the enterprise has to be more swiftly responsive to market
changes, and therefore a centralized board emerges.
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1. Confirming Powers of the Board
As a response to its rising status in reality, more powers were conferred
on the board of directors in laws and rules, such as formulating the listing
plan of securities; the plan for major mergers and stock repurchases; the
revision of the articles of association; deciding on security matters under the
authorization of the shareholders’ general meeting; the reward and
punishment issues of senior management; managing the disclosure of
corporate information; putting forward to the shareholders’ general meeting
the proposal relating to the appointment or removal of accounting firms;88
and interpreting the articles of association of the company.89 The board also
enjoyed the discretion of whether to include the proposal submitted by
shareholders in the agenda of the general meeting90 and had the power of
using proxy solicitation in the shareholders’ general meeting. 91 The board
was further granted power to exercise any rights authorized by the
shareholders’ general meeting.92
2. Building up Checks and Balances Within the Board
To establish a more appropriate system of power distributions, more
checks and balances were built within the board. First, in spite of the
maintenance of powers of the chairperson,93 some restrictions were imposed
on the collective authorization of powers on the chairperson by the board.94
Some procedural remedies were also given where the chairperson, as the
legal representative, failed to perform his duties.95 Second, some rules were
provided to avoid the undue influence of an interested director, such as
abstention in the voting procedure96 or withdrawal from a board meeting.97
88. See Shangshi Gongsi Zhangcheng Zhiyin [Guidelines for the Articles of
Association of Listed Companies] (promulgated by the Securities and Futures Commission
No. 16, Dec. 16, 1997, effective Dec. 16, 1997), art. 94 [hereinafter GAALC 1997].
91. See Shangshi Gongsi Zhili Zhunze [Code of Corporate Governance for Listed
Companies] (promulgated by the Standing Comm. Nat’l People’s Cong., Jan. 7, 2002,
effective Jan. 7, 2002) art. 10 (China), [hereinafter CCGLC]; Guanyu Jiaqiang Shehui
Gongzhonggu Gudong Quanyi Baohu De Ruogan [Guiding Provisions on Strengthening the
Protection of the Rights and Interests of General Public Shareholders], (promulgated Dec. 7,
2004, effective Dec. 7, 2004) art. 1(3) (China) [hereinafter PSPRIGPS].
92. See CCGLC, at art. 7.
93. See GAALC 1997, at art. 99.
95. See Qiye Faren Fading Daibiaoren Dengji Guanli Guiding (99 Xiuding)
[Provisions for the Management of Registration of Legal Representative in Enterprises as
Legal Persons (1999 Revision)] (promulgated by Nat’l Admin. Bureau of Indus. &
Commerce, June 23, 1999, effective June 23, 1999) art. 7 (China).
96. See GAALC 1997, at art. 83; Guanyu Shangshi Gongsi Wei Taren Tigong
Danbiao Youguan Wenti De Tongzhi [Circular on Issues Concerning Providing Guarantees
2011]
519
Third, certain matters were required to be approved by the board of
directors by a special resolution.98 Fourth, committed structures, such as
corporate strategy committee, audit committee, nominating committee, and
remuneration committee were developed by the board.99 Fifth, separation
between the board and senior management was also emphasized so that the
board could be more independent in monitoring the management team. The
number of directors who also acted as the managers, vice managers, or other
senior management staff was set as not exceeding half of the total
directors. 100 In answering the increasing adoption of chief executive
officers in China,101 division between the chairperson of the board and the
chief executive was highly recommended.102
3. Strengthening the Duties of Directors
Due to the weaknesses in CL 1993,103 subsequent changes were made to
revolutionize duties of directors in two aspects. First, the former duty of
loyalty was further elaborated by more specific prohibitive acts, such as: not
exercising their powers beyond their scope of duties, not using inside
information to reap benefits for themselves or others, not availing
themselves or others of invading or accepting business opportunities of the
company, not accepting the commission associated with the transaction with
the company without informed approval of the shareholders’ general
meeting,104 and not suspending or delaying a general meeting which might
for Third Party of Listed Companies] (promulgated by the China Securities Regulatory
Comm., June 6, 2000, effective June 6, 2000) art. 5 (China).
98. See Guanyu Guifan Shangshi Gongsi Yu Guanlianfang Zijin Wanglai Ji
Shangshi Gongsi Duiwai Danbao Ruogan Wenti De Tongzhi [Circular on Several Issues
Concerning the Regulation of Financial Transactions Between Listed Companies and
Affiliated Parties and External Guarantees of Listed Companies] (promulgated by the China
Securities Regulatory Comm., Jan. 7, 2004, effective Jan. 7, 2004) art. 2(3) (China)
[hereinafter Circular on Several Issues Concerning the Regulation of Financial Transactions
between Listed Companies and Affiliated Parties and External Guarantees of Listed
Companies]; Guanyu Guifan Shangshi Gongsi Shiji Kongzhiquan Zhuanyi Xingwei
Youguan Wenti De Tongzhi [Circular on Regulating the Transfer of Actual Control over
Listed Companies] (promulgated by the China Securities Regulatory Comm., Jan. 7, 2004,
effective Jan.7, 2004) art. 3 (China).
99. See CCGLC, at arts. 52-58.
100. See GAALC 1997, at art. 118.
101. See, e.g., Han Qi, Cong Geren Yezhu Dao CEO [From Individual Entrepreneur
to CEO], 5 GUAN L I X IAN D AI H UA 20, 24 (2001) (China).
102. See Guanyu Shenhua Daxing Qiye Jituan Shidian Gongzuo Yijian De Tongzhi
[Opinions on Deepening the Pilot Reforms in Large Enterprise Groups] (promulgated by St.
Council, Apr. 29, 1997, effective Apr. 29, 1997) art. 2(3) (China).
103. See Mary L. Riley, Directors’ Liability in PRC Companies, 6(8) INT’L COMPANY
& COMMERCIAL L.REV. 292 (1995).
520
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pass a resolution against them.105 And the listed companies were allowed to
impose more specific duties on the directors where they thought fit.106
Second, two new kinds of duties, the duty of care and duty of good faith,
were established for board members. Directors were required to exercise
the rights conferred by the company “carefully, earnestly, and diligently.” 107
Listed companies were encouraged to lay down specific measures as to the
effective implementation of “the duty of good faith.” 108 The content of
these new duties was also outlined by listing a number of specific
prescriptions, such as reading the business and financial reports of the listed
companies carefully and keeping abreast of the business operation and
management of the company; exercising the rights of management and
disposal conferred by the company in person without the manipulation of
others;109 ensuring adequate time and energy for the performance of their
duties;110 attending the board meeting in a diligent and responsible manner
and expressing clearly their opinions on the topics discussed; 111 strictly
fulfilling the undertakings they made publicly; 112 attending the relevant
training to learn more about their rights, obligations, and duties;
familiarizing themselves with relevant laws and regulations; and mastering
relevant knowledge necessary for acting as directors.113 It was even stated
that all directors in a listed company bore the duty of good faith for the
regular convening of the shareholders’ general meeting.114
4. Enhancing the Accountability of Directors
A number of devices were enacted in this period to reinforce the
accountability of directors. First of all, the board may propose the
shareholders’ general meeting to dismiss a director who failed to attend two
105. See Shangshi Gongsi Gudong Dahui Guifan Yijian (1998 Nian) [Regulatory
Opinions on the Shareholders’ General Meeting of Listed Companies (1998)] (promulgated
by China Sec. Reg. Comm’n, Feb. 20, 1998, effective Feb. 20, 1998) art. 15 (China)
[hereinafter ROSGMLC 1998)].
108. See Guanyu Dui Gongkai Faxing Gupiao Gongsi Jinxing Fudao De Tongzhi
[Circular on Assistance for Companies Offering Public Shares] (promulgated by the China
Securities Regulatory Comm. [Zhongguo Zhengquan Jiandu Guanli Weiyuanhui], Sep. 5,
1995, effective Sep. 5, 1995) art. 5 (China).
114. See Shangshi Gongsi Gudong Dahui Guifan Yijian (2000 Nian Xiuding)
[Regulatory Opinions on the Shareholders’ General Meeting of Listed Companies (2000
Revised ed.)], promulgated by China Sec. Reg. Comm’n [Zhongguo Zhengquan Jiandu
Guanli Weiyuanhui], May 18, 2000, effective May 18, 2000) art. 2 (China) [hereinafter
ROSGMLC 2000].
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521
consecutive board meetings without authorizing other directors to represent
him/her. 115 In addition, all directors of the listed company would be
charged with joint and several liabilities in certain cases.116 Civil liabilities
of the directors were further consolidated in GAALC 1997 and judicial
interpretations by upholding lawsuits against directors. Both the company
and the shareholders could sue the company directors based on the articles
of association.117 And shareholders, as clarified by judicial interpretations,
were entitled to bring lawsuits against the resolution of the board of
directors detrimental to their legal interests, 118 or against the directors
directly where they engaged in misrepresentation of the company. 119 For
administrative liabilities, CSRC and the stock exchanges could impose
sanctions on directors who did not duly perform their duties, such as
reprimand, warning, fine, suspension, and banning from the market.120 The
regulators might also instruct listed companies to remove incapable
directors according to legal procedures in certain circumstances. 121
Criminal liabilities of directors were also enhanced in a number of ways in
Criminal Law 1997 (1997
).122
116. See Circular on Several Issues Concerning the Regulation of Financial
Transactions Between Listed Companies and Affiliated Parties and External Guarantees of
Listed Companies, at art. 2; Zhengquanfa [Securities Law 1997] (promulgated by Standing
Comm. Nat’l People’s Cong. [Quanguo Renda Changweihui], Dec. 29, 1998, effective July
1, 1999) arts. 42, 63 (China) [hereinafter SL 1997].
118. Guanyu Zhou Zhengyi Zhuanggao Pudong Fazhan Yinhang Yaoqiu Chexiao
Zengfa Xingu Yi’an Deng Yilei Jiufen De Tousu Yingfou Shouli De Fuhan [Circular
Regarding the Lawsuit by Zhou Zhengyi Against Pudong Development Bank Seeking to
Withdraw the Resolution of Issuance of Additional Shares by Supreme People’s Court]
(promulgated by the Sup. People’s Ct. [Zuigao Renmin Fayuan], Nov. 21, 2002, effective
Nov. 21, 2002) (China) [hereinafter Zhengyi Lawsuit].
119. See Guanyu Shouli Zhengquan Shichang Yin Xujia Chenshu Yinfa De Minshi
Qinquan Jiufen Anjian Youguan Wenti De Tongzhi [Circular on the Relevant Issues
Concerning the Acceptance of Civil Tort Dispute Cases Caused by Misrepresentations in the
Securities Markets] (promulgated by the Sup. People’s Ct. [Zuigao Renmin Fayuan], Jan. 15,
2002, effective Jan. 15, 2002) (China) [hereinafter Dispute Cases]; Guanyu Shenli
Zhengquan Shichang Yin Xujia Chenshu Yinfa De Minshi Peichang Anjian De Ruogan
Guiding [Provisions Governing the Adjudication of Civil Compensation Cases Based upon
Misrepresentations in the Securities Markets] (promulgated by the Sup. People’s Ct. [Zuigao
Renmin Fayuan], Jan. 9, 2003, effective Feb. 1, 2003) (China).
120. See Chenxia Shi & Hu Bin, China, in DIRECTORS’ PERSONAL LIABILITY FOR
CORPORATE FAULT: A COMPARATIVE ANALYSIS 115, 124-26 (Helen Anderson ed., 2008).
121. See Guanyu Tigao Shangshi Gongsi Zhiliang Yijian De Tongzhi [Opinions on
Improving the Quality of Listed Companies] (promulgated by St. Council [Guowuyuan],
Oct. 19, 2005, effective Oct. 19, 2005) art. 21 (China).
122. See Nian Xingfa [Criminal Law] (promulgated by the Standing Comm. Nat’l
People’s Cong. [Quanguo Renmin Daibiao Dahui], Mar. 14, 1997, effective Oct. 1, 1997)
arts. 163, 165, 166, 169, 219, 271, 272 (China). For an introspection of criminal liabilities of
directors under Criminal Law 1997, see LI YANBING, SHANGSHI GONGSI GAOGUAN ZHIWU
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5. Improving Incentive Mechanisms
The incentive mechanisms of directors were also improved in two
aspects. First, to boost creative corporate management of directors in a
risky market without exposing them to excessive liabilities, liability
insurance was encouraged to be purchased for the directors after approval
by the shareholders’ general meeting. 123 Second, to provide efficient
managerial incentives by linking management compensation and long–term
corporate performance together, equity–based incentive schemes were
reintroduced.124 At the turn of the new century, the establishment of long–
term equity incentives in SOEs was referred to as one of several policies
concerning SOE reform125 and building up such mechanisms was later fully
implemented in target SOEs. 126 As a result of the orientation of these
policies, the number of listed companies experimenting long–term equity–
based incentive packages kept increasing. By the end of 2004, there had
been 149 A–share companies that implemented stock incentive plans in a
variety of manners.127
FANZUI WENTI YANJIU [THE CRIMINALIZATION OF BREACHES OF FIDUCIARY DUTY BY THE
DIRECTORS AND MANAGEMENTS OF LISTED COMPANIES] 150-53 (2006).
124. As a matter of fact, stock–related incentivized pay arrangements could be traced
back to corporate laws prior to the establishment of New China. See WANG DANRU, QIYE
ZUZHI [ENTERPRISE ORGANIZATIONS] 206 (1936). And some preliminary attempts were tried
in the 1980s to reform the compensation system. See Takao Kato & Cheryl Long, Executive
Compensation, Firm Performance, and Corporate Governance in China: Evidence from
Firms Listed in the Shanghai and Shenzhen Stock Exchanges, 54 ECON. DEV. & CULTURAL
CHANGE 945, 951-954 (2006).
125. Guanyu Guoyou Qiye Gaige He Fazhan Ruogan Zhongda Wenti De Jueding
[Decision on the Major Issues regarding SOE Reform and Development] (promulgated by
the Central Comm. of the Chinese Communist Party [Zhongguo Gongchandang Zhongyang
Weiyuanhui], Sep. 22, 1999, effective Sep. 22, 1999) art. 11 (China); Guoyou Dazhongxing
Qiye Jianli Xiandai Qiye Zhidu He Jiaqiang Guanli De Jiben Guifan (Shixing) [Basic Rules
of the Establishment of Modern Enterprise System and the Strengthening of Management in
State-owned Large-and-Medium Size Enterprises (Provisional)], (promulgated by the Gen.
Office of the St. Council [Guowuyuan Bangongting], Sep. 28, 2000, effective Sep. 28, 2000)
art. 4(27) (China); Zhongyang Qiye Fuzeren Jingying Yeji Kaohe Zanxing Banfa
[Provisional Measures for Performance Evaluation of Leaders of Central Enterprises],
(promulgated by the St. Owned Assets Supervision & Admin. Comm’n [Guoyou Zichan
Jiangu Guanli Weiyuanhui], Dec. 28, 2009, effective Jan. 1, 2010) (China).
126. Guanyu Guoyou Gaoxin Jishu Qiye Kaizhan Guquan Jili Shidian Gongzuo De
Zhidao Yijian [Guidelines for the Experiment of Developing Equity Incentive Mechanisms
in State-owned High-tech Enterprises] (promulgated by the General Office of the State
Council [Guowuyuan Bangongting], Sep. 17, 2002, effective Sep. 17, 2002) (China).
127. See CAO YANG, ZHONGGUO SHANGSHI GONGSI GAOGUANCENG GUQUAN JILI
SHISHI XIAOGUO YANJIU [STUDY ON THE EFFECT OF THE IMPLEMENTATION OF EXECUTIVE
STOCK INCENTIVES BY CHINESE LISTED COMPANIES] 75 (2008).
2011]
523
B. Constant Mixing and Internalization
The adjusted board system in China at this stage continued to manifest
varied characteristics when compared with its equivalents in other countries.
On one hand, U.S. norms of the board were gradually infiltrated into the
Chinese context. This was initially visible by the adoption of committee
structures (the audit, compensation, and nomination committees) in China,
which were better developed in U.S. public companies than in other
countries. 128 In addition, liability insurance for directors also originated
from the U.S., where both jurisprudence from the courts and legislatures of
the state dated from the 1940s and 1950s upheld the protection of directors
from personal liability for business decisions.129 Similar insurance polices
were less developed in other countries (the UK), or without statutory
backup (Germany), or had a shorter history (Japan).130 Utilizing liability
insurance for directors in China indicated an inclination towards adopting a
more U.S.–based practice. Moreover, the promotion of equity–based,
performance–oriented pay and award at the turn of the century was also a
signal that the Chinese board increasingly emulated the American model.
As a matter of fact, the contrast with incentive mechanisms in developed
countries was stark in the sense that stock options and other incentivized
pay with a long–term orientation were only emphasized in the U.S. at that
time.131 In other common law countries, such as the UK, variable pay of
this kind was a less important component of the remuneration package.132
And in civil law countries, like Germany, equity–based remuneration like
stock options was of only negligible importance. 133 Japanese law even
effectively precluded firms from using equity–based schemes like stock
options as part of the compensation package for top management prior to
128. See Henry Hansmann & Reinier Kraakman, The Basic Governance Structure, in
THE ANATOMY OF CORPORATE LAW: A COMPARATIVE AND F UNCTIONAL APPROACH, 5-15
(2004).
129. See Joseph P. Monteleone & Nicholas J. Conca, Directors and Officers
Indemnification and Liability Insurance: An Overview of Legal and Practical Issues, 51 BUS.
L. 573, 574 (1996).
130. Shi Tongling & Liu Zhengyu, Gongsi Dongshi Zeren Baoxian Falv Wenti Yanjiu
[On Legal Issues of Company Directors Liability Insurance], 3 LIAONING SHIZHUAN XUEBAO
(SHEHUI KEXUEBAN) [J. LIAONING TEACHERS COLL. (SOC. SCI. EDITION)] 137 (2007).
131. After the enactment of the 1950 Revenue Act, the use of stock options has
continued to skyrocket in the U.S. to earn a major share of managerial pay as a response to
the favorable tax consideration. See Symposium, Current Issues in Executive Compensation,
3 N.Y.U. J.L. & BUS. 519, 522 (2007).
132. See Brian R. Cheffins & Randell S. Thomas, The Globalization
(Americanization?) of Executive Pay, 1 BERKELEY BUS. L.J. 233, 241-42 (2004).
133. Stefan Prigge, A Survey of German Corporate Governance, in COMPARATIVE
CORPORATE GOVERNANCE: THE STATE OF THE ART AND EMERGING RESEARCH 967 (Klaus J.
Hopt, Hideki Kanda, Mark J. Roe, Eddy Wymeersch & Stefan Prigge eds., 1998).
524
[Vol. 19:3
1997,134 and qualifications and experiences of the directors were the more
important factors that impacted their incomes.135 The shift towards equity–
based incentive plans in China constituted a significant move to the
American model.
On the other hand, philosophies of other countries continued to shape the
board system in China. The emphasis on the separation of chairperson and
CEO was an example where China did not imitate the U.S. model. In the
U.S., the combined position of board chairperson and CEO was a universal
part of boardroom structure, and splitting these two roles received only
modest support from listed companies.136 The idea of separating the roles
of the chairperson and the CEO of the board was taken from other business
cultures, particularly Europe. In the UK and continental European
countries, the roles of chair and chief executive were typically divided.137
For example, in the UK, the Cadbury report recommended that there be a
clearly accepted division of responsibilities at the head of a company, and
the two roles should not be combined in one person.138 Empirical evidence
also revealed that by the mid–1990s, only about one–third of the largest
publicly traded companies had a combined chairperson and CEO in the
UK. 139 And in the two–tier board systems in continental European
countries, such as Germany, the separation of the positions of board
chairperson and CEO was also common. 140 It was noticeable that the
division of chairperson and CEO in China’s listed companies was more
inspired by the European traditions than that of the U.S.
The overall power structure of the board of directors in China, however,
was not altered because of these reform measures. It was obvious that the
134. See Hideaki Kiyoshi Kato, Mi Luo & James Schallheim, An Empirical
Examination of the Costs and Benefits of Executive Stock Options: Evidence from Japan, 78
J. F IN. ECONOMIES 435, 436 (2005). Sun Li, GONGSI ZHILI JIEGOU DE GUOJI BIJIAO: RIBEN
QISHI [OF IMPROVING CORPORATE MANAGEMENT: THE ENLIGHTENMENT FROM JAPAN] 65
(2008).
135. See Kenji Hall, Shouxi Zhixingguan Xinchou: Qianwan Bie Cong Riben
Zhao Da’an [Remunerations of CEOs: Don’t Seek Answers from Japan], BW
ZHONGWENWANG [BWCHINESE.COM] (Dec. 21, 2009), http://www.bwchinese.com/
article/elite_platform/2009-09/458.html.
136. See GREGORY F RANCESCO M AASSEN , AN INTERNATIONAL COMPARISON OF
CORPORATE GOVERNANCE M ODELS: A S TUDY ON THE F ORMAL INDEPENDENCE AND
CONVERGENCE OF O NE–TIER AND TWO–TIER CORPORATE BOARDS OF DIRECTORS IN THE
UNITED S TATES OF AMERICA, THE UNITED KINGDOM AND THE NETHERLANDS 179 (3d ed.
GOVERNANCE
M ODELS],
available
at
[hereinafter
CORPORATE
2002)
http://publishing.eur.nl/ir/repub/asset/8028/Maassen_9789090125916.pdf.
137. See RALPH D. WARD, SAVING THE CORPORATE BOARD: WHY BOARDS FAIL AND
HOW TO FIX THEM 17 (2003).
138. See FINANCIAL ASPECTS, supra note 77, at 4.9.
139. See ROBERT A.G. MONKS & NELL MINOW, CORPORATE GOVERNANCE 189 (1995).
140. See Klaus J. Hopt and Patrick C. Leyens, Board Models in Europe - Recent
Developments of Internal Corporate Governance Structures in Germany, the United
Kingdom, France and Italy, 1 EUR. COMPANY & FIN. L. REV. 135, 160-61 (2004).
2011]
525
distinctive basis of the Chinese board was retained. First, although more
powers were authorized for the board of directors by the rules of CSRC, the
board continued to be a corporate organ inferior to the general assembly.
The legal division as to the power allocation between the shareholders’
general meeting and the board of directors was kept within these rules. The
former carried forward the decisive power as to the business policies and
investment plans, 141 whilst the latter was only granted power to develop
business plans and investment programs.142 The array of plans and schemes
made by the board of directors was constantly subject to the approval of the
shareholders’ general meeting,143 and it was accentuated that the board of
directors should be accountable to the shareholders’ general meeting. 144
Also, although a niche was open for the board of directors to exercise
powers other than those stipulated in the laws, regulations, and articles of
association, such empowerment should first gain the approval of the
shareholders’ general meeting.145 So the scope of powers of the board of
directors remained at the mercy of the general assembly; the general power
allocation between the general assembly and the board of directors did not
move from shareholders centralism to board centralism.
Second, there were not any substantive changes regarding the legal
representative system even with the increasing checks and balances on the
board. CCGLC did not breathe a word about the legal representative
system, and GAALC 1997 only referred to this system when necessary
without changing the legal arrangements provided by CL 1993. The legal
representative continued to be the one and only person who could represent
the company in dealing with third parties, and in bringing and defending
lawsuits in the court and in signing contracts on behalf of the company.
Therefore, the general structure of power allocation regarding the board of
directors was not changed by the improvements made during this period.
Apart from the exceptions to these structural arrangements, some of the
new reform initiatives also demonstrated the Chinese–style legal settings
since foreign norms and institutions were filtered in a particular way. This
was evident from the approach to reinforcing the duties of directors, which
describes very specific acts for the directors without providing a case law
basis. At this stage, whatever was the former duty of loyalty or the newly
incorporated duty of care and duty of good faith, the Chinese approach was
distinct both from civil law and common law jurisdictions. Civil law
countries like Germany or Japan did not go as far as Chinese laws to set out
so much detailed content of the duties of directors. In Germany, the duties
of directors were broadly stipulated, and only a few specific prohibitions
141.
142.
143.
144.
145.
See GAALC 1997, at art. 42 (1).
See Id. at art. 94 (3).
See Id. at arts. 42, 94.
See CCGLC, at art. 42.
See GAALC 1997, at art. 94; CCGLC, at art. 7.
526
[Vol. 19:3
were imposed on directors, such as non–competition restraints and
regulations on self–dealing.146 And Japanese law had the same feature in
the sense that fewer than a dozen specific prohibitions were given to
elaborate on the duties of directors, such as non–competition with the
company, constraints on self–dealing, and conscientious awareness in
determining the remuneration of directors. 147 Chinese law, nevertheless,
provided more sub–duties than these two countries. Setting aside the
prohibitive acts stipulated in other countries, it even elucidated several
positive behaviors for directors, such as keeping abreast of the business
operation and management of the company.148 On the other hand, because
the case law regime that laid down the foundation of duties of directors was
absent in China, Chinese law stood in sharp contrast to common law
countries. 149 The several types of duties of directors in common law
countries were all consolidated by the vast sea of case law. For example, in
the UK, the duty of loyalty was initially developed by the court of equity
and was based on fiduciary principles. This duty was usually treated as an
equitable duty analogous to a trustee. The duty of care required from a
director had a common law basis and rested on the principle of the law of
negligence.150 It was noteworthy that the duties of directors were mostly
found in the existing equitable and common law principles, both of which
were composed of the case law system in the UK. 151 And in the U.S.,
although the trend in the past several decades was increasing attempts to
codify matters that previously had been left to doctrine,152 the concept of
fiduciary duties, including the duty of loyalty and the duty of care, could be
understood only in the context of specific cases. The broad and
encompassing nature of fiduciary duties necessitated that the courts
determine the boundaries of these obligations, and the case law system in
the U.S. had developed into the foundation of these duties.153 In contrast,
146. See Rebecca Lee, Fiduciary Duty Without Equity: “Fiduciary Duties” of
Directors Under the Revised Company Law of the PRC, 47 VA. J. INT’L L. 897, 906-07
(2007).
147. See Shishido, supra note 53, at 146-147.
149. See Lee, supra note 146, at 906-07, 910.
150. See DAVIES, supra note 6, at 380.
151. There has been a long journey over the years to reduce the duties to statutory
form in the UK. See JOHN FARRAR, FARRAR’S COMPANY LAW 378 (1998). Although the
Companies Act 2006 has codified the general duties of directors, it is clearly stated that the
statutory duties set out do not have the effect of replacing those rules within existing case
law. The case law rules and principles are allowed to develop thereafter and continue to be
the legal basis for duties of directors. See LE TALBOT, CRITICAL COMPANY LAW 181 (2008);
Richard Nolan, Codifying Directors’ Duties: Was It Worth It? (Apr. 6, 2009) (paper
delivered at the Faculty of Law, The Univ. of Hong Kong).
152. See COX & H AZEN , supra note 6, at 477.
153. See Katharina Pistor & Chenggang Xu, Fiduciary Duty in Transitional Civil Law
Jurisdictions: Lessons from the Incomplete Law Theory, in GLOBAL MARKETS, DOMESTIC
2011]
527
Chinese law did not have a case law system and failed to supply binding
judicial decisions to uphold those statutory duties.154 It was submitted that,
in terms of the duties of directors, Chinese law was suspended between civil
law and common law systems, because it was more specific than the
statutory provisions in civil law but more general than the case law in
common law. The duties of directors in China neither followed civil law
countries nor common law regimes.155 They were unique and could hardly
be categorized into one of the two major legal traditions.
In sum, efforts made in this period did not modify the general legal
framework of the board system in China, nor did it change the fusing but
exclusive nature of Chinese law.156
C. Dysfunctions and Embedded Problems
Legislative efforts at this stage clearly showed that Chinese policymakers
discovered the weaknesses of the old laws and strived for the improvement
of them piece by piece. Unfortunately, a careful and cautious observation
revealed that the results of endeavor did not match expectations, because the
revised framework neither promoted the effectiveness of the board of
directors nor efficiently deterred the misconduct of directors. As a general
piece of evidence, empirical research, which studied the correlation between
the board of directors and corporate performance in companies listed on
Shanghai Stock Exchange (“SHSE”) from 1 January 1999 to 1 January
2003, found that the board of directors in the sampled companies did not
serve as the catalyst to enhance corporate performance, and the overall
effectiveness of the board was not very satisfactory.157 As a more specific
INSTITUTIONS: CORPORATE LAW AND GOVERNANCE IN A NEW ERA OF CROSS-BORDER DEALS
77, 77-78 (Curtis J. Milhaupt ed., 2003).
154. See S.H. Goo & Anne Carver, Low Structure, High Ambiguity: Selective
Adaptation of International Norms of Corporate Governance Mechanisms in China, in
CHANGING CORPORATE GOVERNANCE PRACTICES IN CHINA AND JAPAN: ADAPTATIONS OF
ANGLO-AMERICAN PRACTICES 206, 227-228 (Masao Nakamura ed., 2008).
155. Actually, it has been concluded that the duties of directors under Chinese law are
arrived at by piecing together the foreign mechanisms of both common law and civil law.
See Yuhua Wei, Directors’ Duties under Chinese Law: A Comparative Review, 3 UNIV. NEW
ENG. L.J. 31 (2006).
156. The cases which showed that China learned both from common law and civil law
countries, such as the committee structures, liability insurance, equity–based remuneration,
and the separation of chairperson and CEO were only of the encouraging nature. In contrast,
those duties of directors, once adopted by listed companies, would have a binding effect.
Hence, comparatively speaking, the ingredients of Chinese–style legal settings outstripped
the transplanted foreign elements at this stage.
157. XIAMEN DAXUE GUANLI XUEYUAN, XIAMEN ZHENGQUAN YOUXIAN GONGSI
[SCHOOL OF MANAGEMENT OF XIAMEN UNIVERSITY, XIAMEN SECURITIES CO., LTD.], WOGUO
SHANGSHI GONGSI DONGSHIHUI YOUXIAOXING DE SHIZHENG YANJIU [EMPIRICAL RESEARCH
ON THE EFFECTIVENESS OF THE BOARD OF DIRECTORS IN CHINA’S LISTED COMPANIES],
528
[Vol. 19:3
investigation, other research looked at the correlation between the frequency
of board activities and corporate performance in companies listed on the
two domestic stock exchanges from 1998 to 2001. The board convened
more board meetings and acted more frequently only after corporate
performance declined or the company was in trouble. And the increasingly
frequent activities of the directors did not contribute much to the
improvement of corporate performance, or, in some cases, went with the
sharply falling corporate performance in the following year. 158 It was
therefore perceived that Chinese board activities were passive and reactive
rather than proactive and precautionary. And there was a high degree of
efficiency waste in board activities since the increase of board activities
failed to promote better corporate performance.159 Furthermore, the large
amount of regulations of CSRC and other market regulators also fell short
in preventing the malfeasance of directors. Astonishing cases, such as
Qiong Minyuan (
), where the chairperson of the board instigated the
fabrication of false financial and accounting reports of the company, and
Hongguang Industrial (
), where the board of directors collectively
acquiesced in the company’s falsification of the prospectus, proved that
even with the growing numbers of rules, directors continued to commit
malpractice in the manner that did not differ substantially from the previous
period.160
Causes of dysfunctions of the Chinese board were two–fold. On one
hand, the legal arrangement of director regulation failed to strike a right
balance between corporate autonomy and legal intervention.
The
tremendous freedom enjoyed by the board of directors in industrialized
countries was substituted by rigid and inflexible legal rules in China. An
apparent point was the statutory arrangement for the predominant role of the
chairperson on the board. In advanced economies, the role of the
chairperson of the board was unsupported by the law and depended entirely
on the usage, consent, and best practice of the company. In the UK, statute,
the model memoranda and articles of association, and case law were
concerned only with the chairperson in procedural terms, and a more
substantive role for the chairperson was only recognized in the codes which
were on a “comply or explain” basis and did not have binding powers.161
The situation in the U.S. was quite similar, as both corporation statutes and
SHANGZHENG LIANHE YANJIU JIHUA DIBAQI KETI BAOGAO [REPORT OF SHANGHAI JOINT
RESEARCH SCHEME (Vol. 8)] 70 (2003).
158. See YU DONGZHI, DONGSHIHUI YU GONGSI ZHILI [BOARD OF DIRECTORS AND
CORPORATE GOVERNANCE] 158-162 (2004).
159. See id. at 169-170.
160. See, ZHONGGUO GUFENZHI QIYE DONGSHI SHIDIAN [THE DIRECTOR DICTIONARY
OF CHINA STOCK COMPANIES] 114-117, 175-177 (Xu Weiguo ed., 2000).
161. This attitude has sustained during the amendments of the Companies Act 2006.
See RICHARD SMERDON, A PRACTICAL GUIDE TO CORPORATE GOVERNANCE (2007), 2.016,
8.003.
2011]
529
judicial decisions scarcely defined the responsibilities and powers of the
chairperson of the board due to the enabling nature of U.S. corporate
laws. 162 In Germany, the ranking of directors on the board was not of
importance and the title of chairperson of the board was only a formality. 163
Japanese law even totally ignored the role of chairperson in the statutes.164
In these economies, it was up to the company to decide on the powers of the
chairperson as the laws does not enter into this field. Sharply contrary to all
these jurisdictions, Chinese company laws stepped in deeply to construct the
role of the chairperson and assigned many statutory powers to the
chairperson, such as checking and prompting implementation of resolutions
of the board. 165 Hence, corporate autonomy regarding the role of
chairperson in developed countries was replaced by statutory intervention in
China. On account of the exorbitant level of legal intervention, the
operation of the board of directors became stereotyped. In some
circumstances, the board had to go through stiff legal procedures to
legitimatize its behaviors and was not able to respond to the ever changing
market. Consequently, the efficiency of the board was sacrificed.
Excessive legal intervention into the board of directors, nevertheless, did
not mean that all indispensable mechanisms regarding proper functioning of
the board were established in the law. Consider the removal of directors
before the expiration of their term of office. Details vary, but developed
countries usually gave corporate participants who elected directors the
corresponding power to remove them mid–term.166 Nevertheless, Chinese
law did not provide similar powers of removal to the corresponding
corporate organs before the directors’ term of office was complete.
Adversely, the law spelled out clearly that the general assembly should not
remove directors without cause before the expiry of their terms, 167 implying
that instead of providing the power to remove directors on a mid–term basis,
in normal circumstances, the shareholders’ general meeting could not
dismiss currently serving directors except in those circumstances where
reasonable cause could be found. And although the law allowed removal
with just cause, there was no clear explanation of what cause would
constitute grounds for removal. In practice, even if the shareholders’
general meeting successfully removed directors, directors could file a
162. See COX & H AZEN , supra note 6, at 344-45.
163. See AktG, § 84(1).
164. This is continuously demonstrated in the new Japanese Companies Act 2005.
See Transparency of Japanese Law Project, KYUSHU UNIV., www.tomeika.jur.kyushu-u.ac.jp
(last visited Apr. 25, 2011).
165. See CL 1993, at art. 114.
166. See Companies Act, 1963 (Act No. 33/1963) (Ir.) § 182; MICHAEL FORDE,
COMPANY LAW 152 (1999); DEL. CODE ANN. tit. 8, § 141(a) (2010); MODEL BUS. CORP. ACT
(1984), § 8.08; AktG, §84(1), 85-86; SHŌHŌ [COMM. C.] art. 257, 343. (Japan); Shishido,
supra note 53, at 136.
167. See CL 1993.
530
[Vol. 19:3
lawsuit against such dismissal due to the absence of a valid cause. 168
Without clarification of the cause for removing the directors, the general
assembly would encounter a great deal of difficulties in winning the case.
In sum, the power to remove directors before the expiration of their term
was not clearly given in Chinese law, which gave rise to the potential risk
for reckless behavior by directors.
Another visibly absent regime in the Chinese context was the preventive
mechanism against misbehavior of directors. To avoid the potential threat
to corporate and shareholders interests originating from the misfeasance of
directors, the laws in advanced economies often allowed the corresponding
corporate organ to turn to internal and external mechanisms before the
wrongdoings gave rise to damage to the company and shareholders, such as
injunction or declaration in the UK. 169 Unfortunately, there was no
equivalent in the Chinese context in this regard. Article 111 of Company
Law, as the only legal rule relating to the right of shareholders to stop the
misbehavior of directors, was very vague. It combined the shareholder’s
right of action against the general assembly and the board of directors.
Also, the action stipulated in this article was against the board of directors
as a whole instead of the delinquent individual director. Strictly interpreted,
this article was concerned with the shareholders’ right of action after the
malpractice of directors gave rise to damage to the shareholders, rather than
to provide an injunctive mechanism against the misbehavior of directors in
advance. There was no real device in China that could prevent the errors of
directors before they caused real damage to the company. 170 Due to the
absence of such a legal mechanism, the Chinese board might have been less
responsive to the shareholders and the company and more indulgent
regarding their jobs. Accordingly, the effectiveness of its function was
weakened. In short, Chinese law intervened in some areas where more
168. There were a number of cases where the legal ambiguity regarding the removal
of directors caused legal disputes. See, e.g., DONGZHI, supra note 158, at 199-202.
169. In the UK, injunction or declaration could be employed by shareholders where
the breach of duties of directors is threatened, but has not yet occurred. See DAVIES, supra
note 6, at 139-40, 425. In the U.S., shareholders’ suit against the breach of fiduciary
obligation with an injunctive nature is also allowed. See COX & HAZEN , supra note 6, at
169-70. In Germany, the right of action to cessate infringement and eliminate ill effect was
also made available to shareholders. See GERMAN S TOCK CORPORATION ACT, supra note
42, at 109, 171-72. And Japanese law also expressly entrusted shareholders to the right of
enjoinment of acts of directors. See SHŌHŌ [COMM. C.] art. 272, para. 73 (Japan). This is
now art. 360 under Japanese Companies Act of 2005. See also Thomas L. Blakemore &
Makoto Yazawa, Japanese Commercial Code Revisions: Concerning Corporations, 2 AM. J.
COMP. L. 12, 21 (1953).
170. See Hu Wentao, Queli Gudong De Zhizhi Qingqiuquan He Gudong Dahui Jueyi
Xiaci Susong Tiqiquan De Sikao [Thoughts on Establishing the Shareholder’s Right of
Prevention and Right to Sue for the Defective Decision of the Shareholder’s Meeting], 5
HUNAN SHANGXUEYUAN XUEBAO [J. HUNAN BUS. COL.] 59 (1999); see also Liang
Shangshang, Tingzhi Qingqiuquan: Dongshi Lanquan Xingwei De Zhiizhi [Right of
Prevention: The Prevention of Abuse of Directors’ Power], 2 JIANGHAI ACAD. J. 125 (2006).
2011]
531
freedom should have been given to the corporation, while other areas where
more rules should be posed were ignored.
On the other hand, even if these defects in the legal arrangements were
remedied, the institutional environment would continue to obstruct the full
discharge of functions by the board. As a matter of fact, the intrinsic
institutional factors disturbed the normal operation of the board more
heavily than the legal/technical deficiencies mentioned above.
Above all, the remuneration package of directors, as the major
mechanism to motivate their work, failed to stimulate the positive
performance of directors. First, the overall income of directors was not
closely linked with the market performance of the company. Investigations
showed that although the remuneration of directors was determined in law
by the shareholders’ general meeting, in reality, the controlling shareholder
usually prescribed the gross income of the directors in advance. Based on
his/her instructions, the remuneration committee under the board (if there
was one) designed the performance evaluation indicators and assessment
methods of the remuneration package, and then submitted them to the
general assembly for approval. So the actual amount of payment directors
could receive was restricted to within the range decided by the controlling
shareholder, which was executive–led rather than market–oriented. 171
Particularly, in SOEs, the remuneration of directors was by and large
determined by the state assets representatives on behalf of the state
shareholders. As these representatives were only the working staff of the
relevant government bodies, they could not decide on the remuneration
based on market standards but only on government directives.172
Second, due to the immaturity of stock markets in China, the newly
introduced equity–based incentive scheme could not motivate the
enthusiasm of the directors, either. Whatever form was used, an equity–
based package was closely related to the stock price of the listed company.
The philosophy of equity–based remuneration was that, since the stock price
was a good indication of corporate performance, linking the remuneration of
directors to the stock price of the company could push them to do their best
in enhancing corporate performance.173 Nevertheless, this assumption was
not valid when taking the highly speculative stock markets in China into
account. It was widely reported that the domestic stock markets were
171. See SHANGHAI ZHENGQUAN JIAOYISUO YANJIU ZHONGXIN [RESEARCH CENTRE OF
SHANGHAI STOCK EXCHANGE], ZHONGGUO GONGSI ZHILI BAOGAO (2004 NIAN) [CHINA
CORPORATE GOVERNANCE REPORT (2004)] 195-196 (2004) [hereinafter 2004 CORPORATE
GOVERNANCE REPORT].
172. Id.
173. Susan J. Stabile, Motivating Executives: Does Performance–Based
Compensation Positively Affect Managerial Performance?, 2 U. PA. J. LAB. & EMP. L. 227,
228 (1999).
532
[Vol. 19:3
strongly influenced by government policies,174 and the fluctuation of stock
prices could deviate greatly from the true value of the firm. The
performance of the stock price could not, to a large extent, reflect the firm’s
true performance. Thus, the adoption of an equity–based remuneration
package might not align directors’ personal interests with corporate
performance. Consequently, the equity–based incentive mechanism might
have failed to motivate the interests of directors in taking good care of
corporate performance.175
In addition, the reckless behavior of directors was to a large extent
attributable to inefficient law enforcement. There were three types of
liabilities of directors in China: civil, administrative, and criminal liability.
In enforcing these liabilities, the judiciary, the prosecution authorities, and
the major market regulator, CSRC, were all involved. Unfortunately, none
of them could make full implementation of the liabilities. It was claimed
that the true actor behind the judiciary and governmental bureaus was the
Chinese government. It was the government that did not pursue the
disciplining of directors. And sometimes, the government even eased
actions against these directors. Should the government be desirable to
penalize the wrongdoings of directors, all three kinds of bodies mentioned
above would have spared no effort to make the directors accountable. 176
Knowing the strong state interference in the enforcement of the liabilities,
directors would like to develop a variety of social networking with
government officials and seek protection of the government.177 As a result,
they were not personally exposed to the risks of punishments or lawsuits. In
addition, the direct interest of the government in the listed companies also
frustrated a shift in attitude towards the unsound practices of directors. The
Chinese government was the ultimate controller of most listed companies
174. See LENG JING, CORPORATE GOVERNANCE AND FINANCIAL REFORM IN CHINA’S
TRANSITION ECONOMY 124 (2009).
175. Empirical evidence revealed that the accounting performance of companies did
not increase with the introduction of an equity–based package. To make matters worse,
companies which had the intention of adopting such schemes usually had better accounting
performance than other companies, but after the implementation of these schemes, this
advantage reduced year by year. See YANG, supra note 127, at 95.
176. See Zhengyi Lawsuit; Dispute Cases; Neil Andrews & Roman Tomasic,
Directing China’s Top 100 Listed Companies: Corporate Governance in an Emerging
Market Economy, 2 CORP. GOVERNANCE L. REV. 245, 274 (2006); He Meihuan, Zhongguo
Shangshi Gongsi ‘Yigududa’ De Wenti: Shangweie Zhenduan, Ruhe Xiayao [The
Predominance of First Largest Shareholder: Not Yet Diagnosed, How to Give the
Prescription], in TOU ZI Z HE LI YI B AO HU [P ROTECTION OF INVESTOR INTERESTS], 109
(Wang Baoshu ed., 2003). Gu Gongyun, Cong Dongshi Zeren Jiaodu Kan Gongsi Zhili
Jiegou Wanshan Yu Gongsifa Gaige [Corporate Governance Problems in Corporation Law
Reform], in QUAN QUI JING ZHENG TI ZHI X IA DE GONG S E F A GAI GE [CORPORATION
LAW R EFORM FOR A GLOBAL C OMPETITIVE ECONOMY ], 25 (Wang Baoshu ed., 2003).
177. It was uncovered that whether state–owned or privately–owned, most listed
companies would like to have at least one board member with strong connections with the
government. See Andrews & Tomasic, supra note 176, at 269, 273.
2011]
533
and had a significant interest in them. Should the government have
suddenly revealed and punished all the fraudulent and unlawful behavior of
the directors, there would have been a stock–market crash where frightened
investors would have pulled out of the market. The result of this market
panic would have been the potential loss of a large number of state assets.178
The conflicting role of the government in the stock market led to its
wavering attitude towards the implementation of legal rules.179 Hence, the
crux of the difficulties in the enforcement of director liabilities stemmed
from the complicated relationships among the directors, the government, the
listed companies, and the stock markets. And this problem could not be
resolved overnight.180
In general, neither incentive nor accountability mechanisms of directors
were in full swing in practice because of the embedded institutional factors.
The lack of institutional capacity may have partly caused directors to skimp
on the quality of their performance, as well as contributed to the reduction
of the overall effectiveness of the board, abuse of power to pursue personal
interests, collusion with the management, insider dealing, and encroachment
of corporate assets.181
III. PROGRESS IN 2005 AND THEREAFTER
A. New Changes Made
The inefficient board system in practice calls for the advancement of an
institutional framework and legal infrastructures. With the promulgation of
Company Law 2005 (“CL 2005”) and Securities Law 2005 (“SL 2005”), a
new round of legislative movement has been initiated.
1. Codification in 2005
CL 2005 and SL 2005 are dedicated to consolidating the Chinese board
system in two layers: the board as a whole and the directors individually.
Generally speaking, although rules previously issued by CSRC are rarely
178. See Noëlle Trifiro, China’s Financial Reporting Standards: Will Corporate
Governance Induce Compliance in Listed Companies?, 16 TUL. J. INT’L & COMP. L. 271,
289 (2007).
179. For more discussion of the conflictive role of the state in regulating information
disclosure, see id. at 289.
180. Owing to the ineffective enforcement of liabilities of directors, few listed
companies purchased liability insurance for the “unexposed” directors. See He Min, A Study
on D&O Liability Insurance in China [Lun Woguo De Dongshi Zeren Baoxian Zhidu], 5 J.
NANJING U. F IN. & ECON. [
] 90 (2004).
181. See Cheng Wei–qi & Philip Lawton, SOEs Reform from a Governance
Perspective and Its Relationship with the Privately Owned Publicly Listed Corporation in
China, in CHALLENGES FOR CHINA’S DEVELOPMENT: AN ENTERPRISE PERSPECTIVE 24, 30-31
(David H. Brown & Alasdair MacBean eds., 2005).
534
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adopted, the new laws take the same approach of enhancing the functions of
the board and directors.
In the first layer, the powers of the board of directors are expanded, and
checks and balances are built into the board of directors.182 First, although
powers stipulated in the rules of CSRC are not absorbed, CL 2005 has the
same tendency to expand the powers of board of directors. Apart from
those powers stated in CL 1993, the board is also capable of deciding on the
remuneration of corporate managers 183 and appointing members of the
liquidation group.184 Particularly, the board is authorized to exercise other
powers stipulated by the articles of association of the company. 185
However, unlike the attempts of CSRC, under the new law the board of
directors no longer enjoy the discretion of examining the interim proposal
submitted by the shareholders; rather, the board is obliged to inform other
shareholders of such a proposal and table the proposal at the shareholders’
general meeting.186
Second, the dominant role of the chairperson is reduced to some extent.
The chairperson of the board is no longer statutorily appointed as the legal
representative; instead, based on the articles of association, the chairperson,
an executive director or a manager can act as the legal representative of the
company.187 The statutory powers of the chairperson are also diluted. The
functions of the chairperson can be substituted by other board members in
some circumstances, such as where the chairperson fails to convene the
shareholders’ general meeting or where the chairperson fails to perform
his/her other duties. 188 It is made clear that other than the chairperson,
directors constituting one third of the total board members may also propose
a provisional board meeting; and the chairperson should convene and chair
the meeting within ten days of receipt of such a proposal. 189 And the
practice of a casting vote for the chairperson in some companies is
abolished under the new Laws, 190 as each director, including the
182. In addition to the mechanisms introduced here, there are other changes which
have substantive influence over the board system, such as the assignation of employee
representatives as board members. See CL 1993, at art 45. The Company Law was revised
in 2005. See Dishijie Quanguo Renmin Daibiao Duhui Changwu Weiyuanhui (amendments
promulgated by the Standing Comm. Nat’l People’s Cong., Oct. 27, 2005, effective Jan. 1,
2006) art. 109 (China) [hereinafter CL 2005].
183. CL 2005, at arts. 47(9), 109.
185. See Id. at arts. 16, 47(11), 170.
188. See Id. at arts. 102, 110.
189. See CL 2005, at art. 111.
190. See JIAN FU & JIE YUAN, PRC COMPANY & SECURITIES LAWS: A PRACTICAL
GUIDE 81-82 (2006).
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535
chairperson, is said to be given only one vote for each resolution of the
board.191
Third, the exclusion of voting powers of directors is also adopted to
avoid unfair transactions from its source. In the event that the director of
the listed company is a party related to the enterprise involved in the
resolution of matters of the board meeting, he/she should abstain from
voting on the resolution or voting on behalf of another director.192
In the second layer, regulations on the directors are also further
advanced. First, duties of directors are refined by synthesizing the
fragmented rules by CSRC. The duty of loyalty and the duty of care are
clearly stipulated to be owed by the directors to the company, and the duty
of good faith pinpointed by CSRC is deleted.193 A number of misconducts
in violation of the duties of directors are listed. These misconducts are, in
general, akin to those in CL 1993, although several changes are made: two
new misconducts, i.e. pocketing the commissions for transactions between
the company and other parties, and abusing the powers to take advantage of
corporate opportunities, are added;194 the use of company funds to provide a
guarantee for the debts of shareholders is no longer regarded as a
misbehavior of the directors but is then subject to the approval of the
shareholders’ general meeting; 195 and the breach of certain duties can be
ratified by the shareholders’ general meeting or the board meeting. 196 A
provision as to the disgorgement of illegal income in violation of the duties
is also added. 197 In addition, directors are prohibited from using their
affiliated relationship with the company to cause loss to the interests of the
company.198 They are required to attend the shareholders’ general meeting
upon request and answer queries from the shareholders, and are further
required to provide assistance to the supervisors when necessary.199 It is
even emphasized, similar to the rules by CSRC, that the board of directors
should duly call the shareholders’ general meeting for passing resolutions in
certain circumstances.200 Last but not least, the directors, under SL 2005,
have a duty imposed on them to certify information disclosed by the listed
company, 201 and should bear joint liability for compensation with other
191. See CL 2005, at art. 112.
194. See Id. at art. 149 (5)-(6).
197. See CL 2005, at art. 149(8).
198. See Id. at art. 20, 21.
201. See 2005 Zhengquanfa [Securities Law 2005] (promulgated by Standing Comm.
Nat’l People’s Cong. [Dishijie Quanguo Renmin Daibiao Dahui Changwu Weiyuanhui], Oct.
27, 2005, effective Jan. 1, 2006) art. 68 (China) [hereinafter SL 2005].
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relevant parties where the information disclosed is false, misleading, or
substantively fragmented.202
Second, accountability of the directors is strengthened by the
enhancement of civil liabilities. The new Laws repeatedly stress the civil
liabilities of directors. For example, directors who use their affiliated
relationship to cause damage to the interests of the company should bear
compensation liability. 203 As the implementation mechanism of civil
liabilities, shareholders’ right of action against directors is intensified in
several ways, including the action to invalidate the resolution of the board
of directors,204 the derivative action,205 and the direct action.206
Third, a few other rules related to the remuneration of directors are
added. The company is required to disclose information regularly to their
shareholders on the remuneration of directors.207 And the strict restrictions
on the transfer of shares held by directors under CL 1993 are relaxed for the
preparation of adopting an equity–based incentive scheme: the company is
permitted to repurchase its own shares for rewarding its working staff,208
and directors, subject to the articles of association, are now allowed to
transfer a limited stake of their shares within a certain period of time in their
term of office.209
2. Other Actions Taken
The amendments of CL 2005 and SL 2005 pave the way for the revision
of other relevant laws and supplementary regulations. Most importantly,
the new Guidelines for the Articles of Association of Listed Companies
(
) (“GAALC 2006”) , were issued by CSRC in 2006 to
catch up with the changes in the two laws. In addition to reiterating those
rules of the new laws, GAALC 2006 goes further, with some supplementary
rules which are ascribable to the smooth functioning of the new Laws. For
example, the legal procedure is provided to void any resolutions of the
board which may violate laws and administrative regulations. 210 And
replacement procedures are provided where the moderator of the
shareholders’ general meeting (usually the chairperson of the board)
contravenes meeting procedures and blocks the meeting from proceeding.211
Two situations are added to the list of negative qualifications of the
202.
203.
204.
205.
206.
207.
208.
209.
210.
211.
SL 2005, at art. 69.
See Id. at art. 22.
See GAALC 1997, at art. 34; But cf. CL 2005, at art. 22.
See Id. at art. 67.
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537
directors, including being banned from the securities markets by CSRC and
other contents prescribed by the laws, administrative regulations and
departmental regulations.212 The validity period of the duty of loyalty is
also specified.213 These supplementary rules are conducive to building a
better framework for regulating directors.
What is unpredictable is that GAALC 2006 also provides some articles
which are in contradiction with the two laws. For example, powers of the
board listed in GAALC 1997 but not absorbed in CL 2005 reappear in
GAALC 2006, with one change, which extends the decisive power on
security matters to external investment, purchase and sale of assets,
appointment to finance management, and related party transactions.214 And
whilst the board of directors may also enjoy the right to appoint the
accounting firm of the company according to the articles of association
under CL 2005,215 this matter is regarded as being exclusively determined
by the shareholders’ general meeting in GAALC 2006. 216 Moreover,
misconducts listed in CL 2005 are all classified as cases in breach of the
duty of loyalty in GAALC 2006,217 and a new list delineating the violation
of duty of care is added, including making sure that the business of the
company does not exceed the scope of activities specified by the business
license; treating all shareholders equally; keeping abreast of the business
operation and management of the company; ensuring that the information
disclosed by the company is true, accurate and complete; and truthfully
supplying relevant information to the supervisory board.218
There are other efforts made by CSRC and the two stock exchanges to
regulate the board system around this period. First, at the dawn of the
enactment of CL 2005, CSRC established a training system for senior
management of listed companies including directors. 219 In particular, the
chairperson of the board and the chief executive officer should attend
training courses at least once every year. 220 Second, the surveillance
214. See Id. at art. 107 (8); cf. Id. at art. 94 (8).
215. See CL 2005, at art. 184.
216. See GAALC 1997, at art. 159.
219. See Shangshi Gongsi Gaoji Guanli Renyuan Peixun Gongzuo Zhiyi [Working
Guidelines for the Training of Senior Management of Listed Companies] (promulgated by
China Sec. Reg. Comm’n. [Zhongguo Zhengquan Jiandu Guanli Weiyuanhui], Dec. 22,
2005, effective Dec. 22, 2005) art. 3 (China).
220. See Shangshi Gongsi Dongshizhang Zongjingli Peixun Shishi Xize
[Implementation Rules of the Training of Chairperson and Chief Executive Officer of Listed
Companies] (promulgated by China Sec. Reg. Comm’n. [Zhongguo Zhengquan Jiandu
Guanli Weiyuanhui], Dec. 22, 2005, effective Dec. 22, 2005) art. 3(1) (China).
538
[Vol. 19:3
measures of CSRC, such as reprimand, 221 correction order, supervisory
conversation, warning, bad credit record, and decisions concerning the
inappropriate person for a position, are clarified under the new legal
framework. 222 And more rules as to the administrative punishments and
their implementation measures are issued by the two stock exchanges. 223
Third, with the promulgation of CL 2005 and SL 2005 and the
implementation of the split share structure reform, equity–based incentive
schemes have been pushed to the front of reform by the enactment of a
series of regulations.224
Other legislation also sheds light on the liabilities of directors. The new
Law on Enterprise Bankruptcy states that where a director’s breaches of
duties contribute to the bankruptcy of the enterprise, he/she is banned from
assuming the same position of any enterprise within three years of the day
221. See Shangshi Gongsi Gudong Dahui Guize [Rules for the Shareholders’ General
Meeting of Listed Companies] promulgated by China Sec. Reg. Comm’n [Zhongguo
Zhengquan Jiandu Guanli Weiyuanhui], Mar. 16, 2006, effective Mar. 16, 2006) art. 48
(China) [hereinafter RSGMLC].
222. See, e.g., Shangshi Gongsi Xinxi Pilu Guanli Banfa [Administrative Measures
for Information Disclosure of Listed Companies] (promulgated by China Sec. Reg. Comm’n
[Zhongguo Zhengquan Jiandu Guanli Weiyuanhui], Jan. 30, 2007, effective Jan. 30, 2007)
art. 59 (China).
223. See Shanghai Zhengquan Jiaoyisuo Jilv Chufen Shishi Xize [Rules for the
Implementation of Disciplinary Actions in Shanghai Stock Exchange], (promulgated by
Shanghai Stock Exch. [Shanghai Zhengquan Jiaoyisuo], July 1, 2008, effective July 1, 2008)
(China); Shenzhen Zhengquan Jiaoyisuo Zilv Jianguan Cuoshi He Jilv Chufen Cuoshi Shishi
Xize (Shixing) [Rules for the Implementation of Self-regulatory Measures and Disciplinary
Actions in Shenzhen Stock Exchange (Provisional)] (promulgated June 2, 2009, effective
June 2, 2009) (China).
224. Shangshi Gongsi Guquan Jili Guanli Banfa (Shixing) [Administrative Measures
for the Equity-based Incentive Schemes in Listed Companies (Provisional)] (promulgated by
China Sec. Reg. Comm’n. [Zhongguo Zhengquan Jiandu Guanli Weiyuanhui], Dec. 31,
2005, effective Jan. 1, 2006) (China); Guoyou Konggu Shangshi Gongsi (Jingnei) Shishi
Guquan Jili Shixing Banfa [Provisional Measures for the (Domestic) Implementation of
Equity-based Incentive Schemes in State-holding Listed Companies] (promulgated by the
Min. of Fin. and State-owned Assets Supervision and Admin. Comm. [Caizhengbu, Guoyou
Zichan Jiandu Guanli Weiyuanhui], Sep. 30, 2006, effective Sep. 30, 2006) (China); Guquan
Jijli Youguan Shixiang Beiwanglu Yihao [Memorandum of Issues Related to Equity-based
Incentive Schemes No.1] (promulgated by China Securities Regulatory Comm. [Zhongguo
Zhengquan Jiandu Guanli Weiyuanhui], May 6, 2008, effective May 6, 2008) (China);
Guquan Jili Youguan Shixiang Beiwanglu Erhao [Memorandum of Issues Related to Equitybased Incentive Schemes No.2] (promulgated by the China Securities Regulatory Comm.
[Zhongguo Zhengquan Jiandu Guanli Weiyuanhui], Mar. 17, 2008, effective Mar. 17, 2008)
(China); Guquan Jili Youguan Shixiang Beiwanglu Sanhao [Memorandum of Issues Related
to Equity-based Incentive Schemes No.3] (promulgated by the China Securities Regulatory
Comm., Sep. 16, 2008, effective Sep. 16, 2008) (China); Shangshi Gongsi Dongshi Jianshi
He Gaoji Guanli Renyuan Suochi Ben Gongsi Gufen Jijqi Biandong Guanli Guize
[Administrative Measures for the Management of Shares Held by Directors, Supervisors and
Senior Management of Listed Companies] (promulgated by China Sec. Reg. Comm’n.
[Zhongguo Zhengquan Jiandu Guanli Weiyuanhui], Apr. 5, 2007, effective Apr. 5, 2007)
(China).
2011]
539
when the procedures for bankruptcy are concluded. 225 And the criminal
liabilities of the directors are also strengthened by amendments to the
Criminal Code to create a new crime. It is stated that where the directors
are in breach of their duty of loyalty and take advantage of their position to
manipulate the listed companies, and therefore cause serious loss to the
company, they should be subject to criminal imprisonment and fines.226
B. Lasting Selection and Perseverance
The approaches taken in these new measures to regulate the board
system demonstrate the continuous fusing nature of Chinese law in the
sense that both common law and civil law features are incorporated
simultaneously in the new framework. First, rules from common law
countries continue to influence Chinese laws. The incorporation of the duty
of not taking advantage of corporate opportunity is one of the instances. In
common law countries, use of corporate opportunities for a director’s own
profit is regarded as a breach of his duty of loyalty and is strictly prohibited,
unless authorization by the disinterested directors is given or ratification in
the general meeting is obtained.227 This so–called “corporate opportunity
doctrine” is mainly emphasized in common law countries, but falls short in
civil law jurisdictions.228 With the introduction of this application of the
duty of loyalty, Chinese law carries forward the transplantation of common
law principles. Second, the more stringent duty of secrecy reflects the
influence of civil law traditions, especially the German law regime. In
Germany, the duty of not divulging secrets concerning company matters is
particularly stressed under the duty of care, and preclusion of this duty by
the approval of the general assembly is not provided in the statute.229 By
deleting the provisions for ratification by the general meeting, 230 Chinese
law further enhances this duty of the directors and adopts an approach quite
close to the German rule. The new amendments are evidence of continuity
of the combination of different systems.
Chinese characteristics, nevertheless, stand out distinctively from all
these transplantations from other laws. First, albeit with more powers, the
board of directors is reserved as a lower corporate organ vis–à–vis the
225. See Qiye Pochanfa [Law on Enterprise Bankruptcy] (promulgated by Standing
Comm. Nat’l People’s Cong. [Quanguo Renda Changweihui], Aug. 27, 2006, effective June
1, 2007) art. 125 (China).
226. See Xingfa Xiuzhengan [Sixth Amendment of Criminal Law] (promulgated by
Standing Comm. Nat’l People’s Cong. [Quanguo Renda Changweihui], June 29, 2006,
effective June 29, 2006) art. 9 (China) [hereinafter SACL].
227. See, e.g., DAVIES, supra note 6, at 416-23; COX & HAZEN , supra note 6, § 11.08.
228. For example, it is said that neither the duty of non–competition nor the duty of
care could cover the duty of not taking advantage of corporate opportunity in Japanese law.
See ZHOU YOUSU, XIN GONGSIFA LUN [NEW SURVEY ON CORPORATION LAW] 404 (2006).
229. See AktG, § 93(1).
230. See CL 2005, at art. 184; cf. CL 1992, at art. 62.
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[Vol. 19:3
general assembly. This is visible in the unchanged wording regarding the
general power allocation between the shareholders’ general meeting and the
board of directors in CL 2005.231 It is further laid down in GAALC 2006
that the board of directors cannot be authorized to exercise those same
powers as the shareholders’ general meeting, 232 and matters of the board
beyond the scope of authorization of the shareholders’ general meeting
should be submitted to the shareholders’ general meeting for discussions.233
The objective of GAALC 2006 is clear: the board of directors should not
invade the scope of statutory powers of the shareholders’ general meeting;
and, although authorization of the exercise of certain powers is allowed,
such authorization should not alter the basic relationship between the
shareholders’ general meeting and the board of directors. Overall, the board
of directors is kept as a body inferior to the general assembly.
Second, even with more corporate autonomy, the modified legal
representative system continues to be a unique feature of Chinese law.
Although the company is free to appoint the chairperson, an executive
director, or even a manager as the legal representative,234 only one person
could be designated as the external representative of the company, and the
range of powers of this single representative is definitely given in the
laws.235
Third, the civil compensation liability regime of directors for breach of
their duties has, at this point, been structured into a very stringent model,
departing greatly from those in developed countries. On one hand,
shareholders’ direct action against directors for damages is, in China,
constructed into a general rule rather than an exception. In modern
company law theory, directors are obliged to owe duties to the company as
a whole rather than to the shareholders.236 As a general principle, directors
are not subject to shareholders’ direct action for compensation, even if the
interests of the shareholders are damaged due to a breach of duties of
directors. In spite of discrepancies, in advanced economies, only under
exceptional cases could the shareholders file such a direct action against the
directors. In common law countries, such exceptions are usually given by
constructing duties of directors owed to the shareholders in special
231. See CL 2005, at arts. 38, 47, 100, 109.
234. See CL 2005, at art. 13.
235. The modified legal representative system is unique in another way in the sense
that even a manager can be assigned to represent the company externally. In developed
countries, potential candidates for external corporate representatives are limited to board
members. See Liu Jingwei, Zhanbuduan, Lihailuan’ De Fading Daibiaoren Zhi—Ping
Gongsifa Di Shisan Tiao Guanyu Fading Daibiaoren De Xin [Guiding the Chopped but
Tangled Legal Representative System: An Evaluation of the New Legal Representative
System under Article 13 in the New Company Law], 4 HENANSHENG ZHENGFA GUANLI
GANBU XUEYUAN XUEBAO [ J. HENAN ADMIN. INST. OF POLITICS & L.] 107 (2006).
236. See TALBOT, supra note 151, at 153.
2011]
541
circumstances. In the UK, only in particular dealings between directors and
shareholders, which establish a special factual relationship between the
directors and the shareholders in the particular case, can a duty be owed by
the directors to the shareholders and therefore the directors be held liable for
compensation.237 In the U.S., only in limited instances could a director be
obliged to owe duties to its stockholders, such as in the event that a director
deals with a shareholder directly or acts in a way which injures a specific
shareholder, and therefore be held liable to the shareholder.238 In civil law
countries, albeit with different approaches, the scope of shareholders’ direct
action against directors for damages is also very limited, since directors are
subject to shareholders’ direct action only in the specific cases listed in the
laws. In Germany, shareholders are not entitled to damages claims except
for a few special cases where directors neglect to properly handle the
collection of capital contributions. 239 In Japan, directors are jointly and
severally liable to the shareholders only in some special cases, too. For
example, where the directors exercise their duties in bad faith or with gross
negligence, shareholders, who are a third party outside the relationship
between the director and the company, could hold the directors liable for
compensation.240 Opposed to the limited scope of compensation regimes in
these countries, Chinese directors, in breach of their duties, are fully
exposed to shareholders’ direct action for damages. Under CL 2005,
shareholders are entitled to sue the directors directly where the latter are in
violation of the laws, administrative regulations, and articles of association
of the company and infringe the interests of shareholders.241 And since the
duties of directors have been codified under CL 2005, any breach of duties
is then regarded as violation of the laws by the directors. Hence,
shareholders are conferred with the general right of action for damages
against the breach of all duties of directors. 242 The exceptional rules in
other countries have been generalized to the commonplace in China in this
regard.
On the other hand, exceptions for releasing directors from civil liabilities
in breach of their duties in other countries, such as the business judgment
rule, are not available in China. In the U.S., the business judgment rule,
which is a review standard where the conduct of directors is assessed and
237. See DAVIES, supra note 6, at 374-76.
238. ROBERT W. HAMILTON, CORPORATIONS 423 (1997).
239. See Alexander Loos, Germany, in DIRECTORS’ LIABILITY: A WORLDWIDE REVIEW
288 (Alexander Loos ed., 2006).
240. See SHŌHŌ [COMM. C.] art. 266, para. 93 (Japan).
241. See CL 2005, at art. 153.
242. For an analysis of shareholders direct action against directors see Liu Guiqing,
Gudong Dui Dongshi Zhi Zhijie Susong—Dui Xin Gongsifa Di 153 Tiao Fali Jichu De
Fan]si Yu Chonggou [Shareholders Direct Action Against Shareholders: A Reflection and
Reconstruction of the Legal Basis of Art 153 in New Company Law], 3 FAXUE PINGLUN [L.
REV.] 70 (2006).
542
[Vol. 19:3
their position is vindicated by the court, applies to limit the duty of care of
directors and affords directors protection. Even if the directors’ failed
decision causes losses to the corporation, the business judgment rule
provides a safe harbor for them where the errors are unintentional.243 In the
UK, although there is no statutory business judgment rule, both case law
and statutes uphold similar rationale and achieve what U.S. courts try to
redress. Directors are excused for breach of duty and are not liable for
mistakes as long as they have acted in good faith and without clear
misfeasance. This approach provides for similar relief as offered by the
business judgment rule in the U.S.244 In Germany, after a landmark case
which opened the window for protecting directors against liability, the
American concept of business judgment rule has recently been codified in
the Stock Corporation Act.245 In Japan, although there is no provision of the
business judgment rule in the relevant statutes, its application in the courts
has been increasing.246 In short, in these countries, directors are protected
against liabilities under certain circumstances so that they are encouraged to
engage in ventures which have potential for the corporation but at the same
time entail some risk. However, Chinese law does not provide such
exceptions for the directors. After boldly declaring the civil compensation
regimes against the directors for the company,247 CL 2005 does not provide
any rules for exempting the civil liabilities of the directors. So, where the
company files a lawsuit for damages against the directors or where the
shareholders file a derivative action for the same purpose, the directors are
not protected by any exceptions. In sum, Chinese directors are exposed to
greater risk of civil compensation in breach of their duties compared with
other countries.
With a powerless board, the legal representative system, and a very
stringent civil liability regime for the directors, the Chinese board under the
new legal framework continues to stand apart from other models.
243. See COX & H AZEN , supra note 6, §§ 10.02, 10.08.
244. It has been commented that there is an “implied” or “unwritten” business
judgment rule in the UK concerning the judicial attitude in common law and statutes. See
Demetra Arsalidou, Objectivity vs Flexibility in Civil Law Jurisdictions and the Possible
Introduction of the Business Judgment Rule in English Law, 8 CO. L. 228, 231 (2003).
245. See DU PLESSIS, supra note 65, §§ 3.3., 4.2.
246. Mariko Nakabayashi, Managerial Judgment Hazard in Corporate Governance,
in CORPORATE GOVERNANCE IN JAPAN: FROM THE VIEWPOINTS OF MANAGEMENT,
ACCOUNTING, AND THE MARKET 79 (2006). For a discussion of the cases regarding the
business judgment rule in Japan, see Cai Yuanqing, Jingying Panduan Yuanze Zai Riben De
Shiijian Ji Dui Woguo De Qishi [Business Judgment Rule Applied in Japan and Its
Enlightenment in China], 3 MODERN L. SCI. [
247. See CL 2005, at art. 150.
] 182 (2006).
2011]
543
C. Endurance of an Unsatisfactory State of Affairs
It was expected that the effectiveness of the board of directors could be
improved with all these efforts made by the legislature and other regulatory
agencies. Unfortunately, the real situation is not as optimistic as imagined.
It has been commented by a prestigious researcher in China that the recent
board reforms are more in form than in substance, 248 which has been
confirmed by the latest empirical evidence. According to the recent annual
report of overall assessment for corporate governance of the top 100
Chinese listed companies, the score in “responsibilities of board of
directors” keeps reducing due to its ineffectiveness.249 More specifically,
another set of data reveals that from 2007 to 2009, the average attendance of
directors in board meetings in the top 100 Chinese listed companies
continued to drop.250 This implies that the newly introduced “sticks and
carrots” fail to induce the directors to be more active in performing their
role in the company.251
There are several reasons for the disappointing effects of the new reform.
In the first place, the balance between corporate autonomy and legal
intervention is not well struck in the new legal framework. Although more
corporate autonomy is guaranteed by the new laws, the scope of this
autonomy is, compared with other countries, quite limited. The powers of
the chairperson of the board, although largely reduced, remain salient vis–
248.
Hu Yufei, Deficiencies of Board Governance in Listed Companies: An Interview
with Hu Ruyin [
—
], 4
] 48 (2009).
DIRS. & BDS. [
249. CHINESE CTR. FOR CORPORATE GOVERNANCE, CORPORATE GOVERNANCE
ASSESSMENT REPORT OF THE 100 TOP CHINESE LISTED COMPANIES IN 2006, at 6, 8, 9,
available at http://www.eaber.org/intranet/documents/26/1099/IWEP_LuTong_2006.pdf.
250. See Zhongguo Shehui Kexueyuan Shijie Jingji Yu Zhengzhisuo Gongsi Zhili
Yanjiu Zhongxin [Chinese Centre for Corporate Governance of Chinese Academy of Social
Science], 2007 Niandu Zhongguo Shangshi Gongsi 100 Qiang Gongsi Zhili Pingjia
[Corporate Governance Assessment Report of the 100 Top Chinese Listed Companies in
2007] 22 (2007); Zhongguo Shehui Kexueyuan Shijie Jingji Yu Zhengzhisuo Gongsi Zhili
Yanjiu Zhongxin [Chinese Centre for Corporate Governance of Chinese Academy of Social
Science], 2008 Nian Zhongguo Shangshi Gongsi 100 Qiang Gongsi Zhili Pingjia [Corporate
Governance Assessment Report of the 100 Top Chinese Listed Companies in 2008] 19
(2008); Zhongguo Shehui Kexueyuan Shijie Jingji Yu Zhengzhisuo Gongsi Zhili Yanjiu
Zhongxin [Chinese Centre for Corporate Governance of Chinese Academy of Social
Sciences], 2009 Nian Zhongguo Shangshi Gongsi 100 Qiang Gongsi Zhili Pingjia [Corporate
Governance Assessment Report of the 100 Top Chinese Listed Companies in 2009] 19
(2009).
251. With the establishment of the training system of CSRC in 2005, directors are
supposed to be fully aware of, or at least generally clear about, the amendments to the law,
especially the stringent civil liabilities under the new framework. So theoretically speaking,
the information asymmetry problem between the promulgation of new laws and the
perception by the directors is not an impacting factor regarding the continuing passive
behavior of the directors.
544
[Vol. 19:3
à–vis other board members. CL 2005, like CL 1993, statutorily appoints the
chairperson to prompt and check the implementation of the resolution of the
board. 252 And although the rule that the chairperson can exercise other
powers authorized by the board of directors is deleted from CL 2005, this
provision reappears in GAALC 2006. It is even clearly stipulated that
routine or lengthy authorizations are permitted, provided that the “principle
of caution” is followed by the board.253 Accordingly, the chairperson has a
statutory dominant role on the board, and may even become the standing
authority of the board. Furthermore, limited corporate autonomy is
exhibited by the inflexible ratification of prohibited acts of the directors.
Under CL 2005, most of the prohibited acts of the directors could not be
ratified; and in the few cases where ratification is possible, there are few
alternative ways to ratify the acts. 254 For example, the use of corporate
opportunity, as a specific act in breach of the duties of directors, can only be
ratified by the shareholders’ general meeting. Neither the board of directors
nor a change of the articles of association of the company could ratify such
an act. This approach is, in fact, too inflexible, because the convening of
the shareholders’ general meeting is very expensive and time consuming.255
With these kinds of stringent rules, directors are continuously required to
spend their time and energy on the legal procedures to justify their
behaviors and the overall efficiency of the board is low. As a result, its
functions cannot be fully displayed.
Moreover, the legal framework stays fragmented as the necessary legal
intervention into the board of directors remains absent. In terms of the
dismissal of directors before the expiry of term of office, there are few
improvements in the new laws. Although CL 2005 deletes the provision
that directors should not be dismissed by the shareholders’ general meeting
without causes, 256 this provision re–emerges in GAALC 2006. 257 This
indicates that a cause is still required to remove a director. However, very
few examples of what constitute “cause” are given. The only case for
dismissing the directors under CL 2005 is where the director triggers a
negative qualification.258 Other than this, the law remains silent. Puzzles
persist where the corresponding corporate organ thinks of removing a
director before the expiry of the term of office. As far as the preventive
mechanism against the misbehavior of directors is concerned, there is no
252. See CL 2005, at art. 110.
253. See GAALC 1997, at art. 112.
254. The only exception is the use of company funds to make loans or provide
guarantees to third parties, where the board of directors, the shareholders’ general meeting,
and the articles of association could ratify such act. See CL 2005, at art. 149.
255. Companies Act 2006 in the UK has built in many ways to ratify such acts. See
Companies Act 2006, c. 46, §§ 175, 180.
256. See CL 2005, at art. 46; cf. CL 1993, at art. 47.
258. See CL 2005, at art. 147.
2011]
545
improvement. Under the new legal framework, no articles stipulate a right
or action that has an injunctive nature. In line with Article 22 of CL 2005 (a
replacement of Article 111 of CL 1993), shareholders are only entitled to
bring an action where there are irregularities of the board meeting or where
the resolution of the board is in violation of the articles of association. They
cannot file a lawsuit against an individual director or several directors based
on misbehavior that may potentially pose risk to the interests of the
company. In addition, there are two new articles concerning shareholders
right of action. Articles 152 and 153 stipulate shareholders’ derivative
action and direct action respectively. Under these articles, shareholders can
only file a lawsuit after they suffer substantial losses. They cannot bring a
lawsuit against the directors before any real infringement happens. An
action with an injunctive effect is therefore not available under the current
framework. In sum, the new laws fail to introduce the indispensable
devices which have the effect of motivating directors from various
perspectives.
In addition, even with amendments to all these pitfalls in the new legal
framework, the unchanged institutional background carries on impeding the
effective functioning of the board. In the first place, remuneration of
directors is not enough to motivate the enthusiasm of directors in their work.
On one hand, the overall income of directors is still not aligned with the
market valuation of the company. Statistics show that on the main board of
Shenzhen Stock Exchange (“SZSE”), the total net profit of listed companies
in 2008 declined by 40% compared with 2007; however, the average
income of directors increased by 10% over the same period.259 This means
that the correlation between the remuneration package of directors and the
market performance of the company is very weak. As a matter of fact,
salaries of some directors are paid by other parties related to the listed
company instead of the listed company itself. These directors previously
worked in the parent company, group companies, or affiliated shareholders
of the listed company, and after taking position in the listed company,
continue to receive remuneration from their former company rather than
from the listed company itself. 260 In listed SOEs, directors also act as
government officials in the corresponding bureaus, and only receive
259. Xu Rong, 2008 Nian Shenzhi Zhuban Gongsi Gaoguan Xinchou Ji Guquan Jili
Fenxi [Analysis of the Remuneration and Equity-based Incentive Mechanism of Senior
Management on the Main Board of Shenzhen Stock Exchange in 2008], 7 ZHENGQUAN
SHICHANG DAOBAO [SEC. MARKET HERALD] 34 (2009).
260. See, e.g., Jia Li, Chuanhua Gufen Dongshizhang ’Lingxinchou’ Beihou: Qunian
Fenhong Shouru Da Wubaiduowan [Behind the “Zero-pay” of Chairperson of Chuanhua
Stock: Dividend Income Reaches More Than 5 Million Last Year], ZHENGQUAN RIBAO
[SECS.DAILY], Apr. 30 2009, at C2.
546
[Vol. 19:3
compensation from the government.261 Since decision–making power as to
the remuneration of directors is not vested in the hands of a listed company,
there can be a great discrepancy between the overall income of the directors
and the market performance of the company. On the other hand, the
improved equity–based incentive regime in the new law is not fully
functioning due to the speculative nature of China’s stock markets. From
2005 to 2008, the Shanghai Stock Index skyrocketed six–fold from 998.23
to 6124 within two years, and then shrank 70% to 1664 within one year. 262
Although major stock markets in other jurisdictions also experienced a
dramatic fluctuation in the same period, the amplitude of major indices in
other financial markets was not as large as Shanghai. The high volatility of
Chinese stock markets reveals its continuous speculative nature which
prevents it from reflecting the true market valuation of firms. Plagued into
this highly speculative market, the vigorously pursued equity–based
incentive mechanism may fail to align the personal interests of the directors
with the performance of the corporation they work for, and may be
unsuccessful in stimulating the enthusiasm of directors.
Next, the enforcement of the liabilities of directors has not been much
improved. This phenomenon is fully embodied in criminal cases. In a
typical criminal case, CSRC, the prosecution authorities and the judiciary
are all involved,263 and the number of criminal cases then serves as a gauge
of the level of participation of these major bodies in enforcing the liabilities
of directors. Disappointingly, although the number of administrative
sanctions imposed by CSRC keeps increasing, the number of criminal cases
has not risen correspondingly. Particularly, among those cases where
CSRC imposes administrative sanctions on directors, there is a substantive
portion where directors are in violation of their duties in information
disclosure, such as making fraudulent financial reports of the listed
261. See Pi Haizhou, Dongshizhang Xinchou Zhineng Zai Shangshi Gongsi Lingqu
[The Chairperson of the Board Can Only Receive Remuneration from the Listed Company],
SHANGHAI ZHENGQUAN BAO [SHANGHAI SECS. NEWS], May 5, 2009.
262. See Dong Dengxin, Cong Zhongguo Gushi 20 Nian Baozhang Baodie Kan
Weilai Sannian Zoushi [A Prediction of the Chinese Stock Market in the Next Three Years
] [21ST CENTURY
Based on Booms and Crashes in the Past 20 Years], 21 SHIJIWANG [
INTERNET], http://www.21cbh.com/HTML/2009-12-31/160023.html (last visited Jan. 12,
2011).
263. CSRC is usually in the frontline of investigating the misbehavior of directors,
and where the wrongdoings of directors are suspected of triggering criminal liabilities, CSRC
will take the initiative of referring the case to the corresponding prosecution departments.
See., Jicha He Sifa Jinmi Xiezuo Shanghai Shiyong Xing Liu Diyi’an Luomu [Close
Collaboration Between Inspecting Departments and Judicial Departments: The First Case
Regarding the Sixth Amendment of Criminal Law Ended], CHINA SEC. REG. COMM.
[
], available at
www.csrc.gov.cnhttp://www.csrc.gov.cn/
n575458/n870399/n1337798/10782046.html (last visited Jan. 13, 2010).
2011]
547
company. 264 Although criminal liabilities of directors concerning such
kinds of wrongdoing have long been codified, 265 very few of these
suspected directors are subject to criminal liability. And in the rare cases
where criminal punishments are imposed on directors, the penalties are
minimal.266 It is therefore observed that the relevant bodies are still very
ineffective in prosecuting directors suspected of crimes. This implies that
the government which has the substantive power to mobilize the relevant
bodies to enforce liabilities of directors continues to be reluctant in doing
so, due to the entrenched relationship between the directors and the
government and the conflicting role of the government in the stock markets.
In sum, although the legal framework has been improved, institutional
factors which could not immediately be changed continue to frustrate efforts
for an effective board.
CONCLUSION
To mitigate the agency cost generated from the separation between
ownership and management, director regulation is of vital importance. For
centuries, this issue of corporate governance has been addressed in
developed countries and regions. In China, special attention has been paid
to director regulation from the very beginning, when the modern corporate
law system was introduced, and has progressed step–by–step over the past
nearly two decades through the building up of a series of mechanisms and
devices. In the early 1990s, civil law factors, particularly Japanese law,
have shown more impact on the Chinese system in terms of the details of
legislative techniques. Later, common law regimes, especially the U.S.,
have shaped Chinese law more substantially. By looking at these changes, a
264. For a list of administrative sanctions imposed by CSRC, see CHINA SECS. REG.
COMM., http://www.csrc.gov.cn/pub/zjhpublic/index.htm?channel=3300/3313 (last visited
Jan. 12, 2010).
265. See, e.g., Criminal Law 1997, at art. 160. Compared with advanced economies,
the criminal liabilities of directors stipulated in Chinese law are much heavier. See 2004
CORPORATE GOVERNANCE REPORTS, supra note 171, at 209.
266. See, e.g., Yuan Sanjiu Qiye Jituan Zongjingli Zhao Xinxian Deng Siren Lanyong
Zhiquan Huoxing [Former Chief Executive of Sanjiu Group Zhao Xinxian and Other Three
Senior Managers Were Sentenced to Imprisonment Due to Abuse of Power], FAZHI RIBAO
[LEGAL DAILY], Aug. 2007, at 9. In the following cases, although the sentence bands ranged
from six months to seven years, the punishments against the defendants were kept no more
than two years. Li Junying and Xiao Bo, Zhang Jie Beixin Sunhai Shangshi Gongsi Liyi
An—Beixin Sunhai Shangshi Gongsi Liyizui De Rending Yiji Zuiming Jinghe Shi De Chuli
[Zhang Jie Case Regarding Breaching Fiduciary Duties and Causing Damage to the
Interests of Listed Company: Determination of the Offense of Breaching Fiduciary Duties
and Causing Damage to the Interests of Listed Companies and the Handling of Competing
PUDONG
XINQU
FAYUANWANG,
available
at
Accusation],
SHANGHAISHI
http://www.pdfy.gov.cn/pditw/gweb/gww_xxnr_view.jsp?pa=aaWQ9Mjc1NTMmeGg9MQ
PdcssPdcssz (visited Jan. 12, 2010).
548
[Vol. 19:3
misconception may be formed that director regulation in China is shifting
from the civil law family towards the common law tradition.
A more careful scrutiny can, nevertheless, pinpoint the underlying
problem of such understanding. In the first place, director regulation in
China has, from the beginning, never converged with a certain model in
another jurisdiction. The Chinese model is a combination of different
systems. Although more civil law ingredients were incorporated into
Chinese law in the early 1990s, common law features, to a lesser degree,
have also been shared by China. As time goes by, more U.S. norms of the
board, such as the committee structures, liability insurance, and equity–
based incentive regimes, have been promoted and gradually absorbed, but
simultaneously, philosophies of civil law countries, such as the separation
between chairperson and CEO, have kept on shaping the Chinese board. It
is evident that Chinese law shows itself to be made up of a mix of aspects of
other models, rather than shifting from one particular model towards
another.
Furthermore, albeit with all these transplantations and mixes, a number
of significant features, such as the limited powers of the board vis–à–vis the
general assembly; the legal representative system; the approach of
regulating duties of directors; and the civil compensation liabilities of the
directors; stand out to show the Chinese characteristics which differ greatly
from those of advanced economies. Compared with those ideas that exhibit
the mixing nature of the Chinese board, these features are more substantive
in the sense that the borrowed elements only refer to the details of
legislative techniques or are of a recommending nature, while the features
with Chinese characteristics are of a statutory and mandatory nature. These
features are like the skeleton of the Chinese board, and distinguish the
Chinese system greatly from its counterparts in other countries.
In addition, as far as enforcement is concerned, the Chinese board
encounters the problem of low effectiveness which is not an issue of such
importance in other jurisdictions. The embedded institutional factors both
prevent the remuneration package from motivating the performance of the
directors and deter the legal liabilities of directors from being fully
enforced. Due to the sustainability of these factors in the foreseeable future,
the Chinese practice of director regulation will continue to be plunged into
the ineffectiveness issue and will remain differentiated from other countries.
Accordingly, in terms of director regulation, corporate governance in China
has always walked its own road rather than moving from one model to
another model.
The evolution of director regulation in the last nearly two decades is
better summarized as sinonization, by which foreign norms and institutions
are altered to compromise with the Chinese conditions. This can be
observed from both legislation and enforcement. First, foreign norms and
institutions are diffused into the Chinese context during the legislation
process. At this point, if none of the foreign systems available seems to be
2011]
549
suitable for the case of China, the foreign rules are deformed and bent into a
shape that departs greatly from that of the original countries. For example,
even though board centralism has been adopted in developed countries long
before China started working on its own board system, this conception has
not yet been accepted in China after two rounds of corporate law legislative
movements due to the potential loss of state–owned assets. And in response
to the need of smooth transition, some unique systems were constructed in
China after referring to the foreign rules. The legal representative system is
such a case, which sets up a special mechanism in the board based on power
authorization regimes in other countries, so that the former factory
managers could find places under the new system. It is noteworthy that
after this shaping and reshaping process, some indispensable mechanisms
(e.g. the removal of a director before the expiry of the term of office) are
lost, while some unnecessary legal burdens (e.g. the statutory powers of the
chairperson of the board) are at the same time imposed. Therefore, legal
reform striking the right balance between corporate autonomy and legal
intervention is further needed: on one hand, the powers of the chairperson of
the board of directors should be further reduced and its role should not be
preserved as superior so as to avoid the monopoly of powers of the
chairperson, and the prohibited acts of the directors should be allowed to be
ratified more easily; on the other hand, the mechanism of dismissal of
directors before the expiry of a term of office should be further improved by
clarifying the causes of dismissal, and a preventive mechanism against the
misbehavior of directors should be given in law.
Second, in terms of implementation, concepts transplanted to China may
not be as effective as they are in their countries of origin, owing to special
Chinese social and political conditions. For example, good intentions of
introducing the equity–based incentive scheme in China may be frustrated
by the highly speculative nature of the Chinese stock markets. And, more
importantly, with the state having a substantial interest in the stock markets
and standing behind the whole scenario, the wrongs of directors that have
triggered the sanctions in the law may, very likely, go unremedied and
directors not held accountable by the market regulators and the judiciary.
Such problems will serve as barriers to the true application of foreign
institutions even though they are fully adopted in China, and will keep the
Chinese systems distant from the foreign concepts. To effectively change
this situation, a better social and infrastructural environment for director
regulation is needed, such as healthier and more mature stock markets and
the more distant role of the state. To keep their remuneration subject to
market discipline, directors should be paid by the companies they work for,
not by another company or government department.
In general, sinonization is the appropriate diction to depict director
regulation in China from legislation to enforcement.
THE CARIBBEAN INTELLECTUAL PROPERTY
OFFICE (CARIPO):
NEW, USEFUL, AND NECESSARY
Darryl C. Wilson*
INTRODUCTION ........................................................................................... 551
I. INTERNATIONAL INTELLECTUAL PROPERTY AND TRADE ...................... 557
A. TRIPS .......................................................................................... 557
B. Regional Trade Agreements ........................................................ 560
II. FREE TRADE AGREEMENTS AND INTELLECTUAL PROPERTY................ 562
A. NAFTA........................................................................................ 562
B. The European Union.................................................................... 565
III. REGIONAL INTELLECTUAL PROPERTY OFFICES ................................... 568
A. The European Patent Office (EPO) ............................................. 568
B. The OHIM ................................................................................... 569
C. The African Regional Intellectual Property Office (ARIPO) ...... 570
D. The OAPI .................................................................................... 572
IV. INTELLECTUAL PROPERTY IN THE CARIBBEAN .................................... 573
A. Significant Caribbean Intellectual Property Developments ........ 575
1. Belize ................................................................................... 576
2. Barbados ............................................................................. 577
3. Jamaica ............................................................................... 578
4. Other Caribbean Country Developments ............................ 581
B. CARICOM Trade and Intellectual Property Developments ........ 582
V. CONCLUSION ......................................................................................... 585
INTRODUCTION
As the Caribbean market attempts to maximize its regional economies of
scale, officials in the region should take note of similar historical global
events as well as ongoing international efforts which indicate that
successfully achieving its objectives is predicated in significant part on the
establishment of strong intellectual property rights (IPRs).
Strong
intellectual property (IP) regulation is something foreign to the Caribbean,
as many nation states are without developed domestic IP offices and
therefore IP enforcement throughout the Caribbean is relatively weak. In
* Professor of Law, Stetson University College of Law, B.B.A./B.F.A. 1982,
Southern Methodist University, J.D. 1984, University of Florida, LL.M. (IP) 1989, John
Marshall Law School (Chicago). The author wishes to thank his excellent research
assistants, Ms. Terrica Jennings and Ms. Lisa Only, the dedicated faculty support staff, his
beautiful understanding family, and of course, The One.
552
[Vol. 19:3
order to avoid hindering efforts at reaching noteworthy trade goals, an
intellectual property office should be established that facilitates one–stop
registration opportunities for the whole region. Although there are some
practical hurdles in light of the language variations and relative economic
postures of the varied states that constitute the Caribbean, there is enough
similarity and interaction amongst a broad number of the states that an
intellectual property office can be established for the vast majority of
nations. Such an office will bear favorably upon the states that may need
extra time to gear up their infrastructures to a level that will allow their
association with the office.
The Caribbean has an established entity for purposes of facilitating a
community single market economy (CSME) known as CARICOM.1
CARICOM has existed since 1973 and includes the majority of nations that
comprise the Caribbean at least from a political perspective as opposed to a
merely geographic standpoint.2 In fact, the twenty countries identified as
currently having membership in CARICOM is beyond what many designate
as truly representative of the political backdrop of the region. Some identify
the Caribbean for political purposes as consisting of fourteen countries and
twelve provinces or territories.3 Thus, CARICOM encompasses all the
independent nations as well as some states that are still principally run by
the countries that originally exercised imperial control over them.4 The
1. CARICOM is an outgrowth of the former Caribbean Free Trade Association or
CARIFTA. CARIFTA was established in 1965 by the execution of the Dickenson Bay
Agreement. The initial signatories were Antigua and Barbuda, Guyana and Trinidad and
Tobago. In 1968 the countries of Dominica, Grenada, St. Kitts-Nevis-Anguilla, Saint Lucia
and St. Vincent and the Grenadines, Montserrat and Jamaica joined. Belize signed in 1971
and in 1972 the Commonwealth Caribbean leaders established the Caribbean common
market. See Richard Bernal, Regional Trade Arrangements in the Western Hemisphere, 8
AM. U. J. INT’L L. & POL’Y 683, 688 (1993). See also The Caribbean Free Trade
Association, THE CARIBBEAN COMMUNITY (CARICOM), http://www.caricom.org/jsp/
community/carifta.jsp?menu=community (last visited Mar. 1, 2011).
2. The CARICOM full member countries are Antigua and Barbuda, The Bahamas,
Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Montserrat, St. Kitts and
Nevis, Saint Lucia, St. Vincent and the Grenadines, Suriname and Trinidad and Tobago.
Associate member countries include Anguilla, Bermuda, British Virgin Islands, the Turks
and Caicos. The Bahamas is not a member of the Common Market. Barbados, Guyana,
Jamaica, Suriname, Trinidad and Tobago were listed as More Developed Countries while
other members were designated as Less Developed Countries. CARICOM Member States,
THE CARIBBEAN COMMUNITY (CARICOM), http://www.caricom.org/jsp/community/
member_states.jsp?menu=community (last visited Mar. 16, 2011).
3. See Karen E. Bravo, CARICOM, the Myth of Sovereignty, and Aspirational
Economic Integration, 31 N.C.J. INT’L L. & COM. REG. 145, 154-156 (2005). See also
Countries in the Caribbean, ANEKI.COM, http://www.aneki.com/caribbean.html (last visited
Feb. 28, 2011) (separating the independent countries from the many still under some degree
of colonial control by the United States, the United Kingdom, the Netherlands and France).
4. Id. The non-independent inhabited areas are generally known as possessions of
the sovereignty. In the United States they are commonly referred to as an insular area which
encompasses the even more commonly labeled territories. An insular area is a jurisdiction
2011]
The Caribbean Intellectual Property Office
553
provinces and territories currently benefit from the intellectual property
laws of their initial conquerors, but many have their own functioning
legislative bodies and would certainly want to have a stake in a regional
intellectual property office since many of those territories hope to gain
independence someday.5
This Article focuses on how CARICOM’s prospects for successfully
achieving its goals can be helped through the establishment of an initial
intellectual property office that handles the processing and regulation of IP
for all the CARICOM countries.6 While it might be identified as the
CARICOM Intellectual Property Office, it probably makes sense to make a
pre–emptive strike and establish a Caribbean Intellectual Property Office
since the whole of the region is relatively small, and doing so will make it
easier to later work in the other countries that face logistical issues at the
outset.
Although most Caribbean countries have established ongoing
relationships with international intellectual property bodies, no agreements
have been reached for establishing a regional intellectual property office
that can facilitate protections for interested applicants on a transnational
that is neither a part of one of the recognized American States nor a Federal district. A U.S.
territory is an unincorporated U.S. insular area. The three in the Caribbean are Puerto Rico,
the U.S. Virgin Islands and Navassa Island. See Definitions of Insular Area Political
Organizations, U.S. DEP’T OF THE INTERIOR, OFFICE OF INSULAR AFF.,
http://www.doi.gov/oia/Islandpages/political_types.htm (last visited Mar. 2, 2011).
5. Independence movements have long been part of the political landscape of
Puerto Rico and some of the possessions of the other sovereign nations as well. See
generally Gary Lawson & Robert D. Sloane, The Constitutionality of Decolonization by
Associated Statehood: Puerto Rico’s Legal Status Reconsidered, 50 B.C. L. REV. 1123
(2009); Johnny Smith, Note, Commonwealth Status: A Good Deal for Puerto Rico?, 10
HARV. LATINO L. REV. 263 (2007); Jon M. Van Dyke, The Evolving Legal Relationships
Between the United States and Its Affiliated U.S. Flag Islands, 14 U. HAW. L. REV. 445
(1992).
6. While the official treaty establishing CARICOM was signed in 1973 several
revisions have occurred since that time. Between 1993 and 2000, the Inter-Governmental
Task Force (IGTF) which was composed of representatives of all Member States, produced
nine Protocols, for the purpose of amending the Treaty. These nine Protocols were later
combined to create a new version of the Treaty, called formally, The Revised Treaty of
Chaguaramas Establishing the Caribbean Community, including the CARICOM Single
Market and Economy. The objectives of the Community, identified in Article 6 of the
Revised Treaty, are: to improve standards of living and work; the full employment of labor
and other factors of production; accelerated, coordinated and sustained economic
development and convergence; expansion of trade and economic relations with third States;
enhanced levels of international competitiveness; organization for increased production and
productivity; achievement of a greater measure of economic leverage and effectiveness of
Member States in dealing with third States, groups of States and entities of any description
and the enhanced co-ordination of Member States’ foreign and foreign economic policies and
enhanced functional co-operation. See generally Objectives of the Community, THE
CARIBBEAN
COMMUNITY
(CARICOM),
http://www.caricom.org/jsp/community/
objectives.jsp?menu=community (last visited Mar. 2, 2011).
554
[Vol. 19:3
basis.7 This Article will look at the history and development of some of the
globally noteworthy trade movements and IP responses to glean what
Caribbean officials can learn that can help facilitate the establishment of a
Caribbean IP office and in turn support the region’s economic goals. The
importance of intellectual property regulation has steadily increased in
international recognition and it is now universally recognized that trade
goals cannot be achieved without a firm grasp of these rights.
The World Trade Organization (WTO) is the principal international
entity involved in regulating trade between its 153 members, which includes
most nations in the world.8 The WTO was established in 1995 as nations
attempted to amend the 1947 General Agreement on Tariffs and Trade
(GATT).9 Unlike previous efforts at reaching consensus, the negotiating
states recognized that their goals could not be successfully reached without
addressing intellectual property issues. This realization was the impetus for
TRIPS, which was drafted with the assistance of the World Intellectual
Property Organization (WIPO).10 TRIPS, which stands for the Agreement
on Trade-Related Aspects of Intellectual Property Rights, set the minimum
global standard for protection of IP amongst trading nations and plays an
integral role in assuring that the differences in domestic attention to IP
protection can be systematically addressed on a global stage with some
measure of consistency.11
7. Most of the nations identified above as constituting the Caribbean have
relationships with the World Intellectual Property Organization (WIPO). The WIPO has
many divisions including the Bureau for Latin America and the Caribbean. Bureau for Latin
America and the Caribbean, WIPO, http://www.wipo.int/lac/en/ (last visited Mar. 1, 2011).
The WIPO is a specialized agency of the United Nations that is dedicated to developing a
balanced and accessible international intellectual property system through cooperation
amongst states and collaboration amongst international organizations. The WIPO was
established in 1967 but is actually the modern extension of BIRPI. The United International
Bureau for the Protection of Intellectual Property was best known by its French acronym
BIRPI and was established in 1893 as the first international organization for intellectual
property. See, William T. Flyer, Global IP Development: A Recommendation to Increase
WIPO and WTO Cooperation, 9 U. BALT, INTELL. PROP. L.J. 171, 174-75, (2001).
8. What is the World Trade Organization?, WTO, http://www.wto.org/english/
thewto_e/whatis_e/tif_e/fact1_e.htm (last visited Feb. 22, 2011).
9. Id. See also David Shaw, The Specter of Water Piracy: The World Trade
Organization Threatening Water Security in Developing Nations, 19 COLO. J. INT’L ENVTL.
L. & POL’Y 129, 145 (2008) (reviewing the history of the WTO and GATT).
10. The WIPO is a specialized agency of the United Nations that was established in
1967. Its objective is to develop a “balanced and accessible international intellectual
property (IP) system” through cooperation with states and other international organizations.
See What is WIPO?, WIPO, http://www.wipo.int/about-wipo/en/what_is_wipo.html (last
visited Mar. 1, 2011).
11. TRIPS, which introduced IP consideration into the multi-lateral trading system
for the first time evolved from various rounds of international negotiation during 1986-1994.
See Understanding the WTO: The Agreements, Intellectual Property: Protection and
Enforcement, WTO, http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm (last
2011]
555
This Article initially tracks the recognition of the importance of
intellectual property protection on a global basis as the modern foundation
for maximizing international trade. It then looks at the particulars of
individual and collective movement amongst nation states in geographical
regions in response to the newly stressed international significance of
maintaining minimum intellectual property standards. These responses are
discussed on a comparative basis with the most prominently known
intellectual property office of arguably “regional” significance, which is the
United States Patent and Trademark Office (USPTO), a notoriety shared in
part with the Copyright Office housed in the United States Library of
Congress (LOC). While one does not usually think of these as regional
establishments due to the federalism that ties the various states in America
together, the fact is that the individual states of the American union are
quite comparable to the countries and nation states that comprise the rest of
the world.12 Many U.S. cities are more heavily populated than most
countries in the Caribbean.13 While the U.S. was formed to “make a more
perfect union,” it took some time for the states to give up their control of
intellectual property rights within their respective borders.14 In fact, a
visited Mar. 1, 2011). See also Yoshifumi Fukunaga, Enforcing TRIPS: Challenges of
Adjudicating Minimum Standards Agreements, 23 BERKLEY TECH. L.J. 867 (2008).
12. Federalism here is used in a general sense as indicative of the overall U.S.
government structure. One basic definition of federalism states that it is “a system of
government which has created, by written agreement, a central and national government to
which it has distributed specified legislative (law-making) powers, and called the federal
government and regional governments (or sometimes called provinces or states) governments
to which is distributed other, specified legislative powers.” Federalism Definition,
DUHAIME.ORG, http://www.duhaime.org/legaldictionary/f/federalism.aspx (last visited Mar.
1, 2011).
13. For example, the ten largest cities in the U.S. all have a population near or in
excess of 1 million with the largest having a population of nearly 9 million people. Top 50
Cities in the U.S. by Population and Rank, INFOPLEASE, http://www.infoplease.com/
ipa/A0763098.html (last visited Mar. 1, 2011). The most heavily populated “nations” in the
Caribbean—Cuba, The Dominican Republic, and Haiti—each have 10-11 million citizens
but there is a significant drop amongst the rest of the states in the region. Jamaica is the most
heavily populated of the CARICOM countries with a population nearing 3 million and
Trinidad & Tobago has a population of more than 1 million but no other nation has a halfmillion citizens and most have populations around 100,00 or less. The total population of the
Caribbean is about 37 million, not counting the U.S. territories. List of Caribbean Island
Countries by Population, WIKIPEDIA, http://en.wikipedia.org/wiki/List_of_Caribbean_
island_countries_by_population (last visited Feb. 28, 2011). The combined population of the
three largest U.S. “states,” California, Texas and New York, is in excess of 60 million
residents.
United States – States; and Puerto Rico, U.S. CENSUS BUREAU,
http://factfinder.census.gov/servlet/GCTTable?_bm=y&-geo_id=01000US&-_box_head_
nbr=GCT-T1-R&-ds_name=PEP_2007_EST&-redoLog=false&-mt_name=PEP_2005_EST_
GCTT1R_US9S&-format=US-9S (last visited Feb. 28, 2011).
14. The preamble to the U.S. Constitution states:
We the people of the United States, in order to form a more perfect
union, establish justice, insure domestic tranquility, provide for the
common defense, promote the general welfare, and secure the
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complete turnover of IP regulation in some areas to federal authorities is
something of a recent phenomenon in the U.S., and even at that it is not
complete.15
These regional organizations are then compared to the present state of
affairs in the Caribbean. The glaring lack of consistent attention to
intellectual property rights will be reviewed in light of piecemeal attempts
by various states to address this apparent void in the region’s attempt at
setting a comprehensive market strategy. Recognizing the desires of that
region to form a successful single market economy, the conclusion naturally
follows that establishing a regional intellectual property office will greatly
benefit the region as a whole while helping bring much needed revenue to
individual nations.16
blessings of liberty to ourselves and our posterity, do ordain and
establish this constitution for the United States of America.
See U.S. CONST. pmbl. Having a tie between the nations in a federalist sense as noted above
has been considered as a way of overcoming some of the legislative and judicial hurdles
faced by many regional trade organizations but these efforts have been largely unsuccessful
due to the strong sovereign desires of the various nation states. See generally Jiunn-Rong
Yeh & Wen-Chen Chang, The Emergence of Transnational Constitutionalism: Its Features,
Challenges and Solutions, 27 PENN ST. INT’L L. REV. 89, 92-93 (2008) (discussing the failed
efforts at adopting a constitution for the EU). Numerous efforts have been made by various
nations in the Caribbean to unite via constitution or federation as well. See Alan L. Karras,
Colonists and Settlers, British in the Caribbean, in 1 BRITAIN AND THE AMERICAS: CULTURE,
POLITICS, AND HISTORY 242, 245-46 (Will Kaufman & Heidi Slettedahl Macpherson eds.,
2006).
15. Copyrights and patents were expressly recognized in the U.S. Constitution as
drafted and adopted in 1787. U.S. CONST. art. I, § 8, cl. 8. However, patent law did not
become exclusively federal until 1964, when the U.S. Supreme Court evoked the Supremacy
Clause in the name of maintaining a proper balance between promoting innovation and
granting exclusive monopolies to creators of qualifying subject matter. See Sears, Roebuck
& Co. v. Stiffel Co., 376 U.S. 225, (1964); Compco Corp. v. Day-Brite Lighting, Inc., 376
U.S. 234 (1964). In 1978, the pre-emption provision of the Copyright Act of 1976 became
effective thereby invalidating any efforts at common law or state rights comparable to those
set forth in the act. 17 U.S.C. § 301(a) (2006). Prior to that time, states routinely provided
protection for copyrightable subject matter. The U.S. Supreme Court endorsed state
regulation, and as such, supported the only legislative protection recording artists had from
piracy until the 1976 Act became effective. See Goldstein v. California, 412 U.S. 546
(1973). Unfair competition law which generally encompasses trademark, trade dress and
trade secrets is still subject to interpretation on a common law level as well as on a state and
federal level. Federal trademark law, commonly known as The Lanham Act, 15 U.S.C. §§
1051-1141 (2009), contains no such language of supremacy.
16. See generally, Andrea Ewart, Caribbean Single Market & Economy: What is it
and Can it Deliver?, 11 ILSA J. INT’L & COMP. L. 39 (2004).
2011]
I.
557
INTERNATIONAL INTELLECTUAL PROPERTY AND TRADE
A. TRIPS
Global trade policy issues became more pronounced after the Second
World War (WWII) as countries around the world sought to rebuild
physically, socially, and economically from the destructive effects of that
international conflict. Where protectionism had once ruled the day as
characterized by high tariffs, systemic preferences, and other types of non–
tariff barriers erected by imperialistic governments of well–developed
countries, a new cooperative structure was sought to reverse the
discrimination inherent in those bureaucratic regimes. At the behest of the
U.S. and the Allied forces, a body of the United Nations held an
international conference in 1946 to determine how best to liberalize,
regulate, and monitor trade and post–war development.17 The intent of the
conference was to establish the International Trade Organization, but this
never came to fruition, and instead, the 1947 General Agreement on Tariffs
and Trade (GATT) was signed by various countries.18
GATT progressed through several successful rounds of negotiation over
the decades, leading up to the Uruguay Round that took place from 19861994 and resulted in the creation of the WTO.19 Although the initial rounds
dealt with a variety of topics, it became clear that for the WTO to be
successful, IPRs needed to be addressed. While looking to increase
investment in less developed countries so that they could become adept
trading partners and benefit from the globalization of the business economy,
developed countries wanted to first be assured that their intellectual
property rights were going to be protected.20
17. From the GATT to the WTO, GEO. UNIV. L. LIBR., http://www.ll.georgetown.edu/
intl/guides/gattwto/gatt_1.html (last visited Feb. 20, 2011).
18. Twenty–three countries signed the original agreement. General Agreements on
Tariffs and Trades, IOWA ST. UNIV., http://econ2.econ.iastate.edu/classes/econ355/
choi/gatt.htm (last visited Feb. 28, 2011). See also Daisuke Beppu, Note, When Cultural
Value Justifies Protectionism: Interpreting the Language of the GATT to Find a Limited
Cultural Exception to the National Treatment Principle, 29 CARDOZO L. REV. 1765 (2008).
19. See What is the World Trade Organization, supra note 8. See also The WTO in
Brief: Part 1, The Multilateral Trading System-Past, Present and Future, WTO,
http://www.wto.org/english/thewto_e/whatis_e/inbrief_e/inbr01_e.htm (last visited Mar. 1,
2011). See also Richard N. Gardner, The Bretton Woods-GATT System After Sixty Five
Years: A Balance Sheet of Success and Failure, 47 COLUM. J. TRANSNAT’L L. 31 (2008). See
Peter K. Yu, The Objectives and Principles of the TRIPS Agreement, 46 HOUS. L. REV. 979
(2009).
20. Yu, supra note 19. See also History: Derestricted Uruguay Round Negotiating
Documents on TRIPS material on the WTO website, providing information on the
consultations and compromises that took place regarding intellectual property issues that led
to the drafting of the TRIPS treaty. TRIPS Material on the WTO Website, WTO,
http://www.wto.org/english/tratop_e/trips_e/trips_e.htm (last visited Mar. 1, 2011).
558
[Vol. 19:3
Developed countries were also concerned with the regulation of
intellectual property rights, since either the strong enforcement or lack of
enforcement of IPRs both presented themselves as anathema to the concept
of the free movement of goods and services, which is a core principle of the
WTO.21 Strong enforcement of private intellectual property rights was
perceived by some as a species of restrictive trade, albeit not a standard
trade barrier. On the other hand, weak enforcement allowed for the
possibility of the commercial misappropriation of the works of others at best
and an opening of the proverbial floodgates of piracy at worst. Thus,
TRIPS was drafted and implemented as part of the establishment of the
WTO.22
By setting minimum intellectual property standards for all of its
signatories, the TRIPS treaty spurred development in many countries that
did not have effective intellectual property systems in place.23 This
development was not always voluntary or fast enough for the developed
nations that wanted to take advantage of the new markets. Shortly after
TRIPS was established, the most developed nations often took the lesser–
developed states before the WTO’s dispute resolution body to determine if
they were progressing satisfactorily.24 TRIPS generally gave nations more
confidence that fair competition was routinely achievable in an international
market economy, although there has been some substantial criticism.25
21. Yu, supra note 19, at n.9. See also Principles of the Trading System, WTO,
http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm (last visited Mar. 1, 2011).
22. See Sean Pager, TRIPS: A Link Too Far? A Proposal for Procedural Restraints
On Regulatory Linkage in the WTO, 10 MARQ. INTELL. PROP. L. REV. (SPECIAL ISSUE) 215
(2006).
23. See Kirsten M. Koepsel, How Do Developed Countries Meet Their Obligations
Under Article 67 of the TRIPS Agreement?, 44 IDEA 167, 168-72 (2004) (discussing the
designation scheme in TRIPS between developed, developing and least developed nations).
24. The WTO maintains a database of all the disputes that has been brought before it
that is searchable in numerous ways including by subject matter. Almost all of the IP cases
brought thus far have been initiated by the U.S. or EU against less developed nations.
Recently, some of those less developed nations have shown a newfound knowledge and
willingness to use the WTO dispute mechanism, leading to two cases brought by Brazil and
one being brought by India. The WTO dispute resolution mechanism is for use by nations as
a substitute for unilateral trade sanctions. Private IP dispute between citizens, legal or
otherwise, of different nations must be brought in a different venue. For a list of cases
involving intellectual property matters, see Index of Disputes Issues, WTO,
http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm (last visited Mar.
1, 2011).
25. See Peter K. Yu, The First Ten Years of the TRIPS Agreement: TRIPS and Its
Discontents, 10 MARQ. INTELL. PROP. L. REV. 369, 379-80 (2006) (stating that less developed
countries have not received the trade benefits promised and that where received they still
come out losers because their gains are in agriculture and industry as opposed to in
technology and innovation that is essential for success in the new century); Donald P. Harris,
Carrying a Good Joke Too Far: TRIPS and Treaties of Adhesion, 27 U. PA. J. INT’L L. 681,
684 (2006) (discussing whether TRIPS is an unfair contract in the eyes of developing
2011]
559
Despite the critics, there is a greater international belief that old
protectionist views of trans–boundary trade have been shelved for good, and
that intellectual property rights in light of the administration of TRIPS by
the WTO in cooperation with the WIPO has been an overall benefit to the
global economy.26
While undoubtedly most prominent, the WTO and WIPO are not the
only entities involved with intellectual property rights on an international
basis. Another noteworthy institution is the World Bank, since it can
finance programs to facilitate technology transfer and training programs for
those dealing in providing creative knowhow to developing countries.27 The
United Nations Conference on Trade and Development (UNCTAD), the
Organization for Economic Cooperation and Development (OECD), the
World Health Organization (WHO) and the United Nations Educational,
Scientific and Cultural Organization (UNESCO) all have vital roles related
to the identification and protection of international intellectual property
rights.28 In addition to these multilateral organizations, recent years have
countries who were forced to sign in order to gain the slight benefits they have seen as a
result of their signing).
26. Jerome H. Reichman, Nurturing A Transnational System of Innovation, 16 J.
TRANSNAT’L L. & POL’Y 143, 148 (2007) (noting that even the least developed countries are
starting to challenge other major countries in terms of IP development). See also Christine
Thelen, Comment, Carrots and Sticks: Evaluating the Tools for Securing Successful TRIPS
Implementation, 24 TEMP. J. SCI. TECH. & ENVTL. L. 519, 543 (2005) (noting successes made
by least developed countries as a result of coalition building amongst themselves).
27. The World Bank provides financial and technical assistance to developing
countries. The assistance is in the form of low interest loans, interest free credits and grants
for various types of endeavors across many substantive fields. They also conduct research to
better understand the relationship between different economic policies and specific types of
intellectual property protection. THE WORLD BANK, www.worldbank.org (last visited Mar. 1,
2011).
28. UNCTAD promotes integration of developing countries into the world economy
by assisting in ensuring that domestic policy and international action support sustainable
development. Their activities include the establishment of an Intellectual Property Program
Division on Investment and Enterprise. About the Intellectual Property Programme
Division on Investment and Enterprise, UNCTAD, http://www.unctad.org/Templates/
Page.asp?intItemID=3424&lang=1 (last visited Mar. 1, 2011). The OECD’s mission is to
bring together governments committed to democracy and the market economy so that policy
experiences can be compared, common problems identified, and good practice and
approaches can worked out. The OECD has been particularly active in exploring the role of
IPRs relative to high-tech industries.
Intellectual Property Rights, OECD,
http://www.oecd.org/topic/0,3373,en_2649_34797_1_1_1_1_ 37437,00.html (last visited
Mar. 1, 2011). The WHO provides leadership on global health matters, shaping the research
agenda, setting norms and articulating policy options while giving technical support where
needed. In May 2008 WHO adopted a Global Strategy and Plan of Action on Public Health,
Innovation and Intellectual Property. The Global Strategy and Plan of Action on Public
Health, Innovation, and Intellectual Property (GSPOA), WORLD HEALTH ORGANIZATION
(WHO) http://www.who.int/phi/implementation/phi_globstat_action/en/index.html (last
visited Mar. 1, 2011). The WHO provides leadership on global health matters, shaping the
research agenda, setting norms and articulating policy options while giving technical support
where needed. In May 2008, WHO adopted a Global Strategy and Plan of Action on Public
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[Vol. 19:3
witnessed the steady growth of regional regulators of IPRs. Much of this
growth can be linked to the increased establishment of regional trade
agreements.
B. Regional Trade Agreements
Despite the WTO’s announced principles and goals of free and fair
international trade, a mixture of logistical, economic, and political realities
have allowed for exceptions to these basic principles to form the foundation
of regional trade arrangements (RTAs).29 These RTAs, which permit
nations to enter into more favorable trading conditions between themselves
than they have with other WTO members, are allowed pursuant to certain
WTO rules.30 These rules allow for customs unions and free–trade areas as
a platform for the greater participation of developing countries in the global
marketplace.31
RTAs have grown in such popularity that, as recently as 2005, only one
WTO member, Mongolia, was not part of an agreement in force at the
time.32 With so many regional agreements allowed, it certainly creates an
odd paradox relative to the goals of the WTO. One may wonder whether
RTAs have become an instance of exceptions swallowing the rules. There
is no standard format for an RTA as they generally are tailored to the needs
and desires of the signing parties. In 2007, the WTO held a conference
entitled “Multilaterilizing Regionalism” where attendees brainstormed on
ways to deal with the tangle of trade agreements currently crossing the
global landscape.33
While there are presently nearly 300 RTAs in effect, some are much
better known than others.34 Those that are more widely known include the
Health, Innovation and Intellectual Property. Id. See also Christopher M. Bruner, Cultural,
Sovereignty, and Hollywood: UNESCO and the Future of Trade in Cultural Products, 40
N.Y.U. J. INT’L L. & POL. 351, 357 (2008) (discussing the 2005 adoption of the “Convention
on the Protection and Promotion of the Diversity of Cultural Expressions.”).
29. The WTO maintains an extensive database on RTAs including information
regarding their evolution and proliferation and has a working committee on RTAs. See
Regional Trade Agreements, WTO, http://www.wto.org/english/tratop_e/region_e/
region_e.htm (last visited Mar. 1, 2011) [hereinafter Regional Trade Agreements]. See also
C. O’Neal Taylor, The U.S. Approach to Regionalism: Recent Past and Future, 15 ILSA J.
INT’L & COMP. L. 411 (2009).
30. Regional Trade Agreements, supra note 29. The WTO rules that specifically
permit RTAs include paragraphs 4-10 of Article XXIV and Article V of GATT (1994). Id.
31. Id.
32. See Regional Trade Agreements, supra note 29.
33. The conference proceedings can be ordered from the WTO at
http://www.wto.org/english/res_e/publications_e/multila_region_e.htm.
34. The WTO indicated that there were 271 RTAs in force as of February 2010.
Regional Trade Agreements, supra note 29. See also Anselm Kamperman Sanders,
Intellectual Property, Free Trade Agreements and Economic Development, 23 GA. ST. U. L.
REV. 893 (2007) (discussing bilateralism in the intellectual property context).
2011]
561
European Union (EU), the European Free Trade Association (EFTA), the
Common Market of the South (MERCOSUR), the Andean Pact, the North
American Free Trade Agreement (NAFTA), the Association of Southeast
Asian Nations (ASEAN), The Common Market of Eastern and Southern
Africa (COMESA), the Central American Free Trade Agreement (CAFTA),
and CARICOM.35
As stated above, WTO rules allow for RTAs in different forms. Some of
the entities above are better characterized as single market economies or
enterprises (SMEs) as opposed to free trade areas (FTAs). Both of these
entities have free movement of capital, goods, people, and labor as core
goals, but a SME has common economic policies. A SME includes a
customs union, wherein the parties agree on a common external tariff and
reach their shared economic approaches through a shared political approach.
The higher level of integration between SME members has been shown to
make single markets more effective at attaining trade liberalization than free
trade areas.36 Free trade areas are more loosely arranged with the member
countries agreeing to eliminate tariffs between themselves, but maintaining
their own domestically set tariffs on other countries.37 The version of trade
arrangement chosen has an effect on the type of impact on the intellectual
property laws amongst the members. SMEs generally lead to a more
unified approach to altering existing law or the establishment of new cross
border rules and regulations. RTAs establishing free trade areas tend to set
minimum standards for all members which trigger minor changes, albeit
sometimes significant ones, in existing intellectual property laws.
Although RTAs allow for preferential treatment amongst members
relative to other WTO nations and despite the lack of a standard form for
these agreements, they basically mimic the principles of the WTO in
regards to their signees. Thus free trade amongst members is at the
forefront of group efforts, and to assist in that endeavor, attention is also
35. See Regional Trade Agreement, supra note 29; see also Rachel Denae Thrasher
& Kevin P. Gallagher, 21st Century Trade Agreements: Implications For Development
Sovereignty, 38 DENV. J. INT’L L. & POL’Y 313, 314 (2010) (reviewing the extent to which
U.S. and EU based trade agreements with developing countries leave policy space for long
term trade progress).
36. Innwon Park & Soonchan Park, Free Trade Agreements Versus Customs Unions:
An Examination of East Asia, 8 ASIAN ECON. PAPERS 119 (2009); see also Anne O. Krueger,
Free Trade Agreements Versus Customs Unions, 54 J. DEV. ECON. 169 (1997), available at
http://www.sciencedirect.com (input author name, journal title and volume number in
corresponding search fields).
37. Id. A common market establishes free trade in goods and services, sets common
external tariffs among members and also allows for the free mobility of capital and labor
across countries. The European Union was established as a common market by the Treaty of
Rome in 1957, although it took a long time for the transition to take place. Today, EU
citizens have a common passport, can work in any EU member country and can invest
throughout the union without restriction. See also Steven Suranovic, International Trade
Theory and Policy, THE INT’L ECON. STUDY CTR., http://internationalecon.com/Trade/
Tch110/T110-2.php (last updated Apr. 1, 1998).
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paid to the establishment and enforcement of intellectual property rights,
since those rights can be viewed as barriers or restrictions on goods and
services.38
II.
FREE TRADE AGREEMENTS AND INTELLECTUAL PROPERTY
As indicated above, RTAs generally take one of two possible forms, that
being either a single market economy or a free trade area. The form
adopted generally has a different impact on the intellectual property laws of
the members involved. A closer examination of some of the globe’s best
known RTAs of each type help illustrate the differing IP effects.
A. NAFTA39
NAFTA, which went into effect on January 1, 1994, was established to
remove trade barriers between the US, Canada, and Mexico.40 These
obstacles included limitations on the movement of goods, services, labor,
and capital. NAFTA does not have legislative power, and is headed by a
free trade commission consisting of government officials from each signee’s
country.41 Though NAFTA came into effect prior to TRIPS, the intellectual
38. For a discussion of copyright enforcement as a potential trade barrier, see Joined
Cases C-92/92 and C-362/92, Phil Collins v. Imtrat Handelsgesellschaft mbH, 1993 E.C.R. I05145, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:
61992J0092:EN:HTML.
See also Roberto Garza Barbosa, Revisiting International
Copyright, 8 BARRY L. REV. 43, 101 (2007) (discussing the court’s refusal to allow
discriminatory application of minimum copyright standards in favor of German nationals at
the expense of UK citizens).
39. NAFTA is the world’s largest free trade area linking 444 million people
producing $17 trillion worth of goods and services. NAFTA is administered by the Office of
the U.S. Trade Representative (USTR), which develops and coordinates U.S. international
trade policy and oversees negotiations with other countries. NAFTA, OFFICE OF THE U.S.
TRADE REP., http://www.ustr.gov/trade-agreements/free-trade-agreements/north-americanfree-trade-agreement-nafta (last visited Mar. 1, 2011).
40. Id. A full text of the Treaty can be found in numerous locations including the
website of the Organization of American States (OAS) Foreign Trade Information System
which centralizes information on all trade policy affecting the Americas. North American
Free Trade Agreement, Dec. 17, 1992, U.S.-Can-Mex., 32 I.L.M. 289 [hereinafter NAFTA],
available at http://www.sice.oas.org/trade/nafta/naftatce.asp.
41. See id. See also Lee Hudson Teslik, NAFTA’S Economic Impact, COUNCIL ON
FOREIGN REL., http://www.cfr.org/publication/15790/naftas_economic_ impact.html (last
updated July 7, 2009). The CFR takes no institutional positions on matters of international
policy and is an independent membership organization dedicated to being a resource, think
tank, and task force sponsor entity. See also Harry First, Controlling the Intellectual
Property Grab: Protect Innovation, Not Innovators, 38 RUTGERS L.J. 365, 366 (2007)
(discussing reports from the CFR by scholars critiquing developments in patent law).
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563
property sections of the treaty were based on working drafts of TRIPS, and
thus are very similar to TRIPS in structure and language.42
NAFTA provides for minimum standards of IP protection in each of the
nations, but since the U.S. and Canada were already in the group of most
developed countries, there was not much change in their respective IP
regimes. However, U.S. patent law required amendment due to its unique
view of preferring the date of invention over the date of filing in regard to
patent priority matters.43 Canada also had to eliminate certain compulsory
licensing provisions for pharmaceuticals.44 Both of these matters required
adjusting because of the potential negative effect these provisions had on
their signing partners’ willingness to trade and invest in each others’
nations. Though not expressly protectionist, they were certainly preferential
and thus possibly discriminatory. Mexico’s IP system was totally outdated
at the time, but anticipation of the signing of NAFTA led to a complete
revamping of its IP statutes.45 Mexico and Canada both negotiated for
protection of their cultural industries, which involved subject matter related
to arts and entertainment. These protections were effectuated to prevent the
U.S. from saturating their societies with U.S. cultural material.46
While NAFTA did not lead to the establishment of a new regional IP
office, it was responsible for arguably needed changes in the already well–
developed IP systems in the U.S. and Canada, and a complete
modernization of the IP system in Mexico. No regional IP office was really
ever expected in light of the already highly developed nature of the U.S. and
Canadian IPR regimes in addition to Mexico’s reworked system, which was
largely modeled after those two.
NAFTA set the tone for similar arrangements amongst other nations with
shared cultures within close geographical proximity. Other “AFTAs” and
variations thereof followed, using the NAFTA (and therefore the TRIPS)
template as a guide. For example, the 2004 Central American Free Trade
42. The IP section of NAFTA can be found at: NAFTA, supra note 40, pt. 6, ch. 17,
available at http://www.sice.oas.org/Trade/NAFTA/chap-171.asp#P.VI.
43. The U.S. Patent system differs from others around the world in giving filing
priority to the first to invent patentable subject matter as opposed to awarding the first to file
a patent application. This system has been routinely criticized and is slowly moving toward
the international standard. See Dennis D. Crouch, Is Novelty Obsolete? Chronicling the
Irrelevance of the Invention Date in U.S. Patent Law, 16 MICH. TELECOMM. TECH. L. REV.
53, 68 (2009) (providing an empirical review of 21,000 patent filings and relevant priority
issues); but see Rebecca C.E. McFadyen, The “First-to-File” Patent System: Why Adoption
is Not An Option!, 14 RICH. J.L. & TECH. 1, 33 (2007) (arguing that a change to first-to-file
will stifle innovation in the US).
44. See Peter K. Yu, The International Enclosure Movement, 82 IND. L.J. 827, 845,
(2007) (discussing Canada’s long use of compulsory licensing prior to NAFTA and TRIPS).
45. See generally James A.R. Nafziger, NAFTA’s Regime For Intellectual Property:
In The Mainstream of Public International Law, 19 HOUS. J. INT’L L. 807, 819-20 (1997).
46. See generally John A. Ragosta, John R. Magnus & Kimberly L. Shaw, Having
Your Cake and Eating It Too: Are There Limits on Cultural Protectionism?, 30 THE
CANADIAN NEWSL. 1 (1996).
564
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Area (CAFTA),47 the 2006 South Asian Free Trade Area (SAFTA),48 the
2005 Greater Arab Free Trade Area (GAFTA),49 and the 2001 version of the
Economic Community of West African States (ECOWAS).50
CAFTA aroused IP controversy relative to patent term calculation,
confidentiality of proprietary data and plant variety protection.51 SAFTA’s
intellectual property provisions were specifically directed to end the
problems of piracy that were rampant, and still remain problematic,
amongst the less developed signatories to that RTA.52 GAFTA sought to
address piracy, as well as problems with the lack of equalized trademark
and patent leverage between signatories.53 Biotechnology licensing was a
particularly prickly area with ECOWAS.54 These issues and others have
been addressed individually and from a domestic standpoint, sensitive to a
member’s developmental stage, while keeping the common general goals of
47. CAFTA’s signatories are Costa Rica, the Dominican Republic, El Salvador,
Guatemala, Honduras, Nicaragua and the United States. The agreement is meant to open new
commercial opportunities between the U.S. and its Latin and Caribbean neighbors in the
Western Hemisphere. What is CAFTA?, THE CAFTA INTELLIGENCE CTR.,
http://www.caftaintelligencecenter.com/subpages/What_is_CAFTA.asp (last visited Feb. 28,
2011).
48. SAFTA’s current members are India, Pakistan, Nepal, Sri Lanka, Bangladesh,
Bhutan and the Maldives. See Anna Turinova, Free Trade Agreements in the World Trade
Organization: The Experience of East Asia and the Japan-Mexico Economic Partnership
Agreement, 25 UCLA PAC. BASIN L.J. 336, 345-46 (2008) (discussing East Asia’s reluctance
to enter into regional institutionalization due to low economic status and the unpopularity of
legal measures in seeking to effectuate cooperation).
49. GAFTA members are also members of the Arab League and included at the time
of signing Jordan, Bahrain, the United Arab Emirates, Tunisia, Saudi Arabia, Syria, Iraq,
Oman, Qatar, Kuwait, Lebanon, Libya, Egypt, Morocco, Sudan, Yemen and Palestine.
Greater Arab Free Trade Association, MINISTRY OF INDUS. AND TRADE, THE HASHMITE
KINGDOM OF JORDAN, http://www.mit.gov.jo/Default.aspx?tabid=732 (last visited Mar. 1,
2011).
50. ECOWAS member states include Benin, Burkina Faso, Cape Verde, Cote d’Ivoire,
Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone
and Togo. ECOWAS Member States, ECOWAS, http://www.ecowas.int/ (last visited Mar. 1,
2011). See also Ryan McCormick, The African Growth and Opportunity Act: The Perils of
Pursuing African Development Through U.S. Trade Law, 41 TEX. INT’L L.J. 339, 378 (2006)
(noting that, despite the appearances of freer trade, widespread corruption along the Western
borders potentially offset any benefits through increased transaction costs).
51. Pacheco Coto, CAFTA and Intellectual Property Rights- as published in
“AmCham’s Business Costa Rica”, (2005) available at http://www.hg.org/articles/
article_1338.html.
52. Id. See also Turinova, supra note 48.
53. See Turinova, supra note 48. See also Paul G. Johnson, Shoring U.S. National
Security and Encouraging Economic Reform in the Middle East: Advocating Free Trade with
Egypt, 15 MINN. J. INT’L L. 457 (2006).
54. But see Ken Ukaoha, The ECOWAS EPA: A ‘Funeral Oration’ to Regional
Integration?, 8 TRADE NEGOTIATION INSIGHTS, June 2009 (hinting that bilateral and
multilateral trade agreements between ECOWAS members and the EU is a signal of
impending doom for ECOWAS as a viable entity). See also Monday Roundup, AFRO-IP
(Feb. 16, 2011), http://afro-ip.blogspot.com/2009_03_01_archive.html.
2011]
565
liberalization in mind. The SMEs have shown much more dramatic change
in terms of intellectual property due to the shared political status that
characterizes them.
B. The European Union
The European Union, or EU as it is most commonly referred to, is
probably the best known SME and undoubtedly one of the most
transformative where IPRs are concerned. The EU originated in the 1950s,
shortly after the conclusion of WWII, with the idea that economic and
political cooperation could bring an end to a history of deadly neighborly
conflicts.55 In the same decade that the EU was established, the Treaty of
Rome created the European Economic Community (EEC), also known as
the European common market.56 As the global economy grew stronger, so
did the cooperation between the EU’s members with joint trade decisions on
tariffs, food production, and other policy issues leading to the signing of the
Single European Act of 1987.57 Further adjustments were made in light of
the fall of communism, leading to the official recognition of “the four
freedoms” (those being free movement of goods, services, people, and
money) and a continuing enlargement of the membership.58 These freedoms
were ushered in by the establishment of EU offices that facilitated
developments like the EU passport, an EU currency, and the EU Court of
Justice.59 The EU has continued to evolve with a blurred sense of
federalism, but the nation states have not given up their sovereign rights.60
Thus, despite the consistent progress made in many areas, a curious
55. See Europa: Gateway to the European Union, EUROPEAN UNION,
http://europa.eu/index_en.htm (last visited Feb. 20, 2011).
56. Id.
57. Id.
58. Id.
59. Id.
60. The EU has attempted to federalize in a sense by passing an EU constitution.
The battle over the proposed constitution has raged for nearly a decade but a constitutional
framework has been adopted albeit in the form of a treaty known as the Treaty of Lisbon.
The Treaty has allowed many states to opt out of provisions that they felt impinged upon
their sovereignty in some important way although none have opted out in regard to
intellectual property issues. See Jacques Ziller, The Constitutionilization of the European
Union: Comparative Perspectives, 55 LOY. L. REV. 413, 415, 419 (2009) (attributing the
concept of the “United States of Europe” to Winston Churchill in the 1940s and further
noting the refusal of certain member countries to adopt any express documents of EU
unification featuring the words “constitution” or “federalism”); Ingolf Pernice, The Treaty of
Lisbon: Multilevel Constitutionalism in Action, 15 COLUM. J. EUR. L. 349, 364 (2009)
(discussing the amendatory nature of the Treaty in regards to the Treaty establishing the EU
as opposed to the Treaty seeking to replace prior treaties via an overarching constitution);
Stephen C. Siebreson, Did Symbolism Sink the Constitution? Reflections on the European
Union’s State-Like Attributes, 14 U.C. DAVIS J. INT’L L. & POL’Y 1, 2-3 (2007) (noting that
the official Treaty Establishing a Constitution for Europe that was originally put forth by EU
members in 2004 saw its demise at the gathering of the European Council in June, 2007).
566
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situation remains regarding the status of the EU as a political entity of its
own relative to the rich independent historical backgrounds of its members.
The EU, much like the U.S., has had a continuously growing impact on
regional and international IPRs. Much of this is due to the structure of the
EU, which is recognized as having four principal institutions. These
institutions are the Council, the Commission, the Parliament, and the Court
of Justice.61 The Council is where all legislative measures originate and
consists of ministerial representatives from each state.62 The Council acts
by adopting directives, which require member states’ legislation to conform
with the Council’s but leaves it up to the members on how that is to be
achieved.63 The Council may also issue regulations which apply directly to
all members without any implementing regulation required in each state.64
The Council also may issue a decision directed at the particular parties to a
dispute.65 Legislation in both forms has been issued that directly involves
intellectual property. This legislation has included Database Protection and
Customs Rules.66 The Commission is responsible for assuring that EU law
is implemented, for proposing legislative initiatives to the Council, and
issuing regulations in limited circumstances.67
The Parliament consists of popularly elected officials who approve the
President and designated members of the Commission. It also has the
ability to amend and comment on intended legislation.68 The European
Court of Justice (ECJ) is the court of last resort and its decisions are final
and take immediate effect, unless the opinion is in response to a national
courts question on a matter of legal interpretation.69 The court is advised by
advocates generals who give preliminary rulings on each case. There is also
61. Ralph H. Folsom, European Community Law After 1992: The European
Community Law-Making Machine, in CASES AND MATERIALS ON THE INTERNATIONAL LEGAL
SYSTEM 113, 114 (Covey T. Oliver et al. eds., 4th ed. 1995) (1993). See also FREDERICK
ABBOTT, THOMAS COTTIER & FRANCIS GURRY, THE INTERNATIONAL INTELLECTUAL PROPERTY
SYSTEM: COMMENTARY AND MATERIALS, 399-421 (1991).
62. Id.
63. See id.
64. CASES AND MATERIALS ON THE INTERNATIONAL LEGAL SYSTEM, supra note 61, at
112, 113. See also How Does the EU Work?, EUROPEAN UNION, http://europa.eu/abc/
12lessons/lesson_4/index_en.htm (last visited Feb. 20, 2011).
65. CASES AND MATERIALS ON THE INTERNATIONAL LEGAL SYSTEM, supra note 61, at
112, 113. See also How Does the EU Work?, EUROPEAN UNION, http://europa.eu/abc/
12lessons/lesson_4/index_en.htm (last visited Feb. 20, 2011).
66. See generally Miriam Bitton, Exploring European Union Copyright Policy
Through the Lens of the Database Directive, 23 BERKELEY TECH. L.J. 1411 (2008); Daniel H.
Erskine, The U.S.-EC Dispute Over Customs Matters: Trade Facilitation: Customs Unions,
and the Meaning of WTO Obligations, 18 FLA. J. INT’L L. 423 (2006).
67. See How Does the EU Work?, supra note 64.
68. Folsom, supra note 61, at 115.
69. See generally J.D. Louis, The Community Legal Order, in CASES AND
MATERIALS ON THE INTERNATIONAL LEGAL SYSTEM, supra note 61, at 116, 116-18. See also
European Court of Justice, CIVITAS, http://www.civitas.org.uk/eufacts/download/
IN.5.ECJ.pdf.
2011]
567
a Court of First Instance that hears staff cases and complex issues of
competition law.70
Although competition law does not specifically deal with intellectual
property issues, some aspects of it are related. Competition law in the EU is
most favorably comparable to U.S. antitrust law. The EU goal in enforcing
those laws is to make the markets work better and thus ensure that actions
of rights enforcement whether they be IPR based or otherwise do not stem
the flow of the four freedoms. The Court of First Instance is not an
intellectual property court and despite calls for the establishment of such in
the EU no such court for patent or copyright law has come into being as of
yet.71 The EU has established courts for resolving conflicts involving
community trademarks.72 The lack of specialty courts for IP is not out of
the ordinary, as there are few if any regional courts of this type in existence
anywhere today, although there are courts of reasonable approximation to
that idea in the U.S. These include the Court of Appeal for the Federal
Circuit, which is generally considered an IPR court and specifically handles
all patent appeals from district courts as well as many trademark and
international trade issues.73 It also handles appeals from quasi–judicial
administrative “courts” or bodies that occur due to adverse decisions made
against applicants to specifically designated national offices such as the
70. European Court of Justice, supra note 69. See Karen J. Alter, The Law and
Politics of International Delegation: Delegating to International Courts: Self-Binding vs.
Other Binding Delegation, 71 LAW & CONTEMP. PROB. 37, 68-70 (2007) (discussing the ECJ,
the Court of First Instance and other international courts difficulty in balancing
administrative review with efforts to ensure international legal protections match the
domestic ones that judicial participants might expect in their own national courts). See also
Making Markets Work Better, EUROPEAN COMM’N: COMPETITION, http://ec.europa.eu/
competition/index_en.html (last visited Feb. 20, 2011).
71. See Kevin R. Casey, The European Patent Situation, 9 DEL. L. REV. 107, 108-10
(2007) (discussing the draft European Patent Litigation Agreement [EPLA] which proposes
an integrated judicial system including uniform rules of procedure and a common appeal
court).
72. The EU members have designated certain national courts and tribunals of first
and second instance within their borders as “Community trade mark courts.” These courts
have exclusive jurisdiction for all infringement actions as well as declaratory actions for noninfringement (if permitted under national law), for counterclaims for revocation and/or
invalidity and for actions dealing with publication, registration and compensation for a
community trademark. See Judgments of the CTM Courts, OFFICE FOR HARMONIZATION IN
THE
INTERNAL MKT. (OHIM), http://oami.europa.eu/ows/rw/pages/CTM/caseLaw/
judgementsCTMCourts.en.do (last visited Feb. 28, 2011).
73. The Court of Appeals for the Federal Circuit was created in 1982 as part of the
Federal Courts Improvements Act of 1982. The Act abolished the Court of Customs and
Patent Appeals, which was the prior court that addressed patent disputes on an appellate
level. See generally Liza Vertinsky, Comparing Alternative Institutional Paths to Patent
Reform, 61 ALA. L. REV. 501 (2010); see also Court Jurisdiction, U.S. COURT OF APPEALS
FOR THE FED. CIRCUIT, http://www.cafc.uscourts.gov/about.html (last visited Feb. 28, 2011).
568
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USPTO’s Board of Patent Appeals and Interferences (BPAI) and the
Trademark Trial and Appeals Board (TTAB).74
Despite the small number of specially designated IP courts, the EU does
have specially designated intellectual Property Offices. The U.S. bodies,
and to a greater extent the European Patent Office (EPO), the Office for
Harmonization in the Internal Market (OHIM), the African Regional
Intellectual Property Organization (ARIPO), and the Organisation Africaine
de la Propriete Intellectuelle (OAPI), provide an instructive template from
which the Caribbean—and CARICOM in particular—can begin to establish
its own regional intellectual property offices. While the U.S. has a central
office that handles copyright matters in the Library of Congress, there is no
centralized office for EU copyright matters. The EU has relied on Treaty
law and the issuance of various directives, rules, and regulations in an effort
to harmonize copyright law.75 CARICOM and its goals will be better
served if it follows the U.S. example and creates a centralized copyright
authority. Especially in light of the fact that creative expression is the
Caribbean’s biggest protectable good at this time and looks to continue to
be so for the foreseeable future.76
III. REGIONAL INTELLECTUAL PROPERTY OFFICES
A. The European Patent Office (EPO)
The EPO was established in 1977 following the earlier signing of the
European Patent Convention.77 The EPO grants European patents for its
members through a single patent granting procedure.78 This procedure
allows for the potential procurement of a bundle of national patents as
74. Van Dyke, supra note 73.
75. See GRAEME B. DINWOODIE, INTERNATIONAL INTELLECTUAL PROPERTY LAW AND
POLICY 611 (2008).
76. Intellectual property rights in the U.S. are generally dissected into distinct
categories of copyright law, which covers creative expression, patents which cover utilitarian
inventions and trademarks, which cover the identification of goods and services. Globally the
category of industrial design is also used. As society has evolved technical innovation of one
kind or another has been a primary driver in the patent area and that usually requires
substantial investment in research and development that most CARICOM countries do not
have. Instead most of the protectable subject matter from an IPR standpoint is based on
cultural products such as music, literature and art that fall within the area of copyright
protection and is exploited on a broad basis usually to the detriment of the creator’s rights
here in the US, as well as in the EU and other countries throughout the world. For a general
discussion on the conflicting views of copyright protection in the U.S. and the Caribbean see
Valerie L. Hummel, The Search For a Solution to the U.S.-Caribbean Copyright
Enforcement Controversy, 16 FORDHAM INT’L L.J. 721 (1993).
77. See EUROPEAN PATENT OFFICE (EPO), http://www.epo.org/ (last visited Feb. 20,
2011).
78. Id.
2011]
569
opposed to a single community patent.79 The issue of a community patent,
or COMPAT as it’s also called, has been contentious for many reasons.
Advocates tout the ability to end fragmentation and undue costs associated
with so many national patents. However, critics dispute the costs figures,
question the official language and designation of the patent and
administrators as being wholly European, and express concern at the loss of
sovereignty to an administrative body that is not freely elected.80
No one has to file for a patent through the EU, and applicants for patent
protection may decide that it is more economically feasible to directly apply
to certain selected nations through their national offices. An applicant for
an EU patent files an application that is examined for viability, and if
rejected, the applicant can go to one or more patent office appeals boards
but, unlike the U.S., there is no judicial review of a final rejection by the
EPO.81 Although one receives a bundle of national patents, the EPO does
not guarantee that a patent, once issued, is safe from attack domestically.
Thus a national action may be brought in a member state, either judicially or
administratively, that results in patent invalidity in that particular state.82
On the other hand, there may be some states that allow a patent to issue
despite a rejection from the EPO.
B. The OHIM
The OHIM was established in 1996, and unlike the EPO, does offer its
protections for the whole of the European community.83 The OHIM
protects trademarks and designs, and an applicant can file a single
application and possibly receive protection for all of the countries in the
EU.84 A uniform law applies to trademark and industrial design law for the
EU, thereby facilitating the goal of the single market economy. 85 The
Community Trademark (CTM) does not replace the domestic trademark law
79. Id. Parties have fought for the establishment of a single community patent for
many years and some believe that such a development is imminent. Casey, supra note 71, at
108-10; see also Julius Melnitzer, Taking Sides: European Judges Demand the Creation of a
Unified Patent Court, INSIDE COUNSEL, Feb. 2006, http://www.insidecounsel.com/
Issues/2006/February%202006/Pages/Taking-Sides.aspx.
80. See Long and Winding Road to Single EU Patent and Patent Court System, FOSS
PATENTS (May 6, 2010), http://fosspatents.blogspot.com/2010/05/long-and-winding-road-tosingle-eu.html.
81. See EPO, supra note 77.
82. See How to Apply for a European Patent, EPO, http://www.epo.org/applying/
basics.html (last visited Feb. 28, 2011).
83. See OFFICE OF HARMONIZATION IN THE INTERNAL MARKET (OHIM),
http://oami.europa.eu/ows/rw/pages/index.en.do (last visited Mar. 1, 2011).
84. Id.
85. Id. For a comparative evaluation of the EU system with U.S. trademark law see
Eric E. Bowman, Trademark Distinctiveness in a Multilingual Context: Harmonization of the
Treatment of Marks in the European Union and the United States, 4 SAN DIEGO INT’L L.J.
513 (2003).
570
[Vol. 19:3
of the member states. No one is obligated to procure a community
trademark, and getting one does not prevent one from securing a national
application as well. Thus, CTMs can be used as alternatives or as
supplements to national rights.86 The CTM has proven to be quite popular
since its inception, with hundreds of thousands issued in a relatively short
period of time.87
Despite its popularity, some significant problems remain. While the
CTM application process is simple and cost efficient, there still may be
significant tangential costs. Since the CTM does not replace the national
system, it is very costly to do a trademark search in all of the member states.
But it is judicious to make that type of expenditure since a CTM can be
denied due to a conflicting national application or mark. 88 If a CTM is
thought to be infringed, the lack of uniformity in EU law in terms of civil
procedure and remedies can also make the CTM extremely costly to
enforce.89
OHIM holds a judicial conference every two years on trademarks and
design law.90 These conferences are attended by Community judges and
representatives from the ECJ and the Court of First Instance.91 These
Symposia help promote consistency and harmonization in the registration of
protectable subject matter, as well as the interpretation of applicable
Community law.92
C. The African Regional Intellectual Property Office (ARIPO)
In the early seventies, a regional seminar on IPRs was held in Nairobi,
Kenya, and amongst the outcomes was a recommendation for a regional
intellectual property organization.93 With the assistance of the United
86. See OHIM, supra note 83. Unlike the European patent the Community trade
mark does pose a problem relative to opposition in a particular member country. Because it
is based on a single application and uniform rules invalidation in any member country will
result in the invalidation of the Community trade mark throughout the EU. See DINWOODIE,
supra note 75 at 895-906.
87. See OHIM, supra note 83. See also Lars Meyer, Much Ado About Nothing?:
Characteristics, Benefits, and Practical Implications of the European Community
Trademark, 5 CHI.-KENT J. INTELL. PROP. 158, 168 (2006) (discussing the more than 400,000
applications received between 1996 and 2005).
88. See id. at 169. A CTM application can also be turned into a national application
if it faces particular hurdles in a member state.
89. J.F. Bretonniere & Cecile Cailac, Baker & McKenzie, Cross-border: The
National Trademark Versus the Community Trademark, in IP VALUE 156 (2007), available
at http://www.buildingipvalue.com/07EU/p.156-159%20Baker%20McKenzie.pdf.
90. See Judges’ Seminars and Symposiums, OHIM, http://oami.europa.eu/ows/rw/
pages/QPLUS/networks/EJS.en.do (last visited Feb. 28, 2011).
91. See id.
92. Id.
93. See AFR. REG’L INTELL. PROP. ORG. (ARIPO), http://www.aripo.org/ (last visited
Mar. 12, 2011).
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571
Nations Economic Commission for Africa (UNECA) and the WIPO, an
agreement was reached and ARIPO was established in 1976.94 The
objectives are to promote, harmonize and develop IPRs amongst the English
speaking African states, although membership is not limited on the basis of
language.95 ARIPO established a filing and registration system for patents,
trademarks, and industrial designs. Like the regional offices in the EU, it
supplements the national systems of its members as opposed to operating as
a substitute.96 Instead of drafting regional patent legislation for the sake of
consistency, the members ratified the Patent Cooperation Treaty (PCT).97
There is no equivalent to a community trademark or community trademark
law amongst the ARIPO members.
ARIPO was established in recognition of the benefit of pooling the
limited resources of each of its member nations.98 The countries understood
early on that it was more economically and systemically feasible for them to
join together, thus avoiding duplication of financial and human resources.
Member states were largely undeveloped countries whose intellectual
property rights were primarily governed by foreign laws, with laws of the
United Kingdom being the most influential.99
The coexistence of regional and national systems has also raised
concerns at times. For example, as recently as 2009, a ruling by the national
court in Kenya caused consternation. A court there decided that Kenya’s
Industrial Property Tribunal had no jurisdiction to hear applications to
revoke patents granted by ARIPO.100 In that case, Chemserve Cleaning
Services sought to revoke a patent held by Sanitam (EA) Services
Limited.101 The ruling did not affect the ability of the Court to revoke a
94. Id. The member states of ARIPO are Botswana, The Gambia, Ghana, Kenya,
Lesotho, Malawi, Mozambique, Namibia, Sierra Leone, Somalia, Sudan, Swaziland, Uganda,
United Republic of Tanzania, Zambia and Zimbabwe.
Membership, ARIPO,
http://www.aripo.org/index.php?option=com_conteco&view=article&id=22&Itemid=56 (last
95. ARIPO, supra note 93.
96. Id.
97. Id. The Patent Cooperation Treaty (PCT) is an international treaty with more than
140 signatories. The treaty provides for a single patent application filing procedure. The
application designates which of the member countries it is seeking protection in and a patent
search is performed by an International Searching Authority (ISA). See Sean A. Pager,
Patents on a Shoestring: Making Patent Protection Work for Developing Countries, 23 GA.
ST. U. L. REV. 755, 781 (2007) (discussing the PCT as an option for developing countries to
reduce the costs associated with developing their own patent systems); see also Jay Erstling
& Isabelle Boutillon, The Patent Cooperation Treaty: At the Center of the International
Patent System, 32 WM. MITCHELL L. REV. 1583 (2006).
98. See Welcome to ARIPO, ARIPO, http://www.aripo.org/index.php?option=com_
content&view=article&id=1:welcome-to-aripo&catid=1:latest-news&Itemid=18 (last visited
Mar. 1, 2011).
99. Id.
100. See Darren Olivier, IP Litigation in Africa, WIPO MAGAZINE (Feb. 2010),
http://www.wipo.int/wipo_magazine/en/2010/01/article_0006.html.
101. Id.
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patent issued by Kenya’s national patent office. The High Court has
previously ruled that it is not their duty to decide on revocability issues, thus
the question of infringement litigation and appeals in Kenya vis–à–vis
ARIPO is somewhat unsettled at this time.102
D. The OAPI
The OAPI is a regional organization that was created in 1977 and is
composed of the former French colonies.103 The sixteen French–speaking
countries include some of the least developed countries in the world and
cover a territory inhabited by a population of approximately 100 million
people.104 The OAPI seeks to harmonize the laws of its members in order to
“valorize” all the possibilities offered by patent rights.105 To achieve this
objective OAPI ensures the protection and publication of patent rights, as
doing so is more likely to make its members attractive locations for private
investment.106
The OAPI does not coexist with the national systems of its member
states but instead implements and applies centralized administrative
procedures and uniform legislation applicable in each member state.107
There is a single application and deposit that covers all states and there is no
separate designation necessary.108 The lack of national designation is a
double–edged sword though, because despite the simplicity, there is a lack
of sovereignty amongst members relative to the ability to determine if
something deemed inventive domestically is protectable. There is no other
way to secure enforceable rights in OAPI states other than through the
OAPI process. While this is acceptable in a country like the U.S. that has
turned over IPR issues such as patents and copyright law to the exclusive
jurisdiction of the federal government, there is no federalism covering the
OAPI nations.
102. Cf. id.
103. The member countries are Benin, Burkina Faso, Cameroon, Central African
Republic, Chad, Congo, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Ivory Coast,
Mali, Mauritania, Niger, Senegal, and Togo. African Intellectual Property Organization,
WIPO, http://www.wipo.int/africa/en/partners_org/partners/oapi.html (last visited Mar. 1,
2011).
104. Id.
105. Id.
106. Id. But see Jerome H. Reichman, Intellectual Property in the Twenty-First
Century: Will the Developing Countries Lead or Follow?, 46 HOUS. L. REV. 1115, 1180
(2009) (questioning the validity of “high-protectionist rhetoric” regarding the development of
strong IP systems as a precursor for foreign investment of capital and know-how).
107. See African Intellectual Property Organization, supra note 103.
108. Id.
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IV. INTELLECTUAL PROPERTY IN THE CARIBBEAN
Intellectual property protection has taken place in the Caribbean on a
piecemeal basis in a manner that is somewhat expectedly related to the
timing, circumstances, and degree of independence of each particular nation
state.109 Economies of scale also play an important role, as most of the
nations are relatively small and therefore have not had the money or
inclination to develop strong IPR regimes. While some critics are skeptical
about the oft stated mantra that modernized intellectual property laws
increase trading opportunities, benefit the economic standing, and improve
the overall well–being of effected nations, there are no persuasive studies
indicating that the development of an IPR regime, even at the behest of
trading partners poised to take unfair advantage of new trade rules, has
harmed a lesser developed country.110 Speculation over the potential stifling
109. While some nations like Haiti have “enjoyed” independence for more than 200
years the events surrounding the independence, more specifically a successful slave rebellion
against an imperialistic powerhouse, and the political repercussions that followed has left
that nation struggling every since and relinquished them to being recognized as the poorest
country in the western hemisphere. Voluntary relinquishment of control by colonial
overseers as a path to independence has placed many of the nations coming out of those
exigencies in a better situation to take advantage of political and economic opportunities.
For example, Jamaica, which gained full independence in 1962 but still remains a
“commonwealth realm,” is in much better financial, political and economic shape than Haiti
despite its relative short time of independence and the fact that Haiti is four times as
populous. In Caribbean countries that remain part of the commonwealth realm, the Queen of
England remains the Head of State and a constitutional fiction exists that places all official
acts in Her Majesty’s name. The Queen is referred to in court documents and public servants
are referred to as servants of the crown. There are royal police forces and prisons. Thus,
certain ties are maintained, despite decolonization, that are utilized to achieve certain
objectives that are more difficult for true republics. See generally FRED PHILLIPS,
COMMONWEALTH CARIBBEAN CONSTITUTIONAL LAW (2d ed. 2002). Ironically, Jamaica and
Haiti were chosen as Caribbean invitees to the recent G8 summit meetings in Toronto,
Canada for talks on development and security. See Nelson A. King, Jamaica, Haiti Invited
LIFE
(June
18,
2010),
to
G8
Canada
Meeting,
CARIBBEAN
http://www.caribbeanlifenews.com/stories/2010/6/2010_06_16_nk_g8_meeting.html.
110. See Reichman, supra note 106. Many others are critical of the agenda of the
developed nations in pushing IPR norms and in fact there has been a constant wariness
amongst the lesser developed nations since the establishment of the WTO and TRIPS.
Lesser developed countries felt more kinship with organizations with altruistic missions
seated in overall global well being hence their affinity for the WIPO and other United
Nations based entities. These affiliations led to the dual roles of the WTO and WIPO in the
establishment of TRIPS, recognizing that IPRs were not just there to facilitate private
advancement but also were an important substantive component of public international law.
For additional criticism or perhaps healthy skepticism of the interaction of IPR recognition
and enforcement relative to developing countries, see Matthew Turk, Bargaining and
Intellectual Property Treaties: The Case for a Pro-development Interpretation of TRIPS but
Not TRIPS Plus, 42 N.Y.U. J. INT’L L. & POL. 981, 994 (2010) (discussing the coercion by
the U.S. and other developed countries in TRIPS negotiations that led to an imbalanced result
that was disadvantageous to developing countries); Mark Schultz & Alec van Gelder,
Creative Development: Helping Poor Countries by Building Creative Industries, 97 KY. L.J.
574
[Vol. 19:3
of innovation or the possible exacerbation of piracy are poor arguments for
maintaining the status quo, especially when updating IP laws is relatively
simple and inherently beneficial regardless of the impetus for doing so.
The proliferation of RTAs has highlighted the wide range of trade
benefits available especially where the U.S. is one of the trading partners.111
The U.S. has also been one of the prime players in the fight for minimum
intellectual property standard observation on an international basis, although
arguably not from the standpoint of global goodwill, or at least with that
objective being subservient to domestic economic goals.112
The Caribbean and CARICOM countries are in close proximity to the
U.S., and many member states are sorely in need of the benefits that an
effective trading relationship with the U.S. could provide. This is not to
say, however, that some Caribbean states do not already realize good
trading relations with the U.S. and other nations, as many bilateral and
multilateral agreements have been executed between the U.S. and certain
countries in the past.113 CARICOM has also become active in executing its
79, 83-84 (2008-09) (describing TRIPS as an 800 hundred pound gorilla in the room that
focuses on wealthy nations IPRs and obscures more valuable discussion on how to truly
assist lesser developed nations); Graeme B. Dinwoodie & Rochelle C. Dreyfuss, Designing A
Global Intellectual Property System Responsive to Change: The WTO, WIPO, and Beyond,
46 HOUS. L. REV. 1187, 1233-34 (noting the inherent tension in trade agreements negative
demands relative to removing trade barriers and the positive demands of TRIPS, erect new
legal protections, which do not adequately take into account the national dynamics of
developing states and that trade goals can be better served if they take intellectual property
into consideration); Margaret Chon, Intellectual Property and the Development Divide, 27
CARDOZO L. REV. 2821, 2847 (2006) (noting that developed countries operated from an
insular standpoint in developing global IP policy whereas developing nations took an
intersectional view whereby IPR were responsive to general social concerns).
111. See C. O’Neal Taylor, The U.S. Approach to Regionalism: Recent Past and
Future, 15 ILSA J. INT’L & COMP. L. 411 (2009) (noting that developing countries partner
with the U.S. in free trade agreements in order to avoid missing their chance at securing
access to the world’s largest market). But see Gardner supra note 19, at 60 (questioning if
the presence of more than 300 RTAs indicate that they have become stumbling blocks as
opposed to building blocks for trade liberalization).
112. Much of the U.S. concern has been driven by losses both real and perceived
based on piracy from nations around the world who do not have developed IPR regimes.
Numbers routinely are reflected in the hundreds of billions in terms of U.S. losses based on
intellectual property theft as well as the alleged loss of hundreds of thousands of jobs. These
losses cover every area of intellectual property from piracy of entertainment materials to
medicine and technology. See generally U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-10-423,
INTELLECTUAL PROPERTY: OBSERVATIONS ON EFFORTS TO QUANTIFY THE ECONOMIC EFFECTS
OF COUNTERFEIT AND PIRATED GOODS (2010).
113. These include relationships that have grown from the Caribbean Basin Initiative
(CBI), the Caribbean Basin Economic Recovery Act (CBERA) and the Caribbean Trade
Partnership Act (CBTPA). See Caribbean Basin Initiative, OFF. OF THE U.S. TRADE
REPRESENTATIVE, http://www.ustr.gov/trade-topics/trade-development/preference-programs/
caribbean-basin-initiative-cbi (last visited Mar. 12, 2011). See also Charles B. Rangel,
Moving Forward: A New, Bipartisan Trade Policy That Reflects American Values, 45 HARV.
J. ON LEGIS. 377, 416 (2008) (noting the goals of U.S. trade policy include evaluating,
renewing, and reforming where necessary to ensure that trade benefits were spread to
2011]
575
own RTAs with numerous nations through its own literal and figurative
Caribbean Negotiating Machinery (CRNM).114 Beyond entering more
RTAs, the CNRM has also been engaged in the envisioning and
establishment of various regional entities. These have included Petrocaribe,
the development of the CARICOM Passport, and plans for many others.115
Most Caribbean nations have been signatories to TRIPS since its
origination and are thus charged with maintaining the types of minimum IP
protections that are outlined in the treaty.116 None of the countries in
CARICOM are considered developed under the TRIPS agreement, and
many have historically been plagued with piracy and other types of behavior
that infringes the IPRs of others.117 Developing countries consider the
domestic sale of pirated goods to be beneficial, as they are the basis of
significant consumer spending from both citizens and tourists.
A. Significant Caribbean Intellectual Property Developments
A number of Caribbean states have taken the initiative in moving
forward to modernize their intellectual property laws, despite their lesser–
regarded status in the global marketplace. Others have simply relied on the
pre–existing laws of their past colonial hosts. The latter tack has been
countries abroad, including those of the poorest nations including those in the Caribbean
especially in light of the imminent demise of certain aspects of the CBI program).
114. In 2009, at the thirtieth meeting of the Conference of Heads of Government of
the Caribbean Community (CARICOM), the CRNM was officially changed to the Office of
Trade Negotiations (OTN) and given extended responsibility for the execution of negotiating
strategies for all Community external trade negotiations. See Welcome to the Office of Trade
Negotiations, OFFICE OF TRADE NEGOTIATIONS CARIBBEAN COMTY. SECRETARIAT,
http://www.crnm.org/ (last visited Mar. 1, 2011).
115. See generally Caricom Projects, CARIBBEAN CMTY. (CARICOM) SECRETARIAT,
http://www.caricom.org/jsp/projects/projects_index.jsp?menu=projects (last visited Mar. 11).
There are also four ‘Organs’ that assist the primary administrative bodies of CARICOM [the
Conference of Heads of Government (the Bureau) and the Community Council]. These are
the Councils for Finance and Planning, the Council for Trade and Economic Development,
the Council for Foreign and Community Relations and the Council for Human and Social
Development. While each entity is charged with undertaking activities that affect the
development of CARCICOM from various perspectives including social and health
programs, banking and finance and all aspects of trade none specifically list intellectual
property in full or part as a goal. See generally Community Organs and Bodies, CARIBBEAN
CMTY.
(CARICOM)
SECRETARIAT
http://www.caricom.org/jsp/community_organs/
community_organs_index.jsp?menu=cob (last visited Feb. 20, 2011).
116. See Understanding the WTO: The Organization, Members and Observers, WTO,
http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Mar. 1, 2011).
117. Although much of the discussion on international trade and intellectual property
issues is qualified by reference to whether a nation state is most/highly developed or in some
lesser state of development, there are official international definitions to assist in
categorizing nations. WTO members self–select and other members may actually challenge
the decision of a member to make use of provisions especially designated for developing
countries.
See Who Are the Developing Countries in the WTO?, WTO,
http://www.wto.org/english/tratop_e/devel_e/d1who_e.htm (last visited Feb. 22, 2011).
576
[Vol. 19:3
unfortunate, especially in light of the fact that most of the former imperial
powers have updated their laws while their former colonies have stood pat.
In some instances, the older laws have been sufficient to meet the demands
of TRIPS, as there have been no IPR disputes brought against any
Caribbean nations at the WTO.118 However, some of the Caribbean
countries have been given additional time by the WTO to become TRIPS
compliant or they may be deemed unworthy of pursuing actions against due
to their current economic and/or judicial state of affairs.119 A brief look at
some of the active states indicates that progressive action is a matter of
education, political will, and some measure of fiscal support as opposed to
being dependent on the size of the nation or when it became independent. It
may be that more recent independence and smaller size makes taking
national action easier than being tied down with unfortunate history and
burdensome customs.
1. Belize
Belize was granted independence in 1964 as British Honduras, and
officially became Belize in 1973. The country of approximately 315,000
has one of the lowest population densities in the world and primarily
sustains itself on tourism.120 The Belize Intellectual Property Office
(BELIPO) was established in 2000.121 Its expressed mission is “[t]o create
an efficient and modern intellectual property system leading to the
emergence of a vibrant intellectual property culture in Belize.”122 The
office administers copyrights, industrial designs, patents, trademarks, plant
118. It may also be that no one has thought that it is economically feasible to pursue
intellectual property actions in some of these countries due to their distressed economic
standing and antiquated laws. For example, Haiti is one of the world’s poorest nations and
its current patent law is based on a 1924 act. See WIPO, WIPO GUIDE TO INTELLECTUAL
PROPERTY WORLDWIDE 248 (2000) (providing relevant intellectual property information for
Haiti). See also Dispute Settlement: The Disputes, Index of Dispute Issues, WTO,
http://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm#selected_subject
(last visited Feb. 20, 2011).
119. Developing countries were initially given ten years of extra time to become
TRIPS compliant, thus, when TRIPS came into effect in 1995 most Caribbean countries had
until 2005 to become compliant. The least developed countries were given an extension until
2016 to become compliant but it is conceivable that time will continue to be extended for
them given the economic and political postures many find themselves in. See Elizabeth
Ferrill, Clearing the Swamp for Intellectual Property Harmonization: Understanding and
Appreciating the Barriers to Full TRIPS Compliance for Industrializing and NonIndustrialized Countries, 15 U. BALT. INTELL. PROP. L. J. 137, 143 (2007) (discussing the
history of TRIPS).
120. See The World Factbook, Central America and Caribbean: Belize, CENTRAL
INTELLIGENCE
AGENCY,
https://www.cia.gov/library/publications/the-world-factbook/
geos/bh.html (last visited Mar. 1, 2011).
121. See Belipo Online! Trademarks Patents Designs Copyrights, BELIZE INTELL.
PROP. OFFICE (BELIPO), http://www.belipo.bz/ (last visited Mar. 12, 2011).
122. Id.
2011]
577
varieties, and protection of integrated circuits.123 The office is also involved
in protecting traditional cultural knowledge as well.124
Belize was assisted in its efforts at modernization by the WIPO, which
organized a national seminar on intellectual property in cooperation with the
Government of Belize in 1999.125 Government officials were also invited to
participate in ongoing seminars and symposia that were conducted on a
regular basis around that time period.126 Belize has substantially revised all
of its intellectual property laws during the last decade and is deemed in full
compliance with its obligations under TRIPS. 127 BELIPO is automated to
some degree, even allowing for searches to be done online as well as the
procurement of filing forms. BELIPO also provides for copyright deposits
although copyright registration is not required. Belize, through BELIPO, is
at the forefront of intellectual property advancement in the Caribbean and
can serve as both an incentive and model for comparable activities
throughout the region.
While these advancements are notable,
representatives from the U.S. government remain wary of piracy in Belize
and the seeming lack of political will to strongly enforce the new laws.128
2. Barbados
While not as up to date as the laws of Belize, Barbados has been another
Caribbean state of note that is taking valuable steps toward the advancement
of intellectual property rights. Barbados gained independence from the
British in 1966, but like many Caribbean nations, it still retains some ties as
part of the Commonwealth order.129 It is another small Caribbean country
of only about 300,000 people, but unlike Belize, it also has a relatively
123. Id. See also Lisa M. Brownlee & Chistopher Coye, Trademark Law in Belize:
Implementation of GATT Trips in a Developing Country, 93 TRADEMARK REP. 1414 (2003).
124. See generally Rita Mae Hyde, Belize Report on Protection of Traditional
Knowledge, SELA (May 2009), http://www.sela.org/DB/ricsela/EDOCS/SRed/2009/05/
T023600003488-0-Belize_Report_on_Protection_of_Traditonal_Knowledge.pdf.
125. See Conferences, Meetings and Seminars, WIPO, http://www.wipo.int/meetings/
en/details.jsp?meeting_id=3721 (last visited Feb. 22, 2011).
126. The WIPO maintains a Bureau for Latin America and the Caribbean that is
responsible for carrying out programs tailored to 33 countries in the region. WIPO seeks to
develop and strengthen the IP systems of these countries so that IP can play a role in the
policies relevant to the economic, social and technological progress of each country. See
generally Bureau for Latin America and the Caribbean, WIPO, http://www.wipo.int/lac/en/
(last visited Mar. 11, 2011).
127. See Legislation Belize, THE WORLD LAW GUIDE, http://www.lexadin.nl/wlg/legis/
nofr/oeur/lxweblz.htm (last visited Feb. 22, 2011) (detailing Intellectual Property Laws in
Belize).
128. See 2008 Investment Climate Statement-Belize, U.S. DEP’T. OF STATE,
http://www.state.gov/e/eeb/ifd/2008/100823.htm (last visited Mar. 12, 2011).
129. See Central America and Caribbean: Belize, CENT. INTELLIGENCE AGENCY,
https://www.cia.gov/library/publications/the-world-factbook/geos/bh.html (last visited Mar.
12, 2011).
578
[Vol. 19:3
small physical size.130 While tourism is very important, Barbados has
developed other financial and offshore services that make it one of, if not
the, per capita wealthiest nation of the Caribbean.131
Barbados intellectual property matters are handled by the Corporate
Affairs and Intellectual Property Office (CAIPO).132 The office is also
responsible for advising government officials on technical and policy issues
underlying the national intellectual property rights regime.133 Most of the
revisions to Bajan intellectual property law occurred in the late 1990s and
were also motivated by WIPO outreach efforts as the WIPO sought to get
the developing countries TRIPS compliant.134 Barbados is also deemed
TRIPS compliant, having had its intellectual property laws reviewed by the
WTO TRIPS Council in 2001.135 While Barbados is not currently on a
special watch list, there has been some discussion concerning the lack of
specific legislation directed at secondary liability for counterfeiting and
piracy. However, Barbados’s small size has led to little concern for
infringement, at least from a U.S. perspective.136 Curiously, Barbados does
not allow registration for copyright.137
3. Jamaica
Jamaica achieved full independence in 1962, and is the largest English
speaking Caribbean nation in the Caribbean with a population of
approximately 3 million.138 Jamaica is also part of the Commonwealth
order (thus maintaining ties with the UK) and is dependent on tourism as
well as mining as its largest economic resources.139 Jamaica’s economic
130. Id. Belize land mass is 22,806 square kilometers while Barbados measures only
430 square kilometers.
131. Id.
132. See General Information, CORP. AFF. & INTELL. PROP. OFFICE (CAIPO),
http://www.caipo.gov.bb/intell/intell.html (last visited Feb. 20, 2011).
133. Id.
134. Natives of Barbados are often identified by outsiders as Barbadians but are more
commonly known amongst Caribbean people as Bajans. Bajan, THE FREE DICTIONARY,
http://www.thefreedictionary.com/Bajan (last visited Mar. 1, 2011).
135. See generally Barbados: July 2002, WTO, http://www.wto.org/english/tratop_e/
tpr_e/tp194_e.htm (last visited Feb. 22, 2011).
136. See 2010 Investment Climate Statement-Barbados, U.S. DEP’T. OF STATE,
http://www.state.gov/e/eeb/rls/othr/ics/2010/138771.htm (last visited Mar. 12, 2011).
137. See Frequently Asked Questions, CAIPO, http://www.caipo.gov.bb/faqs/
faqs.html (last visited Mar. 12, 2011).
138. The most populous nation is Cuba with more than 11 million citizens followed
by The Dominican Republic and Haiti which each have nearly 10 million inhabitants. See
Populations of Latin American and Caribbean Countries, THE ENCYCLOPEDIA OF EARTH,
http://www.eoearth.org/article/Populations_of_Latin_American_and_the_Caribbean_
Countries (last visited Mar. 1, 2011).
139. Id.
2011]
579
situation has increasingly faced significant challenges due to the surge of
violent crime attributable to drug trafficking over the last decade.140
Jamaica substantially revised its intellectual property laws to become
TRIPS compliant, and has seen an increase in the number of applicants
seeking protection both domestically and from abroad.141 This increase has
been primarily in the area of trademarks and copyrights, as Jamaica has yet
to put into effect any modern patent protection. The present patent law is
the Patent Act of 1857, although updated bills have been under review for
many years.142 The U.S. has taken particular note of Jamaica’s failures
regarding patent law, but this has not stopped the U.S. from working with
Jamaica in other areas of intellectual property.143
In 1994, Jamaica and the U.S. executed a bilateral agreement for
intellectual property matters between the countries.144 Pursuant to that
agreement, its obligations under TRIPS, and other WIPO administered
treaties, Jamaica has enacted modern laws for geographical indicators
covering a wide range of products and has also taken exceptional steps in
the area of copyright law. In 2001, Jamaica established the Jamaica
Intellectual Property Office (JIPO).145 JIPO centralized the administration
of all IP matters, thus making registration more accessible and user friendly.
140. See MARK P. SULLIVAN, CONG. RESEARCH SERV., RS 22372, JAMAICA: POLITICAL
ECONOMIC CONDITIONS AND U.S. RELATIONS 1-2, 4 (2006), available at
http://www.fas.org/sgp/crs/row/RS22372.pdf (noting that in 2005 Jamaica had the world’s
highest murder rate).
141. For example, in 2004, of 1,465 trademark applications filed, 311 were from
residents. From January to August 2006, 1,324 applications were filed with 503 of them
being domestic. Some aspects of the latest applicable law, the Trade Marks Act of 1999, are
still being reviewed such as issues involving concurrent use or registration, the registration of
surname, and expanding the grounds for revocation. Nicole Foga, Jamaica: Beyond The
INTELL.
PROP.,
(Oct.
1,
2007),
TRIPS
Agreement,
MANAGING
http://www.managingip.com/Article.aspx?ArticleID=1450368.
142. See Jamaica: Patents (Designs), Bill, 2001. Jamaica’s inability to get any new
patent law passed is apparently the prime reason that they were placed on the United States
Trade Representatives watch list in the latest edition of its Special 301 Report. For a copy of
the 2010 report, see AMBASSADOR RON KIRK, U.S. TRADE REP., 2010 SPECIAL 301 REPORT, at
33 (2010), available at http://www.derechodeautor.gov.co/htm/img/INFORME%20301%
20DE%20PI.pdf. The annual report reviews the state of global intellectual property from a
U.S. perspective purportedly to indicate the U.S. government’s resolve to encourage and
maintain effective IPR protection and enforcement worldwide. Critics feel that the list is a
way of improperly pressuring disadvantaged countries into capitulating to U.S. trade policy.
See, e.g., Lina M. Montén, The Inconsistency Between Section 301 and TRIPS:
Counterproductive with Respect to the Future of International Protection of Intellectual
Property Rights?, 9 MARQ. INTELL. PROP. L. REV. 387, 402-403 (2005) (noting U.S. rights
under Section 301 to bring unilateral trade sanctions against countries deemed noncompliant
as well as the frustration of listed countries who feel that the USTR investigations are bogus
and unfair for failing to involve countries in the process of reaching a conclusion).
143. Id.
144. See SULLIVAN, supra note 140, at 5.
145. See
History
and Objectives,
JAMAICA INTELL. PROP. OFFICE,
http://www.jipo.gov.jm/?q=node/4 (last visited Feb. 28, 2011).
AND
580
[Vol. 19:3
As in most Caribbean nations, the application and registration process has
been largely manual, but the WIPO is taking steps to assist Jamaica in
moving toward automation. JIPO notes that since its inception, it has
consistently sought to advance the development and protection of IPRs in
Jamaica for the purpose of enhancing and facilitating business
competitiveness, despite a lack of sufficient financial and human capital.146
Jamaica has been particularly active in the area of copyright law due to
its status as the world’s recognized originator and primary producer of
reggae and dancehall music. While the production of reggae music has
been described as a multi–billion dollar industry, little of that money has
been repatriated to Jamaican artists and citizens.147 This is particularly
significant as an economic problem, because while Jamaica and other
Caribbean countries are collecting royalties for foreign music so that money
can be paid out abroad, the lack of strong IPRs throughout the Caribbean
means that there is no reciprocal economic benefit. As a result, numerous
copyright–related organizations have arisen, such as the Jamaica Anti–
Piracy Alliance (JAPA) in 2005 and the Jamaica Music Society (JAMMS)
in 2006 as well as the Jamaican Copyright Licensing Agency
(JAMCOPY).148 Registration and notable litigation has increased in
Jamaica as a result of these advancements.149 Jamaica looks forward to
further strengthening its recognition and protection of IPRs for the benefit
of domestic and foreign rights holders and for the economic and trade
benefits it receives through its bilateral and multilateral agreements.150
146. Id.
147. See John McMillan, Trench Town Rock: The Creation of Jamaica’s Music
Industry (June 6, 2005) (unpublished paper), available at http://facultygsb.stanford.edu/mcmillan/personal_page/documents/Jamaica%20music%20paper.pdf. See
also, Zeljka Kozul-Wright & Lloyd Stanbury, Becoming A Globally Competitive Player: The
Case of the Music Industry in Jamaica, (United Nations Committee on Trade and
Development, Discussion paper No. 138, 1998) http://www.unctad.org/en/docs/
dp_138.en.pdf.
148. See Welcome to JAMCOPY, JAMCOPY, http://www.jamcopy.com/ (last visited
Apr. 2, 2011).
149. In an attempt to modernize its intellectual property system, Jamaica procured the
services of the International Intellectual Property Institute (IIPI) in 1999. The IIPI is a non–
profit international development organization and think tank dedicated to increasing
awareness and understanding of the use of IP as a tool for economic growth, particularly in
developing countries. The IIPI focuses on establishing constituencies of policymakers,
business leaders, and judicial stakeholders who understand that effective enforcement of
properly regulated IPRs can stimulate outside investment.
See generally INT’L
INTELLECTUAL PROP. INST., www.iipi.org (last visited Mar. 1, 2011).
150. See Dianne Daley & Nicole Foga, The IP War is Heating Up, in BUILDING AND
ENFORCING INTELLECTUAL PROPERTY VALUE 2007, 143 (2007). See also Nicole Foga,
Jamaica: Beyond The TRIPS Agreement, MANAGING INTELL. PROP., (Oct. 1, 2007),
http://www.managingip.com/Article.aspx?ArticleID=1450368.
2011]
581
4. Other Caribbean Country Developments
Most of the other countries in the Caribbean are less developed than
those identified above. The best resource for intellectual property
developments throughout the Caribbean as a whole is the WIPO, through
their Bureau of Latin America and the Caribbean. Unfortunately, it remains
a constant challenge to maintain live links for the Caribbean nations listed.
Trinidad and Tobago rivals Barbados in terms of economic prosperity
principally due to the discovery of oil there early in the twentieth century. It
is one of the globe’s major producers of petroleum and natural gas, and thus
has been at the forefront of trade liberalization in the Caribbean.151 Having
attained its independence from Britain in 1962 as well, it trails only Jamaica
in terms of English speaking Caribbean nations, with a population of
approximately 1.3 million citizens.152 Trinidad and Tobago signed on to
TRIPS in 1994 and also executed a bilateral intellectual property agreement
with the U.S. at the time. These actions led to a general overhaul of the
nation’s IP laws, including the drafting of new patent, copyright, trademark,
and industrial design laws.153 A new intellectual property office was also
established with the express aims of stimulating creative efforts in industry
and commerce by developing and promoting appropriate legislation for the
protection of all forms of intellectual effort internationally.154
More recently, the nation of Antigua and Barbuda has updated many of
its intellectual property laws. Precipitating these developments were the
2003 WIPO ministerial meetings held in that nation as well as meetings
there between heads of other IP offices in the Caribbean.155 An intellectual
property office was established, but it has yet to become fully automated or
technologically accessible. The meetings also spurred other nations to draft
new laws and look into establishing intellectual property offices; however,
few have successfully done so at this time.156
151. See Central America and Caribbean: Trinidad and Tobago, CENT. INTELLIGENCE
AGENCY, https://www.cia.gov/library/publications/the-world-factbook/geos/td.html (last
152. Id.
153. See Collection of Laws for Electronic Access (CLEA), WIPO,
http://www.wipo.int/wipolex/en/other_treaties/details.jsp?treaty_id=231 (last visited Feb. 22,
2011).
154. See Mission Statement of The Intellectual Property Office, The Republic of
Trinidad and Tobago, INTELL. PROP. OFFICE, THE REP. OF TRIN & TOBAGO,
http://www.ipo.gov.tt/applicationloader.asp?app=articles&id=111 (last visited Feb. 28,
2011).
155. See Conferences, Meetings and Seminars, Antigua and Barbuda, WIPO,
http://www.wipo.int/meetings/en/archive_meeting.jsp?meeting_country=4 (last visited Mar.
12, 2011).
156. See The Intellectual Property Office Act 2003, No. 15 of 2003 (Ant. & Barb.),
available at http://www.laws.gov.ag/acts/2003/a2003-15.pdf. The Act calls for an office to
administer patents, trademarks and industrial designs but leaves out any mention of copyright
law. This is unfortunate because Antigua and Barbuda represent another small Caribbean
582
[Vol. 19:3
The most populated nations in the Caribbean, those being Cuba, the
Dominican Republic, and Puerto Rico, all have established intellectual
property offices, albeit under varying circumstances.157 Haiti also had
established an intellectual property office as well; however, it was
effectively dismantled along with all other aspects of government by the
massive earthquake that recently savaged the country. Puerto Rico benefits
from being a U.S. territory at least in terms of access to a developed IPR
regime. Haiti, Cuba, and the Dominican Republic would obviously cause
some pragmatic concerns in terms of their association with a Caribbean IP
office due to differences in politics and language.158
B. CARICOM Trade and Intellectual Property Developments
While CARICOM’s mission statement and objectives do not expressly
mention intellectual property, the treaty establishing the organization
does.159 Article 66 of the Revised Treaty of Chaguaramas is titled,
“Intellectual Property,” and speaks to joint action by CARICOM members
including the regional administration for all intellectual property except
copyright.160 Although CARICOM has taken some minor steps as a
island having less than 100,000 people and covering less 450 square kilometers where it’s
main interaction with global visitors is based on exposure to not only it’s geographic beauty
but also the creative endeavors of its people. It is the protection of the people’s creative
expression that is the easiest to protect and these expressions certainly warrant government
attention as well since despite the fact that they may be theoretically protected from an
international standpoint under TRIPS without government assistance individuals will not
know the value or enforceability of these rights.
157. See Directory of Intellectual Property Offices, WIPO, http://www.wipo.int/
directory/en/urls.jsp (last visited Feb. 22, 2011).
158. While it makes sense for CARICOM to establish an IP Office with English as the
official language, some accommodation should be made for the present and with an eye
towards the future for Spanish to become an official language as well. Disputes over
language have held up efforts towards multinational advancements in IP between other
nations even as recently as negotiations involving the prospects for a community patent in
the EU. See Long and Winding Road to Single EU Patent and Patent Court System, supra
note 80. Perhaps French or Creole can be added as well when Haiti is able to get back on its
feet. Adding it sooner than later may provide some support for Haiti’s efforts, certainly
morally if not economically as it is a way to indicate respect for the contributions Haitians
are making to creative expression and intellectuals endeavors.
The prospect for
multinational offices with different language bases working in concert is a realistic one as the
joint efforts of the US, EU and Japan illustrate. A Tri–Lateral Cooperation was established
by the patent offices of those three countries in 1983. The Trilateral Offices strive to
harmonize administration and protection of industrial property rights and increase the
efficiency of the global patent system. See TRILATERAL, http://www.trilateral.net/index.html
(last visited Mar. 1, 2011).
159. See THE CARIBBEAN COMMUNITY (CARICOM), http://www.caricom.org/jsp/
community/community_index.jsp?menu=community (last visited Mar. 1, 2011).
160. The original Treaty was signed in 1973 and the revised one creating CARICOM
was executed in 2001:
2011]
583
unified entity to address IP issues, it needs to accelerate its program and
address these matters in a more progressive and decisive fashion. A recent
meeting took place in 2008 on the role of CARICOM in establishing a
regional system, but that focused on protecting folklore and traditional
knowledge.161 Prior to that time, a host of meetings took place primarily
during the years 1998 and 2000 throughout the Caribbean with the principal
goal of assuring that all WIPO member countries were TRIPS compliant.
All of the meetings mentioned have been in conjunction with WIPO, and
CARICOM has yet to show any strong initiative in undertaking the action
set out in Article 66 without outside assistance. CARICOM members
appeared at many of these meetings separate and apart from the national
representatives of the countries.162 In 2009, there was talk of establishing
one regional patent office in Grenada, as only Belize and Trinidad and
ARTICLE 66, Protection of Intellectual Property Rights
COTED shall promote the protection of intellectual property rights
within the Community by, inter alia:
(a) the strengthening of regimes for the protection of intellectual
property rights and the simplification of registration procedures in
the Member States;
(b) the establishment of a regional administration for intellectual
property rights except copyright;
(c) the identification and establishment, by the Member States of
mechanisms to ensure:
(i) the use of protected works for the enhanced benefit of the
Member States;
(ii) the preservation of indigenous Caribbean culture; and
(iii) the legal protection of the expressions of folklore, other
traditional knowledge and national heritage, particularly of
indigenous populations in the Community;
(d) increased dissemination and use of patent documentation as a
source of technological information;
(e) public education;
(f) measures to prevent the abuse of intellectual property rights by
rights holders or the resort to practices which unreasonably restrain
trade or adversely affect the international transfer of technology; and
(g) participation by the Member States in international regimes for
the protection of intellectual property rights.
See Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the
CARICOM Single Market and Economy, art. 66, available at http://www.caricom.org/
jsp/community/revised_treaty-text.pdf.
161. See The Role of CARICOM in the Establishment of Regional Systems, WIPO,
http://www.wipo.int/meetings/en/doc_details.jsp?doc_id=114473 (last visited Feb. 22, 2011).
162. See Bureau for Latin America and the Caribbean-Meetings, WIPO,
http://www.wipo.int/lac/en/meetings/ (last visited Feb. 22, 2011).
584
[Vol. 19:3
Tobago’s patent offices were identified as being fully functional at the time;
however, this office has yet to come into being.163
By ramping up its activities on IP consolidation, CARICOM’s leadership
will indicate to its members and their constituents that it is serious about
pursuing every available option that can assist it in achieving its long–term
trade goals. CARICOM can begin by embarking on an education campaign
done both in web space and real space, alerting its members and indeed
enlisting them to further communicate to the general public what
intellectual property is, how it can be protected, and what CARICOM plans
to do for its members to that end. As the CARICOM treaty realizes, a
regional effort is necessary either along with, or in lieu of, the development
of national laws and policies. Regional offices allow a pooling of initially
unevenly divided resources for the benefit of the whole. It is somewhat
ironic that African countries led the way in regional intellectual property
offices, yet countries of primarily African descent who have the added
benefit of proximity to a willing trading partner that is also the world’s
wealthiest nation cannot seem to get a similar regional organization up and
running.
Despite the lull in CARICOM meetings, CARICOM has been active in
pursuing trade agreements.164 CARICOM has begun negotiations with
various countries, such as Canada and the Dominican Republic, as well as
with other RTAs such as MERCOSUR and SICA, all in furtherance of its
163. See
One
Caribbean
Patent
Office,
http://www.klassicgrenada.com/index.pl/article?id=16247123 (on file with author); See also
Caribbean,
Patent
Office
Recommended,
http://go-jamaica.com/news
/read_article.php?id=14327 (last visited April 21, 2011).
164. A number of meetings have taken place between CARICOM and the WIPO
during the last decade regarding the establishment of adequate intellectual property
protection within the regional trade group, including the following:
- October 1996 WIPO Sub Regional Workshop for Industrial
Property for Legislative Draftsmen of Caribbean Countries
- July 1997 Regional Meeting of Heads of IP Offices of Caribbean
Countries; Trinidad
- April 1999 WIPO/CARICOM Seminar on IP
- April 1999 WIPO National Seminar on IP; Belize
- June 1999 Second Ministerial Level Meeting on IP in the
Caribbean; Jamaica
- October 2000 Third Ministerial Level Meeting
- June 2001 WIPO Symposium for OECS
- April 2006 WIPO Outreach workshop for Officers and Officials
See
WIPO
Search,
CARICOM
http://www.wipo.int/tools/en/gsearch.html
?cx=000395567151317721298%3Aaqrs59qtjb0&cof=FORID%3A11&q=Caricom#1021(last
visited April 21, 2011).
2011]
585
efforts to liberate its trade relations, capitalize on the benefits of these larger
markets, and move forward as an established single market economy. 165 In
light of these ongoing activities and the mandates of the Treaty establishing
it, CARICOM should earnestly begin working towards the establishment of
a regional intellectual property office.
V. CONCLUSION
CARICOM should immediately move forward in establishing a regional
intellectual property office in the Caribbean. It can be known as
“CARIPO,” since CAIPO and CIPO are already taken.166 Such a
designation would allow it to accommodate the integration of non–
CARCICOM member countries in the Caribbean at a later time. The
regional office should be overseen by administrators or a council consisting
of ministerial officials and intellectual property experts from each member
state. The body should be able to set intellectual policy for all member
countries, much like is done in the EU, the U.S., and the OAPI. Specialized
intellectual property administrative bodies need to be established, as well as
one or two IP courts. One or two is sufficient, since the relative area to be
covered is currently small. Should the other more populous countries join at
a later time, then other courts would have to be established.
There should be subdivisions for each major area of intellectual property.
These subdivisions should be in the areas of copyright, trademarks and
industrial design, and patent law. It may be feasible to have a branch office
of competition established or at least have some tie in with the CARICOM
Competition Commission.167 That office already deals with matters related
to unfair competition law, which is often intertwined with issues involving
trademarks, trade dress, and trade secret law.
The laws, rules, and regulations governing the application and
registration of subject matter should be standardized as issued by the central
regional office. A good place to begin is the TRIPS minimum standards,
165. See Legal Framework of Integration at CARICOM, OAS FOREIGN TRADE INFO.
SYS., http://www.sice.oas.org/CARICOM/instmt_e.asp (last visited Mar. 3, 2011).
166. CAIPO is the designation for Barbados Intellectual Property Office and CIPO is
the designation for the Canadian Intellectual Property Office.
167. The CARICOM Competition Commission was established under the Revised
Treaty and inaugurated in 2008. It consists of 7 part-time commissioners from various
member states and functions to promote competition in the Community while preventing
anti-competitive practices and arbitrating cross-border disputes. It also develops and
disseminates information about Competition Policy and Consumer Protection. See The
CARICOM Competition Commission, THE CARIBBEAN COMMUNITY (CARICOM),
http://www.caricom.org/jsp/community/competition_commission.jsp (last visited Mar. 1,
2011). See also Delroy S. Beckford, Enforcement of Competition Law in CARICOM:
Perspectives on Challenges to Meeting Regional and Multilateral Obligation, (Apr. 20-21,
2009) (paper presented), available at http://www.sela.org/DB/ricsela/EDOCS/SRed/2009/
04/T023600003425-0-Enforcement_of_competition_law_in_CARICOM.pdf.
586
[Vol. 19:3
but characteristics shared by the members should also be taken into
consideration in building upon the TRIPS minimums.168 The legislation
developed should cover all CARICOM members, but should coexist as a
supplement as opposed to substituting for the existing national laws as is
done in the EU, ARIPO, OAPI, and even the U.S. to a limited extent when
one looks at U.S. trademark law.169 The regional office should also house or
provide a gateway to rights management centers to facilitate the reciprocal
collection of royalties between those exporting and importing protectable
subject matter to and from the Caribbean. These potential benefits are
certainly greatest in the copyright area, as there is readily protectable
subject matter throughout the Caribbean. Thus, a regional copyright office
in the nature of the U.S. LOC is in order, as opposed to a mish mash of
directives and rules loosely developed on a sporadic basis like the EU relies
upon. The EU does have a centralized collection agency that can work on
behalf of creators of copyrightable subject matter, although individual
nations have their own as well.170
These activities will spawn similar organizations to become established
domestically in member countries, thereby enhancing the existing agrarian
and industrial entities in existence, protecting the extended creative
industries, and inspiring new home grown technology and knowhow, which
is the IP of the future. While it is true that new trade partners may have an
inherent advantage that they look to expand upon, a new vigilant regional IP
office can limit potential problems and certainly stem the detrimental
168. Many of the wealthier CARICOM countries follow the model of developed
nations by using home grown lobbyist and other stakeholders to assure that their IP concerns
are worked into the language of prospective trade agreements. CARICOM must efficiently
represent member states by also using trade agreements to capture economic value for the
indigenous cultural symbols and manifestations of member states. Many of the bilateral
intellectual property agreements executed by CARICOM member countries already contain
what are commonly referred to currently as TRIPS-plus provisions whereby the minimum
standards required by TRIPS are noted but additional protections are called for as a condition
of the treaties. See Beatrice Lindstrom, Scaling Back TRIPS-PLUS: An Analysis of
Intellectual Property Provisions in Trade Agreements and Implications for Asia and the
Pacific, 42 N.Y.U. J. INT’L L. & POL. 917, 925 (2010) (discussing the history and criticism of
TRIPS plus and particularly noting that the leverage that developed countries have as
potential trading partners is partially responsible for the proliferation of bilateral trade
agreements along with a degree of forum shopping by the developed countries).
169. In the US, trademark law exists on three levels: common law, state law, and
trademark law. Every state has its own trademark jurisprudence and offices that administer
trademarks on a state level; however, these state trademarks are inferior to federal trademarks
in the sense of prospective scope of protection. See generally Zvi S. Rosen, In Search of the
Trade-Mark Cases: The Nascent Treaty Power and The Turbulent Origins of Federal
Trademark Law, 83 ST. JOHN’S L. REV. 827 (2009).
170. See SOCIETY OF EUROPEAN COMPOSERS AND AUTHORS (SESAC),
http://www.sesac.com/ (last visited Mar. 1, 2011). See generally Whitney Broussard, The
Promise and Peril of Collective Licensing, 17 INTELL. PROP. L. 21 (2009). See also Neil
Conley, The Future of Licensing Music Online: The Role of Collective Rights Organization
and the Effect of Territoriality, 25 J. MARSHALL J. COMPUTER & INFO. L. 409 (2008).
2011]
587
exploitation that presently is associated with creative innovation from the
Caribbean by those outside the region. A new CARIPO will attract more
investors whose financial injection to the greater region can be used to
modernize IP offices throughout CARICOM, thus insulating locals from the
threat of lawsuit or trade sanctions and comforting outsiders by indicating
that there is a structured standardized central location to handle intellectual
property disputes.
Solidarity amongst the Caribbean nations is sorely needed and the
establishment of CARIPO is an easy way to further identify that the
governing bodies realize what is necessary for future progress. Perhaps
establishing such an entity will help move members to show true and full
independence by use of the administrative and judicial body set up to handle
IP disputes. The members have thus far shown immaturity when given that
option as the limited reach of the Caribbean Court of Justice illustrates.171
To paraphrase Sir Fred Phillips, the magnificent strides in Caribbean
self–governance have been unfortunately accompanied by hideous
fragmentation and proliferation. Independent jurisdictions, national honors,
national flags, anthems, and airlines all abound. Is it not time to draw the
curtain down on fragmentation in these many spheres?172 This Author is
not advocating the abolition of any of those particular items or nationalism
171. CARICOM also provided for the establishment of the Caribbean Court of Justice
(CCJ) so that CARICOM countries would have their own supreme court of final disposition.
See About the Caribbean Court of Justice, CARIBBEAN COURT OF JUSTICE,
http://www.caribbeancourtofjustice.org/about.htm (last visited Mar. 1, 2011). The member
nations already had court systems, but the court of final appeal was and is for most member
states the Privy Council in the United Kingdom (UK). The Judicial Committee of the Privy
Council is the court of final appeal for most CARICOM countries because, despite their
independence, they retained the appeal right to the UK. See Judicial Committee: Overview,
PRIVY COUNCIL OFFICE, http://www.privy-council.org.uk/output/page5.asp (last visited Mar.
1, 2011). All CARICOM members signed the agreement establishing the CCJ, but they
needed individual legislative action to actually renounce their appeal rights to the UK and
adopt the CCJ as their highest court. To date, only Belize, Barbados, and Guyana have taken
the necessary steps and made the CCJ their final court of appeal, despite the fact that the
other states signed the original documents and contributed money to get the CCJ up and
running at its headquarters in Trinidad & Tobago. The continued use of the Privy Council
has been questioned by many, including the Justices of the CCJ. See Oscar Ramjeet, Will
Jamaica Soon Abolish Appeals to the Privy Council?, CARIBBEAN BLOG INT’L (June 19,
2010), http://caribbean-webcrat.blogspot.com/2010/06/will-jamaica-soon-abolish-appealsto.html (addressing the fact that, although Jamaica has not yet accepted the CCJ despite early
support, it may now consider abolishing appeals to the Privy Council to join the CCJ). See
also David Lachana A/C Lachana, Sadonel Devi Lachana vs. Cooblal Arjune, [2008] CCJ 12
(AJ), where the Justices, when faced with acting de novo or instead acting in accord with
Privy Council practice, noted that the Lordships of the Privy Council are both geographically
and culturally far removed from the countries that still retain the Privy Council as their final
appellate court. The CCJ indicated that since it is a regional court having greater familiarity
with the social and cultural dimensions of Caribbean cases, it will develop its own practice.
See also MICHAEL THEODORE, LAW: THE AIR WE BREATHE, A LOOK AT LAW AND THE LEGAL
SYSTEM IN THE CARIBBEAN 115 (1994).
172. See PHILLIPS, supra note 109, at 341.
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[Vol. 19:3
in general. However, ending fragmentation in intellectual property will
prevent further pauperization of the smallest states striving to get their IP
offices off the ground, as well as help trade overall, possibly leading to the
consolidation of many of the existing hard industries such as oil refineries,
rum distilleries, cement and beer factories and the like that are often in
neighboring countries, yet physically only 100 miles away from each
other.173
CARICOM is mandated by treaty to take action in this area, and it is
action that has little to no explicit downside. The biggest current negative is
the continued slow pace which leaves the least developed states struggling
and puts those more developed states in a potentially anti–competitive
stance relative to each other, thus thwarting the goals of CARICOM.
CARICOM needs to establish CARIPO now. Modeling it after the
established regional IP offices elsewhere will not only be a case of flattered
imitation, but a sensible move that lets them interface with the more
experienced organizations while avoiding their mistakes. CARICOM
should supplement their interactions with other regional offices with
continued assistance from the WIPO and the IIPI, as well as any other
similar international IP organizations used collectively and by individual
states in the past. Establishment of CARIPO will be new and invaluable, it
will certainly be a useful tool in helping CARICOM achieve its long term
goals and it is unquestionably necessary.
173. See id. at 342. Phillips also notes that between 1962 and 2000, the nations of the
Caribbean witnessed the installation of 3 Presidents, 9 Governors General, 6 Governors, 12
Prime Ministers, 1 Premier, 4 Chief Ministers, and 150-200 ministers of government as the
top administrative machinery for a population of roughly 5 million [focusing on the West
Indies only], which is less than half the population of the “city” of Shanghai, China. He
further states, “[t]o the extent that politicians fail to discern that unity is strength, a thick
chauvinistic darkness continues to engulf our leaders and we must look to a new generation
to dispel the encircling gloom.” Id.
NATIONALIZED INTERNATIONAL CRIMINAL LAW:
GENOCIDAL INTENT, COMMAND RESPONSIBILITY,
AND AN OVERVIEW OF THE SOUTH KOREAN
IMPLEMENTING LEGISLATION OF THE ICC
STATUTE
Tae Hyun Choi & Sangkul Kim†
INTRODUCTION ........................................................................................... 590
I. SUBSTANTIVE LAW ................................................................................ 591
A. Genocide: “With the Aim of Destroying” Instead of “With
Intent to Destroy” ......................................................................... 592
1. The Concept of Aim–Crimes under the
Korean Penal Code ............................................................. 593
2. Mental Elements of the Crime of Genocide under the
Korean Implementing Legislation ....................................... 595
3. Difficulties Stemming from the Wording of
“With Intent to Destroy” ...................................................... 599
4. From “Genocidal Intent” to “Genocidal Plan”:
Objectification of the Concept of “Genocidal Intent” ........ 606
5. Significance of the New Wording Adopted by the Korean
Implementing Legislation .................................................... 607
B. Crimes Against Humanity ........................................................... 608
C. War Crimes.................................................................................. 609
1. Article 10: War Crimes against Persons ............................. 610
2. Other War Crimes Provisions ............................................. 611
D. Modes of Liability ....................................................................... 613
E. Command and Superior Responsibility ....................................... 616
1. Article 5: “Failure to Prevent” as a Mode of Liability ....... 618
2. Article 15(1) and (2): “Failure to Prevent” as
Substantive Offences ............................................................ 620
3. Article 15(3): “Failure to Punish” as a Substantive
Offence................................................................................. 621
Professor of International Law, Hanyang University School of Law, Seoul;
President, Korean Society of International Law (2011).
† Researcher, Legal Research Institute, Korea University Law School, Seoul;
S.J.D. Candidate, Georgetown University Law Center; Former Associate Legal Adviser,
Office of the Prosecutor, International Criminal Court (2004–2008). The authors wish to
extend special thanks to Professor David Luban and Professor Julie O’Sullivan of
Georgetown University Law Center for their guidance and thoughtful comments, and to Dr.
Volker Nerlich of the International Criminal Court for his initial invitation to write this
article and valuable comments. The authors are also grateful to Dr. Jong–In Bae and Mr.
Donggy Lee of the Korean Ministry of Foreign Affairs and Trade for sharing their
knowledge and observations.
590
[Vol. 19:3
II. IMPLEMENTATION OF INTERNATIONAL TREATIES IN KOREA ................ 623
A. The Status of International Treaties in the Domestic Legal
System of Korea ........................................................................... 623
B. Direct Applicability of International Treaties in Korea............... 626
C. Necessity for Overcoming Incompatibility between the ICC
Statute and Korean Law ............................................................... 627
III. BASIS FOR CRIMINAL JURISDICTION .................................................... 629
A.Incorporation of a Traditional Basis for Criminal Jurisdiction .... 629
B. Article 3(5): Reception of Universal Jurisdiction......................... 630
C. Article 3(5): Meaning of the “Presence” Requirement ................ 631
IV. COOPERATION WITH THE ICC .............................................................. 632
A. Adoption of the Scheme of Mutatis Mutandis Application ......... 632
B. Mutatis Mutandis Application of the Extradition Act ................. 633
C. Mutatis Mutandis Application of the International Mutual
Legal Assistance in Criminal Matters Act.................................... 636
D.Absence of Provisions on Other Cooperation .............................. 636
CONCLUSION .............................................................................................. 637
INTRODUCTION
On December 21, 2007, South Korea (“Korea”) enacted the Act on the
Punishment of Crimes under the Jurisdiction of the International Criminal
Court (“the Act”).1 Article 1 of the Act declares that the purposes of this
legislation are to punish crimes under the Rome Statute (“ICC Statute” or
“ICCSt.”) of the International Criminal Court (“ICC”)2 in the territory of
Korea and to set the procedure for cooperation between the ICC and Korea.
The Act is considered an important development in Korean criminal law
primarily in the following two respects: i) core international crimes (i.e.
genocide, crimes against humanity, and war crimes) have now been
incorporated into the Korean legal order through its own legislation; and ii)
the theory of universal jurisdiction has been introduced and clearly codified
in Korean domestic law. Given the monist approach taken by the Korean
Constitution in terms of the process of incorporating international law into
Korean domestic law, one might say that the Act is not necessary. Yet,
taking into account the requirement of the principle of legality in the area of
criminal law, the decision to legislate the Act should be welcomed and
might be a reference point for other countries adopting the monist approach.
1. Gookjehyongsa jaepanso gwanhal beomje eu chobol dunge gwanhan beobryul
[Act on the Punishment of Crimes Under the Jurisdiction of the International Criminal
Court], Act. No. 8719, Dec. 21, 2007 (S. Kor.) [hereinafter Act]. It must be noted that since
there is no official translation of the Act from Korean into English, the relevant provisions of
the Act in English herein are the authors’ own translations.
2. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S.
90 [hereinafter ICC Statute].
2011]
Nationalized International Criminal Law
591
At first glance the Act—which includes only twenty articles—looks
quite simple and succinct. In particular, the decision to apply mutatis
mutandis existing domestic law for the purpose of cooperation and legal
assistance between Korea and the ICC renders the relevant section in the
Act overly simple. With regard to the substantive law, the peculiar wording
of “with the aim of destroying” (as opposed to the usual expression, “with
intent to destroy”) employed in the Act for ‘genocidal intent’ drew the
authors’ attention. We also recognized complicated—if not confusing—
codification of the relevant provisions concerning the command and
superior responsibility. The authors will discuss all of these features below
in detail. The reader might take note at the outset that the authors spent quite
a large portion of this article on the examination of the unique wording
employed by the Act concerning genocidal intent and its legal ramification,
specifically in view of the recent scholarly discussions taking place on the
issue.
In Part I, the authors will explore the important substantive law issues
spotted in the Act. In addition to the section on genocidal intent, the
provisions relating to crimes against humanity, war crimes, and command
and superior responsibility will be examined. As for command and superior
responsibility, the authors will recommend significant revision of the
relevant provisions. On the other hand, though the Act does not contain any
provisions pertaining to modes of liability, the authors will discuss the
modes of liability under the Korean Penal Code that will be applied mutatis
mutandis to the crimes prescribed in the Act; we will pay special attention
to the liability of co–perpetration and the functional control theory thereof
as adopted by the Korean Constitutional Court. Part II of this article
addresses the process of incorporation and execution of international treaties
in Korea. On the basis of general description of the relevant procedure, the
specific features of the ICC Statute that allowed the Act to be submitted as a
lex specialis to the Korean Penal Code will be dealt with. In Part III, the
jurisdictional bases provided in the Act will be discussed, with particular
focus on the theory of universal jurisdiction newly introduced into the
Korean legal order via the Act. Part IV will demonstrate the mutatis
mutandis application regime chosen by the drafters of the Act for the
purpose of cooperation and legal assistance between Korea and the ICC.
Furthermore, the pros and the cons of this arrangement will be discussed.
I. SUBSTANTIVE LAW
Before the Act was entered into force on December 21, 2007, the core
international crimes under the ICC Statute had not existed within the scope
of domestic criminal law of South Korea (with the exception of war crimes
provided in the relevant treaties ratified by South Korea; examples of these
treaties include the Geneva Conventions of 1949 and the Additional
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Protocols of 1977 etc). Key features of substantive law as provided in the
Act are as follows:
Article 5: Responsibility of commanders or other superiors;
Article 8: Genocide;
Article 9: Crimes against humanity;
Article 10: War crimes against persons;
Article 11: War crimes against property and other rights;
Article 12: War crimes against humanitarian operations and emblems;
Article 13: War crimes concerning prohibited methods of warfare;
Article 14: War crimes concerning prohibited weapons of warfare;
Article 15: Offence of negligence violating the duty of commanders and
other superiors;
Article 16: Offences against the administration of justice.
Regarding genocide, crimes against humanity, and war crimes, the Act
not only provides definitions of the crimes but also applicable penalties for
each offence or each group of offences. Generally speaking, when a victim
has “died as a result of an act referred to in the relevant provision,” the
person is to be sentenced to capital punishment—life–imprisonment or
imprisonment of not less than seven years.3 It reflects the theory of
consequence–based aggravation of penalties adopted by the Korean Penal
Code. For this purpose, it should be noted that Article 15(2) of the code
requires foreseeability in relation to the serious result, like consequence of
death. With respect for attempts—as provided in Article 25(3)(f) of the ICC
Statute—we can find the equivalent provisions in Article 8 through Article
14 respectively.
A. Genocide: “With the Aim of Destroying” Instead of “With Intent
to Destroy”
Article 8 of the Act—which provides for the crime of genocide—is
consistent with the corresponding provision (Article 6) of the ICC Statute
and generally verbatim in language. There is, however, unique wording
3.
Act, supra note 1, arts. 8(1), 8(3), 9(1), 9(4), 10(1), 10(6), 12(2), 13(2).
2011]
593
employed by the Act concerning genocidal intent. This feature and its
potential implications will be explored in detail below.
1. The Concept of Aim–Crimes under the Korean Penal Code
It is noteworthy that the Act uses a different wording than the ICC
Statute regarding special intent (dolus specialis), specific intent, or
genocidal intent of genocide. That is, instead of using the phrase “with
intent to destroy” (Article 6 ICCSt.), Article 8(1) of the Act employs the
wording “with the aim of destroying.” Is there any significant difference
between these two wordings? The validity and value of the new wording
“with the aim of destroying” deserve our closer scrutiny.
The phrase “with the aim of” is not new in the context of Korean
criminal law. There are a number of offences under the Korean Penal Code
(“Code”) where the phrase “with the aim of” is provided—such as the crime
of causing internal disturbance (Article 87 of the Code),4 the crime of
organizing a criminal group (Article 114 of the Code), and the crime of
forging currency (Article 207 of the Code). The common legal feature of
these offences is that they constitute the respective crime only if a relevant
conduct is committed with a certain aim, in other words “with the aim of
violating the national territory or disturb[ing] the constitutional order”
(crime of causing internal disturbance), “with the aim of criminal activities”
(crime of organizing a criminal group) and “with the aim of using [the
forged currency]” (crime of forging currency).
As the definition of the crime specifically requires a showing of the
existence of an “aim,” the offences under the Korean Penal Code stipulated
with the phrase “with the aim of” have been generally referred to as an aim–
crime. The so–called aim–crime also includes a few offences for which the
phrase “with the aim of” is not explicitly provided in the relevant provisions
of the Korean Penal Code. A typical example is larceny (Article 329 of the
Code) which requires an “intent to exclude the owner, and to use or dispose
of another person’s property in accordance with its economical usage.”5
Korean scholars are generally of the view that the essential characteristics of
the aim–crime are: i) “aim” is a mental element; ii) “aim” is distinguished
from the general mental element of “intent” in that it does not correspond to
any material element(s) of the crime; iii) the object of “aim” (e.g., use of
forged currency) exists beyond the material elements of the crime; and thus
iv) the realization of the object of “aim” (e.g., actually using forged
currency) is not required to be proven.6 In this respect, the aim–crime under
4. Hyongbeob [Korean Penal Code], Act No. 293, art. 87 (Sept. 18, 1953) (S. Kor.)
[hereinafter Korean Penal Code].
5. Supreme Court [S. Ct.], 91Do3149, Sept. 8, 1992 (S. Kor.).
6. IL–SU KIM & BO–HACK SUH, CRIMINAL LAW: THE GENERAL PART 234–35
(2006); WOONG YIM, CRIMINAL LAW: THE GENERAL PART 106 (2005).
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the Korean Penal Code seems to fall into the category of the common law
concept of specific intent offences. In explaining the specific intent
offences, Joshua Dressler takes the examples of larceny (taking away the
personal property of another “with the intent to permanently deprive the
other person of his property”) and burglary (entering the dwelling of another
in the night–time “with intent to commit a felony”).7 Here, both the “intent
to permanently deprive the other person of his property” and the “intent to
commit a felony” can be viewed as something equivalent to the mental
element of “aim” under Korean criminal law.8
It is important to note that the mental element of “aim” under Korean
criminal law does not correspond to any material elements of “conduct,”
“consequence,” or “circumstance” and/or whatever material elements the
relevant criminal provision contains.9 Furthermore, the mental element of
“aim” seems to fulfill its function without requiring a corresponding
material element at all. In other words, the object of “aim” (e.g., using
forged currency) should not be regarded as a material element, and
especially not as a “consequence” or “result.” Accordingly, the “violation of
the national territory” (Article 87), “disturbing the constitutional order”
(Article 87), “performing criminal activities” (Article 114), or “using forged
currency” (Article 207) should not be considered as a separate material
element, but instead as an ingredient of the mental element of “aim.”
Whether the ingredient of “aim” becomes materialized is legally irrelevant
and has nothing to do with the constitution of the crime. Severance between
the mental element of “aim” and the physical realization thereof seems to be
the key in understanding the legal nature of the aim–crime under the Korean
Penal Code. In sum, it is considered that i) the mental element of “aim”
required to be proven by the definition of the aim–crime is only directed at
7. JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 137–38 (5th ed. 2009).
8. In this respect, the genocide provision in the United States Code that employs the
wording of “with the specific intent to destroy” seems to signify the same understanding of
the nature of genocidal intent as that of the Act. See 18 U.S.C. § 1091 (2006). On the other
hand, it should be noted that the conceptual scope of the “specific intent” offence in the
common law is broader than that of the aim–crime under the Korean law. That is because the
former includes another sub–category of the offences where the definition of the crime
“provides that the actor must be aware of a statutory attendant circumstance” (e.g.,
“receiving stolen property with knowledge that it is stolen”). In this definition, the mens rea
(knowledge) is required to correspond to actus reus (circumstance), which is not the case
with aim–crimes under Korean criminal law. See DRESSLER, supra note 7, at 137–38.
9. In this respect, the mental element of “aim” in the Korean criminal law context
seems to be equivalent to Paul Robinson’s concept of “future–conduct intention” in that “[a]
requirement of a future conduct intention . . . by definition has no corresponding objective
element but rather exists on its own . . .” See Paul Robinson, A Functional Analysis of
Criminal Law, 88 NW. U. L. REV. 857, 864 (1994). In another text, Robinson clarifies that the
concept of “future–conduct intention” is equivalent to “specific intent” in the common law.
See Paul Robinson, Should the Criminal Law Abandon the Actus Reus–Mens Rea
Distinction?, in ACTION AND VALUE IN CRIMINAL LAW 187, 205 n. 63 (Stephen Shute, John
Gardner, & Jeremy Horder eds., 2003).
2011]
595
“some future act or . . . some further consequence . . . beyond the conduct or
result that constitutes the actus reus of the offense,”10 and ii) the realization
of the “aim” is not required to be proven as they are not actus reus for the
offence.
2. Mental Elements of the Crime of Genocide under the Korean
Implementing Legislation
The phrase “with the aim of destroying” as a statutory expression of
genocidal intent will give a strong impression to the Korean judges that the
crime of genocide falls into the category of aim–crime under Korean
criminal law. The authors are of the opinion that this categorization is
correct and consistent with the true nature of genocidal intent for the
reasons articulated below.
a. Conceptual Distinction between “Intent” and “Aim”
On the basis of the understanding of aim–crime under the Korean Penal
Code explained above, identifying the exact legal nature of the mental
elements of genocide in the Korean legal context would help clarify the true
implication of the wording of “with the aim of destroying.” Before
embarking on a specific examination of the concept of genocidal intent, it is
necessary to explore the conceptual distinction between “intent” and “aim.”
In this regard, an observation made by Kwang–Joo Rim, a Korean criminal
law professor, deserves our attention. He seems to suggest two parameters
of the distinction between “intent” and “aim”—the direct and full control
test and concurrence test.11
Based on Rim’s explanation, a definition of “intent” might be advanced
in which “intent” is a person’s willful state of mind that is directly and fully
controlling a conduct at the time of the conduct. One cannot, however,
through his or her will, directly and fully control all the conducts to be
engaged in by other people. The only object of the person’s direct and full
control through his or her will can be his or her own conduct. Thus, “intent”
is directed at the person’s own conduct only, not at the conduct to be
engaged in by other people. Essentially, an intent that I harboured yesterday
or will harbour tomorrow does not have any meaning in the sense of
criminal law if my conduct is not accompanied by the intent at the time of
the conduct.
On the other hand, “aim” is not a state of mind that is directly and fully
controlling an object in the sense that this state of mind is directed at an
object in the future. With regard to the object of “aim,” Rim opines that
10. DRESSLER, supra note 7, at 138.
11. Kwang–Joo Rim, Hyongbeob E Itseoso Mokjok Eu Gaenyum Gwa Yoohyong
[The Concept and Types of Aim in Criminal Law], 21 HANYANG L. REV. 45, 47–49 (2004).
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everything that can be portrayed in a person’s mind can be an object of
“aim.” Thus, the person’s own conduct can also be an object of “aim” if it is
supposed to happen in the future. Likewise, the concept of “aim” has a
capacity to encompass other people’s conduct, which was not the case with
the concept of “intent” as just explained. This disparity in terms of the
capacity of the concepts of “aim” and “intent” is crucial for the subsequent
discussion on genocidal intent.
The distinction between “intent” and “aim” might be summarized as
follows: “intent” is a willful state of mind directed at a person’s own
directly and fully controllable conduct at the time of the conduct, and “aim”
is a willful state of mind directed at an object in the future regardless of
whether the object is directly and fully controllable or not. Consequently,
one can only have an “aim” (but not “intent”) vis–à–vis i) other people’s
conduct, or ii) a consequence that requires the involvement of other people
for it to be realized. Yet, “intent” does not have a capacity to cover these
two items.
At this juncture, it is illuminative to see what George Fletcher states on
the meaning of “intent”:
It accounts for one of the basic principles of criminal responsibility: the
required union of act and intent. If [yesterday] I ha[d] the intent to steal a
specific book, and [today] I walk away with the book by mistake, I do not
steal it. I must have the intent to steal at the very moment that I walk away
with the book. Or recall the scene from the film Nine to Five: A secretary
wishes to kill her boss. While preparing him a cup of coffee she
mistakenly (not accidentally!) puts a substance in the coffee that turns out
to be poison. She may have a background plan and even an unconscious
intention to kill him, but she does not intentionally poison him. What
counts is not the preliminary or the background or subconscious intention
of the actor, but the adverbial question: Did the actor intentionally deprive
the owner of possession of the book or intentionally induce him to drink
poison? (emphasis added).12
Given the phrases “at the very moment” and “adverbial question,”
Fletcher is obviously of the same view as Rim that the intent must exist at
the time of conduct, backing the concurrence test. The state of mind
12. GEORGE P. FLETCHER, BASIC CONCEPTS OF CRIMINAL LAW 121 (1998). See also
MICHAEL BRATMAN, INTENTION, PLANS, AND PRACTICAL REASON 16 (1999) (“My intention
will not merely influence my conduct, it will control it. . . . Intentions are, whereas ordinary
desires are not, conduct–controlling pro–attitudes. Ordinary desires, in contrast, are merely
potential influencers of action. The volitional dimension of the commitment involved in
future–directed intention derives from the fact that intentions are conduct controllers. If my
future–directed intention manages to survive until the time of action, and I see that that time
has arrived and nothing interferes, it will control my action then. As a conduct–controlling
pro–attitude my intention involves a special commitment to action that ordinary desires do
not.”). It should be kept in mind that Bratman’s “future–directed intention” is not a legal
notion. Instead, it is a philosophical concept.
2011]
597
indicated by the adverb “intentionally” always exists at the very moment
when a conduct signified by a verb is engaged in. Furthermore, the factual
examples in this passage are considered to support the validity of the direct
and full control test—both the person who took the book and the secretary
who poisoned her boss clearly did not have control over what happened—
they engaged in a conduct and/or caused a consequence by mistake.
b. Two Mental Elements of Genocide—But, no “Double
Intent” Anymore
It has been generally thought that the crime of genocide requires two
separate types of intent—the intent for the underlying conduct and
genocidal intent to destroy a group.13 In the context of Korean criminal law,
“instigation”14 is commonly said to require “double intent”—first, “intent to
instigate” (i.e., intent to create a will to commit a crime in another person’s
mind) and second, “intent to realize the crime through another person.”15 In
this respect, Rim observes that, although “instigation” indeed has two
separate mental elements, they are not “double intent” but one “intent” and
one “aim.”16 If we apply Rim’s criteria of distinction between “intent” and
“aim” to the case of “instigation,” i) “the instigator’s own conduct of
instigation”—which is directly and fully controllable by the instigator
(direct and full control test) at the time of instigating (concurrence test)—is
in no doubt an object of his own intent, and ii) “the realization of the crime
through another person”—which is not directly and fully controllable by the
instigator (direct and full control test) and is something to happen in the
future (concurrence test)—cannot be an object of “intent,” but can only be
an object of “aim.” Therefore, it seems sound to argue that “instigation” has
two mental elements of “intent” and “aim,” not “intent” and “intent.” In this
regard, Rim further takes the examples of the “offence of criminal
preparation,”17 “offence of conspiracy,”18 and “attempt”19 in respect of
13. See, e.g., Int'l Comm'n of Inquiry on Darfur, established pursuant to resolution
1564 (2004), Report to the United Nations Secretary–General, ¶ 491 (Jan. 25, 2005),
http://www.un.org/News/dh/sudan/com_inq_darfur.pdf, [hereinafter Darfur Report] (stating
that “the subjective element or mens rea [of genocide] is twofold: (a) the criminal intent
required for the underlying offence (killing, causing serious bodily or mental harm, etc.) and,
(b) ‘the intent to destroy, in whole or in part’ the group as such.”).
14. Korean Penal Code, supra note 4, art. 31(1).
15. KIM & SUH, supra note 6, at 640; YIM, supra note 6, at 446.
16. Rim, supra note 11, at 49.
17. Id. “Intent” directed at the conduct of preparation, and “aim” directed at the
realization of a crime.
18. Id. “Intent” directed at the conspiracy, and “aim” directed at the realization of the
crime. The term “conspiracy” is a translation of the Korean word “Eum–mo” as provided in
Article 28 of the Korean Penal Code, which provides, “[w]hen a conspiracy or preparatory
conduct for a crime has not reached the commencement of the execution of the crime, the
person shall not be punished, except as otherwise provided by statute.” Though relevant case
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which the mental element of “aim” has been mistakenly labeled “intent” by
many Korean scholars.
If we analyze the mens rea structure of the crime of genocide, it indeed
requires two mental elements—intent for the underlying conduct to which
Article 30 of the ICC Statute applies, and genocidal intent directed at the
destruction of a group. As to the former, when a person consciously engages
in one of the underlying conducts provided in Article 6(a)–(e) of the ICC
Statute, we can safely state that he or she is in possession of “intent” vis-àvis the conduct (unless he or she suffers from physical malfunctioning etc).
That is, the intent exists at the time of the conduct (concurrence test) and the
person has direct and full control over his or her conduct (direct and full
control test). On the other hand, with regard to genocidal intent, the
“destruction” is a future effect or further consequence envisaged in a
person’s mind (concurrence test). Furthermore, the realization of the
“destruction” requires the involvement of other people as confirmed by the
drafters of the Elements of Crimes when they stipulated the phrase “a
manifest pattern of similar conduct,”20 and other people’s conducts are not
directly and fully controllable (direct and full control test). Thus, genocidal
intent fails both the concurrence test and the direct and full control test and,
consequently, cannot be labeled “intent.” As recognized by some members
of the International Law Commission when they recommended replacing
the wording “acts committed with intent to destroy” with “acts committed
with the aim of destroying” or “acts manifestly aimed at destroying” for the
Article on genocide in the Draft Code of Crimes against the Peace and
Security of Mankind, genocidal intent should be classified as “aim,” not as
“intent” “to avoid any ambiguity on this important element of the crime.”21
law in Korea is quite scarce, one might say that the concept of “conspiracy” in Article 28 of
the Code is i) similar to the conspiracy doctrine of the common law in that it is a substantive
offence, and ii) distinct from the conspiracy doctrine of the common law in that it does not
require the element of “overt act.” Note that, under Article 28, the rule is not punishing
conspiracy. Punishing conspiracy is an exception. For a general overview of the relevant
theories and case law concerning Article 28 of the Code, see Jong–Ryul Lee & Deok–In Lee,
Hyong Sa Beob Sang Ye Bi Eum–mo Je E Daehan Je Gumto [A Review on Criminal Offence
of Conspiracy, Inchoate Crime: Abolition of Offence of Conspiracy and Modification of
Inchoate Crime], 49 Dong–A U. L. Rev. 137–170 (2010); Jung Hwan Han, Yebi Eum–mo Je
Eu Sung Rip Yo Gun, Jeok Yong Gi Joon [Die Verabredung und Vorbereitung der Straftat],
633 Kor. Lawyers Ass’n J. 141–171 (2009).
19. Id. “Intent” directed at the initiation of the conduct, and “aim” directed at the
completion of the crime.
20. Report of the Preparatory Comm’n for the Int’l Criminal Court, Finalized Draft
Text of the Elements of Crimes, art. 6, U.N. Doc. PCNICC/2000/1/Add.2 (Nov. 2, 2000)
[hereinafter Elements of Crimes] (describing the objective contextual element of genocide as
“conduct [which] took place in the context of a manifest pattern of similar conduct directed
against that group or was conduct that could itself effect such destruction.”).
21. May 2–July 21, 1995, ¶ 79, U.N. Doc. A/50/10; GAOR, 50th Sess., Supp. No. 10
(2005) (“It was suggested that the Drafting Committee might consider using a formulation
2011]
599
3. Difficulties Stemming from the Wording of “With Intent to
Destroy”
As of May 2010, the authors are not aware of any other national
implementing legislation of the ICC Statute that employs the wording of
“with the aim of destroying” for the purpose of providing genocidal intent.22
The Act’s unique selection of this wording seems to be a progressive
development in the area of the law on genocide. To date, the discussion on
“specific intent,” “special intent (dolus specialis),” or “genocidal intent” has
been considered difficult and complex, particularly in view of the unique—
and at the same time common—feature of the core international crimes that
involves the participation of “many people.” Except for the highly
exceptional situation envisaged by the second part of the contextual element
of the crime of genocide provided in the Elements of Crimes (“conduct that
could itself effect such destruction”),23 is it possible for many Rwandan
Hutu people who pursued their Tutsi neighbours to universally have the
“special intent” to destroy? It seems thus far that the term “special intent”
has been understood by many scholars, lawyers, and international judges as
more of a stronger intent than a general intent (particularly in terms of the
volitional aspect of intent). A noteworthy example of such understanding is
the term “aggravated criminal intention” that appears in the Darfur Report,
explaining the concept of genocidal intent.24 The usage of the term
“aggravated criminal intention” in the United States,25 the employment of
such as ‘acts committed with the aim of’ or ‘acts manifestly aimed at destroying’ to avoid
any ambiguity on this important element of the crime.”).
22. Most national implementing legislation of the ICC Statute uses the wording
“with intent to destroy.” See, e.g., Crimes Against Humanity and War Crimes Act, S.C.
2000, c. 24, § 4(3) (Can.), available at http://laws.justice.gc.ca/PDF/Statute/C/C-45.9.pdf;
Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 ch.
5, sched. 1, pt. 1 (S. Afr.), available at http://www.info.gov.za/gazette/acts/2002/a27-02.pdf;
International
Criminal
Court
(Consequential
Amendments)
Act
2002,
divs.
268.3–268.7
(Austl.),
available
at
http://www.comlaw.gov.au/ComLaw/Legislation/Act1.nsf/0/DE14FDCCC9AB239BCA257
4100007FC95/$file/0422002.pdf. It is however noteworthy that, to the authors’ knowledge,
the only legislation that employs a similar wording as the Korean legislation is the Criminal
Code of Georgia (Apr. 28, 2006. No. 2937). Article 407 of the Georgian Criminal Code uses
the phrase, “in order to realize an agreed plan of complete or partial destroying.” (emphasis
added). The authors are grateful to Georgian lawyer Mr. Ilia Utmelidze of the Norwegian
Center for Human Rights for providing us with the translation of this provision and sharing
his observations.
23. Elements of Crimes, supra note 20, art. 6.
24. Darfur Report, supra note 13, ¶ 491.
25. The term “aggravated criminal intent” seems to find its origin in the American
legal system in which the term has been used to show an added culpability of a person who
did not comply with a “judicial or administrative warning” or a “special law in the form of a
formal order, injunction or decree” specifically given to him or her by a judicial or
governmental authority. See United States v. Linville, 10 F.3d 630, 633 (9th Cir. 1993);
United States v. Kubick, 199 F.3d 1051, 1062 (9th Cir. 1999); United States v. Shadduck,
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the wordings of “consciously desired,”26 and the additional cognitive
component of knowledge (“know that . . . would destroy”) all indicate the
enhanced culpability level of “special intent.” The Darfur Report states:
[A]n aggravated criminal intention or dolus specialis . . . implies that the
perpetrator consciously desired the prohibited acts he committed to result
in the destruction, in whole or in part, of the group as such, and knew that
his acts would destroy in whole or in part, the group as such (emphasis
added).27
In the same vein, Kai Ambos says:
In the civil law tradition, specific intent corresponds to dolus directus of
first degree, i.e. it emphasizes the volitive element of the dolus. It has
been said that an offence with a specific intent requires performance of the
actus reus in association with an intent or purpose that goes beyond the
mere performance of the act. In other words it consists of an aggravated
criminal intent that must exist in addition to the criminal intent
accompanying the underlying offence.28
The same line of understanding can also be found in the jurisprudence of
the ad hoc tribunals. In its first genocide conviction, the International
Criminal Tribunal for Rwanda (“ICTR”) Trial Chamber in Akayesu
repeatedly uses the word “clear” in explaining the genocidal intent—for
example, “clearly seeks to produce,” “clear intent to cause,” and “clear
intent to destroy.”29 The subsequent case law of the ICTR and the
112 F.3d 523, 529 (1st Cir. 1997); United States v. Gunderson, 55 F.3d 1328, 1333 (7th Cir.
1995).
26. MODEL PENAL CODE § 2.02(2)(a) (1962) (defining four levels of culpability:
purposely, knowingly, recklessly and negligently. Regarding “purposely” that includes the
strongest volitional element, the code uses the phrase “the defendant’s conscious object.”). It
should also be noted that MODEL PENAL CODE §1.13(12) states, “‘intentionally’ or ‘with
intent’ means ‘purposely.’”
27. Darfur Report, supra note 13, ¶ 491.
28. Kai Ambos, Commentary: Genocidal Intent, in 8 ANNOTATED LEGAL CASES OF
INTERNATIONAL CRIMINAL TRIBUNALS 423, 424 (André Klip & Göran Sluiter eds., 2005).
29. Prosecutor v. Akayesu, Case No. ICTR 96–4–T, Judgment, ¶ 498 (Sept. 2, 1998)
(“Special intent of a crime is the specific intention, required as a constitutive element of the
crime, which demands that the perpetrator clearly seeks to produce the act charged.”)
(emphasis added); Id. ¶ 518 (“Special intent is a well–known criminal law concept in the
Roman–continental legal systems. It is required as a constituent element of certain offences
and demands that the perpetrator have the clear intent to cause the offence charged.
According to this meaning, special intent is the key element of an intentional offence, which
offence is characterized by a psychological relationship between the physical result and the
mental state of the perpetrator.”) (emphasis added); Id. ¶ 520 (“With regard to the crime of
genocide, the offender is culpable only when he has committed one of the offences charged
under Article 2(2) of the Statute with the clear intent to destroy, in whole or in part, a
particular group. The offender is culpable because he knew or should have known that the act
committed would destroy, in whole or in part, a group.”) (emphasis added). See also
2011]
601
International Criminal Tribunal for the Former Yugoslavia (“ICTY”)
Appeals Chamber in Kristić have followed the same interpretative
approach—generally referred to as purpose–based approach to genocidal
intent (as opposed to knowledge–based approach).30 According to this
purpose–based approach, the genocidal intent indicates a state of mind that
“consciously desires” a destruction of a group (not just “desire”), and
clearly intends the destruction of a group (not just “intend”). It is
considered, however, that there are some difficulties involving this
interpretative approach to genocidal intent.
First, the purpose–based approach tends to contradict the reality of
genocidal crime–base in which “many people” participate. That is, it is hard
to imagine a situation where such a strong level of intent would be shared
by all of those participants covering i) the masterminds at the highest
Prosecutor v. Rutaganda, Case No. ICTR–96–3–T, Judgment and Sentence, ¶ 59 (Dec. 6,
1999), available at http://www.unhcr.org/refworld/docid/48abd5880.html. As to the Akayesu
Trial Chamber’s opinion that the concept of “special intent” is well–known to the continental
legal tradition, see a negative response from Claus Kreβ:
This statement quite considerably underestimates the complexity of
the matter. Neither the ‘Roman–continental systems’ nor the legal
family of the common law can be relied upon for a clear cut and
uniform concept of dolus specialis (‘dol special’, ‘special intent’,
‘Absicht’/‘erweiterter Vorsatz’, ‘dolo especifico’, ‘oogmerk op’,
‘amesos dolos/skopos’ etc.) as meaning aim, goal, purpose or desire.
It is thus highly improbable whether a valid comparative law
argument could be developed in support of the assertion put forward
in Akayesu. But apart from this, the definition of genocide does not
use any of those terms, but simply the word ‘intent’ which leaves the
necessary room to have due regard to genocide’s specific interplay
between individual and collective acts.
Claus Kreβ, The Crime of Genocide under International Law, 6 INT’L CRIM. L.
REV. 461, 494 (2006).
30. For discussion on the “purpose–based approach” and the “knowledge–based
approach” to genocidal intent, see Alexander K.A. Greenawalt, Note, Rethinking Genocidal
Intent: The Case for a Knowledge–Based Interpretation, 99 COLUM. L. REV. 2259 (1999);
Claus Kreβ, The Darfur Report and Genocidal Intent, 3 J. INT’L CRIM. JUST. 562, 565 (2005)
[hereinafter Kreβ, Darfur Report and Genocidal Intent]; Kreβ, supra note 29, at 492; Hans
Vest, A Structure–Based Concept of Genocidal Intent, 5 J. INT’L CRIM. JUST. 781, 786
(2007); Claus Kreβ, The Crime of Genocide and Contextual Elements: A Comment on the
ICC Pre–Trial Chamber’s Decision in the Al Bashir Case, 7 J. INT’L CRIM. JUST. 297, 304–
06 (2009); WILLIAM SCHABAS, GENOCIDE IN INTERNATIONAL LAW: THE CRIME OF CRIMES
242 (2009). The following summary made by William Schabas on the two approaches is
short and clear: “Adoption of a ‘purpose–based’ approach, which dwells on intent, results in
a focus on individual offenders and their own personal motives. A ‘knowledge–based’
approach, on the other hand, directs the inquiry towards the plan or policy of a State or
similar group, and highlights the collective dimension of the crime of genocide.” Id. For a
thorough study of the ICTY jurisprudence on genocidal intent, see Cécile Tournaye,
Genocidal Intent before the ICTY, 52 INT’L AND COMP. L. Q. 447 (2003).
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organizational structure of power; ii) mid–level commanders who passed
the instructions/orders; and iii) direct–perpetrators who physically carry out
the campaign.31 In this respect, Claus Kreβ explains, “[t]he fundamental
problem of the purpose–based approach thus consists in the combination of
an actus reus list formulated from the perspective of the subordinate level
with what is typically a leadership standard of mens rea.”32
Second, the purpose–based approach is likely to entice scholars and
practitioners to build a causal connection between the underlying conducts
of genocide as provided in paragraphs (a) to (e) of Article 6 of the ICC
Statute and the notion of “destruction” (apparently treating the “destruction”
as a material element of “consequence”) as implied by the following text:33
At the low end of recklessness, continental jurists speak of dolus
eventualis, a level of knowledge that must surely be insufficient to
constitute the crime of genocide . . . A commander accused of committing
genocide by ‘inflicting on the group conditions of life calculated to bring
about its physical destruction’, and who was responsible for imposing a
restricted diet or ordering a forced march, might argue that he or she had
no knowledge that destruction of the group would indeed be the
consequence. An approach to the knowledge requirement that considers
recklessness about the consequence of an act to be equivalent to full
knowledge provides an answer to such an argument (emphasis added).34
In this text, the notion of “destruction” appears to be regarded as a
material element (in particular, as a “consequence”). In order to appraise
this approach, it is necessary to first determine the precise legal identity of
the notion of “destruction” in the context of the law on genocide. In this
respect, the wording of “with the aim of destroying” in the Act and the legal
nature of the aim–crime under the Korean Penal Code indicate that the
drafters of the legislation considered the notion of “destruction” to be just
an ingredient of the mental element of “aim to destroy,” and not as a
separate material element. Thus, it is expected that Korean judges probably
would not require the showing of the realization of “destruction” for the
constitution of the crime of genocide, as the “destruction” per se is not actus
reus. This understanding of the legal identity of “destruction” being just an
ingredient of genocidal intent also holds true in international jurisdictions as
evidenced by the ICTY Trial Chamber in Krajisnik when it described
31. Prosecutor v. Al Bashir, Case No. ICC–02/05–01/09, Decision on the
Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmed Al Bashir, 49
n. 154 (Mar. 4, 2009), available at http://www.icc-cpi.int/iccdocs/doc/doc639096.pdf.
32. Kreβ, supra note 29, at 496.
33. It is generally understood that there are three kinds of actus reus under the ICC
law: “conduct,” “consequence,” and “circumstance.” See ICC Statute, supra note 2, art. 30.
See also Elements of Crimes, supra note 20, General Introduction ¶¶ 2, 7.
34. SCHABAS, supra note 30, at 260.
2011]
603
“[d]estruction as a component of the mens rea of genocide.”35 The scholarly
hesitation to directly link genocidal intent to the notion of “destruction,”
probably due to advertent or inadvertent realization of the true identity of
the “destruction” (i.e., not actus reus), is implied in the expressions such as
“intent to further the destruction of the group,”36 “specific intent with
respect to overall consequence of the prohibited act,”37 and “the goal or
manifest effect of the campaign was the destruction.”38 In sum, the notion of
“destruction” is not actus reus of “consequence” of the underlying conducts,
and is not therefore required to be materialized.39 Instead, the genocidal
mens rea is required to be directed at or oriented towards the “destruction”
alone. The “destruction” can only be some effect or further consequence
beyond the underlying conduct and/or result thereof that fully constitutes the
actus reus of the crime of genocide.
In conclusion, the mental element of “aim to destroy” does not attend the
“destruction” as its corresponding material element. The “aim to destroy” is
only directed at the “destruction.” The “aim to destroy” contains
“destruction” only as its conceptual component. The “aim to destroy” stands
alone as a legal requirement reflecting a state of mind of a person who is
involved in the crime of genocide. From the viewpoint of substantive law,
the “destruction” exists only in the abstract. When the case law of the ad
hoc tribunals discussed the destruction of the “substantial part” of a group in
defining the term “in part,” it did not talk about the material element of
“consequence.” Instead, what the jurisprudence discussed was the legal
requirement of genocidal intent being directed at the destruction of a
substantial part of a group. The realization of the destruction of the
substantial part of the group in the real world can be significant as a matter
of evidence.40 It has, however, nothing to do with the constitution of the
crime of genocide as a matter of substantive law.41
35. Prosecutor v. Krajisnik, Case No. IT–00–39-T, Judgment, ¶ 854 (Sept. 27, 2006).
The term “mens rea of genocide” in this paragraph should be understood as the special intent
of genocide, not as mens rea of an underlying conduct of genocide. It should be noted that
there is a seemingly divergent view expressed by the Krajisnik Trial Chamber when it states,
“[t]he acts must destroy, or tend to destroy, a substantial part of the group, and the intent
must be that that part of the group exists no more.” Id. ¶ 866 (emphasis added). The wording
of “must destroy” that indicates a different identity of “destruction” being an actus reus
(“consequence”) is regrettable as it only causes confusion without serving any other
purposes.
36. Ambos, supra note 28, at 424.
37. Rep. of the Int’l Law Comm’n, 48th sess., May 6–July 26, 1996, ¶ 44, U.N. Doc.
A/51/10; GAOR, 51st Sess., Supp. No. 10 (1996).
38. Greenawalt, supra note 30, at 2288.
39. See also Ambos, supra note 28, at 424 (expressing the same view when he stated
“it is irrelevant for the completion of the crime whether the perpetrator is . . . successful in
destroying the group. . . . He or she needs only intend to achieve this consequence or
result.”).
Prosecutor
v.
Ndindabahizi,
Case
No.
ICTR–2001–71–I,
40. See
Judgment,
¶
454
(Jul.
15,
2004),
available
at
604
[Vol. 19:3
The substantive legal examination of a genocidal crime–base should be
done in a three step process—first, at the level of underlying conducts
concerning both actus reus and mens rea; second, at the level of the
contextual circumstance of “a manifest pattern of similar conduct”
concerning actus reus (and mens rea on a case by case basis);42 and third, at
the level of genocidal intent concerning mens rea only. Article 30 of the
ICC Statute is applicable to the first level (and the second level on a case by
case basis) only,43 not to the third level. That is to say, in addition to the fact
that genocidal intent itself is generally considered as being outside the
general mental element scheme under Article 30,44 there is no material
element that can ever be affected by an Article 30 mental element at the
stage of legal consideration vis-à-vis the genocidal intent at the third level.
The peculiar legal feature of the absence of any material element at the
third level also casts doubts on some of the definitions of genocidal intent
advanced by some scholars in line with the knowledge–based approach, for
example:
The question of whether the individual perpetrator must foresee the
occurrence of the overall destructive result as a substantial certainty also
arises if the knowledge–based approach to individual genocidal intent is
adhered to. It is one thing to know that the collective goal to destroy exists
and another thing to foresee the goal’s realization as a substantial
certainty. As mentioned above, the views of the proponents of the
knowledge-based approach differ: while Vest requires foresight as a
substantial certainty, Gil Gil holds that dolus eventualis should suffice. If
one considers the complex nature and context of the systemic act, it is
submitted that Gil Gil’s view is more realistic if the definition of genocide
is to be applied at all. How this view relates to the ‘awareness that [a
http://www.unhcr.org/refworld/category,LEGAL,ICTR,CASELAW,,48abd5150,0.html
(“The actual destruction of a substantial part of the group is not a required material element
of the offence, but may assist in determining whether the accused intended to bring about
that result.”).
41. See id.
42. Elements of Crimes provides that mens rea regarding this material element of
“circumstance,” if any, “will need to be decided by the Court on a case–by–case basis.” See
Elements of Crimes, supra note 20, intro. to art. 6.
43. If the ICC judges acknowledged mens rea regarding the contextual circumstance
of “manifest pattern of similar conduct” on a case–by–case basis, then Article 30 will also
apply thereto. See ICC Statute, supra note 2, art. 30.
44. In other words, genocidal intent falls into the mental element category of
“otherwise provided” in Article 30 of the ICC Statute. See Gerhard Werle & Florian
Jessberger, Unless Otherwise Provided: Article 30 of the ICC Statute and the Mental
Element of Crimes Under International Criminal Law, 3 J. INT’L CRIM. JUST. 35, 48–49
(2005) (“Numerous provisions of the ICC Statute include additional subjective requirements
that, unlike ‘intent and knowledge’ under Article 30 ICCSt., do not necessarily refer to a
material element of the crime, such as conduct, consequence or circumstance. The most
important example concerns the ‘intent to destroy’ element of genocide pursuant to Article 6
ICCSt.”).
2011]
605
consequence] will occur in the ordinary course of events’ within the
meaning of Article 30(2)(a) ICCSt. is a matter that cannot be pursued here
any further. In conclusion, it is suggested that the individual perpetrator
must act with dolus eventualis regarding the eventual destructive result.
We would thus propose, for the typical case of genocide, that individual
genocidal intent requires (a) knowledge of a collective attack directed to
the destruction at least part of a protected group, and (b) dolus eventualis
as regards the occurrence of such destruction (emphasis added).45
In this context, since there is no material element—especially the
“consequence”—to be affected by genocidal intent at the third level, it is
doubtful whether there is any room for dolus eventualis or “foresight as a
substantial certainty” to intervene and play a role as a sub–requirement of
the genocidal intent. This is because the discussion of the applicability of
dolus eventualis or “foresight as a substantial certainty” presumes that the
“destruction” is a material element (“consequence”) corresponding thereto.
In other words, if we take this approach, the realization of the “destruction”
would become a key factor to distinguish the “attempt” of the crime of
genocide and the “completion” thereof, which cannot survive a simple
scrutiny of case law and scholarly works.46 That is, an “attempted
destruction” is sufficient for the conviction of the “completion” of the crime
of genocide.47 Since the “destruction” is only an ingredient of a mental
element (i.e., genocidal intent), the text cited above appears to mistakenly
try attaching a mental element (i.e., dolus eventualis or “foresight as a
substantial certainty”) to another mental element (i.e., destruction).
In this respect, the definition of genocidal intent (based on the
knowledge–based approach), as originally suggested by Greenawalt, may be
considered more consistent with at least the distinct feature of the absence
of any material element at the third level.48 The legal identity of the concept
45. Kreβ, Darfur Report and Genocidal Intent, supra note 30, at 577.
46. GERHARD WERLE ET AL., PRINCIPLES OF INTERNATIONAL CRIMINAL LAW 205
(2005) (“promote the misunderstanding that the total or partial destruction of the group . . . is
necessary for genocide”).
47. The notions of “attempted destruction” and “attempt of the crime of genocide”
are distinct to each other. See Prosecutor v. Gacumbtsi, Case No. ICTR 2001–64–T,
Judgment,
¶
253
(Jun.
17,
2004),
available
at
http://www.unictr.org/Portals/0/Case/English/Gacumbitsi/Decision/040617-judgement.pdf
(“There is no numeric threshold of victims necessary to establish genocide, even though the
relative proportionate scale of the actual or attempted destruction of a group, by any act
listed in Article 2 of the Statute, is strong evidence to prove the necessary intent to destroy a
group in whole or in part.”) (emphasis added) (citations omitted). It is considered that the
“attempt of the crime of genocide” should be discussed only in connection with the material
elements (“conduct” and/or “consequence”) of the underlying acts provided in Article 6(a)–
(e) ICCSt, not with genocidal intent.
48. Greenawalt suggests a knowledge–based definition. Greenawalt, supra note 30,
at 2288. (“In cases where a perpetrator is otherwise liable for a genocidal act, the
requirement of genocidal intent should be satisfied if the perpetrator acted in furtherance of a
606
[Vol. 19:3
of “destruction” as being a component of mens rea (i.e., genocidal intent)
seems more compatible with the terms “manifest effect”49 or “destructive
effect”50 used by Greenawalt than other expressions like “destructive result.”
The term “knowledge–based interpretation” proposed by Greenawalt might
be paraphrased as “knowledge (of the further effect)–based interpretation,”
not “knowledge (of the result)–based interpretation.”
4. From “Genocidal Intent” to “Genocidal Plan”:
Objectification of the Concept of “Genocidal Intent”
To the extent that, within the knowledge–based approach, an emphasis is
placed on the “destruction” as being only a further effect (as opposed to a
“result” or “consequence”) of a genocidal campaign, the adoption of the
wording “with the aim of destroying” in the Act is congruent with the
knowledge–based approach. Emphasizing the need to distinguish between a
“collective intent” and an “individual intent,” Claus Kreβ explains the crux
of the knowledge–based approach as follows:
The collective intent [as opposed to individual intent] can best be defined
as the goal or the objective behind a concerted campaign to destroy, in
whole or in part, a protected group. Such goal or objective may well have
originated from the desire of one or more individual directors but it will
then acquire an impersonal, objective existence (most usefully referred to
as the “overall genocidal plan”) . . . Yet it is not such a desire of an
individual that hallmarks genocide as the horrible crime it is. It is the
dimension of the collective genocidal goal that every individual participant
takes the conscious decision to further (emphasis added).51
Our experience in the Twentieth Century tells us that the crime of
genocide is, together with crimes against humanity and war crimes,
committed by “many people.” The contextual elements of “widespread or
systematic attack,” “state or organizational policy,” and “the existence of
campaign targeting members of a protected group and knew that the goal or manifest effect
of the campaign was the destruction of the group in whole or in part.”) (emphasis added).
49. Id.
50. Id. at 2291 (suggesting that “culpability [can be] based on knowledge of
destructive effect”).
51. Kreβ, supra note 29, at 495–97 (citing Prosecutor v. Krstić, Case No.
IT–98–33–T, Judgment, ¶ 549 (Aug. 2, 2001) (“As a preliminary, the Chamber emphasizes
the need to distinguish between the individual intent of the accused and the intent involved in
the conception and commission of the crime. The gravity and the scale of the crime of
genocide ordinarily presume that several protagonists were involved in its perpetration.
Although the motive of each participant may differ, the objective of the criminal enterprise
remains the same. In such cases of joint participation, the intent to destroy, in whole or in
part, a group as such must be discernible in the criminal act itself, apart from the intent of
particular perpetrators.”)).
2011]
607
armed conflict” all require a circumstance of a legally meaningful scale.
And the factual bottom line of that “circumstance of a legally meaningful
scale” seems to be the involvement of “many people.” As mentioned above,
encountering the word with rather strong volitional connotation—that is,
“intent (to destroy)”—this factual feature of the involvement of “many
people” has made the discussion of “genocidal intent” difficult and
confusing especially when one follows the purpose–based approach.
Challenging the purpose–based approach, the knowledge–based approach
highlights that a perpetrator’s knowledge of the collective plan to destroy a
group is the key element of genocidal intent. In this way, the concept of
genocidal intent has been objectified towards the “impersonal [and]
objective existence” of “overall genocidal plan” advertently (mostly by
scholars through the introduction of the knowledge–based approach) and
inadvertently (mostly by international judges “through the evidentiary
backdoor”).52 For the notion of genocidal intent under the knowledge–based
approach, the proposition put forth by David Luban stands firm—“without a
plan there is no intention.”53
5. Significance of the New Wording Adopted by the Korean
Implementing Legislation
The concepts of “aim” (in the wording of “with the aim of destroying”)
and “plan” (in the term “overall genocidal plan”) share the same definitional
feature of being directed at an object that perceptually exists in the future.
As examined above in Part I (A)(2)(a), this definitional feature cannot be
shared by the notion of “intent” as it must be directed at an object that
conceptually exists at that very moment of the conduct. For this reason,
“genocidal intent” that is legally required to be directed to a future effect of
52. Kreβ, Darfur Report and Genocidal Intent, supra note 30, at 571–72.
53. David Luban, Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur,
and the UN Report, 7 CHI. J. INT’L L. 303, 312 (2006). See also Michael Bratman, Moore of
Intention and Volition, 142 U. PA. L. REV. 1705, 1708–09 (1994) (“I believe that future–
directed intentions play a central, coordinating role in our psychology, both individual and
social, and that it is an error to ignore them in theorizing about intelligent agency. In
particular, we are planning agents. We frequently settle in advance on partial plans for the
future, and these plans then guide and structure later planning and action. We do not only
reason about what to do now, but frequently try to decide now what to do at some later time,
and then figure out what to do in the interim given our decision about that later time . . . . Our
planning capacities—capacities at the heart of our ability to achieve complex forms of
organization, both individual and social—mark off a distinctive species of intelligent agency.
Planning is the key to intention: future–directed intentions are typically elements of partial
plans.”) (second emphasis added). It deserves our attention that Bratman makes a distinction
between “plans as abstract structures (plan)” and “plans as mental states (having a plan).” He
clarifies that the term “plan” for the usage in his literature falls into the latter, i.e., “mental
states involving an appropriate sort of commitment to action: I have a plan to A only if it is
true of me that I plan to A. Plans, so understood, are intentions writ large.” See Bratman,
supra note 12, at 28–29.
608
[Vol. 19:3
the “destruction of a group” cannot be conceptually captured by the concept
of “intent.” In this sense, the term “genocidal intent” is itself linguistically
flawed, and has become a false friend, just like “expérience” in French
means “experiment,” not “experience.”54
In this connection, the wording “with the aim of destroying” in Article 8
of the Act seems to correctly reflect the legal and factual reality surrounding
the false friend “genocidal intent,” and makes it clear that the notion of the
“destruction of a group” is an ingredient of mens rea. This observation is
also considered consonant with the Lemkin’s purpose:
Generally speaking, genocide does not necessarily mean the immediate
destruction of a nation, except when accomplished by mass killings of all
members of a nation. It is intended rather to signify a coordinated plan of
different actions aiming at the destruction of essential foundations of the
life of national groups, with the aim of annihilating the groups themselves
(emphasis added).55
B. Crimes Against Humanity
Article 9 of the Act provides each of the eleven types of acts referred to
in Article 7(1) of the ICC Statute with regard to the contextual element of a
widespread or systematic attack directed against a civilian population
pursuant to a State or organizational policy. Concerning the possible
penalties, Article 9(1) stipulates that in case of murder, the perpetrator
should be punished by capital punishment, life–imprisonment, or
imprisonment of no less than seven years. For all other acts, Article 9(2)
provides life–imprisonment or imprisonment of no less than five years. It
should also be noted that—in a case where a victim died as a result of any
types of acts other than murder—Article 9(4) provides that the perpetrator is
to be punished by the same range of sentences as provided in Article 9(1)
(murder).
In terms of substantive law, there is only one aspect the authors wish to
discuss. As to the crime against humanity of extermination, the definition
thereof in the Act is quite different from that of the ICC law. First of all, it
must be noted that the Act does not provide the title word “extermination.”
Instead, it only stipulates the definition in an explanatory phrase. Article
7(2)(b) of the ICC Statute provides, “‘Extermination’ includes the
intentional infliction of conditions of life, inter alia the deprivation of
access to food and medicine, calculated to bring about the destruction of
part of a population.” The wording of Article 9(2)(1) of the Act is the exact
translation of Article 7(2)(b) of the ICC Statute except for the fact that it
omits the phrase “[e]xtermination includes.” The ramification of this
Luban, supra note 53, at 303–07.
RAPHAEL LEMKIN, AXIS RULE IN OCCUPIED EUROPE: LAWS
ANALYSIS OF GOVERNMENT: PROPOSALS FOR REDRESS 79 (1944).
54.
55.
OF
OCCUPATION:
2011]
609
omission is quite significant. That is, this omission has transformed the legal
nature of the crime against humanity of extermination from a “result crime”
(requiring the material element of “consequence”—i.e., one or more
person’s death) to a “conduct crime” (being completed by the material
element of “conduct” only—i.e., “infliction”). In other words, the basic
conduct type of the crime of extermination (“killing”)56 is missing, let alone
the “mass killing”57 requirement. Although the Elements of Crimes can be
consulted for the interpretation and application of the crimes provided in the
Act,58 a relevant revision is recommended to ensure the principle of legality.
C. War Crimes
The Act spells out war crimes in five separate provisions: Article 10 (war
crimes against persons); Article 11 (war crimes against property and other
rights); Article 12 (war crimes against humanitarian operations and
emblems); Article 13 (war crimes concerning prohibited methods of
warfare); and Article 14 (war crimes concerning prohibited weapons of
warfare). The most distinctive feature of the war crimes provisions in the
Act is that the scope of applicability of quite a number of offences only
applicable to international armed conflict under the ICC Statute has been
expanded to non–international armed conflict. This is considered to be a
positive development made by the Act in that it would broaden the range of
protection under international humanitarian law under the Korean
jurisdiction. On the other hand—as a negative side of the war crimes
provisions in the Act—the authors might point out that the phrase “a person
who is protected under international humanitarian law” frequently used in
the war crimes provisions sometimes unnecessarily limits the ambit of
protection vis-à-vis the offences that originally do not require such a
qualification for them to be constituted as a war crime under the ICC
Statute. We will discuss the relevant provisions below.
56. Elements of Crimes, supra note 20, art. 7(1)(b)1. The following clarification
from the ICTR Appeals Chamber well explains the basic conduct type of “killing”: “Murder
as a crime against humanity does not contain a materially distinct element from
extermination as a crime against humanity; each involves killing within the context of a
widespread or systematic attack against the civilian population, and the only element that
distinguishes these offences is the requirement of the offence of extermination that the
killings occur on a mass scale.” See Prosecutor v. Ntakirutimana and Ntakirutimana, ICTR–
96–10–A and ICTR–96–17–A, Judgment, ¶ 542 (Dec. 13, 2004), available at
http://www.unhcr.org/refworld/publisher,ICTR,,,48abd5a610,0.html. See also Prosecutor v.
Kayishema & Ruzindana, Case No. ICTR–95–1–T, Judgment, ¶ 142 (May 21, 1999) (“The
Chamber agrees that the difference between murder and extermination is the scale;
extermination can be said to be murder on a massive scale.”).
57. Elements of Crimes, supra note 20, art. 7(1)(b)2.
58. Act, supra note 1, art. 18.
610
[Vol. 19:3
1. Article 10: War Crimes against Persons
The Act contains quite comprehensive provisions of war crimes against
persons. Considering the list of war crimes against persons of the ICC
Statute, it appears that the war crimes of “inhuman treatment” (Article
8(2)(a)(ii) ICCSt.), “cruel treatment” (Article 8(2)(c)(i) ICCSt.), “biological
experiment” (Article 8(2)(a)(ii) ICCSt.), “sentencing or execution without
due process” (Article 8(2)(c)(iv) ICCSt.), and “ordering the displacement of
civilians” (Article 8(2)(e)(viii) ICCSt.) are the offences omitted in the Act.
Among these offences, it is especially regrettable that inhuman treatment
under Article 8(2)(a)(ii) and cruel treatment under Article 8(2)(c)(i) are
excluded in the Act, given that i) both of them are treated as independent
offences possessing distinct elements from other offences provided in the
Articles 8(2)(a)(ii) and 8(2)(c)(i) respectively, and ii) they could have been
a sort of catch–all provision to be invoked when an alleged torture incident
fails to satisfy the “prohibited purpose” element.59 One might also point out
the significance of the offence of “ordering the displacement of civilians”
not being provided in the Act, particularly in view of the recent pattern of
attacks against a civilian population in non–international armed conflicts—
in other words, like “ethnic cleansing.” Moreover, by providing the
conduct–type of “ordering,” this offence is directly targeting the high–
ranking government or military officials who are most likely to be pursued
by national jurisdictions implementing the ICC Statute.
Comparing Article 10 of the Act with Article 8 of the ICC Statute, there
are two offences under Article 10 where the scope of protection has been
stretched to non–international armed conflict. Namely, Article 10(2)2 and
Article 10(3)1 respectively provide that the offences of “wilfully causing
great suffering, or serious injury to body or health”60 and “deportation or
transfer”61 is applicable to non–international armed conflict. To the
contrary, Article 10(2)3 concerning sexual offences—including rape—
seems to restrict the scope of application as it provides, “[c]onduct that
makes a person who is protected under international humanitarian law to
be an object of rape, enforced prostitution, sexual slavery, forced pregnancy
or enforced sterilization.”62 This additional requirement that the alleged
victim be “protected under international humanitarian law” in order for the
constitution of the sexual offences under Article 10(2)3 does not exist in
59. The only “materially distinct element” in between the war crime of torture and
inhuman (or cruel) treatment is the “prohibited purpose” element of torture. That is, for the
war crime of torture, the Elements of Crimes requires, “[t]he perpetrator inflicted the pain or
suffering for such purposes as: obtaining information or a confession, punishment,
intimidation or coercion or for any reason based on discrimination of any kin.” Elements of
Crimes, supra note 20, art. 8(2)(a)(ii)–1.
60. ICC Statute, supra note 2, art. 8(2)(a)(iii).
61. Id. arts. 8(2)(a)(vii), 8(2)(b)(viii).
62. Authors’ translation from the original text in Korean.
2011]
611
Article 8 of the ICC Statute. That is to say, the war crimes of sexual
offences in the ICC Statute are provided under the sub–paragraphs (b) and
(e) of the ICC Statute’s Article 8(2) and, for these sub–paragraphs, there are
no such limitations in terms of victims’ status like “against persons . . .
protected under the provisions the relevant Geneva Convention” (Article
8(2)(a) ICCSt.) or “against persons taking no active part in the hostilities,
including members of armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention or any other
cause” (Article 8(2)(c) ICCSt.). The scope of potential victims of the crimes
under Article 8(2)(a) and (c) of the ICC Statute as circumscribed by these
two phrases (respectively for international armed conflict and non–
international armed conflict) is almost the same with that of the phrase “a
person who is protected under international humanitarian law” as defined in
Article 2.7 of the Act. It is considered that Article 10(2)3 prescribing sexual
offences conflicts with the ICC Statute to the extent that this provision is
interpreted in a way that a conduct can constitute a relevant crime only if it
is committed against a person protected under international humanitarian
law. The same holds true for the crime of medical and scientific
experiments provided in Article 10(3)3 of the Act with the same restriction
of “a person who is protected under international humanitarian law”
because the corresponding provisions in the ICC Statute are provided in the
sub–paragraphs (b) and (e) of Article 8.
2. Other War Crimes Provisions
There are three additional provisions of war crimes—Article 12 (“war
crimes against humanitarian operations and emblems”); Article 13 (“war
crimes of using prohibited methods of warfare”); and Article 14 (“war
crimes of using prohibited weapons”). For this part of the Act, there are
some features to be noted.
First, the following offences only applicable to international armed
conflict in the ICC Statute are also applicable to non–international armed
conflict under the relevant provisions in Article 12, 13 and 14: the “war
crime of improper use of a flag of a truce, etc.” as provided in Article
8(2)(b)(vii) ICCSt.;63 the “war crime of excessive incidental death, injury or
damage” as provided in Article 8(2)(b)(iv) ICCSt.;64 the “war crime of using
protected persons as [a] shield” as provided in Article 8(2)(b)(xxiii)
ICCSt.;65 the “war crime of starvation as a method of warfare” as provided
in Article 8(2)(b)(xxv) ICCSt.;66 the “war crime of employing poison or
63.
64.
65.
66.
Act, supra note 1, art. 12(2).
Id. arts. 13(1)3, 13(3).
Id. art. 13(1)4.
Id. art. 13(1)5.
612
[Vol. 19:3
poisoned weapons” as provided in Article 8(2)(b)(xvii) ICCSt.;67 and the
“war crime of employing prohibited bullets” as provided in Article
8(2)(b)(xix).68 At this juncture, it is notable that, with respect to these last
two items of prohibited weapons, the delegations at the ICC Review
Conference in 2010 also agreed to extend the scope of protection to non–
international armed conflict.69
Second, the offence of “employing gases, liquids, materials and devices”
(Articles 8(2)(b)(xviii) ICCSt.) and the offence of employing means of
warfare “of a nature to cause superfluous injury or unnecessary suffering”
(Article 8(2)(xx) ICCSt.) are not provided in the Act. Instead, quite
significantly, the use of biological or chemical weapons is provided as an
offence applicable to both international and non–international armed
conflict in the Act’s Article 14(1)2, which provides for the penalty of life–
imprisonment or imprisonment of no less than five years. In this connection,
another legislative implementation of an international treaty into South
Korean law must also be noted. That is, the Korean implementing
legislation of the Biological Weapons Convention and the Chemical
Weapons Convention,70 which prohibits the development, production,
stockpiling, and use of biological and chemical weapons.71 It deserves our
attention that this legislation also has a set of penal provisions that
criminalizes, inter alia, the conduct of developing, producing, stockpiling,
or using biological or chemical weapons with the penalty of life–
imprisonment or imprisonment of no less than five years.72 A person who
aids or instigates the said conduct is also to receive the same penalty.73 It is
interesting to see that the domestic crime of developing, producing,
stockpiling or using biological or chemical weapons is to be punished with
the same penalty as the offence of the use of biological or chemical
weapons as provided in Article 14(1)2 of the Act. As to the omitted offence
concerning the weapons of a nature to cause unnecessary suffering and
indiscriminate effect as provided in the ICC Statute’s Article 8(2)(b)(xx), it
is recommended that the Act include this offence sooner or later. Although
this provision of the ICC Statute has not been entered into force, its
expected effect to cover the weapons of mass destruction should be
valued.74
67. Id. art. 14(1)1.
68. Id. art. 14(1)3.
69. See Rome Statute Review Conference Res. RC/Res.5 (June 16, 2010), available
at http://www.icc-cpi.int/iccdocs/asp_docs/Resolutions/RC-Res.5-ENG.pdf.
70. Hwahak saengmool moogi eu gumji mit tukjeong whahak moojil saengmool
jakyoungjae dung eu chaejo soochulip gyujae dung e gwanhan beobryul [Act on the
Prohibition of Biological and Chemical Weapons], Act. No. 5162, Aug. 16, 1996, amended
by Act. No. 9932, Jan. 18, 2010 (S. Kor.).
71. Id. art. 4–2.
72. Id. art. 25(1).
73. Id.
74. WERLE, supra note 46, at 374.
2011]
613
D. Modes of Liability
The Act does not have any provisions for modes of liability. It is,
therefore, necessary to apply the relevant provisions under the Korean Penal
Code for the actual prosecution of the crimes newly introduced by the Act.
In the Code, applicable modes of liability are prescribed under Section 3.
The Section provides four kinds of modes of liability as follows: co–
perpetration,75 instigation,76 aiding and abetting,77 and indirect
perpetration.78 Thus, one might say that the modes of liability under Article
75. Korean Penal Code, supra note 4, art. 30 (“When two or more persons have
jointly committed a crime, each of them shall be punished as a principal for the crime
committed.”).
76. Id. art. 31:
Article 31 (Instigation)
(1)A person who instigated another person to commit a crime shall
be punished by the same sentence as the one who executed the crime.
(2)When the person who was instigated consented to the execution
of a crime and did not commence the execution thereof, the penalty
for conspiracy or preparation shall apply mutatis mutandis to the
instigator and the instigated person.
(3)Even when the instigated person did not consent to the execution
of a crime, the preceding paragraph shall apply to the instigator.
77.
Id. art. 32:
Article 32 (Accessory)
(1)Those who aided and abetted another person’s commission of a
crime shall be punished as accessory.
(2)The sentence of accessory shall be mitigated to less than that of
the principals.
78.
Id. art. 34:
Article 34 (Indirect perpetration; Aggravation of punishment for
particular instigation or aiding and abetting).
(1)A person who have the result of a criminal conduct caused by
instigating or aiding and abetting another person who is not
punishable for such conduct or is punishable for negligence, shall be
punished pursuant to the provision for instigation or aiding and
abetting.
(2)A person who causes the result envisaged in the preceding
paragraph by instigating or aiding and abetting another person who is
under his command or supervision, shall be punished by increasing
up to one half of the maximum term or maximum amount of penalty
provided for the principal in the case of instigation, and with the
penalty provided for the principal in the case of aiding and abetting.
614
[Vol. 19:3
28(3) of the ICC Statute are mostly covered by Section 3 of the Korean
Penal Code, except for the common purpose liability in Article 28(3)(d) of
the ICC Statute. The direct and pubic incitement to commit genocide is also
applicable in Korea, as Article 8 of the Act has a specific provision thereof
in paragraph 4.
With regard to the issue of modes of liability, for the past fifteen years
we have seen enduring efforts of international criminal courts to label the
high ranking officials most responsible for heinous crimes as a principal,
not as an accessory. The doctrine of “joint criminal enterprise” invented by
the Tadić Appeals Chamber,79 and the functional control theory introduced
by the Stakić Trial Chamber80—which was subsequently adopted by the
ICC Pre–Trial Chamber in Lubanga,81 are the examples of such efforts
made by international judges targeting those high up behind the crime scene
who are holding ultimate control. Is there any corresponding mode of
liability under Korean criminal law?
The so–called “conspiracy co–perpetration” under Korean criminal law
seems to be closest to the co–perpetration liabilities from international
courts. The concept of “conspiracy co-perpetration” generally expresses that
a person who only participated in the planning stage, but not in the
execution of criminal conduct, can also be a co-perpetrator.82 This form of
criminal participation has introduced by judicial decisions (not by
legislation)—especially for the purpose of punishing the masterminds of
organized crimes who are usually away from the actual crime scene. As the
“joint criminal enterprise” theory—which is heavily based on the common
law concept of “conspiracy”—has been criticized from the perspective of
79. Prosecutor v. Tadić, Case No. IT–94–1–A, Judgment, ¶¶ 185-236 (Int’l Crim.
Trib.
for
the
Former
Yugoslavia
July
15,
1999),
available
at
http://www.icty.org/x/cases/tadic/acjug/en/tad-aj990715e.pdf.
80. Prosecutor v. Stakić, Case No. IT–97–24–A, Judgment, ¶¶ 431–442 (Int’l Crim.
Trib.
for
the
Former
Yugoslavia
Mar.
22
2006),
available
at
http://www.unhcr.org/refworld/country,,ICTY,,HRV,4562d8b62,47fdfb550,0.html.
The
initiative of the Stakic Trial Chamber to introduce the “functional control” theory under the
title of “co–perpetratorship” was blocked by the Appeals Chamber that reaffirmed the
validity of the doctrine of “joint criminal enterprise.” See also Prosecutor v. Stakić, ¶¶ 58–
63. For more about the “functional control” or “joint control” theory, see Héctor Olásolo &
Ana Pérez Cepeda, The Notion of Control of the Crime and its Application by the ICTY in the
Stakic Case, 4 INT’L CRIM. L. REV. 475 (2004); Héctor Olásolo, Reflections on the Treatment
of the Notions of Control of the Crime and Joint Criminal Enterprise in the Stakić Appeal
Judgment, 7 INT’L CRIM. L. REV. 143 (2007).
81. Prosecutor v. Lubanga, Case No. ICC–01/04–01/06, Decision on the
Confirmation of Charges, ¶¶ 322–367 (Jan. 29, 2007), available at http://www.icccpi.int/iccdocs/doc/doc266175.PDF [hereinafter Lubanga Charges Decision]. See also
Gerhard Werle, Individual Criminal Responsibility in Article 25 ICC Statute, 5 J. INT’L CRIM.
JUST. 953, 961–63 (2007).
82. KIM & SUH, supra note 6, at 600; JONG–DAE BAE, CRIMINAL LAW: THE GENERAL
PART 578 (2008); YIM, supra note 6, at 411.
2011]
615
the principle of legality, the “conspiracy co–perpetration” theory is also
generally disapproved by Korean scholars for the reasons that this theory: i)
is against the principle of legality as the co–perpetration provision of the
Korean Penal Code requires a “fact of co–execution;”83 ii) will culminate in
a denial of the distinction between “principal” and “accessory” through the
groundless extension of the concept of “co–perpetration;”84 iii) will cause
judicial idleness through sweeping classification of “co–perpetration”
against the clear distinction between “co–perpetration” on one side and
“instigation”/“aiding and abetting” on the other under the Korean Penal
Code;85 and iv) will invalidate the burden of proof imposed on the
prosecution who does not need to prove the substance of co–perpetratorship
of each participant in a conspiracy.86 For these reasons, Korean scholars
disapprove the concept of conspiracy co–perpetration and instead suggest a
solution on the basis of the functional control theory that originated from
Germany. What they strongly propose is that the high ranking officials or
masterminds of organized crimes who did not directly participate in the
conduct of a crime can still be punished as a co–perpetrator on the grounds
of their “essential contribution” or “essential control” vis-à-vis the criminal
conduct. At this juncture, it is interesting to note how the relevant
discussion in Korea is similar to that in the ICC.
Until recently the stance of the Korean Supreme Court had been firm on
the issue of “conspiracy co–perpetration.” It seems, however, the Court has
started to move toward the functional control theory. The following
statement by the Court is illuminative:
The co–perpetration under article 30 [of the Korean Penal Code] is to be
constituted through the mental element of common purpose and the
material element of execution of a crime through the functional control
based on the [mental element of] common purpose. A conspirator who did
not share any part of a criminal conduct and thereby did not perform any
conduct can still be culpable as a ‘conspiracy co–perpetrator’, as the case
may be. [‘Conspiracy co–perpetration is to be acknowledged] only when
[the court] is satisfied that there exists a functional control through
essential contribution to the crime in view of the totality of [the facts such
as] the status and role assumed by the conspirator, and the extent of [his or
her] domination and power to control vis-à-vis the progress of the crime
(emphasis added).87
83. YIM, supra note 6, at 414.
84. BAE, supra note 82, at 582; YIM, supra note 6, at 415.
85. BAE, supra note 82, at 582; YIM, supra note 6, at 415.
86. BAE, supra note 82, at 582.
87. See, e.g., Supreme Court [S. Ct.], 2008Do7312, Jan. 28, 2010 (S. Kor.); Supreme
Court [S. Ct.], 2009Do2994, June 23, 2009 (S. Kor.); Supreme Court [S. Ct.], 2008Do6551,
Feb. 12, 2009 (S. Kor.); Supreme Court [S. Ct.], 2007Do6075, Nov. 15, 2007 (S. Kor.);
Supreme Court [S. Ct.], 2007Do235, Apr. 26, 2007 (S. Kor.). The term “functional control”
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[Vol. 19:3
Given the striking similarity between the wording employed in this
decision and that of the ICC in Lubanga—particularly with respect to the
terms “functional (or joint) control” and “essential contribution”88—it is
considered that the jurisprudential basis for holding masterminds of mass
atrocities accountable as a principal under the mode of liability of “co–
perpetration” based on the functional control theory is being prepared in
Korea.
E. Command and Superior Responsibility
Articles 5 and 15 of the Act provide as follows:
Article 5 (Responsibility of commanders and other superiors)
A military commander (including any person who is actually exercising
the authority as a military commander. Hereafter, the same applies) or
superior of a group or organization (including any person who is actually
exercising the authority of superior. Hereafter, the same applies.) shall be
punished with the penalties as provided for in each relevant provision,
apart from punishing the perpetrators, if he or she did not take an
appropriate measure needed to prevent subordinates under his or her
effective command and control from committing genocide or other crimes
even though he or she knew that the forces were committing or about to
commit such crimes.
Article 15 (offences violating the duty of commanders and other superiors)
(1) Any person who, as a military commander or superior of a group or
institution, through his or her idleness or dereliction of duty, failed to
prevent or repress the commission of genocide or other crimes committed
by subordinates under his or her effective command and control shall be
punished with imprisonment of not more than 7 years.
(2) Any person who commits the conduct provided in paragraph (1) by
negligence shall be punished with imprisonment of not more than 5 years.
(3) Any person, as a military commander or superior of a group or
institution, who did not report the subordinates under his or her effective
command and control who committed genocide or other crimes to an
in the context of co–perpetration appears in a decision of the Seoul High Court already in
1988. See Seoul High Court [Seoul High Ct.], 88No938, June 10, 1988 (S. Kor.). Yet, the
substantive discussion of “functional control” in conjunction with the notion of “essential
contribution” can be found in case law since 2007. For more details, see Ho Jin Choi, Gi
Nung Jeok Haengwi Jibae Wa Gongmo Gongdong Jeongbum [Functional Control and
Conspiracy Co–Perpetration], 32 KYUNGPOOK NAT’L. U. L. J. 631, 631–55 (2010).
88. Lubanga Charges Decision, ¶¶ 322–367.
2011]
617
investigative authority shall be punished with imprisonment not more than
5 years.
As noted above, there are two provisions in the Act relating to the
command and superior responsibility (command responsibility): Article 5
and Article 15. The legal nature of both Articles 5 and 15 is “omission.” For
the purpose of this section’s discussion, it would be helpful at the outset to
note that, under Korean criminal law, there are two categories of “omission”
classified on the basis of the relevant mental element: “omission by intent”
and “omission by negligence.” Since the way criminal responsibilities of
commander/superior are provided in Articles 5 and 15 of the Act are a bit
complicated—if not confusing—the authors consider it appropriate to
summarize here the major conclusions to be reached through the legal
analysis in this section on command responsibility:
yWhereas Article 5 should be viewed as providing a mode of liability,
Article 15 prescribes substantive offences.
yArticle 5 provides for command responsibility in the traditional sense.
It should be noted, however, that the Koreanized doctrine of command
responsibility as provided in Article 5 includes the limb of the “failure to
prevent” only (but not “failure to punish”), and the mental element of
“knowledge” only (but not “should have known” or “consciously
disregard”). The legal nature of Article 5 is “omission by intent” in
“failing to prevent.”
yArticle 15 should be regarded as a provision outside the scope of the
Koreanized command responsibility as provided in Article 5. Instead,
Article 15 titled “offences violating the duty of commanders and other
superiors” prescribes three kinds of separate and independent substantive
offences as follows: i) offence of “omission by intent” in “failing to
prevent” (Article 15(1)); ii) offence of “omission by negligence” in
“failing to prevent” (Article 15(2)); and iii) offence of (seemingly) both
“omission by intent” and “omission by negligence” in “failing to report”
(Article 15(3));
yThough the wording is slightly different from each other, Article 5 and
Article 15(1) are the same—sharing the same key elements. The common
legal nature of both provisions is “omission by intent” in “failing to
prevent.” Despite this essentially identical nature, it is difficult to
understand the conspicuous disparity in terms of the penalty provided in
each provision. It is recommended that Article 15(1) should be deleted.
yIn view of its close relationship with the crimes committed by
subordinate, it is difficult to consider Article 15(2) (“omission by
negligence” in “failing to prevent”) as a separate substantive offence.
Thus, it should remain as a mode of liability, and be relocated to Article 5.
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y Thus, Article 15(3) of “failing to report” type command responsibility
should stay under Article 15 as the only separate substantive offence.
The legal reasoning through which these conclusions have been drawn
will be articulated below.
1. Article 5: “Failure to Prevent” as a Mode of Liability
Article 5, “Responsibility of commanders and other superiors,” a
verbatim repetition of that of Article 28 of the ICC Statute, represents the
doctrine of command responsibility in the traditional sense. There are some
features distinctive to Article 5 of the Act vis-à-vis the doctrine under
Article 28 of the ICC Statute.
First, as to mens rea, by eliminating the second leg of mental elements in
Article 28, (i.e., “should have known” and “consciously disregarded
information”) Article 5 of the Act leaves no room for negligence–based
superior responsibility to intervene. Consequently, in the Korean criminal
law context where there are two categories of omission classified on the
basis of mens rea, (i.e., “omission by intent” and “omission by
negligence”), the command responsibility under Article 5 has no other
option but to fall into the former. Put differently, what Article 5 of the Act
requires is that a commander/superior intentionally fails to prevent the
crimes by subordinates despite his knowledge thereof. This requirement is
similar to that of the ICTR Appeals Chamber in Bagilishema in that a
commander or superior is to be held responsible under the doctrine of
command responsibility “either by deliberately failing to perform [his duty]
or by culpably or willfully disregarding [it].”89 The second unique feature of
command responsibility under the Act is that Article 5 prescribes only the
“failure to prevent”–type command responsibility. On the other hand, as
will be discussed below, the “failure to punish”–type is provided in Article
15(3) as a separate substantive offence. Thirdly, we should pay attention to
the provision concerning the penalty in Article 5, as it indicates an
important legal characteristic of the command responsibility under the Act.
It provides that a commander/superior “. . . shall be punished with the
89. Prosecutor v. Bagilishema, Case No. ICTR 95–1A–A, Judgment, ¶ 35 (July 3,
2002) (emphasis added) (“References to ‘negligence’ in the context of superior responsibility
are likely to lead to confusion of thought, as the Judgement of the Trial Chamber in the
present case illustrates. The law imposes upon a superior a duty to prevent crimes which he
knows or has reason to know were about to be committed, and to punish crimes which he
knows or has reason to know had been committed, by subordinates over whom he has
effective control. A military commander, or a civilian superior, may therefore be held
responsible if he fails to discharge his duties as a superior either by deliberately failing to
perform them or by culpably or willfully disregarding them.”). This view was later expressly
endorsed by the ICTY Appeals Chamber in the Blaskić case. See Prosecutor v. Blaskić, Case
No. IT–95–14–A, Judgment, ¶ 63 (Int’l Crim. Trib. for the Former Yugoslavia July 29,
2004), available at http://www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf.
2011]
619
penalties as provided for in each relevant provision.” This rather severe
penalty provision is consistent with the fact that only the intent–based
command and superior responsibility is included in Article 5.
Yet, this severe penalty provision is contradictory to a line of
jurisprudence of the ad hoc tribunals that regards the command
responsibility as a sui generis offence for dereliction of duty, rather than a
mode of liability in relation to the crimes of subordinates.90 If one follows
this sui generis approach, the commander/superior is very likely to receive a
more lenient sentence because the doctrine is viewed as a separate offence
independent of or conceptually remote from the crimes committed by
subordinates on the ground.91 In this understanding of the legal nature of the
doctrine, the command responsibility is no longer a mode of liability in
which one must take into account the nature and severity of the crimes in
weighing the responsibility of the accused, but a separate criminal offence.
Thus, the severe penalty provided in Article 5 signifies that the drafters of
the Act were of the view that Article 5 command responsibility should be
treated as a form of criminal participation in a commission of the crimes of
subordinates, and consequently the gravity of the crime together with the
degree of participation of the commander/superior should be taken into
account in determining overall culpability.
This wording on penalty in Article 5 of the Act would also remind
Korean lawyers of the similar provision in Article 31 of the Korean Penal
Code that states, “[a] person who instigate[s] . . . shall be punished with the
same penalty as the perpetrator.” In this context, Article 34(2) of the Code
should also be noted as providing that, “a person who . . . aids or abets
90. Prosecutor v. Hadžihasanović, Case No. IT–01–47–T, Judgment, ¶ 2076 (Int’l
Crim. Trib. for the Former Yugoslavia Mar. 15, 2006) [hereinafter Hadžihasanović
Judgment], available at http://www.icty.org/x/cases/hadzihasanovic_kubura/tjug/en/hadjudg060315e.pdf. The ruling in another ICTY case offers a compromise between the extreme
of command responsibility being a “separate offence independent of the crime” and the
opposite extreme where command responsibility is the “mode of liability for the crime.” See
Prosecutor v. Halilović, Case No. IT–01–48–T, Judgment, ¶ 54 (Int’l Crim. Trib. for the
Former
Yugoslavia
Nov.
16,
2005),
available
at
http://www.icty.org/x/cases/halilovic/tjug/en/tcj051116e.pdf
(“The
imposition
of
responsibility upon a commander for breach of his duty is to be weighed against the crimes
of his subordinates; a commander is responsible not as though he had committed the crime
himself, but his responsibility is considered in proportion to the gravity of the offences
committed.”).
91. Hadžihasanović Judgment, Case No. IT–01–47–T, 2076 (“The concept of
command responsibility in this regard is exceptional in law in that it allows for a superior to
be found guilty of a crime even if he had no part whatsoever in its commission (absence of
an actus reus), and even if he never intended to commit the crime (absence of mens rea).
Accordingly, the Chamber finds that the sui generis nature of command responsibility under
Article 7(3) [command responsibility] of the Statute may justify the fact that the sentencing
scale applied to those Accused convicted solely on the basis of Article 7(1) [individual
responsibility] of the Statute, or cumulatively under Article 7(1) and 7(3), is not applied to
those convicted solely under Article 7(3), in cases where nothing would allow that
responsibility to be assimilated or linked to individual responsibility under Article 7(1).”).
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another person under his or her command and control [to commit a crime]
. . . shall be punished with the same penalty as the perpetrator.”
Considering these domestic criminal law provisions, we can say that the Act
attaches a commander/superior under Article 5 a similar or the same
culpability as a person who “instigates another person” or “aids or abets
another person under his or her command and control” to commit a crime.
2. Article 15(1) and (2): “Failure to Prevent” as Substantive
Offences
Article 15 is provided under the heading of the “offences violating the
duty of commanders and other superiors,” which suggests that Article 15 is
not about modes of liability, but independent substantive offences. This is
further supported by the location of Article 15 under Part 2 titled,
“Punishment of the Crimes under the Jurisdiction of the ICC”, and between
Article 14 (war crime) and Article 16 (offences against the administration of
justice).
The conduct criminalized by Article 15(1) and (2) is “omission,” more
specifically “failure to prevent.” As analyzed above, this feature is also
common to the Koreanized doctrine of command responsibility under
Article 5 of the Act. Article 5, Article 15(1) and Article 15(2) are all talking
about “failure to prevent.”
It is obvious that Article 5 and Article 15(2) are different in that the
“omission by negligence” in “failing to prevent” excluded from Article 5’s
version of command responsibility is now provided in Article 15(2). What
about Article 5 and Article 15(1)? Are they different from each other? In
order to answer this question, we will consider three key features: i) the
underlying conduct–type; ii) the relevant mental element; and iii) the
essential nature of the omission.
First, as just mentioned, both of Article 5 and Article 15(1) clearly
provide that they are targeting the omission in terms of “failure to prevent”
the crimes by subordinates. In this respect, there is no difference between
Article 5 and Article 15(1).
Second, as to mens rea, our analysis should start with Article 15(2),
which states, “[a]ny person who commits the conduct provided in paragraph
(1) by negligence.” This phrase is the typical way to provide “offences by
negligence” in Korean criminal law. Although there is no mental element
explicitly provided in Article 15(1), for Korean lawyers it is not difficult to
deduce from this phrase in Article 15(2) that the hidden mental element in
Article 15(1) is “intent” because an “offence by negligence” in Korean
criminal law is a lex specialis vis-à-vis the underlying “offence by intent.”92
92. “Conduct performed without conceiving the requisite facts that constitute the
elements of crimes due to negligence in paying ordinary attention shall be subject to
2011]
621
Furthermore, the penalty prescribed in Article 15(1), which is more severe
than that of Article 15(2), also suggests that the mental element
accompanying Article 15(1) is intent, be it dolus directus of the first degree
or dolus eventualis.93 Thus, it seems safe for us to conclude that, whereas
Article 15(2) provides “omission by negligence,” Article 15(1) prescribes
“omission by intent.” In this respect, Article 5 and Article 15(1) are of the
same legal nature (i.e., “omission by intent”). No difference again.
Third and finally, with regard to the issue of “essential nature of
omission,” we can find the relevant phrase “through his or her idleness or
dereliction of duty” in Article 15(1). Although there is no equivalent
wording in Article 5, this element should be regarded as being implicitly
provided in Article 5 as well. That is because this phrase represents the
fundamental nature of the concept of omission that forms the very grounds
of culpability under Article 5. Accordingly, Article 5 and Article 15 share
the same feature of “through his or her idleness or dereliction of duty.” No
difference again. In conclusion, Article 5 and Article 15 share the same key
legal features, and it is difficult to think of a reason for keeping them apart.
The authors therefore recommend that Article 15(1) be deleted. We also
advise that Article 15(2) be relocated under Article 5. As to Article 15(2),
given the close relationship amounting to causation between the
commander/superior’s “failure to prevent” and the crimes committed by
subordinates, it is incorrect to view that Article 15(2) is a separate offence
as currently provided. Article 15(2) should remain as a mode of liability and
migrate to Article 5.
3. Article 15(3): “Failure to Punish” as a Substantive Offence
As briefly mentioned above, given the title of Article 15 (“offences
violating the duty of commanders and other superiors”), and its location in
between Article 14 (war crimes) and Article 16 (offences against the
administration of justice), it seems the drafters considered Article 15 a
separate offence to be invoked as an independent criminal charge in the
same way as other substantive offences under the classifications of
genocide, crimes against humanity, and war crimes. It is considered that, of
the two limbs of the doctrine of command responsibility, (i.e., the “failure to
prevent”–type and the “failure to punish”–type), this treatment as an
independent criminal offence is appropriate only for the “failure to punish”–
type. That is because with regard to this type, there is a very remote
relationship between the commander/superior’s omission and the crime
punishment only if there is a special criminal provision to that effect.” Korean Penal Code,
supra note 4, art. 14 (unofficial translation by the authors).
93. The Korean jurisprudence recognizes all three types of intent, i.e., “dolus
directus of the first degree,” “dolus directus of the second degree,” and “dolus eventualis.”
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committed by his or her subordinates.94 Put differently, the absence of a
causal relationship between the “omission to punish or report” 95 and the
crime already committed by subordinates in the past appears to significantly
undermine the validity of the wording “[a commander/superior] shall be
criminally responsible for crimes . . . committed . . . as a result of [his or her
omission to punish or report]” as provided in article 28(a) and (b) of the
ICC Statute. It is not difficult to recognize causation or a possibility thereof
between a commander/superior’s “omission to prevent” and the crimes
committed by subordinates.96 As to the “omission to punish or report,”
however, it should not be the crime already committed by the subordinates
for which the commander/superior is to be blamed and found culpable, but
his or her own conduct (i.e., omission to punish or report). Thus, the crimes
committed by subordinates cannot be the ontological source of the “failure
to punish”–type responsibility. Imagine a situation where a commander took
office after the crime had been committed.97 This type of command
responsibility, therefore, cannot help but to find new legal grounds on which
to stand “like an isolated tree alone on the battlefield,” other than the crimes
already committed by subordinates.98 In this sense, Article 15(3) of the Act
properly supplies what the “failure to punish”–type responsibility needs by
classifying it as a separate and independent offence, and stipulates it as such
in a separate provision. Although the requisite mens rea is not expressly
provided in Article 15(3) (and accordingly it is difficult at the moment to
precisely identify it), this separate stipulation away from Article 5 would
also help distinguish the distinct nature of knowledge requirement for the
94. Stefan Trechsel, Command Responsibility as a Separate Offense, 3 BERKELEY J.
INT’L L. PUBLICIST 26, 31–32 (2009).
95. Or, more precisely, omission to “take all necessary and reasonable measures
within his or her power . . . to submit the matter to the competent authorities for investigation
and prosecution.” See ICC Statute, supra note 2, arts. 28(a)(ii), 28(b)(iii).
96. In this respect, note that the jurisprudence of the ICTY, in general, does not
require causation between the “omission to prevent” and the crimes committed by
subordinates. In this connection, the Trial Chamber in Orić states, “[a]s concerns objective
causality, however, it is well established case law of the Tribunal that it is not an element of
superior criminal responsibility to prove that without the superior's failure to prevent, the
crimes of his subordinates would not have been committed. This is so for good reasons.
First, with regard to the superior's failure to punish, it would make no sense to require a
causal link between an offence committed by a subordinate and the subsequent failure of a
superior to punish the perpetrator of that same offence . . .” See Prosecutor v. Orić, Case No.
IT–03–68–T, Judgment, ¶ 338 (Int’l Crim. Trib. for the Former Yugoslavia June 30, 2006),
available at http://www.icty.org/x/cases/oric/tjug/en/ori-jud060630e.pdf. It seems at least
this portion of reasoning quoted herein is not plausible because it is using a feature of the
“failure to punish”–type in supporting a proposition on the “failure to prevent”–type. Given
the wording of Article 28 ICC Statute that strongly indicates the causation (i.e., “as a result
of”), it will be interesting to see the future development of the relevant jurisprudence at the
ICC.
97. Trechsel, supra note 94, at 26–27.
98. Id. at 31.
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“failure to punish”–type from that of “failure to prevent”–type as explained
by the Trial Chamber in Halilović:
The failure to punish and the failure to prevent are not only legally
distinct, but are factually distinct in terms of the type of knowledge that is
involved in each basis of superior responsibility. Failure to prevent
presumes prior knowledge (“knew or had reason to know”) that crimes
were being, or were about to be, committed, while failure to punish
presumes subsequent knowledge (“knew or had reason to know”) that
crimes had already been committed (emphasis added).99
II. IMPLEMENTATION OF INTERNATIONAL TREATIES IN KOREA
A. The Status of International Treaties in the Domestic Legal System
of Korea
Under the Korean legal system in particular, in terms of the hierarchy of
the Constitution (highest level), acts (second highest level), and decrees or
ordinances (third highest level), international treaties can be given one of
the two statuses: as being either at the same level as “acts” that
hierarchically rank immediately beneath the Constitution, or at the same
level as “decrees or ordinances” that hierarchically rank immediately
beneath the “acts.” Although some are of the view that the deciding factor
here is whether there has been an involvement of the Korean National
Assembly in the form of consent to ratification performed by the President
of Korea,100 this view reflects only a part of the truth as will be explained
below.
Article 6(1) of the Korean Constitution provides, “[t]reaties duly
concluded and promulgated under the Constitution . . . shall have the same
99. Prosecutor v. Halilović, Case No. IT–01–48–PT, Decision on Prosecutor’s
Motion Seeking Leave to Amend the Indictment, ¶ 32 (Int’l Crim. Trib. for the Former
Yugoslavia
Dec.
17,
2004),
available
at
http://
www.icty.org/x/cases/halilovic/tdec/en/041217.htm. This ruling is useful in clarifying the
disjunctive nature of the two types of responsibilities under the doctrine of command and
superior responsibility. See id. ¶ 33 (“The disjunctive nature of the bases of superior
responsibility, combined with the distinguishing factor of the type of knowledge involved for
each basis, means that an accused can be convicted on the basis of one omission even if the
other is not proved. For example, if the Prosecution proves that the Accused knew that his
subordinates had committed crimes in Uzdol, then if all the other elements of the crime are
established, the Accused may be convicted based on his failure to punish those crimes, even
if he had no prior knowledge and therefore lacked the ability to prevent their commission. If,
however, the Prosecution proves that the Accused knew that his subordinates were going to
commit crimes in Uzdol, then if all the other elements of the crime are established, the
Accused may be convicted based on his failure to prevent those crimes, even if he were no
longer their superior after the crimes and therefore lacked the ability to punish their
commission.”).
100. See infra note 101.
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effect as the domestic laws of the Republic of Korea.”101 As to the
relationship between international treaties and domestic laws, Korea adopts
the theory of monism102—i.e., the “theory of incorporation.” This theory
means that international treaties have been regarded as forming part of
Korea’s legal framework and have been given the force of law in that they
do not require any process of legislative transformation thereof.103
International treaties, therefore, are incorporated into the domestic legal
order of Korea without requiring a separate legislative action, and at the
same time take effect as domestic law. Under the Korean constitutional
structure, therefore, the procedure of consent to ratification governed by the
National Assembly seems to be rather a part of its political control over the
Executive’s act of concluding international treaties. In a monist country like
Korea, the process of promulgation itself does not play the function of
transforming a treaty into a domestic law as was the case in the states
adopting the theory of dualism.104 The promulgation stage is just a part of
national legislative procedure and has nothing to do with the procedure of
forming international treaties at the international level.105
The Korean Constitutional Court and the Supreme Court have repeatedly
stated that the term “domestic laws” in Article 6(1) of the Constitution
indicates “acts” that are located at the second highest position just below the
Constitution in the hierarchy of laws in Korea. The Korean Constitutional
Court held with regard to the “Treaty Concerning Fishing Between Korea
and Japan” that “domestically, this treaty, as a treaty duly concluded and
promulgated under the Constitution, has the same effect as ‘acts.’”106 The
Korean Supreme Court also granted the same effect as “acts” to “the
101. DAEHANMINKUK HUNBEOB [HUNBEOB] [CONSTITUTION] art. 6(1) (S. Kor.)
(“Treaties duly concluded and promulgated under the Constitution and the generally
recognized rules of international law shall have the same effect as the domestic laws of the
Republic of Korea.”).
102. For detailed analysis of the monism–dualism debate, see Andrezej Wasilkowski,
Monism and Dualism at Present, in THEORY OF INTERNATIONAL LAW AT THE THRESHOLD OF
THE 21ST CENTURY: ESSAYS IN HONOUR OF KRYSZTOE SKUBISZEWSKI, (Jerzy Makarczyk ed.,
1996); Karl Josef Partsch, International Law and Municipal Law, in 2 ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW 1183–1202 (1999).
103. See KAYE HOLLOWAY, MODERN TRENDS IN TREATY LAW: CONSTITUTIONAL LAW,
RESERVATIONS AND THE THREE MODES OF LEGISLATION 241 (1967).
104. See CONSTANTIN ECONOMIDES, THE RELATIONSHIP BETWEEN INTERNATIONAL AND
DOMESTIC LAW 12–15 (1993) (discussing the standing of international treaties in domestic
law).
105. The Promulgation is a formal act needed for a treaty to have legal force within
Korea or to be incorporated into Korean law. However, the treaty is not transformed into
Korean law. See YUJI IWASAWA, INTERNATIONAL LAW HUMAN RIGHTS AND JAPANESE LAW:
THE IMPACT OF INTERNATIONAL LAW ON JAPANESE LAW 25, n. 47 (1998).
106. Constitutional Court [Const. Ct.], 99Hun–Ma139, at 142, 156, & 160, Mar. 21,
2001 (S. Kor.); See also Constitutional Court [Const. Ct.], 2000Hun–Ba20, Sept. 27, 2001
(S. Kor.).
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625
Warsaw Convention on International Carriage by Air.”107 On the other hand,
as briefly alluded to above, the majority view amongst scholars and a
decision of the Seoul High Court108 are of the opinion that only those
treaties which the National Assembly’s consent to ratification is required as
a part of its process to conclude are to be given the same status and effect as
“acts.” They also argue that, so–called “executive agreements”—in other
words the treaties concluded by the Executive without any involvement of
the Legislature—have the status and effect at the same level as “decrees or
ordinances” immediately beneath the level of “acts.” Article 60(1) of the
Korean Constitution109 lists the treaties of important nature that require the
National Assembly’s consent to ratification—a mandatory condition for
their conclusion.110 There seems to be no dispute over the domestic status of
the treaties that already went through the process of the Assembly’s consent
to ratification—i.e., the status at the same level as “acts”—since it is the
National Assembly that is in possession of the power to legislate “acts.” On
the other hand, it seems problematic to sweepingly classify the treaties
concluded without the Assembly’s consent as being equivalent to “decrees
or ordinances” considering the fact that there are important treaties actually
being concluded without the National Assembly’s involvement in Korea.
That is because in Korea the decision about whether a treaty is of a nature to
require the consent of the Assembly is at the Executive’s discretion, mainly
the Ministry of Foreign Affairs and Trade.
Given the jurisprudence of the Korean Constitutional Court and the
Supreme Court, one might say that both Courts are taking a positive
approach towards the domestic application of international law. For
107. Constitutional Court [Const. Ct.], 82Da–Ka1372, July 27, 1986 (S. Kor.). The
Court held that the Warsaw Convention has the domestic status of lex spcialis to the Korean
Civil Code: “The Warsaw Convention as amended by the Hague Protocol takes the same
effect as domestic acts, and in terms of the legal issues concerning international carriage by
air, it is lex specialis to the [Korean] Civil Code that is lex generalis.” Id.
108. The Seoul High Court stated, on an extradition case, that a treaty that requires the
National Assembly’s consent to ratification takes the same effect as “acts,” and that a treaty
that does not require the consent takes the same effect as “decrees or ordinances.” See Seoul
High Court [Seoul High Ct.], 2006Do1, July 27, 2006 (S. Kor.). BOK–HYEON NAM,
INTERNATIONAL TREATIES AND CONSTITUTIONAL TRIALS 387 (2007).
109. DAEHANMINKUK HUNBEOB [HUNBEOB] [CONSTITUTION] art. 60(1) (“The National
Assembly shall have the right to consent to the conclusion and ratification of treaties
pertaining to mutual assistance or mutual security; treaties concerning important international
organizations; treaties of friendship, trade, and navigation; treaties pertaining to any
restriction in sovereignty; peace treaties; treaties which will burden the State or people with
an important financial obligation; and treaties related to legislative matters.”).
110. The wording of Article 60(1) of the Korean Constitution clearly suggests that the
National Assembly’s right to consent should be confined to those listed in that Article. The
purpose of Article 60(1) is to allow the National Assembly, by way of exception, to control
the President’s right to conclude treaties. It seems therefore that the list in this Article should
be regarded as exhaustive. Chin–Sok Chung, Legislative Consent to the Conclusion and
Ratification of Treaties: Korean Perspectives, in INTERNATIONAL LAW IN KOREAN
PERSPECTIVE 56 (Choong–Hyun Paik ed., 2004).
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example, they are of the view that aggravated punishment on the basis of a
treaty provision is possible in Korea. That is, the Korean Constitutional
Court is of the view that, regarding the term “acts” in Article 13(1) of the
Constitution that provides, “[n]o citizen shall be prosecuted for a conduct
which does not constitute a crime under [a relevant] act in force at the time
it was committed,” the Courts held that the term “act” includes international
treaties concluded by Korea.111
Since the ICC Statute has been consented to by the National Assembly
for ratification, it forms part of the Korean domestic legal order and has the
force of law as “acts” in Korea.
B. Direct Applicability of International Treaties in Korea
For the discussion in this section, we need to distinguish the concept of
“incorporation” and “application.” When Article 6(1) of the Korean
Constitution states, “shall have the same effect as the domestic laws,” it
talks about the “incorporation” of international treaties into national law. In
this context, “incorporation” signifies only the possibility to be applied
domestically. It does not, therefore, automatically mean that all the treaties
are being executed and are directly applicable. In other words, the
proposition that a specific treaty “has the same effect as the domestic laws”
does not necessarily mean that the treaty or its provision(s) create the rights
and obligations directly invoked in domestic courts. In the middle of the
concepts of “incorporation” and “application,” we can find a place for the
“implementing legislation.” Whether a treaty is directly applicable without
implementing legislation should be decided in view of the nature of the
treaty itself and the provisions thereof.112 In this context, it should be noted
that traditionally national jurisdictions have enjoyed broad discretion in
determining how to incorporate and apply international law in their
domestic legal order.113
The issue of direct applicability of international treaties is closely related
to the question of whether a treaty is self–executing.114 The distinction
between “self–executing treaty” and “non–self–executing treaty” has been
developed from the case law of the United States,115 and such distinction has
111. Constitutional Court [Const. Ct.], 97Hun–Ba65, Nov. 26, 1998 (S. Kor.).
112. Constitutional Court [Const. Ct.], 2000Hun–Ba20, Sept. 27, 2001 (S. Kor.)
(“Since the relevant provision is pertaining to the issue of jurisdictional immunity, it is of the
nature that is directly applicable in Korea.”) (emphasis added).
113. YAMAMOTO SHOJI, INTERNATIONAL LAW 142 (Pae Keun Park trans., Korean
Association of International Law of the Sea) (1999).
114. There are three concepts with respect to the application of international law in
domestic legal systems. Terms like “direct application,” “domestic validity,” and “self–
executing” are used in different ways. WARD N. FERDINANDUSSE, DIRECT APPLICATION OF
INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS 6 (2006).
115. Albert Bleckman, Self–Executing Treaty Provisions, in 4 ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW 374 (2000).
2011]
627
not been adopted in Korea. Within the Korean legal system there are no
criteria to classify international treaties on the basis of their distinct nature.
The notion of “self–executing treaty” under American law means a treaty
that is normatively concrete enough to be directly executed. On the
contrary, “non–self–executing treaty” is understood as a treaty that creates
only abstract rights and obligations to the parties. Thus, it is generally said
that, for its actual implementation, the treaty requires new domestic
legislation for that purpose. In short, the question of whether a treaty is of
self–executing nature is only relevant to the concept of “execution,” but not
directly to the issue of “incorporation.” The label “non–self–executing” has
been attached to the treaties that require further implementing actions or that
are not appropriate for immediate judicial enforcement.116
In Korea, if a treaty is of a “non–self–executing” nature and thereby
lacks direct applicability, further steps to create concrete rights and
obligations must be taken.117 Such steps include not only legislative actions
but administrative and judicial measures. Yet in principle, in a monist
country like Korea, even if a duly ratified and promulgated treaty is
deficient in direct applicability, it is still in itself a valid domestic law and
remains effective as a source of law.
C. Necessity for Overcoming Incompatibility between the ICC
Statute and Korean Law
Although the ICC Statute has been incorporated into the Korean
domestic legal order and has the same legal force as “acts,” there are
provisions in the Statute which are difficult to directly execute in Korea.118
Korean criminal law, on the other hand, also has provisions incompatible
with the ICC Statute. For some features of the ICC Statute, Korean criminal
law lacks normative infrastructure for their direct application in Korea. For
some others, there were discrepancies. Thus, in view of these difficulties, it
was decided to enact an implementing legislation of the ICC Statute as a lex
specialis to the Korean Penal Code.119
116. Lori Damrosch, The Role of the United States Senate Concerning “Self–
Executing” and “Non–Self–Executing” Treaties, 67 CHI.–KENT L. REV. 515, 516 (1991).
117. Recently, a growing number of international treaties in Korea accompany
implementing legislation. Most of the treaties on economic and trade issues, such as the Free
Trade Agreements (FTAs) or Bilateral Investment Agreements (BITs), have been recently
growing in numbers in Korea. These directly or indirectly require implementing legislation.
118. There are several ways to overcome these difficulties. First, domestic law should
be amended before the Korean government enters into the treaty. Secondly, if there is no
domestic law giving effect to the treaty, the Korean government usually attempts to enact
laws to give effect to the treaty. Thirdly, even if a treaty is capable of regulating the matter
directly, a special law is sometimes enacted, rephrasing the text of the treaty and adding
some new provisions. See IWASAWA, supra note 105, at 27.
119. Some countries that consider themselves as having a domestic criminal law and
the relevant proceedings to cover crimes under the ICC Statute only enact specific legislation
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As a result, the Act has been prepared in which there are sections on,
inter alia, the general principles of criminal law, definitions and elements of
core international crimes, applicable penalties, and command and superior
responsibility. Through this implementing legislation, Korean criminal law
has set up a domestic penal system sufficient for prosecution and
punishment of the core international crimes. Furthermore, for the purpose
of reinforcing the cooperation mechanism between Korea and the ICC—
though it employed a simple way to prescribe it—the legislation also
contains provisions on cooperation including the issues of surrender and
legal assistance.
In terms of the definitions and elements of the crimes under the
jurisdiction of the ICC and their scope of penalties, Korean criminal law
scholars felt an urgent need to have a set of domestic criminal law
provisions thereof for the purpose of fully meeting the principle of legality,
in spite of the international customary law origin of those crimes. This
approach was also supported to facilitate the future domestic criminal
proceedings pursuant to the principle of complementarity as enshrined in
Articles 1 and 17 as well as paragraph 10 of the Preamble of the ICC
Statute.120 In addition to the core international crimes, the implementing
legislation provides the elements and penalties of “the offences against the
administration of justice” of the ICC reflecting Article 70 of the ICC
Statute. Though the legislation does not provide the basis for jurisdiction
with regard to these offences, it seems these offences apply when
committed in Korea or by Korean nationals outside Korea.
The Act also introduced some features of general principles under Part 3
of the ICC Statute that have not been provided in the Korean Penal Code,
including universal jurisdiction,121 non–exclusion of criminal responsibility
for conduct pursuant to superior orders,122 command and superior
responsibility,123 and non–applicability of statute of limitations.124
Conversely, the feature of conditional prosecution or punishment under the
on the cooperation and judicial assistance issues. Japan would be an example. Japan enacted
a domestic implementation act on cooperation with the ICC on April 27, 2007.
120. For details of this principle, see FLORIAN RAZESBERGER, THE INTERNATIONAL
CRIMINAL COURT: THE PRINCIPLE OF COMPLEMENTARITY (2006); JO STIGEN, RELATIONSHIP
BETWEEN THE INTERNATIONAL CRIMINAL COURT AND THE NATIONAL JURISDICTIONS: THE
PRINCIPLE OF COMPLEMENTARITY (2008); COMPLEMENTARY VIEWS ON COMPLEMENTARITY:
PROCEEDINGS OF THE INTERNATIONAL ROUNDTABLE ON THE COMPLEMENTARY NATURE OF THE
INTERNATIONAL CRIMINAL COURT, AMSTERDAM, 25–26 JUNE 2004 (Jann K. Kleffner &
Gerben Kor, eds., 2006).
121. Act, supra note 1, art. 3(5).
122. Id. art. 4.
123. Id. art. 5.
124. Id. art. 6.
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Korean Penal Code concerning some crimes has been excluded for the
crimes provided in the Act.125
III. BASIS FOR CRIMINAL JURISDICTION
A. Incorporation of a Traditional Basis for Criminal Jurisdiction
As mentioned above, the ICC Statute adopts the principle of
complementarity and proclaims that its jurisdiction is complementary to
national criminal jurisdictions. For the execution of its primary jurisdiction
on the core international crimes, Article 3 of the Act articulates the scope of
the Act’s criminal jurisdiction providing the jurisdictional basis traditionally
recognized under international law. Except for Article 3(5) which reflects
the theory of universal jurisdiction, the normative origin of every other
jurisdictional basis provided in Article 3 stems from the jurisdictional
framework of the Korean Penal Code.126 The traditional basis for criminal
jurisdiction all require a nexus between the exercise of “power to enforce
law” and “the protection of its people or territory.”127 In this respect, Article
3(1) of the Act provides for the principle of territoriality that is the basic
jurisdictional base to regulate any crimes committed within the Korean
territory, regardless of the nationality of a perpetrator or victim.128 Second,
as an extension of the territoriality principle, the Act is also applicable to a
foreigner who commits a crime under the Act in a vessel or aircraft of the
Republic of Korea outside the territory thereof.129 Third, the Act also adopts
the principle of active personality in Article 3(2). Under this principle, any
Korean national who commits a crime provided in the Act outside the
territory of Korea is subject to punishment.130 Of course, actual execution of
criminal jurisdiction under the Act in this case would only be possible when
the perpetrator is present in Korea. Fourth, the Act prescribes the principle
of the passive personality that allows the prosecution of a foreigner who
125. Id. art. 17. For example, in relation to the crime of rape, the prosecutors cannot
indict a suspect without complaint or motion from the victim or other persons entitled by
law; as regards the offence of assault, whilst the prosecutors has discretionary power to indict
a suspect, the suspect is not subject to punishment if the victim expresses that punishment is
against his or her will.
126. Korean Penal Code, supra note 4, arts. 2–6.
127. Ann–Marie Slaughter, Defining the Limits: Universal Jurisdiction and National
Courts, in UNIVERSAL JURISDICTION: NATIONAL COURTS AND THE PROSECUTION OF SERIOUS
CRIMES UNDER INTERNATIONAL LAW 168, 171–72 (Stephen Macedo ed., 2006).
128. Act, supra note 1, art. 3(1) (“This Act shall apply to any Korean national or
foreigner who commits a crime under this Act within the territory of the Republic of
Korea.”) (corresponding to the Korean Penal Code, supra note 4, art. 2).
129. Act, supra note 1, art. 3(3) (corresponding to the Korean Penal Code, supra note
4, art. 4).
4, art. 3).
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commits a crime under the Act against the Republic of Korea or any of its
people outside the territory of Korea.131 The Act, however, does not
introduce the protective principle, probably because it is hard to imagine a
situation where a crime under the Act committed outside the territory of
Korea infringes on vital political or economic interests or the national
security of Korea.132 Even when such situations happen, the execution of
universal jurisdiction explained below will cover the lacuna of the
protective principle.
B. Article 3(5): Reception of Universal Jurisdiction
Though the Korean Penal Code has not had a provision on universal
jurisdiction, the Act accepts the idea by providing, “this Act shall apply to
any foreigner who commits a crime such as genocide [etc.] outside the
territory of the Republic of Korea and stays in the territory thereof.”133 That
is, Korea has introduced and explicitly prescribed for the first time in its
history the principle of universal jurisdiction for the purpose of strict
adherence to the principle of legality.134
Universal jurisdiction is usually exercised without any traditional nexus
either to nationality or territory. This jurisdictional base, therefore, allows a
state to prosecute any perpetrator regardless of his or her nationality or the
place where the crime was committed, which is called “absolute universal
jurisdiction.”135 Yet, exercising absolute universal jurisdiction is likely to
cause a risk of unjustifiable intervention into another state’s internal affairs,
and as a consequence, a reason for diplomatic frictions. To avoid this
undesirable situation, many countries impose some restrictions on the
exercise of universal jurisdiction. In this respect, the most commonly used
method is to actually require the traditional link to nationality or territory,136
4, art. 6).
132. The implementing legislation of Canada also does not provide the protective
principle. See Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, §§ 6, 8
(Can.), available at http://laws.justice.gc.ca/PDF/Statute/C/C-45.9.pdf.
133. Act, supra note 1, art. 3(5).
134. Theoretically speaking, since customary international law is to be incorporated
into the Korean legal order and to have the same legal force as domestic laws, the Korean
courts can exercise universal jurisdiction that has been recognized under customary
international law directly without any national legislation. In spite of this theoretical
possibility, however, clear prescription of the jurisdictional base for exercising universal
jurisdiction in domestic legislation would be in stricter conformity with the principle of
legality. For this reason, the Princeton Principle also emphasizes the need for adoption of
national legislation of universal jurisdiction. See Slaughter, supra note 127, at 24.
135. Payam Akhavan, Whither National Courts? The Rome Statute’s Missing Half?, 8
J. INT’L CRIM. JUST. 1245, 1252 (2010).
136. Reydams argues that it would be erosion to the very concept of “jurisdiction” if a
state exercises jurisdiction over a case in respect of which the state lacks any objective or
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which is referred to as “conditional universal jurisdiction.”137 On the basis
of this theory, the Act requires a territorial nexus in that Korea can exercise
the universal jurisdiction only where a suspect of foreign nationality who
committed a crime outside the territory of Korea is present in its territory.138
The ICC Statute does not include any provision that enforces State
Parties to exercise universal jurisdiction. One might think that Article 3(5)
of the Act adopting universal jurisdiction is based on a treaty given that i)
the Preamble of the ICC Statute connotes universal jurisdiction139 and ii)
many countries’ implementing legislations accept the idea. It is considered,
however, that Article 3(5) should be regarded as an extension of customary
international law from which the idea of universal jurisdiction under the
customary international law reflected in the ICC Statute and national
implementing legislations thereof originated.
C. Article 3(5): Meaning of the “Presence” Requirement
The requirement to be subsequently present in the territory of Korea
under the Act’s Article 3(5) does not mean that the person must have an
address or residence in Korea. This “presence” requirement is also relevant
to the “enforcement jurisdiction” (compétence d’exécution or jurisdiction to
enforce rules) because, if the jurisdiction under Article 3(5) is constituted,
investigative agencies also initiate their investigation over the suspect. The
“presence” requirement also eases the investigative burden of law
enforcement agencies in Korea. On the other hand, a commentator
envisages a situation where, due to the “presence” requirement, all the
proceedings against a suspect should halt when a suspect escapes across the
Korean border upon the initiation of an investigation.140 He would further
opine that, in this case, extradition requests might not be feasible. Yet, it is
doubtful whether this kind of strict interpretation of the “presence”
requirement serves the purpose of the Act to implement the ICC Statute.
It is true that in some cases domestic law enforcement agencies might be
reluctant to investigate or prosecute as the crimes provided in the Act are
likely to be of a political nature. In this context, the “presence” requirement
might be abused by the agencies—for example, after receiving
communication the agencies can just wait until the suspect leaves the
legal link to the perpetrator or the offence. See LUC REYDAMS, UNIVERSAL JURISDICTION:
INTERNATIONAL AND MUNICIPAL LEGAL PERSPECTIVES 224 (2003).
137. Many legal systems do not permit trials in absentia; the presence of the accused
on the territory is then a condition for the exercise of jurisdiction. See Akhavan, supra note
135, at 1252.
138. See Reydams, supra note 136, at 224.
139. ICC Statute, supra note 2, pmbl., ¶¶ 3, 4, 6.
140. IN–KYU LIM, SENIOR ADVISOR, JUDICIAL COMM. OF THE NAT’L ASSEMBLY,
REPORT ON THE ACT ON THE PUNISHMENT OF CRIMES UNDER THE JURISDICTION OF THE
INTERNATIONAL CRIMINAL COURT 23 (2007).
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country.141 Thus, an overly strict interpretation of this requirement might
significantly undermine the applicability of Article 3(5) of the Act.
Conversely, such interpretation can also excessively restrict the
investigative power of the law enforcement agencies when they are willing
to investigate and prosecute. The authors are of the view that the “presence”
requirement should be regarded as only being relevant to the timing of
initiation of investigation. Accordingly, the investigation can continue even
when the suspect escapes across the border.142 If enough evidence is
collected, extradition requests should also be permitted.
In addition, universal jurisdiction under Article 3(5) of the Act needs to
be exercised supplementary to the jurisdiction of the suspect or victim’s
nationality and that of the state in which the relevant crime was
committed.143 In this way, Korea might avoid unnecessary friction over the
exercise of universal jurisdiction.
IV. COOPERATION WITH THE ICC
A. Adoption of the Scheme of Mutatis Mutandis Application
Article 86 of the ICC Statute provides the general cooperation obligation
of State Parties, and Article 88 imposes an obligation on the State Parties to
“ensure that there are procedures available under their national law for all of
the forms of cooperation which are specified under” Part 9 of the ICC
Statute. Accordingly, the Act contains a section on international cooperation
and legal assistance. In this respect, the Act took an approach to include the
relevant provisions within a single Act instead of preparing a separate Act
on the cooperation issues, as is the case with a number of other countries.
In the process of drafting the Act, drafters initially stipulated detailed
provisions on the important aspects of Part 9 of the ICC Statute, including
those under Part 10 thereof concerning enforcement. At the review stage,
however, given that existing domestic law covers most of the features under
Parts 9 and 10, the drafters decided to apply mutatis mutandis—the two
pre–existing legislations of the “Extradition Act” and the “International
Mutual Legal Assistance in Criminal Matters Act.” In case of a discrepancy
between either of these two Acts and the ICC Statute, Articles 19(1) and
141. HUMAN RIGHTS WATCH, UNIVERSAL JURISDICTION IN EUROPE: THE STATE OF THE
ART (2006) 67–68, available at http://www.hrw.org/sites/default/files/reports/ij0606web.pdf.
142. This kind of universal jurisdiction permits Korean national authorities to
commence criminal investigations when Korean authorities are seized with information
concerning an alleged criminal offence. Korean prosecution services may exercise criminal
jurisdiction over the offence without requiring that the alleged offender first be present, even
temporarily, in Korean territory. See Akhavan, supra note 135, at 1252.
143. Slaughter, supra note 127, at 23; Antonio Cassese, Is the Bell Tolling for
Universality? A Plea for a Sensible Notion of Universal Jurisdiction, 1 J. INT’L CRIM. JUST.
589, 593–95 (2003).
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20(1) of the Act grant primacy to the provisions of the ICC Statute.
Furthermore, as explained above, since the ICC Statute has already been
incorporated into the Korean national legal order, the provisions under Part
9 are considered to be directly applicable in Korea. Taking into account this
legal mechanism, the authors think that most features of Part 9 of the ICC
Statute are to be executed in Korea on the caveat that there is still some
room for challenges on the basis of legal uncertainty originating from the
inherent nature of the mutatis mutandis application scheme.
B. Mutatis Mutandis Application of the Extradition Act
Article 19(1) of the Act provides that, concerning surrender of a person
to the ICC, the Extradition Act of Korea shall be applied mutatis mutandis
with the proviso that, in a case where a provision in the ICC Statute
provides differently than that of the “Extradition Act” the former prevails.
For this mutatis mutandis application, Article 19(2) replaces the term “the
requesting state” in the “Extradition Act” with the ICC, and “the extradition
treaty” with the ICC Statute. Through this legislative method, most of the
obligations related to “surrender to the ICC” can be performed.
Yet, as prescribed in Article 102 of the ICC Statute, the concept of
“surrender” has a different definition than that of “extradition.”144
Moreover, the object of the application of the “rule of speciality” as
provided in Article 101 of the ICC Statute is not a “crime” but a “conduct”
or a “course of conduct,” which is not the case with “extradition.” Other
features only applicable to “surrender to the ICC” are: i) exclusion of the
traditional grounds to decline extradition requests such as the “political
offence exception” and the “practice of non–extradition of nationals”; ii)
non–applicability of the “double criminality” clause; and iii) non–
applicability of the statute of limitations. Accordingly, when the
“Extradition Act” is actually applied mutatis mutandis, these aspects
peculiar to “surrender to the ICC” should be borne in mind so as not to
hamper the compliance with the relevant cooperation requests from the ICC.
Particularly, matters related to the “political offence exception” and the
“practice of non–extradition of nationals” are likely to cause difficulties as
they are not explicitly provided for in the ICC Statute. Namely, since there
is no relevant provision in the ICC Statute, there is no room for the clause
stipulating the primacy of the provisions of the ICC Statute over those of the
“Extradition Act” as provided in Article 19(1) to be applied. As a
consequence, the “political offence exception” and the “practice of non–
144. ICC Statute, supra note 2, art. 102(a)–(b) (“For the purposes of this Statute:
‘surrender’ means the delivering up of a person by a State to the Court, pursuant to this
Statute. ‘[E]xtradition’ means the delivering up of a person by one State to another as
provided by treaty, convention or national legislation.”).
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extradition of nationals,” as provided in the “Extradition Act,” might prevail
over “surrender to the ICC.”
At this point, we might explore further these two aspects in the context
of the “Extradition Act” of Korea. The “practice of non–extradition of
nationals” is provided in Article 9(1) of the “Extradition Act.” However, it
should be noted that it is not an absolute prohibition on the extradition of
Korean nationals, as the provision employs the wording of “may not
transfer.” In a case involving Korean nationals, therefore, the “Extradition
Act” proclaims that the Korean government has discretion over whether it
will surrender the person to the ICC, which is contradictory to the
mandatory compliance regime as provided in Article 89(1) of the ICC
Statute. On the contrary, the “political offence exception,” as prescribed in
Article 8(1) of the “Extradition Act,” states that the Korean government
“shall not transfer” when “the offence is of a political nature” or “the
offence is related to an offence of a political nature.” The wordings
employed here seem to allow quite a broad scope of application of this
provision, encompassing related offences that are not of a political nature
per se. Consequently, everything seems to be dependent on the Korean
government’s interpretation of “the political nature of an offence” or of
“whether an offence is related to an offence of a political nature.” In this
context, Articles 8(1)2 and 8(1)3 of the “Extradition Act” must be noted as
a proviso to the “political offence exception.” Article 8(1)2 states that, if an
extradition request is relevant to a political offence in respect of which a
multi–lateral treaty obliges Korea to prosecute or to extradite a suspect (aut
dedere aut judicare), Korea may transfer the suspect. It seems this provision
might provide legitimate grounds for Korea to surrender a suspect to the
ICC even when the relevant offence is of a political nature as the ICC
Statute is a “multi–lateral treaty” that obligates Korea to surrender a person
pursuant to Article 89(1) of the Statute. Moreover, another provision—
Article 8(1)3—appears to grant additional legal grounds to Korea to
surrender a person to the ICC when it provides that, if the relevant offence
violates, threatens, or risks life or body of many people, the Korean
government, again may transfer the person. Given that the crimes under the
ICC Statute generally involve many victims, Article 8(1)3 of the
“Extradition Act” can also be invoked for the purpose of surrendering a
person who allegedly committed a political crime. It is considered that this
“political offence exception” should be addressed seriously as all the crimes
provided in the ICC Statute are— to a varying extent—of a political nature.
In short, as examined thus far, although there is a normative possibility
embedded in the Extradition Act for “surrender to the ICC” despite the
“political offence exception” and the “practice of non–extradition of
nationals,” it still remains as a discretionary mechanism heavily dependent
on the relevant interpretation and decision of the Korean government. In
order to eliminate this normative uncertainty, it is recommended to
2011]
635
introduce a mandatory scheme vis-à-vis the cooperation requests from the
ICC concerning offences of political nature and Korean nationals.
With regard to the mutatis mutandis application of the “Extradition Act,”
another important aspect draws our attention—matters regarding Article
98(1) of the ICC Statute. This provision entitles a State to refuse a request
for surrender or assistance from the ICC on the basis of “State immunity” or
“diplomatic immunity.” In this respect, some are of the opinion that these
kinds of immunity under international law are only applicable to officials of
non–State Parties to the ICC Statute.145 In other words, the head of State,
high ranking officials, and diplomats of State Parties are not entitled to
enjoy immunities under Article 98(1). It is noteworthy that some State
Parties have incorporated this idea in their implementing legislations of the
ICC Statute. For instance, the International Criminal Court Act 2001 of the
United Kingdom provides that “any State or diplomatic immunity attaching
to a person by reason of a connection with a state party to the ICC Statute,
does not prevent” the arrest in the U.K. and surrender to the ICC.146 It
demonstrates a legal interpretation of the interaction between Article 27 and
Article 98(1) through which Article 98(1) is viewed as permitting a State
Party to arrest and surrender—in its own territory upon the request from the
ICC—an official of another State Party.
There are varying views as to the question of with whom the power to
decide the applicability of State immunity or diplomatic immunity under
Article 98(1) of the ICC Statute should be vested. In this regard, while the
implementing legislations of Canada and New Zealand give this authority to
the ICC, those of Australia and Switzerland keep this power domestically
(in Australia, the Attorney–General decides; in Switzerland, it is the Federal
Council).147 It appears that these decisions bind domestic courts.
Although the issue of granting immunity under Article 98(1) has rarely
been addressed by implementing legislations of the ICC Statute, it would be
appropriate for the Act to add relevant provisions dealing with the question
of whether immunity under Article 98(1) is allowed in connection with
Article 27, and—if yes—who should be vested with the power to decide on
145. Dapo Akande, International Law Immunities and the International Criminal
Court, 98 AM. J. INT’L L. 407, 422 (2004).
146. International Criminal Court Act 2001, c. 17, § 23(1) (Eng.), available at
http://www.legislation.gov.uk/ukpga/ 2001/17/contents. See also International Crimes and
International Criminal Court Act 2000, § 31(1), (N.Z.), available at
http://www.legislation.govt.nz/act /public/2000/0026/latest/DLM63091.html.
147. International Criminal Court Act 2002 s. 2 (Austl.); FF 2000 (Swiss Federal Law
of 22 June 2001, on Cooperation with the International Criminal Court), 2748 arts. 4(d), 6(1),
translated in EUR. CONSULT. ASS., THE IMPLICATIONS FOR COUNCIL OF EUROPE MEMBER
STATES
OF
THE
RATIFICATION
OF
THE
ROME
STATUTE
OF
INTERNATIONAL
CRIMINAL
COURT
(2001),
THE
http://www.nottingham.ac.uk/shared/shared_hrlcicju/Switzerland/Federal_Law_on_CoOperation_with_the_International_Criminal_Court.pdf.
636
[Vol. 19:3
the matter. This clarification would help prevent diplomatic frictions on the
issue of immunity.
C. Mutatis Mutandis Application of the International Mutual Legal
Assistance in Criminal Matters Act
Article 20(1) of the Act provides that, on the issues of mutual legal
assistance between the ICC and Korea, the “International Mutual Legal
Assistance in Criminal Matters Act” (“Legal Assistance Act”) shall be
applied mutatis mutandis with the proviso that, in a case where a provision
in the ICC Statute provides differently than that of the “Legal Assistance
Act,” the former prevails. For this mutatis mutandis application, Article
20(2) replaces the term “foreign state” in the “Legal Assistance Act” with
“the ICC,” and “the assistance treaty” with “the ICC Statute.”
Regarding the mutual legal assistance, there are discrepancies between
Korean domestic law and the ICC Statute. Article 93(4) of the ICC Statute
specifies that a State Party is entitled to decline a request for assistance from
the ICC only if the request concerns the production of documents or
disclosure of evidence which relates to the State’s national security. Article
6 of the Legal Assistance Act, however, lists additional grounds to refuse
assistance requests in addition to “national security.” The same situation—
as explained above in relation to the “Extradition Act” —also happens here.
That is, since the list in Article 6 contains items that are not provided in the
ICC Statute, the clause providing the primacy of the ICC Statute over the
“Legal Assistance Act” on the matters of discrepancy (prescribed in Article
20(1) of the Act) is not applicable. It is therefore possible that Korea may
still refuse to provide assistance to the ICC on the basis of Article 6 of the
“Legal Assistance Act.” It is recommended that this aspect be clarified
through revision of the Act.
D. Absence of Provisions on Other Cooperation
For the purpose of close cooperation, it is considered that a specific
governmental agency in charge of communications with the ICC and
execution of cooperation requests needs to be designated. This arrangement
would also prevent confusion and friction among the Korean governmental
bodies.
In addition, taking into account implementing legislation of South Africa
that allows the ICC to sit in its territory, subject to specified procedures,148
the Act might include a provision permitting the ICC to hold trials in Korea
if need be. Although this arrangement is not a necessary matter to be
148. Implementation of the Rome Statute of the International Criminal Court Act 27
of 2002 ch. 1(3)(e)(iii) (S. Afr.), available at http://www.info.gov.za/gazette/acts/2002/a2702.pdf.
2011]
637
provided in the Act, it would help enable the ICC to have normative
grounds to sit in the territory of Korea.
In terms of cooperation with the ICC, it is regrettable to see that the Act
adopted a legislative method that is too concise to ensure the comprehensive
cooperation between ICC and Korea. Faced with this reality, it is strongly
suggested that, where there is discrepancy between the ICC Statute and
domestic law, Korea perform the obligations as a State Party in a way that is
consistent with the object and purpose of the ICC Statute.
CONCLUSION
The egregious crimes under the ICC Statute are not at all new to the
Korean people. The history of Korea in the Twentieth Century is dotted
with heinous events under Japanese colonization and the Korean War. In
that sense, Korea shares—to a significant extent—the unfortunate
experiences of mankind in this Century. Even today, there are concentration
camps in North Korea where serious violations of human rights are
allegedly being committed on a daily basis. In this connection, we now
witness a large–scale civil movement in South Korea aimed at bringing
senior members of the North Korean Regime before the ICC. Nobody can
anticipate to what extent the Korean courts will encounter actual cases to
which the Act is applicable. Depending on the political development
surrounding the Korean Peninsula, it might also be the case that the
provisions in the Act are to be invoked by many Korean lawyers in the
courtroom. Now, the rules have been laid out.
JUDICIAL ACTIVISM IN THE EUROPEAN COURT OF
JUSTICE — THE CASE OF LGBT RIGHTS
Henri de Waele* and Anna van der Vleuten‡
INTRODUCTION ........................................................................................... 639
I. THE ROLE OF THE COURT IN THE EUROPEAN INTEGRATION PROCESS ... 642
A.Jurisdiction, Composition, and Case–Load .................................. 642
B. Landmark Rulings and Overall Performance ............................... 643
1. Supremacy, Direct Effect and State Liability ...................... 643
2. Extending its Judicial Review Competence ......................... 645
3. Entrenching the Internal Market ......................................... 647
4. Proclaiming Absolute Autonomy ......................................... 648
II. THE ACADEMIC DEBATES ON THE ROLE OF THE COURT ....................... 649
A.The Debate in Legal Doctrine ...................................................... 649
B. The Debate in Political Science.................................................... 651
III. THE CASE OF LGBT RIGHTS ................................................................ 653
A.LGBT Rights in European and National Context......................... 653
B. Transgender Rights....................................................................... 655
C. Lesbian and Gay Rights ............................................................... 657
IV. CONCLUSION ........................................................................................ 663
INTRODUCTION
The European Court of Justice (“the Court” or “the ECJ”) is a unique
court in many respects. It is the central dispute settlement body of the
European Union (“EU” or “the Union”)—an international organization that
displays a mix of supranational and intergovernmental characteristics.1 It is
considerably weaker than domestic courts in national states—for example
where it concerns ensuring compliance with its judgments. However, it is in
* Associate Professor of European Law, Department of International and European
Law, Faculty of Law, Radboud University Nijmegen, The Netherlands; Visiting Professor of
European Institutional Law, University of Antwerp, Belgium.
† Associate Professor of European Integration, Institute for Management Research,
Radboud University Nijmegen, The Netherlands.
1. The ECJ is sometimes confused with the European Court of Human Rights
(ECtHR), which is based in Strasbourg (France) and connected to the Council of Europe, an
intergovernmental organization that encompasses forty–seven Member States, ranging from
Iceland to Russia. The ECtHR mainly deals with claims of violations of the European
Convention of Human Rights (ECHR), lodged by individuals against a Member State of the
Council of Europe.
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comparison much more powerful than other international tribunals, for
example the International Court of Justice. Small wonder then that the ECJ
has attracted a great deal of scholarly attention, which is all the more
warranted in light of the fact that it has—over the years—managed to carve
out its own domain and place itself in a leading position vis–à–vis the courts
and governments of the EU Member States.2
In the political arena, the ECJ has occasionally caught flak—for instance
in 1979, when the prominent French MP Michel Debré accused the ECJ of
“mégalomanie maladive” (“pathological megalomania”).3 A more
measured, but equally vehement account was given by Margaret Thatcher,
who proclaimed in June 1993 that “some things at the Court are very much
to our distaste.”4 In the 1980s, some scholars started to criticize the activism
and seemingly political role of the Court, wondering whether it was
“running wild.”5 Former ECJ Judge Federico Mancini admitted that “judges
are usually incompetent as lawmakers,”6 but argued in favor of the Court’s
activism nonetheless by pointing at the quasi–permanent stagnation of the
European integration process in the 1960s and 1970s. Moreover, he
expected it to take a step back after 1986, when a rélance européenne
(“European re–launch”) was staged with the signing of a new treaty, the so–
called Single European Act.7 However, this constituted not so much the end,
but rather a re–launch of the debate—this time also involving political
scientists.
Interestingly, there seems to exist a disciplinary division of labor. The
legal debate has so far focused predominately on the relationship between
European law and national law, and the way in which the ECJ has
(re)shaped the latter to the benefit of European law—“constitutionalizing”
the treaties along the way. Indeed—especially in the field of human rights—
the ECJ seems to behave more like a supreme court in a federal state than as
a dispute settlement tribunal of an international organization. In contrast, the
political science debate has mostly revolved around the question of whether
the legal system and the ECJ’s conduct were consistent with the interests of
the most powerful EU Member States,8 or whether the Court “upgraded the
2. A famous investigation of its early path–breaking case law is Eric Stein,
Lawyers, Judges and the Making of a Transnational Constitution, 75 AM. J. INT’L L. 1
(1981).
3. Assemblée Nationale, Sixième Législature, Séance du 1er Juin 1979, 4610 (Fr.).
4. 546 PARL. DEB., H.L. (5th ser.) (1993) 560 (U.K.).
5. Probably the most famous early critic is HJALTE RASMUSSEN, ON LAW AND
POLICY IN THE EUROPEAN COURT OF JUSTICE: A COMPARATIVE STUDY IN JUDICIAL
POLICYMAKING (1986).
6. G. Federico Mancini, The Making of a Constitution for Europe, 26 COMMON
MKT. L. REV. 595, 612 (1989).
7. Id. at 613.
8. See, e.g., PAUL TAYLOR, THE LIMITS OF EUROPEAN INTEGRATION (1983); Geoffrey
Garrett, International Cooperation and Institutional Choice: The European Community’s
Internal Market, 46 INT’L ORG. 533 (1992); Geoffrey Garrett & Barry Weingast, Ideas,
2011]
Judicial Activism in the European Court of Justice
641
common interest”—even against the wishes of the national governments.9
By consequence, legal scholars tend to give center stage to the relationship
between the ECJ and national (ordinary, supreme, and constitutional)
courts, but they “ignore or assume” the political impact of the ECJ10—
whereas political scientists concentrate largely on the relationship between
the ECJ and the governments of the Member States.
This Article forms an interdisciplinary effort in which we try to combine
both perspectives and examine how the ECJ—with the support of lower
domestic courts—has carved out its domain at the expense of both
governments and national constitutional and supreme courts. Contrary to the
orthodox opinion—adhered to in legal doctrine as well as in political
science—we offer conclusive evidence that the ECJ is neither an innocuous
interpreter of treaty rules nor an agent of particular national interests, but
that it instead follows a distinct policy agenda defending first of all the
interests of citizens, not of Member States. We shall underpin this central
argument with an analysis of the series of ECJ rulings on lesbian, gay,
bisexual, and transgender (“LGBT”) rights. The (regulation of the) legal
position of the LGBT minority group remains a subject of controversy in
many a national context. So far, the competence of the EU on the issue has
been extremely limited, and the currently twenty–seven Member States
anxiously guard their sovereignty in this field. Nevertheless, as we will
demonstrate, the ECJ deftly managed to slide into place as an autonomous
norm–setter, expanding the entitlements of LGBT individuals, and even
awarding them more rights and benefits than their national governments
were willing to grant them.
Our plan of discussion is as follows. We will first engage in a general
tour d’horizon of the position of the Court within the European legal
system, briefly touch upon its functioning and composition, and highlight its
overall performance up until now (Part I). Next, we delve deeper into the
academic debates on the role of the ECJ, portraying the main lines of
discussion in legal scholarship, as well as among political scientists (Part
II). Subsequently, we will trace the Court’s case law on LGBT rights,
analyzing to what extent it has functioned as an autonomous emancipator
and transformed the subject matter at stake (Part III). We finish up and draw
the lines together in the concluding section, wherein we will rehearse our
main argument one more time and underscore its significance (Part IV).
Interests, and Institutions. Constructing the European Community's Internal Market, in
IDEAS AND FOREIGN POLICY 173 (Judith Goldstein & Robert O. Keohane eds., 1993).
9. Anne–Marie Burley & Walter Mattli, Europe Before the Court: A Political
Theory of Legal Integration, 47 INT’L ORG. 41 (1993), available at
http://www.seep.ccu.hu/alpsa/articles/burley.pdf.
10. Id. at 42.
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I. THE ROLE OF THE COURT IN THE EUROPEAN INTEGRATION PROCESS
A. Jurisdiction, Composition, and Case–Load
Despite the terseness and humility of the provisions in the original EU
treaties that spelled out the jurisdiction, composition and organization of the
ECJ, its role in the European integration process has been nothing less than
seminal.11 Surprisingly, the current clause on its jurisdiction—Article 19 (1)
of the Treaty on European Union (“TEU”)—remains an almost exact copy
of its earliest version, Article 164 of the Treaty establishing the European
Economic Community (“TEEC”), drawn up in 1957.12 According to this
proviso, the Court of Justice “shall ensure that in the interpretation and
application of the [European] Treaties the law is observed.”13 Under Articles
258–260 of the Treaty on the Functioning of the EU (“TFEU”), the Court
rules in so–called “infringement proceedings” where the European
Commission believes that an EU Member State has failed to fulfill its
obligations under the Treaties. On the basis of TFEU’s Article 263, the
Court decides in “actions for annulment,” whereby a Member State, EU
institution, or natural or legal person contends that an adopted legal act
violates any other European rule, general principle, or procedural
requirement. Under TFEU’s Article 269, the ECJ is granted the competence
to decide so–called “preliminary references”—questions on the
interpretation or validity of EU legal acts submitted by any court or tribunal
in a Member State—which has proven to be of extreme importance in the
shaping of the relationship between the EU and the national legal and
political orders. The Court also decides on a number of other actions which
are of less constitutional significance, inter alia the action for failure to act
(Article 265 of the TFEU) and the action for damages (Article 268 juncto
340 of the TFEU).
In accordance with TFEU’s Article 19 (2), the twenty–seven judges are
appointed for a six–year term and eligible for infinite reappointment. This
11. The ECJ as an institution is divided into three branches: the Court of Justice (in a
narrow sense), the General Court, and the Civil Service Tribunal. The latter two have been
created at quite a late stage. The General Court was created in 1987, and was originally
designated the “Court of First Instance.” The Civil Service Tribunal was created in 2006.
Our analysis pertains to the Court of Justice as it has exclusively dealt with all the LGBT
cases so far. The two younger branches still enjoy only a limited jurisdiction, and are
subordinated in almost every respect.
12. Which, in turn, was a copy of Article 31 of the 1951 Treaty of Paris that
established the European Coal and Steel Community.
13. At present, the plural “Treaties” refers to the “Treaty on European Union” and
the “Treaty on the Functioning of the European Union.” The latter is the successor to the
“Treaty establishing the European Economic Community,” which was renamed in 1992 to
“Treaty establishing the European Community” or “EC Treaty.” All current and earlier
versions of the treaty–texts are available at http://eur-lex.europa.eu/en/treaties/index.htm (last
visited May 31, 2010).
2011]
643
entails the risk that they are insufficiently independent, compared to their
counterparts in the highest national courts; for example, a proper contrast
would be the life–tenure of the justices of the US Supreme Court.
Moreover, until recently there existed only a very summary selection
process whereby a Member State merely had to propose its candidate to the
other Member States; thereafter, the nominated person was always
appointed to the Court without much (public) discussion.14
As the members of the ECJ all come from different Member States, the
various legal traditions are thought to be represented in equal fashion.15 This
reflects the political concern to ensure the legitimacy of Court decisions
throughout the Union, but it carries yet another danger that the judges
remain too intimately affected by their particular national background. All
the same, these possible risks and objections have so far never led to any
substantial alterations in the composition or nomination process.
The EU has no system of docket control, leave for appeals, or other types
of case–filtering mechanisms. By consequence, the ECJ is unable to control
the type of cases that come before it, and it has to cope with an impressive
workload.16 Among the less significant issues to adjudicate are the
classification of goods for customs purposes and the establishing of simple
and overt violations of rules contained in the European treaties and
legislation. Conversely, of spectacular importance are its decisions
involving the demarcation of Union versus Member State competencies, the
choice of the proper legal basis for legislation, and the definition of key
terms and concepts coined in (established or novel) rules of EU law.
B. Landmark Rulings and Overall Performance
1. Supremacy, Direct Effect and State Liability
Although fifty years ex post facto, any analysis of the Court’s influence
on the European integration process ought to start in the early 1960s. The
14. Consolidated Version of the Treaty on the Functioning of the European Union
art. 255, Mar. 30 2010, 2010 O.J. (C 83) 47 [hereinafter TFEU]. Since December 1, 2009,
TFEU Article 255 stipulates that henceforth, a special panel shall be convened to evaluate
the suitability of proposed candidates. However, its deliberations take place behind closed
doors and are unlikely to be substantial. Moreover, the panel is only rendered competent to
issue a non–binding opinion.
15. TFEU Article 19 contains no requirements as regards their nationality, which has
prompted some to come up with rather adventurous suggestions. See Tom Kennedy, Thirteen
Russians! The Composition of the European Court of Justice, in LEGAL REASONING AND
JUDICIAL INTERPRETATION OF EUROPEAN LAW: ESSAYS IN HONOUR OF LORD MACKENZIESTUART 69 (A.I.L. Campbell & M. Voyatzi eds., 1996).
16. Since 2007, it has received and decides about 500 cases each year. The statistics
are
extensively
detailed
on
the
ECJ’s
website:
see
http://curia.europa.eu/jcms/upload/docs/application/pdf/2009-03/ra08_en_cj_stat.pdf
(last
visited May 31, 2010).
644
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twin judgments in Van Gend & Loos17 and Costa v. ENEL18 are after all
commonly regarded as the pristine heralds of a Court treading higher
ground, and in these rulings the ECJ left behind traditional conceptions of
what international judges do and are capable of. At first sight, these
judgments do not seem to fully deserve the revolutionary epithet that has so
often been ascribed to them. After all, in Van Gend & Loos, the Court did
not launch an entirely new doctrine—as direct effect is not a phenomenon
exclusive to European law. Under different guises, and especially manifest
in the form of “self–executing provisions,” it is also well–known to
international law.19 At the same time, the move of the Court does retain a
bold flavor: in its ruling, it created the possibility of invoking the rules
stemming from a supranational origin before the national courts in all of the
EU Member States. Thereby, it coolly pierced through the vested
monism/dualism dichotomy, sidelined national courts, and decommissioned
the relevant applicable rules in the various Member State constitutions.
Likewise, Costa v. ENEL—in which the Court proclaimed that all
European legal rules take precedence over national ones—may initially
seem not to provide for that great a novelty. After all, a cardinal principle of
international law is its supremacy over national law.20 Yet a sharp divide
remains between the international and the national plane: although the
former assumes itself hierarchically superior, most states in their national
legal systems do not actually accord supremacy to international rules of
law.21 Since 1964—owing to Costa v. ENEL—EU law is markedly different
in that national legal systems—in case of conflict—are obliged to always
award absolute priority to the applicable supranational rules. As such, the
judgments on supremacy and direct effect carry an indelible activist mark:
these doctrines were not enshrined in the Treaties, but constitute pure
products of judge–made law, created for the benefit of the effet utile of
17. Case 26/62, Algemene Transport en Expeditie Onderneming Van Gend & Loos
v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1.
18. Case 6/64, Flaminio Costa v. ENEL, 1964 E.C.R. 585.
19. This is still insufficiently recognised in EU legal scholarship, despite having been
pointed out by more than one author from the early 1980s onwards. See Derrick Wyatt, New
Legal Order, or Old?, 7 EUR. L. REV. 147 (1982); Bruno de Witte, Retour à Costa. La
primauté du Droit Communautaire à la Lumière du Droit International, 19 REV. TRIM.
DROIT EUROPÉEN 425 (1984) (Fr.).
20. See the Permanent Court of International Justice’s Advisory Opinion in the case
of the Greco–Bulgarian Communities, 17 PUBLICATIONS OF THE PCIJ 32 (1930) (noting that
“it is a generally accepted principle of international law that in the relations between Powers
who are contracting Parties to a treaty, the provisions of municipal law cannot prevail over
those of the treaty”). See also the International Court of Justice’s Advisory Opinion with
regard to the Applicability of the Obligation to Arbitrate under Section 21 of the United
Nations Headquarters Agreement of 26 June 1947, 34 ICJ REPORTS (1988), ¶ 57 (noting that
“[i]t [is] sufficient to recall the fundamental principle of international law that international
law prevails over domestic law”).
21. See, e.g., ANTONIO CASSESE, INTERNATIONAL LAW 236 (2d ed. 2005).
2011]
645
European law. Thus, the subsequent case law that expanded the scope and
gist of both these notions further carried an activist stamp as well.22
The same can be said for the principle of Member State liability for
violations of EU law. Although closely connected to the doctrines of
supremacy and direct effect, it was launched only decades after all
legislative attempts to establish such a principle in the treaties had failed.23
Subsequently, in Francovich,24 the ECJ was happy to proclaim member
state liability a principle that was actually already “inherent” in the
European legal order—reining in the various particular (and often
divergent) national rules that regulated the matter up until then.
2. Extending its Judicial Review Competence
With the passing of time, the Court has become the architect of ever
more numerous institutional innovations, several of which related to its own
competence to engage in judicial review. Again, little or no foothold was to
be found in the Treaties for any of the decisions reached.
To start with, the preliminary reference procedure was deployed in such
a way as to maximize the ECJ’s role and function: in Foto–Frost25 national
courts were declared incompetent to decide on the validity of EU rules
themselves and obliged to bring any such questions on legality before the
European Court. Through Haegeman,26 SPI,27 and Busseni28 it suddenly
became possible to submit references on sets of rules that lay flatly outside
the purview of Article 234 of the EC Treaty.29
22. See Case 9/70, Franz Grad v. Finanzamt Traunstein, 1970 E.C.R. 825
(demonstrating the direct effect of decisions); Case 43/71, Politi v. It., 1971 E.C.R. 1039
(demonstrating the direct effect of regulations); Case 41/74, Yvonne van Duyn v. Home
Office, 1974 E.C.R. 1337 (demonstrating the direct effect of directives); Case 106/77,
Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 1978 E.C.R. 629
(demonstrating that every national court is obliged to set aside contrary national law); Case
11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und
Futtermittel, 1970 E.C.R. 1125 (demonstrating that even national constitutional rules have to
be set aside by virtue of the supremacy of European law).
23. In the past, on at least three different occasions, calls were made to introduce the
relevant rules into primary law. See Court of Justice, Suggestions of the Court of Justice on
European Union, BULL. EUR. COMMUNITIES, SUPP. 9/75, 17–19; see the Report of the
European Commission of 21 October 1990 for the 1991 IGC, BULL. EUR. COMMUNITIES,
SUPP. 2/91, 165–69; Resolution on the Responsibility of the Member States for the
Application of and Compliance with Community Law, 1983 O.J. (C 68) 32.
24. Cases C–6 & C–9/90, Francovich v. It., 1991 E.C.R. I–5357.
25. Case 314/85, Frost v. Hauptzollamt Lübeck–Ost, 1987 E.C.R. 4199.
26. Case 181/73, Haegeman v. Belg., 1974 E.C.R. 449.
27. Joined Cases C–267 & 269/81, Amministrazione delle Finanze dello Stato v.
Petrolifera Società Italiana SpA (SPI), 1983 E.C.R. 801.
28. Case 221/88, European Coal & Steel Comty. v. Acciaierie e Ferriere Busseni
SpA, 1990 E.C.R. I–519.
29. See TFEU, art. 267.
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Les Verts30 and Chernobyl31 represent two other paradigmatic cases.
TFEU’s Article 173 contained an exhaustive list spelling out which litigants
were entitled to request the Court to review the legality of an adopted EU
legal act. The Court single–handedly decided to pry open this provision and
broaden the catalog under the cloak of preserving the rule of law in the
Community, owning up to the supposedly overriding requirements of the
principle of institutional balance. In 2007, in Segi32 and Advocaten voor de
Wereld,33 the ECJ extended its competence to review legal acts adopted in
the politically charged domain of “PJCC” (the rules of EU law relating to
the Member States’ police and judicial cooperation in criminal matters).
Two years earlier, in Pupino,34 it had already exported the doctrine of
“indirect effect” (the duty for national courts to interpret national law in
conformity with EU law) to the PJCC. In the recent ECOWAS case,35 the
ECJ broke yet newer ground and extended its review competence to the
“CFSP”—the set of rules that seek to underpin a common foreign and
security policy of the Member States. In its ruling, it declared itself
competent to review the legality of CFSP instruments, despite its formal
exclusion from that domain on the basis of (the former) TFEU Article 46.
Of course, it may be hard find fault with these judgments, since private
persons and institutions could otherwise continue to be confronted with the
(adverse consequences of) binding acts of public law without any effective
legal remedy. Nonetheless, as the Court proprio motu brought these changes
to the European edifice—corroborating these with novel rules and principles
of its own devising—the aforementioned judgments again neatly fit an
activist bill. Significantly, at the latest round of intergovernmental
negotiations on treaty reform, the Member States continued to withhold
general jurisdiction in the CFSP from the ECJ.36 Exemplary was the
statement made by the then–chancellor of Austria, Wolfgang Schüssel, who
remarked that “the ECJ . . . has in the last couple of years systematically
expanded European competencies, even in areas, where there is decidedly
no [European] community law . . . . Suddenly, judgments emerge on the
role of women in the German federal army . . . that [are] clearly national
law.”37 Evidently, with regard to the sensitive area of defense and security
policies, the Member States perceived the Court to be much too intrusive.
30. Case 294/83, Parti Ecologiste ‘Les Verts’ v. Parliament, 1986 E.C.R. 1365.
31. Case C–70/88, Parliament v. Council (Chernobyl), 1990 E.C.R. I–204.
32. Case C–355/04 P, Segi and Others v. Council, 2007 E.C.R. I–1657.
33. Case C–303/05, Advocaten voor de Wereld v. Leden van de Ministerraad, 2007
E.C.R. I–3633.
34. Case C–105/03, Maria Pupino, 2005 E.C.R. I–5285.
35. Case C–91/05, Comm’n v. Council (ECOWAS), 2008 E.C.R. I–3651.
36. See TFEU, art. 275 (1).
37. See Mark Beunderman, Fresh EU Presidency Attacks European Court of Justice,
EU OBSERVER (Jan. 3, 2006), http://euobserver.com/9/20621.
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647
3. Entrenching the Internal Market
The raison d’être of the original EEC was to establish an internal market
in which the free movement of goods, persons, services, and capital was
ensured, as well as a regime of free and undistorted competition. This still
forms a key objective of the EU at the present time.38 In spite of all the
progress made by means of official legislation—especially since the
ambitious rélance européenne referred to earlier—the internal market
would never have been what it is right now without the relevant case law
from the ECJ.
In the free movement of goods for example, in rulings such as
Dassonville39 and Rewe-Zentral,40 the Court engaged in an extremely broad
reading of the provision that contained a prohibition on quantitative
restrictions and measures having an equivalent effect. The same goes for
the stern construction of identical provisions concerning the freedom to
provide services and the freedom of establishment, in Reyners,41 Säger,42
Gebhard,43 and Centros.44 Of fundamental importance was also its liberal
approach to the concept of “worker,” granting rights of free movement and
social security benefits to Member State nationals wherever they reside in
the Union—even in situations where one might seriously have questioned
the genuine and effective character of the employment.45 The Court has
been willing to blaze a trail with remarkable fury for the relatively new rules
on EU citizenship as well, creating residence rights as well as social welfare
entitlements on startlingly feeble grounds.46 In the latter line of cases, the
38. See TFEU, art. 26 (1)–(2).
39. Case 8/74, Procureur du Roi v. Dassonville, 1974 E.C.R. 837.
40. Case 120/78, Rewe–Zentral AG v. Bundesmonopolverwaltung für Branntwein,
1979 E.C.R. 649.
41. Case 2/74, Reyners v Belg., 1974 E.C.R. 631.
42. Case C–76/90, Säger v. Dennemayer & Co., 1991 E.C.R. I–4221.
43. Case C–55/94, Gebhard v. Consiglio dell’Ordine degli Avvocati e Procuratori di
Milano, 1995 E.C.R. I–4165.
44. Case C–212/97, Centros Ltd v. Erhvervs– og Selskabsstyrelsen, 1999 ECR I–
1459. One may also point here to the groundbreaking case–law on patient mobility, sparked
by the Court’s broad conception of what constitutes a service; see Case C–120/95, Decker v.
Caisse de Maladie des Employés Privés, 1998 E.C.R. I–1831; Case C–158/96, Kohll v.
Union des Caisses de Maladie, 1998 E.C.R. I–1931; Case C–372/04, Watts v. Bedford
Primary Care Trust, 2006 E.C.R. I–4325. For an in–depth analysis, see Johan W. van de
Gronden, Cross–Border Health Care in the EU and the Organization of the National Health
Care Systems of the Member States. The Dynamics Resulting from the European Court of
Justice’s Decisions on Free Movement and Competition Law, 26 WISC. INT’L L.J. 705 (2009).
45. Case 53/81, Levin v. Staatssecretaris van Justitie, 1982 E.C.R. 1035; Case
139/95, Kempf v. Staatssecretaris van Justitie, 1986 E.C.R. 1741; Case 196/87, Steymann v.
Staatssecretaris van Justitie, 1988 E.C.R. 6159; Case C–456/02, Trojani v. CPAS, 2004
E.C.R. 1–7573.
46. Case C–85/96, Martínez Sala v. Freistaat Bayern, 1998 E.C.R. I–2691; Case C–
184/99, Grzelczyk v. Centre Public d’aide Sociale d'Ottignies–Louvain–la–Neuve, Case C–
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[Vol. 19:3
ECJ even said of Union citizenship that it was “destined to be the
fundamental status of nationals of the Member States”—words that fit
particularly well in visionary speeches of federalist politicians, but seem
slightly out of place amidst legal vernacular. Yet when it comes to
furthering their “certaine idée de l’Europe,”47 the judges of the ECJ do not
necessarily feel constrained by a lack of black–letter law.
In EU competition law, the Court did not shun an activist stance either,
although the exact dosage has varied through the years. At any rate, the
judgment in Continental Can48 provides singularly important evidence; in
this case, the absence of any specific rules regarding merger control in the
Treaties or anywhere else once again presented no bar to the creation of
adventurous judge–made law on the subject.
4. Proclaiming Absolute Autonomy
Van Gend & Loos has already been touched upon, yet apart from the
introduction of direct effect it is of course also legendary for proclaiming
the existence of a “new legal order of international law.”49 One year later, in
Costa v. ENEL, the Community was even pronounced to be a new legal
order—period, and the law stemming from the Treaty (“an independent
source of law”) as being of a “special and original nature.”50
For a long time, speculation has been rife on the exact scope and purport
of these phrases. Various authors have questioned the newness, the
specificity, and the uniqueness of the European legal order. A number of
them negated the possibility of a truly autonomous system that is immune to
the general rules and distinct from its siblings in international law.51
Scholars have pointed to the fact that the international legal order is actually
host to many sub–systems: the EU forms one of many, and contrary to the
Court’s assertions there is nothing revolutionary in creating an organization
184/99, 2001 E.C.R. 1–6193; Case C–413/99, Baumbast v. Sec’y of State for the Home
Dep’t., 2002 E.C.R. l–7091.
47. Words employed in a famous article by Pierre Pescatore, The Doctrine of “Direct
Effect”: An Infant Disease of Community Law, 8 EUR. L. REV. 155, 157 (1983). See also G.
Federico Mancini & David T. Keeling, Democracy and the European Court of Justice, 57
MOD. L. REV. 175, 186 (1994) (“The preference for Europe is determined by the genetic code
transmitted to the Court by the founding fathers, who entrusted it the task of ensuring that the
law is observed in the application of a Treaty whose primary objective is an ‘ever closer
union among the peoples of Europe.’”).
48. Case 6/72, Europemballage Corporation a v. Comm’n of the European Comtys.,
1973 E.C.R. 215.
49. See Algemene Transport en Expeditie Onderneming Van Gend & Loos, 1963
E.C.R. at 23.
50. See Flaminio Costa, 1964 E.C.R. at 593.
51. See, e.g., Theodor Schilling, The Autonomy of the Community Legal Order: An
Analysis of Possible Foundations, 37 HARV. INT’L L.J. 389 (1996); Trevor C. Hartley,
International Law and the Law of the European Union – A Reassessment, 72 BRIT. Y.B.
INT’L L. 1 (2001).
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649
for unlimited duration with its own institutions, competencies, and legal
personality.52 The Court has nevertheless repeatedly stressed the full
autonomy and independence of the European legal order and denounced
multiple rules and conventions that threatened to clash with, cloud, or
pollute the Union’s sui generis system.53 Still, as long as the basis of the EU
structure continues to be located in a traditional treaty arrangement, the
entity remains firmly rooted in international law, whether it likes it or not. It
thus would seem unable to ever truly break free and live the dream of a
self–contained, absolutely autonomous legal order.
As theoretically sound as the latter considerations may have been, they
discounted or underestimated the willingness of the Court to explode the
linkages with international law at long last. In the recent Kadi judgment,54
the true ambit of the pronouncements in Van Gend and Costa v. ENEL has
finally been clarified. In this ruling, the ECJ dealt the final blow to the idea
of an only quasi–separate, limited, unoriginal “new legal order.” In effect, it
considered the general principles of EU law hierarchically superior to
international rules and denounced the overriding authority of the UN
Charter and Security Council resolutions. In so doing, it put the independent
character of the Union’s legal system beyond doubt.55
II. THE ACADEMIC DEBATES ON THE ROLE OF THE COURT
A. The Debate in Legal Doctrine
The first legal studies on the role of the Court in the integration process
date from the early 1970s and are characterized by a mild and wholly
benevolent approach.56 Only in 1986 did the first critical treatise see the
light of day, when the Danish scholar Hjalte Rasmussen took issue with the
zealous pro–integration stance of the Court, and—employing some strong
52. Alexander Orakhelashvili, The Idea of European International Law, 17 EUR. J.
INT’L L. 315, 345 (2006); see also de Witte, supra note 19, at 446.
53. See, e.g., Opinion 1/76, Draft Agreement Establishing a European Laying–Up
Fund for Inland Waterway Vessels, 1977 E.C.R. 741; Opinion 1/91, Draft Agreement
Relating to the Creation of the European Economic Area, 1991 E.C.R. I–6084; Opinion 1/00,
Proposed Agreement Between the European Community and Non-Member States on the
Establishment of a European Common Aviation Area, 2002 E.C.R. I–3493.
54. Joined Cases C–402/05 P & C–415/05 P, Yassin Abdullah Kadi v. Council, 2008
E.C.R. I–6351.
55. J.H.H. Weiler, Editorial, 19 EUR. J. INT’L L. 895 (2008), has compared Kadi to
the ruling of the U.S. Supreme Court in Medellín v. Texas, 552 U.S. 491 (2008); in effect, the
ECJ proclaimed the EU to be equally “domestic” as the U.S. legal system, deciding for itself
if and how it wants to incorporate rules of international law.
56. See, e.g., ANDREW WILSON GREEN, POLITICAL INTEGRATION BY JURISPRUDENCE:
THE WORK OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES IN EUROPEAN
POLITICAL INTEGRATION (1969); PIERRE PESCATORE, LE DROIT DE L’INTÉGRATION (1972);
H.G. Schermers, The European Court of Justice: Promoter of European Integration, 22 AM.
J. COMP. L. 444 (1974); ROBERT LECOURT, L’EUROPE DES JUGES (1976).
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language—accused it of regularly engaging in “revolting judicial
behavior.”57 Rebuttals were provided by Joseph Weiler and Mauro
Cappelletti, amongst others.58 In the course of the 1990s, two new rounds of
discussion took place.59 For the past few years however, no new
installments in the series have been published, and the discussion appears to
have been terminated without having been properly concluded. Since all
attempts at providing a critical assessment of the ECJ’s demeanor have
themselves been the subject of hefty criticism—and the apologists of the
Court expressed the last word on the subject—one might be tempted to
conclude that the debate culminated in a victory for the latter.
Some arguments and counter–arguments have re–emerged time and
again. When critics bring forward their evidence of a Court that keeps
overstepping the line, a trusted demurral is that the proof tends to be
selective and that judicial activism occurs in a small minority of cases
only.60 As a broader defense, the apologists of the ECJ advance that it has to
make the most of framework treaties that regulate few topics in exhaustive
detail. Thus, the fact that something is not mentioned or not fully covered
by treaty provisions should in itself never be considered decisive: this is
meant to leave room for detailed new rules that the ECJ may rightfully bring
into being.61 Moreover, since the other EU institutions repeatedly fail to
deliver the goods, the Court is well–positioned to step into their shoes. The
European legal system is actually intended to function in this manner, with a
57. RASMUSSEN, supra note 5, at 12.
58. Mauro Cappelletti, Is the European Court of Justice “Running Wild”? 12 EUR.
L. REV. 3 (1987); J.H.H. Weiler, The Court of Justice on Trial, 24 COMMON MKT. L. REV.
555 (1987).
59. PATRICK NEILL, THE EUROPEAN COURT OF JUSTICE: A CASE STUDY IN JUDICIAL
ACTIVISM (1995) (Neill was a challenger in the first round of discussions); see also Lord
Howe of Aberravon, Euro–Justice: Yes or No?, 21 EUR. L. REV. 192 (1996); Takis Tridimas,
The Court of Justice and Judicial Activism, EUR. L. REV. 199 (1996); and Trevor C. Hartley,
The European Court, Judicial Objectivity and the Constitution of the European Union, 112
L. Q. REV. 95 (1996) (Hartley was a challenger in the second round of discussions; for a
response to Hartley, see Anthony Arnull, The European Court and Judicial Objectivity: A
Reply to Professor Hartley, 112 L. Q. REV. 411 (1996)). See also ANTHONY ARNULL, THE
EUROPEAN UNION AND ITS COURT OF JUSTICE (1999) and TREVOR C. HARTLEY,
CONSTITUTIONAL PROBLEMS OF THE EUROPEAN UNION (1999) [hereinafter HARTLEY,
CONSTITUTIONAL PROBLEMS].
60. See, e.g., Tridimas, supra note 59, at 200; Howe, supra note 59, at 189; Albertina
Albors Llorens, The European Court of Justice, More Than a Teleological Court, 2
CAMBRIDGE Y.B. EUR. LEGAL STUD. 373, 398 (1999).
61. See, e.g., Tridimas, supra note 59, at 205; Michel Waelbroeck, Le Rôle de la
Cour de Justice dans la Mise en Oeuvre du Traité CEE, CAHIERS DE DROIT EUROPÉEN 350
(1982); Charlotte Gaitanides, Artikel 220, in KOMMENTAR ZUM VERTRAG ÜBER DIE
EUROPÄISCHE UNION UND ZUR GRÜNDUNG DER EUROPÄISCHEN GEMEINSCHAFT 324 (H. von
der Groeben & J. Schwarze eds., 2003); JEAN–VICTOR LOUIS, GEORGES VANDERSANDEN,
DENIS WAELBROECK & MICHEL WAELBROECK, COMMENTAIRE MÉGRET, LA COUR DE JUSTICE.
LES ACTES DES INSTITUTIONS 16 (1993).
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651
prominent pioneering role for the Court that has to ensure that the
integration process keeps its pace.62
At present then, a broad consensus seems to exist in legal doctrine that
the ECJ has been faithfully interpreting the rules, legitimately filled some
gaps, and has never engaged in excessive activism. Rather, it has acted in
an overall manner that has genuinely corresponded with the tasks entrusted
to it under the treaties, and it continues to do so. By consequence, one
cannot seriously find fault with any of the rulings highlighted in the
previous section; the Court was expected to constitutionalize the Treaties,
entrench the internal market, and stress the autonomy of the European legal
order. Moreover, concepts such as supremacy, direct effect, and state
liability fit in well with both the general system and specific treaty articles.
However, as we shall argue in the present paper, the case law on LGBT
rights shows how the ECJ has been a less than faithful performer, and that it
in fact has engaged in excessive activism, structurally to the detriment of
Member State interests. We consider the fact that the Court even felt
entitled to do so in this politically sensitive domain—where the EU enjoys
no substantive powers of regulation—to be most telling. To our mind, it
forms but one illustration of its general posture, about which critical lawyers
rightly expressed their discomfort in the earlier rounds of debate. Moreover,
as we will be pointing out further on, none of the justifications advanced by
the Court’s supporters can ultimately be considered wholly convincing.
B. The Debate in Political Science
In contrast with the early interest from legal scholars, political scientists
only really “discovered” the ECJ in the mid–1990s. The re–launch of the
integration process in 1986 was followed by a revival of non–state centric
integration theories, which attributed a key role to supranational actors such
as the European Commission and the ECJ in the integration process. In a
thought–provoking article, the neo–functionalists Anne–Marie Burley and
Walter Mattli argued that the ECJ had spurred the integration process in a
way beyond Member State control, owing to its clever collaboration with
lower national courts.63 This marked the start of a debate with the inter–
62. This "most–favored rationale" has been fiercely criticised in Hjalte Rasmussen,
Towards a Normative Theory of Interpretation of Community Law, 1992 U. CHI. LEGAL F.
135, 155–59, and HARTLEY, CONSTITUTIONAL PROBLEMS, supra note 59, at 45–58. Compare
Michel Mangenot, Le Conseil d’Etat et l’institutionnalisation du système juridique
communautaire
3
(Apr.
1,
2004),
available
at
http://halshs.archivesouvertes.fr/docs/00/28/86/26/PDF/Mangenot_Systeme_juridique_communautaire_2004.pdf
(commenting that the founding fathers of the EU actually designed the Court to keep the
Commission in check).
63. See Burley & Mattli, supra note 9, at 63–65; see also Walter Mattli & Anne–
Marie Slaughter, Law and Politics in the European Union: A Reply to Garrett, 49 INT’L ORG.
183 (1995).
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governmentalist (or rational institutionalist) school, spearheaded by
Geoffrey Garrett. Garrett had argued the previous year that the Member
States of the EU had consciously delegated authority to the ECJ to enable it
to monitor compliance with EU rules and thus make costly agreements
stick. He claimed (in accordance with the predominant view among legal
scholars) that the Court has been a faithful agent of the (most powerful)
Member States in its decisions as well.64 In a quantitative study of 2,978
preliminary rulings, Alec Stone Sweet and James Caporaso refuted Garrett’s
claim and concluded that Member State preferences did not significantly
influence the Court’s actions.65 Mark Pollack offered a synthesis of the two
approaches, using principal–agent analysis; he assessed the explanatory
value of four factors, deduced from inter–governmentalism and neo–
functionalism, constraining the ability of the Member States to control the
Court.66
In 1998, a new round of discussion ensued. Both sides agreed that the
debate between the two schools had “reached the limits of its usefulness,”67
as the “master–servant” distinction was too simplistic. However, rational
institutionalists continued to focus their attention on the strategic
interactions between the ECJ and Member State governments, aiming to
specify under which conditions the Court will make “adverse” decisions or
“tailor its decisions to the anticipated reactions of Member State
governments.”68 Neo–functionalists Slaughter and Mattli, in turn, moved
the discussion forward by disaggregating the state into separate
governmental institutions—which interact with one another, with
individuals, and groups in domestic and transnational societies, as well as
with supranational institutions, “in order to explain variation in the degree
and timing of legal integration both across countries and within them.”69
Karen Alter has extensively contributed to this line of research,
investigating among other things the variation in the role of lower national
64. See Garrett, supra note 8, at 558; see also Geoffrey Garrett, The Politics of Legal
Integration in the European Union, 49 INT’L ORG. 171, 180 (1995).
65. See Alec Stone Sweet & James A. Caporaso, La Cour de Justice et l’Intégration
Européenne, 48 REVUE FRANÇAISE DE SCIENCE POLITIQUE 195, 221 (1998) (Fr.).
66. See Mark A. Pollack, Delegation, Agency, and Agenda Setting in the European
Community 51 INT’L ORG. 99 (1997).
67. See Walter Mattli & Anne–Marie Slaughter, Revisiting the European Court of
Justice, 52 INT’L ORG. 177, 178 (1998); Geoffrey Garrett, R. Daniel Kelemen, & Heiner
Schulz, The European Court of Justice, National Governments, and Legal Integration in the
European Union, 52 INT’L ORG. 149, 175 (1998).
68. See Garrett, Kelemen, & Schulz, supra note 67, at 150; for an application of
principal–agent analysis to the relations between the Court and member state governments
(specifically on the principle of state liability), see Jonas Tallberg, Supranational Influence in
EU Enforcement: The ECJ and the Principle of State Liability, 7 J. EUR. PUB. POL’Y 104, 118
(2000); see KAREN J. ALTER, THE EUROPEAN COURT’S POLITICAL POWER: SELECTED ESSAYS
37-39 (2009) (assessing critically the usefulness of principal–agent analysis).
69. See Mattli & Slaughter, supra note 67, at 204.
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653
courts as motors of European legal integration, and variations in the use of
European litigation strategies.70
Despite the wealth of research covering so many aspects of the ECJ’s
performance, we still note an important gap which might hinder a proper
understanding of the Court’s rulings in, for instance, LGBT cases. A
significant portion of the political science research on the political role of
the Court—both from rational institutionalist and other perspectives—starts
from a strictly materialist definition of the Court’s interests. It assumes that
the Court has an “institutional interest in extending the scope of Community
law and its authority to interpret it”71 and to “promote its own prestige and
power.”72 These assumptions ignore the non–material component of self–
interest, and thus do not allow for an interpretation of the ECJ’s behavior in
the specific light thereof. The non–material or ideological dimension of
self–interest stems from the basic identity of the ECJ as a guardian of
citizens’ rights. As remarked, the Court adheres to “une certaine idée de
l’Europe.” It thus interpreted, for example, the four freedoms (the core of
the internal market) in such a way that they did not only imply strong
prohibitions for Member States, but also constituted a source of rights for
individuals. Moreover, as illustrated, it extended its own jurisdiction to
ensure that individuals were able to assert their rights in a court of law.
Departing from the intentions of the founders of the European Union and
from rationalist expectations, the ECJ has not behaved first and foremost as
an agent of Member State interests—keeping the European Commission and
disobedient governments in check—but has served its own interests in terms
of guardian of the rights of the “peoples of Europe,”73 the European citizens,
even against the interests of their respective governments and national
constitutional courts. In the debate among political scientists, this
ideological dimension of the Court’s behavior has continued to be
underestimated. This too marks the importance of our discussion of case
law on LGBT rights in the next section.
III. THE CASE OF LGBT RIGHTS
A. LGBT Rights in European and National Context
Only forty years after the founding of the European Communities was
the duty to protect fundamental rights inserted in the Treaties. Since 1997,
TEU’s Article 6 states that the Union shall respect the fundamental rights
70. See Karen J. Alter, The European Court’s Political Power, 19 W. EUROPEAN
POL. 458 (1996); Karen J. Alter & Jeannette Vargas, Explaining Variation in the Use of
European Litigation Strategies: European Community Law and British Gender Equality
Policy, 33 COMP. POL. STUD. 316 (2000).
71. Garrett, Kelemen & Schulz, supra note 67, at 155.
72. Mattli & Slaughter, supra note 67, at 180.
73. See Mancini & Keeling, supra note 47, at 186.
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“as guaranteed by the European Convention for the Protection of Human
Rights and Fundamental Freedoms . . . and as they result from the
constitutional traditions common to the Member States.” An explicit
reference to sexual orientation was included as well. Based on TFEU’s
Article 19, appropriate action may be undertaken “to combat discrimination
based on sex, racial or ethnic origin, religion or belief, disability, age or
sexual orientation.” This provision empowers the European Commission to
submit draft Directives; the Council of Ministers decides upon these by
unanimity after obtaining the consent of the European Parliament. In 2000,
the Council adopted the Employment Equality Directive,74 which requests
Member States to combat direct and indirect discrimination in employment
on all TFEU Article 19 grounds. In 2008, the Commission submitted a
proposal for a Directive on implementing equal treatment outside the labor
market—again for all Article 19 grounds including sexual orientation—but
the Council still has not reached agreement on it at the present day and
time.75 The concept of transgender rights remains completely absent from
the EU treaties and EU legislation.
At the national level, the legal position of LGBT individuals differs
strongly between the various EU Member States. In five countries, same–
sex couples have the right to marry, namely in Belgium, the Netherlands,
Portugal, Spain and Sweden. In six more Member States, same–sex couples
can have their relationship registered.76 Regarding the position of LGBT
employees, the bulky report of the European Group of Experts on
Combating Sexual Orientation Discrimination77 indicated that the
implementation of Directive 2000/78/EC showed serious deficiencies. A
follow up study pointed out that more specifically the wide scope of
74. Council Directive 2000/78/EC, of 27 November 2000 Establishing a General
Framework for Equal Treatment in Employment and Occupation, 2000 O.J. (L303) 16.
75. Proposal for a Council Directive on Implementing the Principle of Equal
Treatment Between Persons Irrespective of Religion or Belief, Disability, Age or Sexual
Orientation, COM (2008) 426 final (July 2, 2008). Following the entry into force of the
Lisbon Treaty on December 1, 2009, the Commission has proposed to change the legislative
procedure for pending proposals, in this case to replace the consultation procedure by a
special legislative procedure where the consent of the European Parliament is required: see
Consequences of the Entry Into Force of the Treaty of Lisbon for Ongoing Interinstitutional
Decision-Making Procedures, COM (2009) 665 final (Dec. 2, 2009).
76. See ROBERT WINTEMUTE, SEXUAL ORIENTATION AND GENDER IDENTITY
DISCRIMINATION: THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS AND THE
EUROPEAN
COURT
OF
JUSTICE
1
(2009),
available
at
www.ilgaeurope.org/content/download/9913/58423/file/Council%20of%20Europe%20(Comm%20for
%20HR)%202009-04-15.doc.
77. See EUROPEAN GRP. OF EXPERTS ON COMBATING SEXUAL ORIENTATION
DISCRIMINATION, COMBATING SEXUAL ORIENTATION DISCRIMINATION IN EMPLOYMENT:
LEGISLATION IN FIFTEEN EU MEMBER STATES 600 (2004) [hereinafter EUROPEAN GRP. OF
EXPERTS],
available
at
http://www.law.leiden.edu/organisation/meijers/researchprojects/samesexlaw.html#european-group-of-experts-on-combating-sexual-orientationdiscrimination (last visited May 31, 2010).
2011]
655
exceptions that apply to employers with a particular religious ethos clashes
with the general principle of non–discrimination.78
Public opinion and the attitude of politicians with regard to lesbians,
gays, and transsexuals vary along the Member States as well. Particularly in
Eastern and Southeastern Europe (including Italy), homophobia,
discrimination, and violence on grounds of sexual orientation constitute
serious problems.79 Across the board, the attitude towards transsexuals is
even more negative than that towards gays and lesbians.
These sharply divergent situations in the Member States restrain the
possibilities for the ECJ to review national legislation in the light of TEU’s
Article 6; after all, it only provides for protection of fundamental freedoms
as they “result from the constitutional traditions common to the Member
States.” In addition, the competence of the Union on this issue has been
strictly delineated. Questions of gender identity and sexual orientation
easily tread on topics of marriage and family law, in which domain the EU
enjoys no primary competence. LGBT rights are perceived to affect “the
cornerstone of society,” in other words national conceptions of marriage and
family.80 The ECJ was always much aware that LGBT cases were special:
these rulings have always been delivered by a high number of judges (the
full court or a “Grand Chamber”), so as to ensure that these reflect the legal
traditions of a majority of the Member States.
We will now proceed to the pivotal issue of whether the rulings on
gender identity and sexual orientation have truly created new rights and
duties, whether the ECJ has acted as more than a mere mouthpiece of
Member State wishes or Treaty rules, and whether it thus appears to have
engaged in excessive activism.
B. Transgender Rights
To be up front regarding transgender rights, one may answer Part III
(A)’s concluding questions in the affirmative. In all three cases that have
been decided so far the Court has boldly forged ahead and enhanced the
rights of transsexual citizens.
78. Developing Anti–Discrimination Law in Europe: The 25 EU Member States
Compared,
at
43
(July
2007),
available
at
http://www.migpolgroup.com/public/docs/6.DevelopingAntiDiscinEurope_Comparativeanal
ysis_III_EN_07.07.pdf.
79. See Leigh Philips, EU Shows East–West Divide on Homophobia, EU OBSERVER,
(Mar. 31, 2009), http://euobserver.com/9/27881.
80. How sensitive this topic is becomes clear from the fact that Poland obtained an
opt–out from the EU Charter of Fundamental Rights, which was attached as a protocol to the
Treaty of Lisbon, for (legally unfounded) fears that ratification of the Charter could force
Poland to open up civil marriage to same–sex couples.
656
[Vol. 19:3
The issue in the 1996 case of P. v. S.81 was the dismissal of a British
transsexual. In its judgment, the ECJ took an unflinching stance and ruled
that discrimination of a person who has undergone a sex change operation
equaled discrimination on the ground of belonging to a particular sex, thus
stretching the scope of Directive 76/207 on equal treatment for men and
women.82 The ECJ rejected the view of the British government that
dismissal of a transsexual is not a case of sex discrimination, and that the
Directive concerned was never meant to cover transsexuals. The Court
argued that the intentions behind the Directive were irrelevant, and that the
general principle that sex may not play a role in the way in which someone
is treated had to take precedence in any case. It thus expanded the notion of
sex discrimination in Directive 76/207 so as to include discrimination on the
basis of a sex change, and it ruled that tolerating such discrimination would
amount to a failure in its duties to respect the dignity and freedom of that
person.83 Unsurprisingly, this bold ruling caused quite a stir in the United
Kingdom, as the successive Conservative governments were outspoken
opponents of new anti–discrimination legislation. Lobby groups for LGBT
rights had been working hard to end the political deadlock, but hitherto in
vain.
In 2004, the case of K.B.84 came before the Court. Ms. K.B. claimed that
her transsexual female–to–male partner would not be able to lay claim to a
survivor’s payment because they were not married. They wanted to marry
but were legally not entitled to do so, since her husband was registered as a
woman and it was impossible to change a person’s sex in the British registry
of birth—even when a person had undergone gender reassignment surgery.
Ms. K.B. challenged the legislation that made it impossible for transsexuals
to marry based on their newly acquired sex. The ECJ happily took up the
gauntlet and decided to stretch the scope of then–Article 141 of the EC
Treaty on equal pay for women and men so that it would also cover
discrimination of transsexuals. Pursuant to this ruling—but also due to
intense domestic pressure—the British government reversed its course at
last, and the British Gender Recognition Act was adopted the same year.
Finally, the case of Richards85 concerned a British pension fund’s refusal
to grant a male–to–female transsexual an entitlement to an old age pension
before her 65th birthday because the funds considered her to be a man. The
British court that referred the issue to the ECJ asked whether this was a case
of unlawful discrimination based on Directive 79/7—an instrument seeking
81. Case 13/94, P. v. S. & Cornwall Cnty. Council, 1996 E.C.R. I–2143.
82. Council Directive 76/207/EEC, of 9 February 1976 on the Implementation of the
Principle of Equal Treatment for Men and Women as Regards Access to Employment,
Vocational Training and Promotion, and Working Conditions, 1976 O.J. (L39) 40.
83. See P v. S & Cornwall Cnty. Council, 1996 E.C.R. I-2143, ¶ 22.
84. Case 117/01, K.B. v. Nat’l Health Servs. Pensions Agency, 2004 E.C.R. I–541.
85. Case C–423/04, Richards v. Sec’y of State for Work & Pensions, 2006 E.C.R. I–
3585.
2011]
657
to combat sex discrimination in social security systems.86 The British
government argued that the consequences for transsexuals of the
differentiation in the British pensions act were irrelevant, yet the Court
stated in clear terms that the contrary was true. In the view of the ECJ, this
was a case of impermissible discrimination of a male–to–female transsexual
who would have been entitled to a pension if she had had the possibility to
register as a woman in the national civil registry. Therewith, the
improvement of the position of transsexuals in the EU legal order was
definitely secured. Coincidentally, all three of the landmark rulings
concerned the United Kingdom, but the effects of the Court’s rulings
resounded throughout the Union. Henceforth, the equal treatment rights and
social welfare entitlements of transsexuals had to be recognized in each and
every EU Member State.
C. Lesbian and Gay Rights
The story is slightly more complicated with regard to lesbian and gay
rights due to the presence of one case which, at first glance, appears to
deviate from the general activist trend. We will point out infra how and why
the overall picture remains consistent nevertheless.
In 1996, the case of Grant came before the ECJ.87 Lisa Grant argued that
her male predecessor had received a yearly travel allowance for his female
partner (with whom he co–habited without being married), whereas she had
been refused a travel allowance for her female partner. She considered this
refusal unfair discrimination on the basis of her sexual orientation; if her
partner had been a man, she would have received the allowance.88 The
Court’s advisor, Advocate–General Elmer, agreed with Ms. Grant and
referred to the principle in P. v. S. that sex may not play a role in the way
someone is treated. To the amazement of many, 89 the ECJ disagreed with its
Advocate–General and stated that it saw no possibility to deepen the
concept of sex discrimination so as to include discrimination based on
sexual orientation. Instead of comparing the unmarried co–habiting Grant
with her unmarried cohabiting predecessor, the ECJ compared her situation
to that of an imaginary male–male couple, and applied an “equal misery
86. Council Directive 79/7/EEC, of 19 December 1978 on the Progressive
Implementation of the Principle of Equal Treatment for Men and Women in Matters of
Social Security, 1979 O.J. (L6) 24.
87. Case C–249/96, Grant v. South–West Trains Ltd., 1998 E.C.R. I–621.
88. The argument had been made before in U.S. legal writing. See Andrew
Koppelman, Why Discrimination Against Lesbians and Gay Men is Sex Discrimination, 69
N.Y.U. L. REV. 197 (1994).
89. See, e.g., Paul L. Spackman, Grant v. South–West Trains: Equality for Same–Sex
Partners in the European Community, 12 AM. U. J. INT’L L. & POL’Y 1063 (1997).
658
[Vol. 19:3
argument;”90 both couples would have been treated equally badly, and for
that reason, this was not to be considered a case of sex discrimination.
As we shall see, this “deviant case” does not represent a real break with
the overall trend; however, it does beg for further explanation. Why did the
ECJ choose to default on this excellent occasion to stretch the scope of sex
discrimination further and include lesbian and gay rights? A first
explanation would point at the potential financial repercussions of such a
ruling. It is a fact that the group of persons benefited by P. v. S. was much
smaller: transsexuals constitute a small minority (in the UK estimated at
2,000 to 5,000 persons), whereas the EU has a gay and lesbian population of
some 35 million that could have benefited from a favorable ruling in Grant.
The British government had sounded the alarm bell that “acute difficulties
in relation to employment, pensions and social security” would arise due to
the number of court cases that would then start pouring in,91 and the French
government had emphasized the serious repercussions for the French social
security systems. In only a few earlier cases had the ECJ taken the potential
financial consequences of a ruling into account, but even there it stuck with
its decision on principle and only restricted the retroactivity.92 In the light of
that tradition, and considering its reputation as a staunch defender of
citizens’ rights, it would have damaged the Court’s credibility if it would
have put economic concerns before fundamental rights here. Consequently,
if the cost aspects had been the true reason, the ECJ would have limited its
ruling in time, but not in principle.
A second explanation may be that the ECJ favored to leave ethical,
moral, and religious issues to be regulated by the Member States, which it
had preferred to do before. This argument is far from convincing though, as
the Court has equally cut across traditional views—often grounded in
religious convictions—on multiple occasions.93
Based on the material and ideological interests of the ECJ, we would like
to advance a third explanation for the Court’s reticence. In order to preserve
its authority, the ECJ usually avoids stepping on governments’ and
constitutional courts’ toes simultaneously. In fundamental human rights
cases, it needs some foothold in the constitutions of the Member States, as
90. Christine Denys, Homosexuality: A Non–issue in Community Law?, 24 EUR. L.
REV. 419, 423 (1999).
91. Mark Bell, Shifting Conceptions of Sexual Discrimination at the Court of Justice:
From P v. S to Grant v. SWT, 5 EUR. L. J. 63, 76 (1999).
92. See Case 43/75, Defrenne v. Sabena, 1976 E.C.R. 455; Case 262/88, Barber v.
Guardian Royal Exch. Assurance Grp., 1990 E.C.R. I-1889. In Defrenne, the ECJ limited
the retro–active effect of the ruling with the argument that negligence of the Commission had
misled Member States and companies. In Barber, the retro–active effect was restricted to the
date that the facts in Defrenne had arisen.
93. E.g., concerning the sex of the breadwinner and the repartition of paid and
unpaid work in the family see Bell, supra note 91, at 77; see also ANNA VAN DER VLEUTEN,
THE PRICE OF GENDER EQUALITY: MEMBER STATES AND GOVERNANCE IN THE EUROPEAN
UNION 130 (2007).
2011]
659
well as some backing from the ECHR, to avoid upsetting them both. In
Grant, both were lacking. The ECJ observed that there was no consensus
among Member States as regards the question of whether stable relations
between persons of the same sex were to be considered as equivalent to
stable relationships between persons of a different sex. It also observed that
the European Convention on Human Rights did not protect these
relationships.94 The “juge–rapporteur,” who has the task of drawing up the
report on the basis of which the Court makes its deliberations, was the
Frenchman Jean–Paul Puissochet. He was very much aware of the lack of
consensus, exemplified by the then–heated debate in France about gay
marriage, and would later qualify the Court’s decision as not “retrograde”
but “a scrupulous picture of the state of law at that moment.”95 The ECJ
could not find a consensus as regards the legal position of same–sex couples
based on the constitutional provisions of the Member States in the same the
way in which, in the 1970s, it inferred a consensus on the basis of the
various constitutional provisions on the equal rights of women and men. In
Grant, the Court concluded that in such circumstances, “it is for the
legislature alone to adopt, if appropriate, measures which may affect that
position.”96 It referred to the newly incorporated provision (with the Treaty
of Amsterdam) that enabled for the future adoption of EU legislation that
would tackle the discrimination of gays and lesbians.97 This seemed a rather
skewered reading of that provision however; the reasoning employed
seemed to provide the ECJ with exactly the intergovernmental consensus
that was said to be lacking. Yet, the provision presented no more than an
enabling clause, which would result in enforceable rights only if all Member
States would agree (since unanimity was required for the approval of any
Directive based on this Treaty article). Therefore, it confirmed the lack of
consensus, rather than codifying a new consensual norm regarding sexual
orientation.98
In all, even though the ECJ passed on the chance to deliver a new,
ground–breaking ruling, it did give a clear message with regard to the
urgent need of anti–discrimination legislation. This message was captured
by Stonewall, the British lobby group for LGBT rights, which considered
See Grant, 1998 E.C.R. I-621, ¶ 34.
Jean–Paul Costa & Jean–Paul Puissochet, Entretien Croisé des Juges Français,
96 POUVOIRS: REVUE FRANÇAISE D’ETUDES CONSTITUTIONNELLES ET POLITIQUES 161, 165
(2001) (“Il ne s’agissait pas là d’une prise de position rétrograde mais d’une photographie, se
voulant scrupuleuse, de l’état du droit à un moment donné”).
96. See Grant, 1998 E.C.R. I-621, ¶ 36.
97. EC Treaty, art. 13 (as in effect 2005; now TFEU, art. 19 (1)).
98. See Kenneth A. Armstrong, Tales of the Community: Sexual Orientation
Discrimination and EC Law, 20 J. SOC. WELFARE & FAM. L. 455, 461 (1998).
94.
95.
660
[Vol. 19:3
Grant a success because it highlighted how unjust the existing legislation
was and led to more mobilization and media coverage than ever before.99
In 2001, in the case of D.,100 Mr. Puissochet once again acted as the
“juge–rapporteur.” In this case, the Court confirmed its ruling in Grant, and
did not consider the registered partnership of a Swedish EU–official with
his male partner equivalent to a marriage. The case nevertheless represents a
step forward, as the Court confirmed its exclusive power to rule on the
status of certain relationships. The Swedish, Danish, and Dutch
governments argued in vain that their national rules and not the ECJ defined
the concept of marriage and exclusively regulate what did and did not
constitute a relationship. The ECJ followed its advisor, this time Advocate–
General Mischo, who argued that the ECJ could rely on its own previous
definitions of relationships. According to Mischo, it would only have to
revise its interpretation if a “broad social development” would have
changed the situation across the EU—not in a single country—so as to
ensure a uniform interpretation throughout the Union.101
Some years later, that momentum had apparently arrived, and the status
of same–sex relationships was finally recognized by the Court. In 2007, the
aforementioned Directive 2000/78 was put to the test for the first time in the
case of Maruko.102 Mr. Tadao Maruko claimed a widower’s pension, but
this was refused by the pension fund of German theatres as he and his
partner had not been married. The German legislator did not allow for gay
and lesbian couples to marry (comparable to the British legislator that did
not allow for transsexuals to marry). Nevertheless, Mr. Maruko and his
partner had entered into a registered partnership in 2000, immediately after
German law had made it possible for them to do so. The ECJ explored the
question of whether Lebenspartnerschaft and marriage could be considered
equivalent—as argued by both the claimant and the European
Commission—because similar duties apply to both registered partners and
husbands and wives under German law. This same issue had arisen before
the German Federal Constitutional Court, when in 2001 several of the
German federated states had questioned the compatibility of the law on
registered partnerships with the German Constitution (which explicitly
protects the concept of marriage). The German government had hoped to
avoid such controversy by reserving marriage exclusively for different–sex
couples and the registered partnership exclusively for same-sex unions. The
Federal Constitutional Court confirmed the position of the federal
99. See Lisa Vanhala, Anti–Discrimination Policy Actors and Their Use of Litigation
Strategies: The Influence of Identity Politics, 16 J. EUR. PUB. POL’Y 738, 751 (2009).
100. Joined Cases C–122/99 P & C–125/99 P, D. & Kingdom of Swed. v. Council,
2001 E.C.R. I–4319.
101. Joined Cases 122/99 P & C–125/99 P, D & Swed. v. Council, 2001 E.C.R. I–
4319, ¶ ¶ 42–44.
102. Case C–267/06, Tadao Maruko v. Versorgungsanstalt der deutschen Bühnen,
1998 E.C.R. I–1757.
2011]
661
government, and ruled that the law did not violate the constitutional
protection of marriage and family, as long as same–sex partnerships were
not called marriage. In 2004, pursuant to a perceived greater social
acceptance of same–sex unions among the German population, the law on
registered partnerships was revised and the rights conferred were
expanded.103 In that same year, Maruko came before the European Court of
Justice.
In essence, the central question in Maruko was whether one may regard
it a case of unfair discrimination if same–sex couples do not possess rights
they could only acquire if they would marry, when they were legally
permitted not to do. The Court ruled that if a surviving partner in a
comparable situation as a surviving spouse was treated differently, then this
had indeed to be qualified as a case of direct discrimination; but that it was
up to the referring national court to decide whether the surviving partner
was truly in a comparable situation with a surviving spouse.104 In November
2007, the German Federal Administrative Court decided that marriage and
registered partnership were not similar, and that the German legislator had
wanted them to be different. One month after the ruling of the ECJ, in a
similar case as Maruko, it became clear that the Federal Constitutional
Court held this opinion as well.105 It confined the question of “whether there
was similarity” to “whether there was equality”—which it answered in the
negative. It stated that the entitlement to benefits, bonuses, and maintenance
allowances in a marriage is based upon the reality that one spouse has less
earning capacity because this spouse has to take care of the children, while a
similar situation does not exist for same-sex couples.106 However, the
administrative court in Munich that had originally referred Maruko to the
ECJ did not follow the ruling of the Federal Constitutional Court but that of
the ECJ, and stated that—given the evolution of German legislation—
surviving spouses and registered partners found themselves in a comparable
situation with regard to survivor’s pensions. Consequently, on October 30th,
2008, it decided that Mr. Maruko was entitled to a surviving spouse
allowance.107
103. See Kelly Kollman, European Institutions, Transnational Networks and National
Same–Sex Unions Policy: When Soft Law Hits Harder, 15 CONTEMP. POL. 37, 47 (2009).
104. In previous lawsuits, German courts had taken different views as regards
comparability; mostly the duties had been considered comparable, but not the claims to
payments. See EUROPEAN GRP. OF EXPERTS, supra note 77, at 211.
105. Bundesverfassungsgericht
[BVerfG]
[Federal
Constitutional
Court],
May
6,
2008,
1830/06,
available
at
http://www.bverfg.de/entscheidungen/rk20080506_2bvr183006.html.
106. This reasoning is unconvincing because payments, bonuses, and maintenance
allowances are granted to married couples regardless of whether they have children, while
same–sex couples with children are not entitled to receive them.
107. Bayerisches Verwaltungsgericht [VG] [Bavarian Administrative Trial Court],
Oct. 30, 2008, M12K 08.1484, available at http://www.slpm.de/fileadmin/user_upload
/Downloads/BMF-Schreiben_Urteile/VG_Muenchen20081030.pdf.
662
[Vol. 19:3
In Maruko, the ECJ delivered a far–reaching judgment. It clearly wanted
to avoid being accused of developing European rules on marriage
(something the British government had warned against in its observations).
When Directive 2000/78 was negotiated, several Member States had pled
successfully for the insertion of a recital stating that the Directive “is
without prejudice to national laws on marital status and the benefits
dependent thereon.”108 The insertion of this recital provoked strong
reactions from interest groups as well as from the European Commission,
who feared that all sorts of rules that benefit married couples would remain
permanently out of reach for same–sex couples. In Maruko, the Member
States found out that the recital protected marriage legislation far less than
they had thought.109 In fact, the ECJ ruled that the Member States are
competent regarding marital issues, but that they have to exercise this
competence within the boundaries of EU law—especially within the
boundaries of the non–discrimination provisions—including those relating
to sexual orientation. Admittedly, the ECJ did restrict the scope of its ruling
by labeling Maruko as a case of direct discrimination, whereas it in fact
constituted a case of indirect discrimination (the unequal treatment was
based on the in–itself neutral distinction between marriage and partnership).
However, the ECJ magisterially put unequal treatment of a registered
partnership on par with unequal treatment based on sexual orientation. It
was able to do so because in Germany only same–sex couples are allowed
to enter into a registered partnership. By consequence, Maruko exerts a
maximum effect only in those countries that know a legal regime for such
partnerships that is largely similar to marriage.110 So, while strengthening
citizens’ rights, the ECJ did display some respect for the constitutional
differences between the Member States regarding same–sex relations. All
the same, it is expected that in Germany—as well as in all other Member
States that know registered partnerships for same–sex couples—more cases
will be coming up and be referred to the ECJ. Thus, although the saga is not
fully complete yet, lesbian and gay rights in the EU have been vastly
enhanced.
108. Council Directive 2000/78/EC, 2000 O.J. (L303) 16, § 22.
109. See Christa Tobler & Kees Waaldijk, Case C-267/06, Tadao Maruko v.
Versorgimgsanstalt der deutschen Bühnen, Judgement of the Grand Chamber of the Court of
Justice of 1 April, 2008, Not Yet Reported, 46 COMMON MKT. L. REV. 723, 734 (2009).
110. Which entails that, for example in Poland—where same–sex relationships
currently have no legal status at all—Maruko does not confer any new rights upon LGBT
individuals. See Katharina Boele-Woelki, The Legal Recognition of Same-Sex Relationships
Within the European Union, 82 TUL. L. REV. 1949 (2008) (providing an overview of national
rules and practices of EU Member States as regards the recognition of same–sex
relationships). An insightful comparison between free movement of same–sex couples in the
EU and in the U.S. is drawn by Adam Weiss, Federalism and the Gay Family: Free
Movement of Same–Sex Couples in the United States and the European Union, 41 COLUM.
J.L. & SOC. PROBS. 81 (2007).
2011]
663
IV. CONCLUSION
From four decades of case law countless examples can be drawn that
underscore the consciously political role of the European Court of Justice.
Even so, in EU legal doctrine this fact has still not been commonly
acknowledged, and searching critical comments remain rare. A pro–
integration sentiment appears to hold sway in the literature just as much as
among the judges at the Court itself. The orthodox view remains that the
ECJ has always interpreted the rules with prudence and in good faith, and
that supposedly novel doctrines chime rather nicely with the general system.
Thus, the majority of scholars insist that the overall behavior of the Court
cannot be called into question and deny that it ever truly engaged in
activism. The debate in political science stands in marked contrast, yet even
there a substantial number of authors maintain that the Court—if not
dancing to the piping of the Member States—can at least be considered a
loyal agent that will never structurally move against their interests. Also,
they content themselves with charting the process and developing theories
and explanations without posing normative questions or stressing the
problematic side of this political jurisprudence. Unfortunately, due to the
reality of the ever–greater barriers between different academic disciplines, it
appears unlikely that the slowly emerging consensus in political science
regarding the pivotal role of the Court will be spilling over to legal doctrine
anytime soon. All the same, to those who continue to doubt the validity of
the evidence, we would suggest taking a closer look at the various
installments in the saga of LGBT rights, which—in our view—clearly
demonstrate how the ECJ has managed to slide into place as an autonomous
norm–setter that awarded more rights and benefits to lesbian, gay, and
transgender persons than their national governments have been willing to
grant them.
To an American audience, the whole issue might appear to be rather
hackneyed. After all, the discussion on judicial activism in the U.S.
Supreme Court is almost as old as that venerable institution itself. But, one
should keep in mind here the notion that “all judges play a political role to a
certain extent” is a much more commonly acknowledged idea in the U.S.
than it is in Europe.111 Moreover, judicial activism is probably much less
remarkable in unitary states and federations, but the EU is still an
international organization, albeit one that—as remarked in our
introduction—displays a curious mix of supranational and
intergovernmental elements. The main difficulty one should have with
111. Equivalents of, for example, RICHARD NEELY, HOW COURTS GOVERN AMERICA
(1981) or ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE
LAW (1997) have never been published on the other side of the Atlantic.
664
[Vol. 19:3
judicial activism lies in the famous “countermajoritarian problem,”112 which
poses a comparatively greater problem in the European Union than in the
United States for example. The legitimacy of the ECJ is much weaker than
that of a supreme court or constitutional court in a federal or unitary state to
begin with—as there exists no homogeneous body politic, no “European
people” in the same way that there is an “American people” on whose
shared values the Court may rely when it churns out ground–breaking case
law. In comparison, Lawrence v. Texas113 was without doubt a landmark
ruling in the U.S. on both the federal level and for the individual states. But,
for the twenty–seven Member States of the EU—which retain a much
higher degree of sovereignty vis-à-vis their Union—the impact of cases
such as P. v. S. and Maruko was considerably greater. True, the ECJ and the
U.S. Supreme Court face the same difficulty in having to find the correct
balance in shaping and molding constitutional rules in a centrifugal or
centripetal way. Yet the European experiment appears the more remarkable,
since it involves a dispute settlement body of an international organization
forging ahead and managing to secure the competence for calling the shots
all by itself.114 The European Court of Justice has assumed the role of a
federal constitutional court, although the EU lacks a constitution and is
neither a federation nor likely to become one on short notice. Even if a
certain measure of judicial activism has proven to be inevitable in any
modern legal system where legislators simply cannot regulate all matters
exhaustively, there still seems to be cause for concern where a court
engages in bouts of excessive activism, which is precisely where the shoe
pinches with regard to the ECJ.115
It might be tempting to think that the EU’s top judges must ultimately
have enjoyed the support of a majority of Member States, for otherwise it
would have experienced a political backlash and court–curbing initiatives
would have been deployed long ago already. The great failing in this line of
reasoning lies in the fact that it takes little account of the complexity of the
Treaties’ amendment regime. In accordance with TEU’s Article 48, the
Treaties can only be amended when all the Member States agree to this, and
112. The classic term coined by ALEXANDER M. BICKEL, THE LEAST DANGEROUS
BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 18 (1962).
113. 539 U.S. 558 (2003).
114. The textual assertion is made with all due respect for the audacious move of the
U.S. Supreme Court in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (establishing
judicial review). For an interesting comparison between this case and the decision of the ECJ
in Van Gend & Loos, see Daniel Halberstam, Constitutionalism and Pluralism in Marbury
and Van Gend, in THE PAST AND THE FUTURE OF EU LAW: REVISITING THE CLASSICS ON THE
50TH ANNIVERSARY OF THE ROME TREATY 26 (Miguel Poiares Maduro & Loïc Azoulai eds.,
2008).
115. An attempt to convey this message to a Dutch–language readership, emphasizing
the important distinction between (acceptable) activism and (unacceptable) excessive
activism was made in HENRI DE WAELE, RECHTERLIJK ACTIVISME EN HET EUROPEES HOF VAN
JUSTITIE (2009).
2011]
665
any amendments can only take effect when all Member States have ratified
them in accordance with their national constitutional provisions. Thus, if a
judgment of the ECJ interprets a Treaty rule in an awkward or misguided
way, unanimity is required among the Member States in order to reverse it:
one lone dissenting voice is enough to uphold the unwanted judgment and
the eventual undesired consequences thereof.116 So, normally unanimity is
required to change the Treaties, but if the Court through its verdict
materially amends them, unanimity is required to reverse this. Moreover,
due to the fact that every Member State needs to ratify an amendment
reversing a Court judgment successfully, and considering that the EU has
been absorbing numerous new members in the past decade (a process likely
to continue in the coming years), it appears increasingly unlikely that the
Treaties will be amended again in the foreseeable future.117 This guarantees
the failure of any attempts at Court–curbing initiatives since the necessary
consensus among the Member States will be nearly impossible to attain.
Finally, one could riposte that since our evidence amounts to only a
small number of cases, there surely can be no question of such a higher and
more objectionable form of activism. After all, the Court annually decides
hundreds of cases, where we have demonstrated that it has gone beyond the
limits of its judicial task in only a handful of rulings at most. A similar
116. Secondary EU law can be adopted by a qualified majority of the Council of
Ministers. However, due to the hierarchy of norms, such rules are of little use when the
desire is to counter unwelcome ECJ interpretations of primary law (the Treaties). Moreover,
the Commission would have to propose such measures, Parliament would have to approve as
well, and the attainment of even a qualified majority can still prove rather difficult. The
hardships recently experienced in the attempted adoption of a new Working Time Directive,
necessitated by the Court’s judgment in Case C–151/02, Landeshauptstadt Kiel v. Norbert
Jaeger, 2003 E.C.R. I–8389, illustrate the general point (no agreement on a new Directive
could so far be reached). See also Karen J. Alter, Who Are the “Masters of the Treaty”?:
European Governments and the European Court of Justice, 52 INT’L ORG., 121, 136 (1998)
(“EC law based on regulations or directives can be rewritten by a simple statute that,
depending on the nature of the statute, requires unanimity or qualified majority consent. A
few of the Court’s interpretations have been rewritten in light of their decisions, though
surprisingly few. This is because ECJ decisions usually affect member states differently, so
there is not a coalition of support to change the disputed legislation.”).
117. See Martin Shapiro, The European Court of Justice, in THE EVOLUTION OF EU
LAW 321, 332 (Paul Craig & Gráinne de Búrca eds., 1999) (“Those who have the power to
destroy or cripple institutions will only do so if the marginal gains exceed the marginal costs
of doing so. At any given moment the potential costs in disturbance to the Community
institutions as a whole entailed by moving against the Court were likely to appear to each
Member State to far outweigh the particular costs being imposed on it by the Court at the
moment. Only if the Court had conducted itself in such a way as to suggest that it would act
consistently case–by–case to pile up greater and greater costs against one member or set of
members would the cost benefit calculus of some members have turned against it . . . .The
ECJ’s case–by–case method of decision–making both made it difficult for any Member State
to anticipate whether its long–term losses from the Court would be greater than its long–term
gains and allowed the Court constantly to tinker with its cost–benefit yields to each member
so as to avoid any of them concluding that it is clearly worth initiating decisive action against
the Court.”).
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argument has cropped up in every single debate among legal scholars.118 By
way of rebuttal, we are inclined to quote Ovid’s maxim that “the drop
hollows out the stone by frequent dropping.”119 Also, one may draw a crude
analogy with a physician who—in alternation—heals and kills patients; the
killing does not become any more acceptable or soothing because there are
many more instances of healing. Thus, judgments in which the ECJ has
been excessively activist, in which clear and unequivocal rules have been
extremely bent or stretched, remain eo ipso reprehensible, even if they make
up only a small minority of all decided cases overall. Moreover, as said, the
fact that the Court dared to engage in activism in this politically sensitive
domain—where the Member States deliberately refrained from transferring
their sovereign legislative competencies—is in itself most telling, and to our
mind forms an excellent illustration of its general posture.
To be sure, our aim has been to increase the awareness of the political
role of the European Court of Justice, and we sought to furnish irrefutable
proof in the form of the case law on LGBT rights. We would not venture to
suggest that the Court never exercises restraint. Yet, it should be admitted
that whenever it does so it often makes up for that by taking two steps
forward in a later case.120 Perhaps the deference displayed in Grant may be
best understood against this background. Therefore—to our mind—the case
law on LGBT rights fits the general bill perfectly: the rulings discussed
showcase the Court’s propensity to assume the role of a steadfast promoter
of European integration to all those who—up until now—were completely
unaware of it. Furthermore, they offer conclusive evidence to those who
failed to grasp the nettle so far, refused to do so, or needed just a little bit
more convincing.
118. See, e.g., Tridimas, supra note 59, at 200; Albors Llorens, supra note 60, at 398.
119. OVID, EPISTULAE EX PONTO, IV, 10, 1.5 (“Gutta cavat lapidem [non vi sed saepe
cadendo.]”) (alteration in original) (Henri de Waele & Anna van der Vleuten trans., 2011).
120. Also, a novel doctrine or extreme interpretations is often introduced in a subtle
and gradual way: in early cases, it is pronounced, but it may not (yet) be applied, and
subjected to various conditions. Then, in a later case, it will nonetheless be relied upon as an
established precedent, and the earlier qualifications are eventually diluted or erased. This
strategy has been observed and criticised in Garrett, Keleman & Schulz, supra note 67, at
158; STEPHEN WEATHERILL & PAUL BEAUMONT, EU LAW 196 (1999); TREVOR C. HARTLEY,
THE FOUNDATIONS OF EUROPEAN COMMUNITY LAW 81–82 (5th ed. 2003).
JUSTICE IN BURMA
Scott Nowak *
INTRODUCTION ........................................................................................... 668
I. THE INTERNATIONAL CRIMINAL COURT ................................................ 671
A.The Buildup to ICC Creation ....................................................... 671
B. An Overview of ICC Structure ..................................................... 675
1. Substantive Structure ........................................................... 675
2. Procedural Structure ........................................................... 677
II. ICC JURISDICTION AND ADMISSIBILITY ................................................ 681
A. Generally ..................................................................................... 681
1. Jurisdiction .......................................................................... 681
2. Admissibility ........................................................................ 683
B. Application to the SPDC ............................................................. 684
III.THE INVESTIGATION AND OTHER PRE–TRIAL ACTIONS ....................... 689
A. The Investigative Process ............................................................ 689
B. The Process of Arrest .................................................................. 690
IV.THE ICC TRIAL OF SPDC LEADERSHIP ................................................ 692
A. Initial Trial Aspects ..................................................................... 692
B. Crimes Against Humanity ........................................................... 694
1. Rome Statute Definition ....................................................... 694
2. Murder ................................................................................. 695
3. Torture ................................................................................. 697
4. Imprisonment ....................................................................... 699
5. Sexual Violence ................................................................... 701
6. Forced Displacement........................................................... 703
C. War Crimes.................................................................................. 706
1. Rome Statute Definition ....................................................... 706
2. Application to Burma .......................................................... 708
3. Murder ................................................................................. 708
4. Torture ................................................................................. 709
5. Sexual Violence ................................................................... 710
6. Forced Displacement........................................................... 711
7. The Use of Child Soldiers .................................................... 712
8. War Crime Defenses ............................................................ 715
V. AFTERMATH OF THE TRIAL.................................................................... 715
A. Probable Trial Chamber Decision ............................................... 715
B. Sentencing and Appeal ................................................................ 716
C. Incarceration ................................................................................ 718
CONCLUSION .............................................................................................. 718
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The words ‘law and order’ have so frequently been misused as an excuse
for oppression that the very phrase has become suspect in countries which
have known authoritarian rule . . . There is no intrinsic virtue to law and
order unless ‘law’ is equated with justice and ‘order’ with the discipline of
a people satisfied that justice has been done . . . The true measure of the
justice of a system is the amount of protection it guarantees to the weakest.
Where there is no justice there can be no secure peace.
-Daw Aung San Suu Kyi1
INTRODUCTION
One of civil society’s most enduring beliefs has been that “fundamental
values of the human spirit” lie at the core of all humanity.2 This notion, that
a “common denominator of behaviour [exists], even in the most extreme
circumstances,” has been a bedrock element of civilization since at least the
time of the ancient Greeks.3 In protection of these societal values,
behavioral codes have been established and penalties enforced against those
who have committed wrongs against their fellow man; this fact has been
noted by historians, philosophers, and ruling authorities from countless time
periods throughout recorded history.4 Yet even well–intentioned attempts at
* Scott Nowak will receive his J.D. from Michigan State University College of
Law in May 2011 where he has served as Managing Editor of the Michigan State Journal of
International Law. Mr. Nowak is also a former Law Clerk for both the U.S. Environmental
Protection Agency and U.S. Senator John McCain (R –AZ). He would like to thank his
family for their continued support, Professor Bruce W. Bean for his insightful commentary,
and the Karen Burmese individuals he has met over the years for showing him what it truly
means to have strength in courage and spirit. The opinions in this Article, as well as any
potential error, are that of Mr. Nowak alone.
Mr. Nowak’s presentation of Justice in Burma earned one of eight first place
awards in the oral presentation category at Michigan State University’s March 25, 2011
Graduate Academic Conference. After being selected as the top first place winner from
amongst the eight, Mr. Nowak was invited to present Justice in Burma to Michigan State
University’s Board of Trustees on April 15, 2011.
1. AUNG SAN SUU KYI, FREEDOM FROM FEAR AND OTHER WRITINGS 176–77 (Michael
Aris ed. 1991) (quote selected from Aung San Suu Kyi’s essay, In Quest of Democracy)
[hereinafter FREEDOM FROM FEAR].
2. WILLIAM A. SCHABAS, AN INTRODUCTION TO THE INTERNATIONAL CRIMINAL
COURT 1 (2001).
3. Id.
4. See, e.g., DEUTERONOMY 5:17 (NIV) (stating that the Hebrew Ten
Commandments—said to have been specified by God and established as law for the
Israelites—included “[y]ou shall not murder.”). One way in which this Commandment was
enforced by the Israelites is spelled out in DEUTERONOMY 19:11–13 (NIV):
But if a man hates his neighbor and lies in wait for him, assaults and
kills him, and then flees to [another] cit[y], the elders of his town
shall send for him, bring him back from the city, and hand him over
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Justice in Burma
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implementing justice have not been without issue, as traditionally penalties
have been enforced by a dominant group—or a war’s victor—and often
reflected significant elements of partiality.5
It was with these societal values in mind—as well as a desire for
principled, legal fairness—that the global community sought to create a
judicial body where humanity–based justice would not be obstructed by
unbridled ferocity, structural bias, or ineffective action. In essence, the
nations of the world intended to build on the past strengths of societal
justice and eradicate—to the best of their abilities—the obvious limitations
of earlier enforcement systems.6 Building off the essential codification of
humanity’s fundamental values in the Universal Declaration of Human
Rights7—as well as the reiterated need for a global institution to provide
justice in the midst of atrocities like those committed by the Nazis or those
perpetrated in Yugoslavia and Rwanda8—the International Criminal Court
(“ICC” or “the Court”) would be definitively established in 2002.9
to the avenger of blood to die. Show [this murderer] no pity. You
must purge from Israel the guilt of shedding innocent blood, so that it
may go well with you.
The philosopher John Locke also suggests that the binding moral codes of mankind are of
significant importance—and are worthy of being enforced by threat of consequence:
[A]nd thus it is, that every man, in the state of nature, has a power to
kill a murderer, both to deter others from doing the like injury, which
no reparation can compensate . . . and also to secure men from the
attempts of a criminal, who having renounced reason, the common
rule and measure God hath given to mankind, hath, by the unjust
violence and slaughter he hath committed upon one, declared war
against all mankind, and therefore may be destroyed as a lion or a
tyger, one of those wild savage beasts, with whom men can have no
society nor security: and upon this is grounded that great law of
nature, Whoso sheddeth man’s blood, by man shall his blood be
shed.
JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT Ch. II, § 11 (1690), available at
http://www.constitution.org/jl/2ndtr02.txt.
6. See infra text accompanying notes 22 and 23.
7. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, at 71, U.N. Doc.
A/810 (1948).
8. SCHABAS, supra note 2, at 10–11 (“[In 1993, w]hile the draft statute of an
international criminal court was being considered in the International Law Commission,
events compelled the creation of a court on an ad hoc basis in order to address the atrocities
being committed in the former Yugoslavia.”); Id. at 11 (noting that a second ad hoc tribunal
was also created for the nation of Rwanda in 1994).
9. See generally Rome Statute of the International Criminal Court, opened for
signature July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002) [hereinafter
Rome Statute].
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While nearly a decade old at the time of this Article, the ICC represents a
streamlining of humanity’s past efforts to protect its most sacred behavioral
constraints. In fact, one of the ICC’s principle goals is to “put an end to
impunity for the perpetrators of . . . crimes [that concern the international
community] and thus . . . contribute to the prevention of such crimes.”10
Taken in this light, “[t]he International Criminal Court is perhaps the most
innovative and exciting development in international law since the creation
of the United Nations.”11
Despite this apparent mandate for the Court to hold accountable all
criminal perpetrators whose actions rise to international attention, the Rome
Statute “emphasiz[es] that the International Criminal Court . . . shall be
complementary to national criminal jurisdictions.”12 It is only when a
nation’s judicial system is unable to—or worse—is perversely unwilling to
prosecute a perpetrator for mankind’s heinous crimes that the ICC is able to
exert jurisdiction over the matter.13 Regrettably, the Republic of the Union
of Myanmar—known more commonly as Burma—is one such nation
unwilling to prosecute its criminal perpetrators due to their ruling
leadership’s rampant corruption.
Burma is a nation that—since 1990—has been illegitimately controlled
by a military junta14 known as the State Peace and Development Council
(“SPDC” or “the Regime”).15 During its rule, the world has been witness to
“severe, indeed widespread and systematic abuses [of the Burmese people]
that appear to rise to the level of state policy.”16 The dire situation existing
within Burma was thoroughly detailed in a report by the International
Human Rights Clinic at Harvard Law School, entitled Crimes in Burma.
Their research helps expose the SPDC’s heinous crimes and advocates for
the United Nations Security Council to do the following:
10. Id. pmbl.
12. Rome Statute, supra note 9, pmbl.
13. SCHABAS, supra note 2, at 54–55.
14. See White House: U.S. To Support U.N. Inquiry in Myanmar, U.S. NEWS (Aug.
18, 2010) (“[SPDC General] Than Shwe’s loyalists overturned election results in 1990 that
favored the political party of Aung San Suu Kyi.”), available at
http://www.usnews.com/news/articles/2010/08/18/white-house-us-to-support-un-inquiry-inmyanmar.html. NDI Condemns Conviction of Aung San Suu Kyi, NAT’L DEMOCRATIC INST.
(Aug. 12, 2009), http://www.ndi.org/node/15684. National Democratic Institute Chairman—
and U.S. Secretary of State in the Clinton Administration—Madeleine K. Albright referred to
SPDC leadership in Burma as “despotic and illegitimate.”
15. MICHAEL W. CHARNEY, A HISTORY OF MODERN BURMA xiii, 179 (2009) (“In
November 1997, the SLORC [State Law and Order Restoration Council] was dissolved and
replaced by the State Peace and Development Council (SPDC) . . . [m]ost foreign observers
of Burma view the replacement of the SLORC with the SPDC as merely a cosmetic
change.”).
16. INT’L HUMAN RIGHTS CLINIC, HARVARD LAW SCH., CRIMES IN BURMA 4 (2009)
[hereinafter CRIMES IN BURMA].
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Justice in Burma
671
Declare that the situation in Burma constitutes a threat to international
peace and security and initiate a formal investigation through a
Commission of Inquiry to investigate crimes committed in Burma . . .
[f]urther, the Security Council should be prepared to act upon findings and
recommendations made by such a Commission, including a potential
referral to the International Criminal Court.17
Essentially, Crimes in Burma acts as an indictment of the SPDC for
violations of humanitarian law and human rights. The goal of this Article is
to expand on this Report and other global accusations against the Regime.
More specifically, this Article intends to detail how the actual trial of SPDC
leadership—namely Generals Than Shwe, Maung Aye, and Thura Shwe
Mann (“the SPDC Generals,” “the Defendants,” or “the Generals”)—would
unfold before the International Criminal Court.
Part I of this Article will detail the historical progress that led to the
creation of the ICC, as well as a general overview of the Court’s structure.
Part II will highlight the ICC’s jurisdiction and admissibility, which will
then be applied contextually to the alleged SPDC crimes. Pre–trial
investigation and other requisite actions will be covered in Part III, and the
actual trial of the Regime’s leadership will be assessed in Part IV. Namely,
Part IV will address the Prosecutor’s allegations of war crimes and crimes
against humanity, the application of each charged crime’s criminal elements
to the actions of the Defendants, and the defenses that the Defendants will
likely put forth. Part V will be a prediction as to their guilt or innocence, as
well as an analysis of the punishments that may result. Part V will also
highlight the appeals process should it be applicable to the case of the
Defendants. Concluding remarks on a speculative ICC trial and the current
state of Burma will then follow.
I.
THE INTERNATIONAL CRIMINAL COURT
A. The Buildup to ICC Creation
As noted in this Article’s introduction, the civilized world holds a long–
standing desire to protect its basic principles, yet—in terms of actual
prosecution—history shows this guarding of mankind’s core values on more
of a culture–specific18 or erratic level.19 In fact, it was not until the mid–
17. Id. at 4. See also White House: U.S. To Support U.N. Inquiry in Myanmar, supra
note 14. Some of the same suggestions announced in Crimes in Burma have gained notable
traction with world leaders, as “[t]he Obama administration has decided to support the
creation of a United Nations commission to look into alleged crimes against humanity and
war crimes in Myanmar.” This will hopefully help lead to the situation in Burma being
referred to the ICC for trial—the central theme of this Article.
18. See Deuteronomy 5:17, 19:11–13 (NIV).
19. SCHABAS, supra note 2, at 1 (“The first genuinely international trial for the
perpetration of atrocities was probably that of Peter von Hagenbach, who was tried in 1474
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Nineteenth Century that holding people judicially responsible for their
abuses against humanity began to emerge as a more formalized, global
concept. The first idea for a formal international criminal court was
vocalized in the 1860s by Gustav Monnier—a founder of the Red Cross.20
While the idea was apparently too revolutionary for its time, its legacy
would help influence actions similar in spirit to the modern ICC—including
a limited commission of inquiry investigating the “atrocities committed
during the Balkan Wars.”21 However, since commissions like this were only
inspective in nature—meaning they lacked any true global mandate for
administering prosecutorial justice—credible international prosecution for
abuses of humanity “would have to wait until Nuremburg.”22
The trial of Nazi war criminals following World War II would act as the
first contemporary experiment in true criminal prosecution at a global
level.23 This series of tribunals—known commonly as the Nuremberg
Trials—sought to punish the Nazis for instigating the War—specifically
their “offences against the laws and customs of war,”24 as well as for crimes
against humanity25—namely their barbaric, cruel treatment of Europe’s
Jewish population. While the prosecution and subsequent punishment of
for atrocities committed during the occupation of Breisach. When the town was retaken, von
Hagenbach was charged with war crimes, convicted and beheaded.”). Linda Grant, Exhibit
Highlights the First International War Crimes Tribunal, HARVARD LAW BULLETIN (Spring
2006), http://www.law.harvard.edu/news/bulletin/2006/spring/gallery.php (“Von Hagenbach,
appointed governor by Charles the Bold, Duke of Burgundy, was told to keep order in
Austria’s territories on the upper Rhine. In fulfilling the [D]uke’s directive, von Hagenbach
terrorized the population. . . . Charged with violation of ‘the laws of God and man,’
specifically murder, rape and perjury, among other crimes,” von Hagenbach faced judgment
from 28 judges assembled from across the numerous states of the Holy Roman Empire.).
21. Id.
22. See id. at 3–4. Following World War I, the Versailles Treaty did in fact allow for
the German army to be subject to war crimes tribunals—which became known as the
“Leipzig Trials.” However, “[t]he trials looked rather more like disciplinary proceedings of
the German army than any international reckoning.” Due to German misgivings, the Allied
powers allowed for the trials to be held before German courts and merely “prepared lists of
German suspects”—lists that started at around 900 individuals but would only result in
roughly one dozen trials and merely a handful of limited imprisonment terms. This evidences
that international prosecution technically took place before the Nuremburg Trials of World
War II, but this Article argues that genuine, international prosecution was non–existent in the
Leipzig Trials—as the application of justice in this war crimes tribunal was effectively a
façade due to the hesitancies and biases present on each side of the Leipzig Trials. In a sense,
the entire situation merely paid lips service to the protection of society’s behavioral values.).
23. Id. at 7. The Pacific Theatre also held an international criminal tribunal: the
International Military Tribunal for the Far East—known more commonly as the Tokyo
Trials. With both the Nuremburg Trials and the Tokyo Trials taking place concurrently, it is
necessary to mention that both together are the first contemporary international criminal
prosecutions, but for the purposes of this Article I will only detail Nuremberg—based on its
immense notoriety—to effectuate my point.
24. Id. at 2.
25. Id. at 7.
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countless Nazis by way of the Nuremberg Trials was unquestionably
deserved—which is important to mention as the steadfast opinion of this
Article’s author—it must also be noted that these criminal prosecutions
were conducted by World War II’s victors, the Allied Powers. Although the
Nuremberg Trials were the first contemporary prosecutions at a structured,
international level—a powerful milestone in world history—it is also fair to
assert that partiality could never be fully removed from the Tribunal as a
result of the prosecutorial role of the conflict’s victors. However, while
Nuremberg perhaps held slight biases, the Tribunal’s presence in itself
marked an important step forward in the goal of protecting societal values—
as the winning side of the international community made clear that they
considered valued social norms relevant even in the midst of global war.
In the wake of Nuremberg, the world recognized that the time had come
to express a unified front regarding the condemnation of crimes against
humanity and the protection of civilized behavioral values. This global guilt
of conscience arose out of the fact that—from the planned eradication of the
Jewish ethnicity to the intended purge of the mentally retarded and
handicapped—millions of innocent people had lost their lives in the wake of
Nazi occupation. In the hope that a tragedy of such magnitude could
feasibly be deterred in the future—or at least be suitably prosecuted, “the
[United Nations] General Assembly adopted the Convention for the
Prevention and Punishment of the Crime of Genocide” (CPPCG).26
The CPPCG not only elementally defined the crime of genocide and
listed its prosecutorial requirements, but it also stated that future trials for
genocide would occur in “a competent tribunal of the State in the territory of
which the act was committed, or by such international penal tribunal as may
have jurisdiction with respect to those Contracting Parties which shall have
accepted its jurisdiction.”27 Following the enactment of the CPPCG, the
United Nations (“UN”) General Assembly would task a Commission and a
Committee with the drafting of a statute for such an international criminal
court, as well as a penal code of crimes that would be applied in the court’s
26. SCHABAS, supra note 2, at 7 (noting that the term genocide first saw judicial use
in the Nuremberg Trials as a charge leveled against Nazi war criminals by the Prosecutor.
However, the term did not appear in the convictions of the defendants. Instead, these war
criminals were convicted of a charge seen as parallel: crimes against humanity.). See also
2007 Global Conference on the Prevention of Genocide—What is Genocide, MCGILL
FACULTY OF Law, http://efchr.mcgill.ca/WhatIsGenocide_en.php?menu=2 (last visited Nov.
13, 2010) (“The word ‘genocide’ was coined by Raphael Lemkin (1900–1959), a Jewish
Polish lawyer, following the Nazi destruction of the Jews of Europe. He used a combination
of Greek and Latin words: geno (race or tribe) and cide (killing). Lemkin was describing ‘a
coordinated plan of different actions aiming at the destruction of essential foundations of the
life of national groups, with the aim of annihilating the groups themselves.’”). See generally
Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102
Stat. 3045, 78 U.N.T.S. 277 (1951).
27. Convention on the Prevention and Punishment of the Crime of Genocide, supra
note 26, art. VI; SCHABAS, supra note 2, at 7–8.
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jurisdiction.28 Yet while the United Nations had moved relatively fast to
codify the genocide problem that World War II brought to the international
forefront, the process of acting on the UN’s instructed measures would take
much longer. This delay in drafting a statute for an international criminal
court and its provisional codes can be attributed in no small part to the
rising Cold War that engulfed international relations in the post–World War
II era. In fact, the respective work of the UN–established Commission and
Committee was stagnated from 1954–1981 as a result of this and other
bureaucratic issues of the United Nations.29 Moreover, it was not until
1989—following the fall of the Berlin Wall and the impending collapse of
the Soviet Union—that the international criminal court conception would
even appear to be within reach instead of some distant notion.30 In essence,
the UN stopped delaying its own progress and began to focus more closely
on establishing the ICC—a global, judicial body intended to implement
justice, promote fairness, and hopefully limit the prosecutorial biases of old.
Numerous meetings of the UN’s Ad Hoc Committee would take place in
the mid–1990s. This body was instituted to streamline the progress made by
the UN Committee and Commission noted supra. The Ad Hoc Committee’s
productive work would lead to “the Diplomatic Conference of
Plenipotentiaries on the Establishment of an International Criminal Court
conven[ing] on 15 June 1998 in Rome”—a global conference intended to
finalize provisions for the ICC.31 “The enthusiasm was quite astonishing,
with essentially all of the delegations expressing their support for the
concept [of an international criminal court].”32 Over the course of the
Conference, however, it became evident that the global community still held
28. SCHABAS, supra note 2, at 8 n. 25, 8–9 (The UN General Assembly established
the Committee on International Criminal Court Jurisdiction (Committee) to draft a statute for
an international criminal court; the General Assembly tasked the International Law
Commission (Commission) with drafting criminal codes for the court. Specifically, the
Commission would create the “Nuremberg Principles” and the “Code of Crimes Against the
Peace and Security of Mankind.”).
29. Id. at 9. Another bureaucratic issue included the UN’s methodical attempts at
defining a “crime of aggression” for the future CPPCG–based court’s penal code. For more
information on the “crime of aggression,” see infra note 40.
30. See id. at 9. The idea for a criminal court with permanent international
jurisdiction was re–raised in 1989 by Trinidad and Tobago through Resolution 44/89 in the
UN General Assembly. Trinidad and Tobago sought to have its problems related to narcotics
trafficking addressed by such a court—at this point the Court itself had been discussed for
generations but never had gained enough traction to be a true reality. Ironically, as of this
Article the ICC does not hold jurisdiction over the illegal drug trade, but regardless Trinidad
and Tobago may be thanked for breathing new life into the international criminal court idea.
See also id. at 9–11. Despite the UN’s re–energized goal of establishing an international
criminal court, the drafting process would not be finished quickly enough to prosecute the
crimes taking place in the former Yugoslavia and Rwanda in the 1990s; instead, ad hoc
tribunals were created to handle the situations in the absence of a permanent ICC).
31. Id. at 15.
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issue with many key elements of the ICC, including “the role of the [UN]
Security Council, the list of ‘core crimes’ over which the court would have
inherent jurisdiction and the scope of its jurisdiction over persons who were
not nationals of State parties.”33 Eventually, a consensus would be reached
between more than the two–thirds of States needed for adoption of an ICC
treaty, and by a vote of 120 in favor to 7 against (with 21 abstentions) the
Rome Statute of the International Criminal Court was adopted on July 17,
1998 by the world forum.34 The Statute’s adoption made it a “non–binding
international treaty”—despite its support from “an overwhelming majority
of the States that attended the Rome Diplomatic Conference”—until it
entered into force by the ratification of 60 States on July 1, 2002.35
B. An Overview of ICC Structure
1. Substantive Structure
According to the Rome Statute of the International Criminal Court,
“[t]he jurisdiction of the Court shall be limited to the most serious crimes of
concern to the international community.”36 These crimes are: genocide,37
war crimes,38 crimes against humanity,39 and criminal aggression.40 The
33. Id. at 17.
34. Id. at 17–18. Israel, the People’s Republic of China, and the United States were
notable votes against the Rome Statute.
35. Prosecutor v. Furundzija, Case No. IT–95–17/1–T, Judgment, ¶ 227 (Int’l Crim.
Trib.
for
the
Former
Yugoslavia
Dec.
10,
1998),
http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf; Rome Statute, supra note
9, art. 126 (stating that “[the Rome] Statute shall enter into force on the first day of the month
after the 60th day following the date of the deposit of the 60th instrument of [State]
ratification, acceptance, approval or accession with the Secretary–General of the United
Nations.”). See also Letter from John R. Bolton, Undersecretary of State for Arms Control
and International Security, to Kofi Annan, Secretary General of the United Nations (May 6,
2002), available at http://amicc.org/docs/bolton.pdf (noting that the United States’ December
31, 2000 signature of the Rome Statute was subsequently suspended on May 6, 2002; the
United States, while once a signatory, never officially ratified the Statute and stated via
Bolton “its intention not to become a party” to the Court); see also Administration Update,
THE AMERICAN NON–GOVERNMENTAL ORGS. COALITION FOR INT’L CRIM. COURT,
http://amicc.org/usinfo/administration.html#null (last visited Nov. 16, 2010) (explaining that
U.S. concerns over ratification of the Rome Statute have included the trial of U.S. citizens
without consent from the United States government, the potential of the ICC to try U.S.
leaders for crimes of aggression, political motivations by the ICC against U.S. citizens and
leaders, and potential conflict between the ICC and U.S. Constitution on due process rights
for defendants).
36. Rome Statute, supra note 9, art. 5(1).
37. Id. arts. 5(1)(a), 6.
38. Id. arts. 5(1)(c), 8.
39. Id. arts. 5(1)(b), 7.
40. Id. arts. 5(1)(d), 5(2). See also Aaron Gray–Block, ICC States Reach
Compromise on Crime of Aggression, REUTERS.COM (June 11, 2010),
http://www.reuters.com/article/idUSTRE65A6SE20100611 (noting that the recent
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prosecution of these crimes at a fixed, global level raises many important
discussion points. First, it must be recalled that the ICC was established as
merely a complementary criminal court to those existing at national levels.41
By noting its balancing status, it should also be remembered that the ICC
will only exert its jurisdiction where such crimes exist and a State is unable
or unwilling to prosecute due to corruption. From this concept, it may be
inferred that these crimes are addressed by the ICC for two key purposes:
the international community feels cooperation at a global level may be
needed to suppress such crimes and—more significantly—it appears the
global population is finally ready to stand unified in their handling of
mankind’s most dreadful actions. This latter point is particularly
momentous as “violations of human rights . . . were once considered to lie
within the exclusive prerogatives of State sovereignty”—yet now the ICC is
capable of safeguarding these rights should it be necessary to do so in the
absence of sincere State action.42
As well, the historical buildup to the ICC’s creation is due in large part
to the evolution of customary international law, and knowing this the
drafters of the Rome Statute left significant room for its further
development.43 As highlighted in Part I (A) of this Article, human rights and
basic behavioral values of the global community have typically been
acknowledged through the tribulations of past atrocities and the customary
legal developments that have occurred as a result. The Rome Statute’s
drafters knew it would be irrational for them to believe that the ICC’s
creation would mark the highest level of behavioral development possible in
our global condition. Thus, they made sure that the ICC’s statutory
guidelines would never hinder the further social improvements of humanity.
For some, this statement may signal that other crimes may one day be
defined and prosecuted by the ICC; for others, this assertion may invoke
that elements of existing crimes may change. Overall, the protection and
reverence for international customary law shows that the ICC is fluid in
structure and willing to develop alongside the values and norms of the
international order—an astute concept that will undoubtedly keep the ICC
relevant and noteworthy for years to come.
compromise adopted for crimes of aggression—a compromise that finally permits crimes of
aggression to be investigated by the ICC—allows for the shielding from liability of
permanent UN Security Council nations like Russia, the People’s Republic of China, and the
United States, who will be able to prevent their own actions from being investigated).
41. Rome Statute, supra note 9, pmbl.
43. Rome Statute, supra note 9, art. 10.
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2. Procedural Structure
“The ICC is an independent international organisation, and is not part of
the United Nations system.44 Its seat is at The Hague in the Netherlands.
Although the Court’s expenses are funded primarily by States Parties, it also
receives voluntary contributions from governments, international
organisations, individuals, corporations and other entities.”45 Four notable
branches make up the bulk of the Court’s composition: the Presidency,
Registry, Office of the Prosecutor, and the Judicial Divisions.46
a. The Presidency
The Presidency consists of three judges elected to oversee the activities
of the ICC. These judges—the ICC President and First and Second Vice
Presidents—are elected by a majority vote of their ICC judicial colleagues
for a three year term to direct the Court’s administrative activities, external
affairs, and “judicial/legal functions.”47 Essentially, the Presidency’s role
can be summarized as follows:
In the exercise of its judicial/legal functions, the Presidency constitutes
and assigns cases to Chambers, conducts judicial review of certain
decisions of the Registrar and concludes Court–wide cooperation
agreements with States. With the exception of the Office of the Prosecutor,
the Presidency is responsible for the proper administration of the Court
and oversees the work of the Registry. The Presidency will coordinate and
seek the concurrence of the Prosecutor on all matters of mutual concern.
Among the Presidency’s responsibilities in the area of external relations is
to maintain relations with States and other entities and to promote public
awareness and understanding of the Court. 48
b. The Registry
Additionally, the Registry is headed by the Registrar—under the
Registrar’s direction “[t]he Registry provides judicial and administrative
44. Structure
of
the
Court,
INT’L CRIM. COURT,
http://www.icccpi.int/Menus/ICC/Structure+of+the+Court (last visited Nov. 17, 2010) [hereinafter ICC,
Structure of the Court]. The ICC does, however, maintain a “cooperative relationship with
the U.N.” See discussion infra Part II.
CRIM.
COURT,
http://www.icc45. About
the
Court,
INT’L
cpi.int/Menus/ICC/About+the+Court/ (last visited Nov. 16, 2010).
46. ICC, Structure of the Court, supra note 44.
CRIM.
COURT,
http://www.icc47. The
Presidency,
INT’L
cpi.int/Menus/ICC/Structure+of+the+Court/Presidency/The+Presidency.htm (last visited
Nov. 18, 2010) [hereinafter ICC, The Presidency].
48. Id.
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support to all organs of the Court.”49 As a neutral ICC branch, the Registry
provides the Court with assistance for its basic functions—aiming to further
ICC goals by conducting its activities with “quality, efficiency, transparency
and timeliness.”50 Some of the Registry’s key areas of focus include:
assistance for the defense council, preparation of victims and witnesses who
will testify before the Court, management of the ICC temporary detention
center where ICC–detained individuals are held, and the handling of the
Court’s outreach to the global community.51
c. The Office of the Prosecutor
The Office of the Prosecutor (“OTP”) is itself a unique branch of the ICC
structure. OTP is divided into three groups: the Investigation Division
(“ID”), Prosecution Division (“PD”), and Jurisdiction, Complementarity
and Cooperation Division (“JCCD”)—each operates under the overall
direction of the Prosecutor.52 As noted prior, OTP is unique in that it is
independent of the Presidency’s administrative control.53 This allows OTP’s
ID to examine alleged crimes within the ICC’s jurisdiction in an unbiased
fashion. Nevertheless, many restrictions do apply to the alleged crimes that
may be investigated. Aside from the requirement of ICC jurisdiction,54 ID
may only investigate an alleged crime if the State’s judicial power is unable
or unwilling to do so in light of systematic corruption.55
In order to initiate an investigation, ID must first complete a preliminary
analysis of the alleged crime. In this preliminary analysis, it must be
determined whether an investigation would be in the interests of justice, the
gravity and complementarity of the alleged crime, and whether there is “a
reasonable basis to believe that a crime within the jurisdiction of the Court
has been committed or is being committed.”56 Also, during the preliminary
analysis ID enlists the expertise of JCCD—a collection of “analysts,
international Cooperation Experts and lawyers”—who offer their advice on
49. Registry,
INT’L
CRIM.
COURT,
http://www.icccpi.int/Menus/ICC/Structure+of+the+Court/Registry/The+Registry.htm (last visited Nov. 17,
2010).
50. Id.
51. Id.
52. Office of the Prosecutor, INT’L CRIM. COURT, http://www.icccpi.int/Menus/ICC/Structure+of+the+Court/Office+of+the+Prosecutor.(last visited Nov. 18,
2010). More specifically, while the Prosecutor is the overall leader of OTP, PD is headed by
the Deputy Prosecutor and JCCD and ID have a Director/Head in charge of their operations
respectively.
53. See ICC, The Presidency, supra note 47.
54. See infra Part II.
55. SCHABAS, supra note 2, at 54–55.
56. Rome Statute, supra note 9, art. 53(1)(a).
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the appropriateness of ICC jurisdiction and admissibility for potential
prosecution of the alleged crime at hand.57
If an investigation is deemed worthy,58 it will be conducted by ID—
which will gather evidence and witness statements to try and corroborate
details of the alleged crime.59 Once an investigation is complete, ID’s
findings will be presented to the judges of the Judiciary by the Prosecutor.
Should the judges find that the evidence compels ICC action, the judges will
issue summonses and/or arrest warrants for the accused perpetrators of the
crimes.60 Once these defendants appear before the Court, PD will officially
take over the case from ID. The charges may then be confirmed for the
defendants, and if this occurs PD will begin their prosecution of the
defendants before an ICC trial court.61
d. The Judicial Divisions
The final branch of the ICC is the Judiciary, which maintains three
distinct divisions: Pre–Trial, Trial, and Appeals.62 The Pre–Trial Division63
is crucial to the initial proceedings against an individual of ICC interest—
until the Prosecutor confirms or refutes the applicable charges against the
defendant.64 In this timeframe, a Pre–Trial Chamber consisting of either one
or (usually) three judges who will review the Prosecutor’s investigation
authorization request to determine whether a reasonable basis exists for
further examination into a defendant’s allegedly criminal conduct.65 Should
it authorize an investigation, the Pre–Trial Chamber will then focus on
establishing communication and cooperation with relevant States—as well
57. Frequently Asked Questions, INT’L CRIM. COURT, http://www.icccpi.int/NetApp/App/MCMSTemplates/Index.aspx?NRMODE=Published&NRNODEGUID=
{A6F14A19-D07F-4B3D-8B2A-E1ED0D29F434}&NRORIGINALURL=/Menus/ICC/
Structure+of+the+Court/Office+of+the+Prosecutor/FAQ/FAQ.htm&NRCACHEHINT=Gue
st#id_3 (last visited Nov. 19, 2010) [hereinafter ICC, Frequently Asked Questions].
58. See Rome Statute, supra note 9, art. 53(1).
59. ICC, Frequently Asked Questions, supra note 57. It is important to note that
evidence and statement gathering may prove difficult—as typically these alleged crimes have
taken place in volatile regions of the world. In some cases—like the ICC’s investigation into
alleged crimes in Darfur—investigators have been allowed to work from afar and not even
enter the dangerous region.
60. Id.
61. See id.
CRIM.
COURT,
http://www.icc62. Chambers,
INT’L
cpi.int/Menus/ICC/Structure+of+the+Court/Chambers (last visited Dec. 29, 2010).
63. The Pre–Trial Division consists of two Pre–Trial Chambers that divide case
responsibilities for ICC’s proceedings. See Pre–Trial Division, INT’L CRIM. COURT,
http://www.icc-cpi.int/Menus/ICC/Structure+of+the+Court/chambers/Pre+Trial+Division/
(last visited Mar. 25, 2011) [hereinafter ICC, Pre–Trial Division].
64. Id.
65. Id. See Rome Statute, supra note 9, art. 53(1)(a). Note that the Prosecutor’s
authorization request for an investigation is grounded in ID’s preliminary analysis of the
alleged crime committed by the defendant.
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as protecting the rights of the defense, the efficiency of the ICC, and the
interests of witnesses and alleged victims alike.66 Essentially, the Pre–Trial
Chamber acts in paternalistic fashion to make sure OTP conducts the
investigation competently and appropriately in accordance with the Rome
Statute and the Court’s own established rules for Procedure and Evidence.
The Pre–Trial Chamber is also the body that determines whether the
Prosecutor’s investigation necessitates an arrest warrant for the accused
sought. Upon a defendant’s surrender or proffered appearance stemming
from an arrest warrant, the Prosecutor must prove to the Pre–Trial Chamber
that the evidence found during investigation is adequate to “establish
substantial grounds to believe that the [accused] committed the crime
charged.”67 At this hearing, the defendant will be allowed to refute the
Prosecutor’s evidence if possible, as well as present his or her own contrary
evidence.68 This hearing will determine whether charges will be confirmed
against a defendant; should this occur the case will be moved to the Trial
Division by order of the ICC Presidency.69
Upon confirmation of charges against a defendant, a Trial Chamber will
be established to determine his or her guilt or innocence.70 As well, the trial
of the accused will be held publically unless this requirement would lead to
a lack of adequate protection for witnesses, victims, evidence, or the general
rule of law.71 In summary, “[t]he major role of the Trial Chamber . . . is
adopting all the necessary procedures to ensure that a trial is fair and
expeditious, and is conducted with full respect for the rights of the accused
with regard for the protection of victims and witnesses.”72 Should the
accused be found guilty, the three judges presiding over the Trial Chamber
and its case will be able to enforce a term of imprisonment—“which may
not exceed a maximum of thirty years or a term of life imprisonment.”73
Victim restitution and rehabilitation are also penalties the judges may
impose on a guilty party,74 as well as other financial punishments.75
ICC Appeals Chambers hold responsibility for reviewing case decisions
made by the Trial Chamber judges. The five judges of the Appeals Division
together may hear petitions from both the Prosecutor and the defendant on a
range of topics during every stage of a case. Some of the options include
66. ICC, Pre–Trial Division, supra note 63.
67. Id.
68. Id.
69. Id.
CRIM.
COURT,
http://www.icc70. Trial
Division,
INT’L
cpi.int/menus/icc/structure%20of%20the%20court/chambers/trial%20division/trial%20divisi
on?lan=en-GB (last visited Dec. 30, 2010) [hereinafter ICC, Trial Division]; Rome Statute,
supra note 9, art. 61(11).
71. See Rome Statute, supra note 9, art. 68.
72. ICC, Trial Division, supra note 70; see also Rome Statute, supra note 9, art. 64.
73. ICC, Trial Division, supra note 70.
75. Id. art. 77.
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681
appeals concerning “decisions with respect to jurisdiction and
admissibility,” “decision[s] of conviction or acquittal on grounds of
procedural error, error of fact or error of law,” and rulings concerning “any
other ground[s] that affect[ ] the fairness or reliability of the proceedings or
decision.”76 As the definitive decision–maker in the ICC, the Appeals
Chamber is entrusted with maintaining the fairness of each case—this
power is exemplified in their ability to evaluate and alter established
sentences, determine severe judicial misconduct, and rule on the fate of
contested evidence.77 The judges in an ICC Appeals Chamber are supposed
to ensure justice has been present in the actions of the lower courts—as the
fate of those charged with crimes ultimately rests in their hands.
II. ICC JURISDICTION AND ADMISSIBILITY
A. Generally
While interrelated, the concepts of admissibility and jurisdiction are
differentiated by the ICC’s governing treaty, the Rome Statute.78 Put simply,
“[j]urisdiction refers to the legal parameters of the Court’s operations”
while admissibility “seeks to establish whether matters over which the
Court properly has jurisdiction should be litigated before it.”79 Thus, it may
be possible for the ICC to have appropriate jurisdiction over a case but not
be the proper forum for justice.
1. Jurisdiction
Briefly alluded to in Part I (B)(1), the ICC is limited in subject matter
jurisdiction to war crimes, the crime of genocide, crimes against humanity,
and the crime of aggression.80 Accordingly, if any of these crimes allegedly
exist, then one factor for ICC jurisdiction has been met. A second—and also
necessary—element for Court jurisdiction is the condition that the
applicable crime be committed following the Rome Statute’s entry into
force.81 By requiring this temporal jurisdiction, the Rome Statute eliminates
76. Appeals
Division,
INT’L
CRIM.
COURT,
http://www.icccpi.int/menus/icc/structure%20of%20the%20court/chambers/appeals%20division/appeals%2
0division?lan=en-GB (last visited Jan. 2, 2011). It is important to note that the ICC President
is one of the five judges of the Appeals Division.
77. Id.
78. See Rome Statute, supra note 9, arts. 11–14, 17–20.
80. Rome Statute, supra note 9, art. 5(1). For more specifics on developments with
the crime of aggression, see Gray–Block, supra note 40.
81. Rome Statute, supra note 9, art. 11(1). See also id. art. 11(2). Typically the ICC
will only have appropriate jurisdiction and admissibility over crimes that are committed after
a State personally enters the Rome Statute into force via ratification; however, a UN Security
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its own ability “to reach into the past and prosecute atrocities committed
prior to its coming into force.”82 While some may consider this
counterproductive, the inclusion of this jurisdictional obligation is perhaps
one of the most significant reasons why the ICC was allowed to come into
existence. It is not hard to imagine why either. No State wants to allow for
all of their past mistakes to be held against them and their citizens in a
newly created court—a legal entity which did not exist when they
committed their crimes, and for mistakes that may have been the
transgressions of past generations. Besides, national courts are still able to
prosecute these crimes as they please—despite the lack of ICC jurisdiction.
In theory, this should prevent a free pass from being given to the offenders
of such atrocious crimes, but reality does make evident that some crimes
will inevitably slip through the proverbial cracks of justice. Regardless, the
establishment of a temporal jurisdiction requirement helped allow for the
ICC’s ultimate creation—a noble criminal deterrent that will benefit the
world greatly despite its imperfect nature.
The ICC must also meet one of two final requirements in order to have
appropriate jurisdiction over a crime—personal or territorial jurisdiction. If
a crime meeting the Court’s temporal and subject matter jurisdiction
requirements is committed on the territory of a State that has ratified the
Rome Statute, then the ICC will hold territorial jurisdiction.83 This is
“regardless of the nationality of the offender.”84 The Court “will also have
jurisdiction over crimes committed on the territory of States that accept its
jurisdiction on an ad hoc basis and on territory designated by the [UN]
Security Council.”85 Essentially the same requirements exist for ICC
investigations seeking personal jurisdiction. The Court has personal
jurisdiction for State nationals86 that are accused of committing crimes87
meeting the ICC’s subject matter jurisdiction and temporal jurisdiction
requirements as long as the national’s State has ratified the Rome Statute,88
Council exception exists in Article 13(b) and a willing non–party State exception is in Article
12(3).
85. Id.; see supra note 81 for remarks on Articles 12(3) and 13(b) of the Rome
Statute.
86. Article 10 of the Rome Statute is a provision that allows customary international
law—both developing and existing rules—to remain an element the ICC should take into
account for decision–making. The determination of a person’s nationality is an excellent
example of Article 10’s intended use. See SCHABAS, supra note 2, at 64 (“In accordance with
general principles of public international law, the International Criminal Court should look at
whether a person’s links with a given State are genuine and substantial, rather than it being
governed by some formal and perhaps even fraudulent grant of citizenship.”).
87. Rome Statute, supra note 9, art. 12(2)(b).
88. Id.
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683
accepted ICC ad hoc jurisdiction,89 or the matter was referred to the Court
by the UN Security Council.90
Only certain immunities may prevent the ICC from exercising its overall
jurisdiction—these include the inability to prosecute some diplomats and
senior state officials according to international legal agreements, as well as
the inability to prosecute individuals who were under eighteen years of age
when they allegedly committed their crime.91 The Court may also be
prevented from employing its jurisdiction by UN Security Council
resolution under Chapter VII of the UN Charter.92 While some of these
jurisdictional roadblocks—like previous conditions mentioned—may appear
detrimental to justice, it must be remembered that customary international
laws, global treaties, and transnational compromises are part of the civilized
order we seek to preserve. They even helped lead the ICC itself into
existence. Without some concessions to accommodate the States who create
these devices, a court of such global magnitude would fall apart like a house
of cards.
2. Admissibility
It is the dynamic nexus between the ICC and State legal systems that sets
the stage for whether the ICC may hear a jurisdictionally sound case. Article
1 of the Rome Statute— according to the undertones of Article 17—asserts
a central theme for admissibility: the ICC “shall be complementary to
national criminal jurisdictions” when in the proper interests of justice.93 In
other words, it is encouraged and expected that national legal systems
exercise their sovereign authority to apply civil society’s justice. Thus,
guidelines for what makes ICC jurisdiction inadmissible are predominant in
the Rome Statute94—the intention of the Court is to assert jurisdiction only
when a State’s legal structure is unable95 or corruptly unwilling96 to
prosecute accused culprits for crimes found heinous by our global society.97
89. Id. art. 12(3).
90. Id. art. 13(b).
92. Rome Statute, supra note 9, art. 16. A UN Security Council resolution may put
ICC action on hold for a period of 12 months by what is known as “deferral.” Since Article
16 allows for this deferral to be renewed without expressed time limits, it may be argued that
the UN Security Council has an indefinite ability to veto ICC prosecutions.
93. Id. art. 1.
94. See id. art. 17.
95. See id. art. 17(3) (“In order to determine inability in a particular case, the Court
shall consider whether, due to a total or substantial collapse or unavailability of its national
judicial system, the State is unable to obtain the accused or the necessary evidence and
testimony or otherwise unable to carry out its proceedings.”).
96. See id. art. 17(2)(a)–(c). Notable “unwillingness” elements include shielding
people from criminal responsibility for crimes within ICC jurisdiction, unjustified delays in
state court proceedings, and a lack of independence and impartiality in state court litigation.
97. See supra notes 12–13.
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As such, if a State is investigating or prosecuting a case over which they
have jurisdiction, the ICC will not typically interfere with the State’s
litigation process—the Court will only supersede state action if a “State is
unwilling or unable genuinely to carry out the investigation or
prosecution.”98 Ultimately, ICC action in this scenario will depend on the
intentions and competency of the state legal system in question. This should
not be interpreted, however, as the Court attempting to question the
intelligence of state court methods.
Nor will the ICC be able to simply step in and prosecute an individual
whom a State court has decided not to charge with a crime following an
investigation—an option for Court intervention would only be available to
the ICC should the State court’s “decision result[ ] from [an] unwillingness
or inability of the State genuinely to prosecute.”99 In keeping with the
principle that the ICC “shall be complementary to national criminal
jurisdictions,”100 it is apparent that the Court’s powers of admissibility here
should also depend on the State court’s abilities and intentions and never
include second–guessing the legal integrity of State court rulings due to
basic differences in judicial opinion.101
B. Application to the SPDC
Part I (B)(2)(c) of this Article introduced the idea of the preliminary
analysis—a process shouldered by the Investigation Division of the Office
of the Prosecutor. In summary, preliminary analysis results determine
whether the Prosecutor will request authorization from the judges of the
Pre–Trial chamber to investigate a specific case. One of the main factors ID
seeks to confirm in preliminary analysis is whether or not a reasonable basis
exists to show that the alleged crimes and culprits in question fall under the
jurisdiction and admissibility of the ICC.102
When considering the actions of Burma’s ruling junta—the SPDC—the
simplest jurisdictional element to meet by reasonable basis will be subject
matter jurisdiction. For decades “UN resolutions and Special Rapporteurs
have spoken out about the abuses [in Burma] that have been reported to
them”—abuses that appear to be Regime policy.103 A myriad of advocacy
99. Id. art. 17(1)(b) (emphasis added).
100. See id. art. 1 (noting the idea of complementarity).
101. See Rome Statute, supra note 9, arts. 17(1)(c), 20(1)–(3) (preventing double
jeopardy—only in cases where prior trials were conducted without independence and
impartiality may the ICC re–try a case already litigated).
102. See supra Part I (B)(2)(c).
103. CRIMES IN BURMA, supra note 16, at IV; see U.N. Security Council, Report of the
Secretary–General on Children and Armed Conflict in Myanmar, U.N. Doc. S/2007/666
(Nov. 16, 2007); see Human Rights Council Res. 7/31, Situation of Human Rights in
Myanmar
(Mar.
28,
2008),
available
at
http://www.altsean.org/Docs/UNHRC%20Resolutions/HRC%202008%207-31.pdf.
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685
groups104 and nations worldwide—including the United States
government—have also denounced the social injustices attributed to the
SPDC.105 Notwithstanding their disputed authority to govern Burma, the
Regime has been repeatedly accused of crimes considered atrocious by the
civilized world—including the forced displacement of persons,106
extrajudicial killings and torture,107 political imprisonments,108 the use of
child soldiers,109 violent sexual crimes,110 and many other wicked deeds. In
light of the various reports, observations, and witnesses claiming to
corroborate these actions, there is little doubt that ICC subject matter
jurisdiction exists. Specifically, a reasonable basis exists for examining
whether war crimes and/or crimes against humanity have actually occurred
as a result of Regime policy.
With regard to temporal jurisdiction, ID and the rest of the Prosecutor’s
Office must be careful to lay distinction between criminal allegations
arising from before and after the Rome Statute’s entry into force.111 This
distinction must be made because crimes allegedly committed by SPDC
104. See, e.g., THE BURMA CAMPAIGN UK, http://www.burmacampaign.org.uk (last
visited Mar. 14, 2011); see Homepage, ALTSEAN BURMA, http://www.altsean.org (last
visited Jan. 5, 2011); see Burma , HUMAN RIGHTS WATCH, http://www.hrw.org/asia/burma
(last visited Jan. 5, 2011).
105. Steven Lee Myers, Bush, at U.N., Announces Stricter Burmese Sanctions, N.Y.
TIMES (Sept. 26, 2007), http://www.nytimes.com/2007/09/26/world/26prexy.html (noting
that before a session of the UN General Assembly, U.S. President George W. Bush “outlined
a tightening of economic sanctions . . . to aim at specific individuals [of Burma’s SPDC] for
the first time. He also announced a ban on visas of those ‘responsible for the most egregious
violations of human rights’ and their families. ‘Basic freedoms of speech, assembly and
worship are severely restricted [in Burma],’ Mr. Bush said. ‘Ethnic minorities are persecuted.
Forced child labor, human trafficking and rape are common.’”); White House: U.S. To
Support U.N. Inquiry in Myanmar, supra note 14 (“The Obama administration has decided to
support the creation of a United Nations commission to look into alleged crimes against
humanity and war crimes in Myanmar. . . . The White House said in a statement [ ] that it
believes the commission could advance the cause of human rights in Myanmar, also known
as Burma, by ‘addressing issues of accountability for responsible senior members of the
Burmese regime.’”).
106. See CRIMES IN BURMA, supra note 16, at 39–51.
107. Id. at 64–74.
108. Thomas Fuller, Group Helps Political Prisoners in Myanmar, N.Y. TIMES (Jan.
18, 2009), http://www.nytimes.com/2009/01/18/world/asia/18iht-prisoner.1.19455492.html.
109. Burma Army ‘Recruiting Children,’ BBC NEWS (Oct. 31, 2007),
http://news.bbc.co.uk/2/hi/asia-pacific/7069920.stm.
111. See also Rome Statute, supra note 9, art. 11(2) (“If a State becomes a Party to
this Statute after its entry into force, the Court may exercise its jurisdiction only with respect
to crimes committed after the entry into force of this Statute for that State.”). Since Burma is
not a State party to the ICC—and unlikely to accept ad hoc Court jurisdiction due to the
many criminal accusations they have acquired—they will only be able to face ICC
jurisdiction through UN Security Council referral. The Rome Statute’s entry into force
date—July 1, 2002—is thus used for temporal jurisdiction since no State–based date exists
for when Burma itself entered the Rome Statute into force.
686
[Vol. 19:3
leadership on or before July 1, 2002 will lack jurisdiction with the ICC.112
This is obviously disconcerting because the national judiciary in Burma has
exhibited significant partiality for the Regime—a sign that these prior
crimes may never see their day of fair judgment. Nevertheless, global
accusations like Crimes in Burma have made clear that July 1, 2002 came
and went with little impact on the egregious crimes taking place in Burma—
these crimes occurred before the Rome Statute’s entry into force as well as
after.113 Put simply, while a Burmese family may not be able to see Regime
leaders brought to ICC trial for the extrajudicial killing of their son in 1997,
the father will hopefully see the leaders in question face trial on different
alleged criminal charges that fulfill temporal jurisdiction.
Perhaps the most intriguing (and unstable) prerequisite for ICC
jurisdiction over Burma will be territorial/personal jurisdiction. With Burma
not being a member State to the ICC’s Rome Statute, the actions of SDPC
leaders personally—as well as any crime committed on Burmese territory—
will not automatically fall under the jurisdiction of the Court. Since it is
highly unlikely the SDPC would ratify the Rome Statute for Burma or
accept its ad hoc jurisdiction—in light of these notable criminal accusations
made against them—the matter of territorial/personal jurisdiction will rest in
the hands of the UN Security Council.114 The body, which includes five
permanent members with absolute veto power,115 would have to vote to
refer the situation in Burma to the International Criminal Court—a daunting
task considering the close relationship between the SPDC and the People’s
Republic of China,116 as well as between Russia and the Regime.117 The
author of this Article sees this as the most formidable roadblock for justice
in Burma. With China and Russia having the ability to veto any referral
resolution of ICC jurisdiction for Burma, the ability for these atrocious
112. The Rome Statute entered into force by State ratification on July 1, 2002. See
also Rome Statute, supra note 9, art. 126.
113. See CRIMES IN BURMA, supra note 16, at 6. In fact, Crimes in Burma states that
its statistics and findings from Burma “center[ ] on events since 2002” in order to use the
Rome Statute’s temporal jurisdiction requirements as an “evaluative tool.”
114. See Rome Statute, supra note 9, art. 13(b) (establishing UN Security Council
referral authority); id. art. 16 (establishing UN Security Council deferral authority).
115. The five permanent members of the UN Security Council are the United States,
Russia, Great Britain, France, and the People’s Republic of China. See UN Charter art. 27.
While not expressly stated, it is implied in the UN Charter that a veto by any of the five
permanent members will put an end to a potential resolution—however, it is also implied that
absence from a vote or abstention by one of the permanent five members will allow a
resolution to be passed.
116. See Michael Bristow, Chinese Dilemma Over Burma Protests, BBC NEWS (Sept.
25, 2007), http://news.bbc.co.uk/2/hi/asia-pacific/7011746.stm (noting that “China’s ties
with the military junta ruling Burma go deep, and include expanding trade links, the sale of
military hardware and diplomatic support.”).
117. See Russia and Burma in Nuclear Deal, BBC NEWS (May 15, 2007),
2011]
Justice in Burma
687
crimes to be fairly assessed in a court of law may remain an idealistic
dream.
Despite this, this Article’s author believes it is not impossible to sway
the minds of Russian and Chinese leadership with international pressure.
First off, it is evident that the People’s Republic of China desires global
influence and prestige—their ornate hosting of the 2008 Olympic Summer
Games in Beijing is one of many examples suggesting this.118 By vocalizing
a demand for criminal accountability in Burma, the nations of the world
may be able to convince China to rebuke their SPDC allies. In the past few
years “China has shown signs of promoting reform in Burma,” yet the
reforms suggested have only hinted at “national reconciliation” and a
restoration of “internal stability.”119 While an important step forward, this
language may also be construed as China wanting the SPDC to end their
alleged crimes and the Burmese people to simply forgive and forget what
has happened. If the SPDC leadership were to do this, it would certainly be
an encouraging gesture. However, what real change can take place by
leaving allegedly vicious leaders in power? And what about the Burmese
victims who wish to experience justice fulfilled in a court of law? Even
though China has previously prevented the UN from criticizing Burma for
its record on human rights,120 it remains slightly uncertain how global
pressures may affect China’s future approach to an ICC referral vote. One
thing is certain though—it may be argued that China has been swayed by
global pressure before; they allowed the UN Security Council to refer the
crimes in Darfur to the ICC121 despite their existing economic relationship
with the Sudan.122 Thus, advocacy groups and countries alike must continue
118. See Victor Matheson, Great Games, Great Bills, N.Y. TIMES (Aug. 22, 2008),
http://www.nytimes.com/2008/08/22/opinion/22iht-edmatheson.1.15546378.html
(emphasizing the great lengths China went to in order to host an Olympics that would
“announce its arrival as a major political and economic power.”).
119. Bristow, supra note 116. Chinese Foreign Policy Advisor Tang Jiaxuan has
stated that China “‘hoped Myanmar would restore internal stability as soon as possible,
properly handle issues and actively promote national reconciliation.’” Id.
120. See also Colum Lynch, Russia, China Veto Resolution on Burma, THE WASH.
POST, Jan. 13, 2007, at A12.
121. See S.C. Res. 1593, U.N. Doc. S/RES/1953 (Mar. 31, 2005). China abstained
from voting instead of vetoing the Resolution; this allowed the Resolution an opportunity to
be passed despite their obvious objections. See also Press Release, Security Council, Security
Council Refers Situation in Darfur, Sudan, To Prosecutor of International Criminal Court;
Resolution 1953 (2005) Adopted by Vote of 11 in Favour to None Against, with 4
Abstentions (Algeria, Brazil, China, United States), U.N. Press Release SC/8351 (Mar. 31,
2005).
122. See Moira Herbst, Oil for China, Guns for Darfur, BUSINESSWEEK (Mar. 14,
2008), http://www.businessweek.com/globalbiz/content/mar2008/gb20080314_430126.htm?
chan=globalbiz_asia+index+page_economics+%2Bamp%3B+policy (noting that “Sudanese
oil shipments to China increased 63% from 2003 to 2006. . . . In 2007, China purchased 40%
of Sudan’s 25–million–ton annual output of oil, accounting for about 6% of all Chinese oil
imports.”).
688
[Vol. 19:3
to put the Burmese atrocities before the eyes of China and remind them that
true global leadership depends on action as well as desire.
On the other hand, Russia may be the more difficult UN Security
Council member to persuade—due largely in part to the fact that, unlike
China, they have never publically questioned their support for the SPDC
and its policies. In fact, Russian Ambassador Vitaly I. Churkin has stated
that “the situation in [Burma] does not pose any threat to international or
regional peace. . . . attempts aimed at using the [UN] Security Council to
discuss issues [like human rights in Burma] are unacceptable.”123 While
incredibly difficult, it may not be impossible to persuade Russia into
allowing ICC jurisdiction. Two strategies are noted infra.
The first strategy would be exposing Russia’s flawed, public conviction
that the situation in Burma is not a threat to regional peace. While the SPDC
has not been accused of warring with area states like Thailand or Laos,
threats to peace have occurred in the region due to the number of refugees
that have fled Burma to these nearby states.124 In Thailand alone, “some
140,000 [Burmese] refugees live in nine remote camps.”125 Not only is the
staggering number of refugees disconcerting, but there is also evidence that
many Burmese refugees have experienced abuse at the hands of the Thai
military. One horrendous accusation includes “refugees . . . being towed out
to sea, cut loose and abandoned.”126 It is hard to imagine the plight of these
people, as they have faced horrors in Burma as well as in the places they
have sought shelter. This chaotic, violent instability suggests a real danger
to peace in the region, and it is facts like these that must be publically
conveyed to Russia. As noted with the People’s Republic of China, public
sentiment is a powerful instrument. By exposing these crimes to Russia, and
addressing them in a way where Russia must publically respond, these
situations may compel Russia to change its view on Burma’s overall
stability—potentially allowing the SPDC to face ICC jurisdiction.
The second strategy would be to raise the public’s awareness of Russian
economic ties to Burma. If global society was more conscious of the fact
that Russia is entering into major business contracts with a military junta
accused of outrageous crimes, then this might be enough to turn public
opinion against Russian interests. This seems particularly feasible due to
Russia’s standing contract with the SDPC to build a Burmese nuclear
research center—a subject of general concern when in the hands of unstable
Russia and Burma in Nuclear Deal, supra note 117.
Peter Biro, On the Border: A Generation of Burmese Refugees in Thailand, INT’L
RESCUE
COMM.
(June
27,
2009),
http://www.ircuk.org/about-irc-uk/mediacentre/news/article/date/2009/06/on-the-border-a-generation-of-burmese-refugees-inthailand.
125. Id.
126. Dan
Rivers,
Probe
Questions
Fate
of
Refugees in Thailand, CNN.COM (Jan. 26, 2009), http://www.cnn.com/2009/WORLD/
asiapcf/01/25/thailand.refugees/index.html#cnnSTCText.
123.
124.
2011]
Justice in Burma
689
nations like Burma.127 If pressure was mounted against the Russians to end
these problematic business ventures, it may also lead Russia to cave to
proponents of ICC jurisdiction for Burma—a move that could allow Russia
to recover politically from the negative press mounted against its dealings
with the SPDC. Essentially, if enough people, nations, and organizations
were alarmed about the Russia–Burma relationship—especially their
nuclear dealings—and broadcasted their disdain around the world, Russia
might feel compelled to salvage its reputation like China did with Darfur.128
What better way to show their “disgust” with the SPDC’s alleged actions
than to allow for the crimes in Burma to face ICC jurisdiction?
While convincing China and Russia to allow for Court jurisdiction may
be seen as a long shot, the interests, allies, and opinions of countries do
change frequently in the contemporary world. Should Russia, China, and the
other UN Security Council nations decide to refer the situation in Burma to
the ICC,129 the Court will add territorial/personal jurisdiction over the SPDC
and Burma to the already established subject matter and temporal
jurisdictions. As such, the ICC would have proper jurisdiction over the
case130—along with suitable admissibility. Burma’s judiciary has shown no
desire to investigate the human rights violations alleged against the Regime.
When considering the amount of concern being exhibited by the global
community over these crimes, it is evident that Burma is a country
unwilling to investigate its accused leaders. Thus, an ICC investigation of
the crimes in Burma would also be admissible if merely allowed.
III. THE INVESTIGATION AND OTHER PRE–TRIAL ACTIONS
A. The Investigative Process
Should the Pre–Trial Chamber determine that a reasonable basis exists
for jurisdiction and admissibility over the crimes allegedly committed by
the SPDC Generals in Burma, the ICC Prosecutor and OTP will then initiate
an investigation of the case.131 Distinct from common law jurisdictions like
the United Kingdom and United States, the role of the ICC Prosecutor is
more impartial and neutral than adversarial.132 In fact, an appropriate
parallel would be to compare the Prosecutor to an investigating magistrate
127. Russia and Burma in Nuclear Deal, supra note 117.
128. See supra notes 121–22 and accompanying text (noting China’s handling of
Darfur with the UN Security Council despite their economic ties).
129. Rome Statute, supra note 9, art. 13(b).
130. Additionally, no international agreements exist to shield senior SPDC officials
from ICC jurisdiction.
131. See Rome Statute, supra note 9, art. 15(1). Should the Pre–Trial Chamber reject
OTP’s requested investigation authorization, the ICC Prosecutor may act proprio motu to
initiate an investigation based on criminal “information” known to the Prosecutor. This
clause maintains a level of independence for OTP and helps to prevent judicial bias.
690
[Vol. 19:3
in civil law jurisdictions.133 As an investigator, the Prosecutor is presented
with a high level of trust—as well as the responsibility to probe a situation’s
“incriminating and exonerating circumstances equally.”134 During this
investigation stage, the Prosecutor and OTP will examine every facet of the
case to ascertain whether criminal responsibility exists under the Rome
Statute for the crimes in question.135 The process may be grueling, as it will
include locating and questioning witnesses and victims alike,136 gathering
and reviewing evidence,137 and—when necessary—even “seek[ing] the
cooperation of States or intergovernmental organizations.”138
What should happen then, if the SPDC were to be uncooperative with the
Prosecutor’s investigative duties in Burma? Prima facie, it appears as if the
Regime could stop the ICC Prosecutor’s case from ever advancing to a trial
by preventing or stalling the investigative process inside the State. If it is
determined that OTP would be unable to investigate alleged crimes in
Burma due to SPDC tactics—a likely result should the case be probed
there—then the Prosecutor may ask the Pre–Trial Chamber to authorize
their investigation in Burma without the Regime’s consent.139 In reality, one
must ask whether this is realistic. Even if the Prosecutor was given
permission to investigate from the Pre–Trial Chamber, there is no real
guarantee of individual safety—entry into Burma by OTP personnel would
undoubtedly invoke hostility and potential violence against them. It is the
opinion of this Article’s author that the ICC and its State parties have begun
to recognize this shortcoming in the Rome Statute, and have wisely sought
ways to circumvent it. One way is to allow the investigation to take place
outside of Burma—OTP’s investigation into crimes in the Sudan was
conducted in this fashion and thus sets precedent for such an action.140 This
may result in a lack of certain witness/victim testimony and some portions
of evidence, but it helps prevent exposing investigators and
victims/witnesses alike to retribution that would be a major risk in Burma.
B. The Process of Arrest
“At any time after the initiation of an investigation, the Prosecutor may
seek a warrant of arrest from the Pre–Trial Chamber.”141 In order to
133. Id.
134. Rome Statute, supra note 9, art. 54(1)(a); see also id. art. 53(1)(c) (noting that the
Prosecutor is also trusted with the power to halt an investigation if it “would not serve the
interests of justice.”).
135. Id. art. 54(1)(a).
136. Id. art. 54(3)(b).
137. Id. art. 54(3)(a).
138. Id. art. 54(3)(c).
139. See Rome Statute, supra note 9, art. 57(3)(d).
140. ICC Issues Darfur Arrest Warrants, BBC NEWS (May 2, 2007),
http://news.bbc.co.uk/2/hi/africa/6614903.stm.
2011]
Justice in Burma
691
convince the Pre–Trial Chamber that the arrest of a suspect is needed, the
Prosecutor must provide them with evidence to show that “there are
reasonable grounds to believe that the person has committed a crime within
the jurisdiction of the Court.”142 The Prosecutor must also show that an
arrest of the suspect appears necessary to guarantee the person will appear
at trial, prevent the accused from disturbing Court and investigative actions,
or stop the suspect from continuing their allegedly heinous crimes.143
Following the issuance of an arrest warrant by the Pre–Trial Chamber, the
ICC will communicate this request to the governing authority of the State
most intimately involved with the situation. It is the common desire of the
ICC that suspects it issues an arrest warrant for will be brought to them by
related state authorities for judgment.
With the considerable amount of evidence, witnesses, and victims being
generated by the SPDC’s alleged crimes, an investigation should not be
severely hampered by its management outside of Burma. Consequently, a
request by the Prosecutor should lead to arrest warrants being issued for
three key figures in the SPDC military council—the Regime’s Chairman,
Senior General Than Shwe; Regime Vice–Chairman, General Maung Aye;
and General Thura Shwe Mann, former Joint Chief of Staff for the SPDC’s
armed forces, known as the Tatmadaw.144 While Burma’s heinous crimes
may not have actually been committed by these three leaders themselves,
they do control the SPDC as superior military commanders—meaning
“effective authority and control” over their subordinates is both an
advantage and burden of their positions.145 Under the Rome Statute, if
military commanders are aware of—or are expected to be aware of—their
subordinate military forces committing terrible crimes, and they have not
taken all “necessary and reasonable measures within [their] power to
prevent or repress [the] commission [of these crimes],” then these military
commanders shall be held liable for the actions of their forces.146 This
notion of respondeat superior, or command responsibility, will divide the
SPDC’s alleged criminal responsibility amongst these three top Generals
and establish part of the reasonable grounds for an ICC arrest warrant. The
credentials for these arrest warrants will be further bolstered by the fact that
without them these Generals would never consider appearing at trial. In fact,
143. Id. art. 58(b)(i–iii).
144. Jacob Leibenluft, Who’s in the Junta?, SLATE (June 2, 2008),
http://www.slate.com/id/2192726. See Burma’s Than Shwe ‘Remains Senior General,’ BBC
NEWS (Aug. 31, 2010), http://www.bbc.co.uk/news/world-asia-pacific-11137293 (noting that
“number three leader [ ] Thura Shwe Mann is said to have stepped down” from his SPDC
leadership position) [hereinafter Burma’s Generals]. Regardless, this Article’s author
believes the ICC should still hold him liable for his alleged criminal actions since July 1,
2002.
145. Rome Statute, supra note 9, art. 28(a).
146. Id. art. 28(a)(i–ii); see also id. art. 27.
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[Vol. 19:3
the arrest warrants appear to offer the greatest prospect for their Court
appearance—as it may be used to leverage other members of the SPDC’s
military council into turning the Generals over to the ICC for trial.
With Burma controlled by the SPDC’s military council—and at the
highest level General Than Shwe—it would appear improbable for the
arrest warrants to be carried out. With the ICC dependent on States to carry
out the Court’s arrest warrants, it appears that a deal must be made between
lesser members of the Regime’s military council and the ICC. While the
SPDC is highly secretive, it is estimated that the military council consists of
roughly eleven generals147—a figure that has probably changed following
Burma’s faux elections in 2010.148 Undoubtedly there are crimes in Burma
which trace their decisional roots to these lower military council leaders,
and here is where the Court must make a tough decision in the best interests
of justice. It is apparent that the ICC was established to judge offenders of
the most heinous crimes when a State judiciary would be unable or
unwilling to do so due to corruption. Like prosecutors in the United States,
the ICC Prosecutor may have to strike a deal with lower level generals in
the SPDC in order for the ICC arrest warrant to be carried out against the
Regime’s top three. In reaching out to these lesser leaders on the military
council, the Prosecutor may be able to persuade them to turn over their
superior Generals. The deal could be structured to include an offer for the
dismissal of their own criminal liability, as well as possible removal to a
willing third party state should they desire it for safety purposes. While
contingent on the extradition of these three leading Generals, the deal could
also hinge on these lesser generals permanently resigning from power and
allowing for free elections within the State. Ultimately, the deal established
would be up to the Prosecutor to determine, but regardless of its added
specifics it may be the most feasible option for justice.
IV. THE ICC TRIAL OF SPDC LEADERSHIP
A. Initial Trial Aspects
Once transferred to The Hague in The Netherlands—the permanent seat
of the ICC—Generals Than Shwe, Maung Aye, and Thura Shwe Mann will
147. Leibenluft, supra note 144.
148. See Burma’s Generals, supra note 144 (claiming that the SPDC’s leadership
“reshuffle saw more than a dozen senior military officers [resign] ahead of Burma’s
[November 2010] elections.”). See also FREEDOM HOUSE, FREEDOM IN THE WORLD: THE
AUTHORITARIAN
CHALLENGE
TO
DEMOCRACY
8
(2011),
available
at
http://www.freedomhouse.org/images/File/fiw/FIW%202011%20Booklet_1_11_11.pdf. In
November 2010 the SPDC “oversaw [Burma’s] first elections since 1990. The electoral
process was tightly controlled to ensure the government–backed party’s sweeping victory,
and the popular opposition National League for Democracy was formally dissolved during
the year.” Id.
2011]
Justice in Burma
693
appear before the Pre–Trial Chamber for their confirmation hearing. In
order to set criminal charges against the Defendants, the Prosecutor is
required to show a sufficient evidential reason for each charge—with
sufficiency being determined by the Pre–Trial Chamber.149 Afterwards, the
Chamber will inform these Generals of the crimes they have been
adequately charged with, as well as their rights under law, in accordance
with the Rome Statute.150 The Prosecutor will then request continued
detention for the Defendants during the trial, as the difficult pretenses that
brought them to the ICC—namely betrayal by their subordinate generals—
undoubtedly means that the accused will attempt to escape from trial at any
cost.151 Once all formalities have been addressed in the confirmation
hearing, the substantiated occurrence of war crimes and crimes against
humanity will lead the Pre–Trial Chamber to constitute a Trial Chamber for
the SPDC Generals.152 From its inception, both the Prosecution and the
Defense must begin the process of disclosure—in other words both sides
will inspect the evidence that the other plans to use at trial. “The Prosecutor
must also disclose any such items that may assist the defence, although a
comparable duty is not imposed upon the defence to disclose items that
might assist the prosecution.”153 Once evidence has been reviewed and
voluntary witnesses have been located,154 the Court will officially begin the
trial of the Defendants.
The trial will commence with a re–reading of the charges confirmed
against the Generals in the Pre–Trial Chamber. Following this, each of the
accused will be asked to plead guilty or not guilty—the Defendants
themselves will likely plead not guilty.155 This process, however, is unique
under the Rome Statute—as it does not follow a typical civil law or
common law approach.156 Instead, a guilty plea before the ICC Trial
Chamber will be assessed by the judges for its context. Guilty pleas made
“voluntarily after sufficient consultation with counsel [and with the support
150. Id. at 113.
151. Id.
152. See id. at 116. If criminal charges were not properly supported with evidence,
then the Pre–Trial Chamber could simply decline to establish a Trial Chamber; the
Prosecutor could also amend the charges with new evidence and attempt to have the
defendants charged at a future confirmation hearing.
153. SCHABAS, supra note 2, at 117; see also ICC Rules of Procedure and Evidence,
Rules 77–78, available at http://www.icc-cpi.int/NR/rdonlyres/F1E0AC1C-A3F3-4A3CB9A7-B3E8B115E886/140164/Rules_of_procedure_and_Evidence_English.pdf.
154. SCHABAS, supra note 2, at 127. Witnesses may not be compelled to testify by
subpoena—their presence before the Court must initially be voluntary.
156. See SCHABAS, supra note 2, at 124 (noting that common law uses the guilty plea
to sometimes offer a defendant a less severe charge and/or sentence to avoid or accelerate the
process of trial; under continental (civil) law a guilty plea is basically irrelevant, as guilt or
innocence is heavily based on the evidence presented at trial).
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of] the facts of the case” will be assessed to a defendant.157 However, if the
Trial Chamber judges do not believe these stipulations have been achieved,
the admission of guilt may be withdrawn and the trial will continue.
Other ICC rules and procedures admittedly differ from both the common
law and civil law systems found across the world. There are other times
where they will be more similar to one legal system than the other, like the
Court’s allowance of indirect evidence and hearsay evidence when
considered prima facie reliable and vital to the detection of truth—a tribute
to civil law.158 These differences and similarities will be detailed where
relevant in this Article, but this Article’s focus remains on the crimes and
trial of Generals Than Shwe, Maung Aye, and Thura Shwe Mann
themselves. In Parts IV(B) and IV(C) infra, the specific war crimes and
crimes against humanity that have been alleged against the Defendants will
be reviewed in light of the elements that must be met for conviction.
Moreover, the appropriate defenses—if any—that the SPDC Generals may
assert will also be assessed to determine whether their innocence will or will
not prevail.
B. Crimes Against Humanity
1. Rome Statute Definition
Under the Court’s guiding law—the Rome Statute—crimes against
humanity are atrocities that share these common characteristics: acts
“committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack.”159 The components of
this statutory language may be broken down into five required elements: (1)
an attack is needed, (2) “the ‘attack’ must be ‘directed against’ a ‘civilian
population,’” (3) the perpetrator’s conduct “must be ‘part of’ the attack,” (4)
the perpetrator must have “knowledge” that their conduct is an aspect of the
attack, and (5) “the attack must be ‘widespread or systematic.’”160 For
purposes of clarity, relevant text within Part IV(B) will be distinguished
with numbers to help connect analysis with its corresponding element (i.e.
(1), (2), (3), etc.). The same will be done in Part IV(C) infra. Article 7(1) of
the Statute goes on to list the specific acts that are connected to the crimes
against humanity definition; the acts in question are:
(a)
(b)
(c)
Murder;
Extermination;
Enslavement;
157. Id. at 125.
158. See id. at 125–26.
160. CRIMES IN BURMA, supra note 16, at 24–25; see Rome Statute, supra
note 9, art. 7.
Justice in Burma
2011]
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
695
Deportation or forcible transfer of population;
Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;
Torture;
Rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of
comparable gravity;
Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender as
defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection
with any act referred to in this paragraph or any crime within the
jurisdiction of the Court;
Enforced disappearance of persons;
The crime of apartheid;
Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
Expanded definitions of these acts and their terminology are noted in
Articles 7(2) and 7(3), as well as in the ICC–approved document Elements
of Crimes of the International Criminal Court.161 It is this overarching
framework that will be applied to determine guilt or innocence for the
SPDC Generals. With the elements of these crimes established, the
Prosecutor will be required to prove to the Court that each defendant is
guilty “beyond [a] reasonable doubt.”162
2. Murder
“[T]he prohibited act of murder refers to . . . unlawful[ly]. . .killing or
causing the death of one or more [people].”163 Since 2002, countless
extrajudicial killings of this magnitude have been documented in Burma by
UN–authorized Rapporteurs. The Rapporteur findings have shown that
these (1) murderous attacks have frequently been (2) directed at civilian
populations by SPDC soldiers.164 With numerous Rapporteur findings in
existence, it would also be impossible for the Defendants to deny (3)
knowledge over the frequent murders committed by their soldiers—or for
161. See generally Int’l Crim. Ct., Elements of Crimes, UN Doc. ICC–ASP/1/3
(adopted Sept. 9, 2002) [hereinafter Elements of ICC Crimes].
162. See Rome Statute, supra note 9, art. 66. Article 66(2) says it is the Prosecutor’s
“onus” to determine guilt, Article 66(3) sets the “beyond reasonable doubt” standard, and
Article 66(1) presumes the innocence of the defendants until they are proven guilty. Id. The
same standard will apply to the war crimes discussed infra.
163. CRIMES IN BURMA, supra note 16, at 33; Elements of ICC Crimes, supra note
161, art. 7(1)(a)(1), n. 7.
164. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Civil and
Political Rights, Including the Question of Disappearances and Summary Executions, ¶ 41,
Comm’n on Human Rights, U.N. Doc. E/CN.4/2004/7 (Dec. 22, 2003) (by Asma Jahangir).
696
[Vol. 19:3
them to deny (4) having a part in these recurrent atrocities, as they would be
held responsible as the commanding generals. It also is relevant to note that
the UN Rapporteurs have sent letters to the SPDC leadership detailing these
grisly actions.165 Finally, it should not be very difficult to prove that (5)
these murders are systematic—in other words highly organized or
meticulously planned—or that the Regime’s attacks have been
widespread—generally meaning on a large scale with many victims. From
SPDC troops brutally beating a 17–year–old girl to death in Ta–Khi–Laek
town166—to soldiers shooting and killing a man fetching water near Paang
Sa village,167 as well as many other horrific stories—these incidents have
undoubtedly been widespread. These are only two examples of the junta–
driven murders taking place throughout Burma, but the UN Rapporteurs
have conveyed that at the very least it has been a “deliberate strategy” for
the SPDC to murder civilians believed to help armed rebel groups,168 and
with apparent impunity.169
With SPDC soldiers seemingly liable for the elements of murder—and
thus their Generals on trial through command responsibility—these
Defendants will have to attempt to put forward a sufficient defense for the
countless slayings brought to the Court’s attention. The most obvious
choices would be arguments of military necessity or self–defense from
militia forces—which may undermine the “unlawful” nature of the killings
committed.170 The Kachin Independence Army, Shan State Army, and other
resistance movements seek to end the SPDC’s illegitimate reign in Burma—
often through violent means.171 Yet the actions of these rebel groups pale in
comparison to the virtual witch hunt the SPDC undertakes in order to root
out resistance fighters. From killing innocent civilians “under the guise of
165. CRIMES IN BURMA, supra note 16, at 65.
166. CRIMES IN BURMA, supra note 16, at 66; Special Rapporteur on Extrajudicial,
Summary or Arbitrary Executions, Civil and Political Rights, Including the Question of
Disappearances and Summary Executions, Addendum, ¶ 472, Comm’n on Human Rights,
U.N. Doc. E/CN.4/2006/53/Add.1 (Mar. 27, 2006) (by Philip Alston) [hereinafter Alston
Comment].
167. CRIMES IN BURMA, supra note 16, at 66; Alston Comment, supra note 166,
¶ 473.
168. CRIMES IN BURMA, supra note 16, at 69 See The Special Rapporteur on the
Situation of Human Rights in Myanmar, Report of the Special Rapporteur on the Situation of
Human Rights in Myanmar, delivered to the General Assembly, ¶ 47, U.N. Doc. A/61/369
(Sept. 21, 2006).
169. CRIMES IN BURMA, supra note 16, at 69; The Special Rapporteur on the Situation
of Human Rights in Myanmar, Report of the Special Rapporteur on the Situation of Human
Rights in Myanmar, delivered to the General Assembly, ¶ 58 U.N. Doc. A/63/341 (Sept. 5,
2008).
170. Rome Statute, supra note 9, art. 31(1)(c).
171. See Burma Rebel Groups Form New Alliance: Activist, BANGKOK PRESS (Nov.
11, 2010), http://www.bangkokpost.com/news/asia/205834/burma-rebel-groups-form-newalliance-activist.
Justice in Burma
2011]
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dealing with ‘terrorists’”172 to executing civilians—including women and
children—merely thought to support these rebel coalitions,173 the SPDC’s
actions will make it extremely difficult for the Generals on trial to
effectively argue that these “self–defense” actions were permissible or
“militarily necessary.” In other words, the SPDC military response to rebel
threats is not being committed rationally or in a manner equivalent to the
degree of peril they face.174
3. Torture
“‘Torture’ means the intentional infliction of severe pain or suffering,
whether physical or mental, upon a person in the custody or under the
control of the accused; except that torture shall not include pain or suffering
arising only from, inherent in or incidental to, lawful sanctions.”175 The
humanity–based crime of torture appears to be prevalent in the actions of
SPDC soldiers. Examples of people being tortured are abundant under the
SPDC, as (2) civilian populations are often tortured mercilessly—(1) attacks
so prevalent amongst soldiers that (4) it would be nearly impossible for the
Generals on trial to deny knowledge of or (3) a part in their implementation.
SPDC actions have (5) been widespread—from accused resistance fighters
in Karen State being suffocated with plastic sheets while beaten over the
head,176 to women in Shan State being thrashed close to death with bamboo
sticks to retrieve information on unknown boats in the area.177 A local
school teacher in the village of Tagu Seik was also tortured by methods
including electric shocks—Regime forces had suspicions the villagers had
172. See CRIMES IN BURMA, supra note 16, at 65; See The Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions, Civil and Political Rights, Including the
Question of Disappearances and Summary Executions, delivered to the UN Econ. & Soc.
Council, Comm’n on Human Rights pursuant to Resolution 2002/36, ¶ 32, U.N. Doc.
E/CN.4/2003/3 (Jan. 13, 2003).
173. CRIMES IN BURMA, supra note 16, at 66; The Special Rapporteur on Extrajudicial,
Disappearances and Summary Executions, delivered to the UN Econ. & Soc. Council,
Comm’n on Human Rights, ¶ 41, U.N. Doc. E/CN.4/2004/7 (Dec. 22, 2003).
175. Rome Statute, supra note 9, art. 7(2)(e).
176. CRIMES IN BURMA, supra note 16, at 65; The Special Rapporteur of the Comm’n
on Human Rights on the Situation of Human Rights in Myanmar, Interim Rep. of the Special
Rapporteur of the Commission on Human Rights on the Situation of Human Rights in
Myanmar, transmitted by Note of the Secretary–General, ¶ 56, U.N. Doc. A/58/219 (Aug. 5,
2003) (by Paulo Sergio Pinheiro) [hereinafter Pinheiro Comment August 5].
177. CRIMES IN BURMA, supra note 16, at 66–67; The Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions, Civil and Political Rights, Including the
Question of Disappearances and Summary Executions, Addendum, Summary of Cases
Transmitted to Governments and Replies Received, delivered to the UN Econ. & Soc.
Council, Comm’n on Human Rights, ¶ 473, U.N. Doc. E/CN.4/2006/53/Add.1 (Mar. 27,
2006).
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been hiding weapons for a resistance group, but none were ever found.178
The systematic nature of this torture has also been noted, as it appears that
SPDC soldiers use these attacks for three specific purposes—to prevent
civilian discussion of social and economic issues in Burma,179 to root out
resistance fighters and their supporters,180 and generally to strike fear and
obedience into the population.181 Once again, this is all conducted “under
the guise of dealing with ‘terrorists.’”182
When attempting to defend against responsibility for the actions of their
soldiers, Generals Than Shwe, Maung Aye, and Thura Shwe Mann will
once again assert military necessity or self–defense for the tortures
committed against their people.183 Basically, the Defendants will claim that
their torturous, violent attacks—shown to the Court through the
Prosecutor’s physical evidence and witness testimony—are a rational
balance against the level of danger the SPDC faces from armed threats.
Here, the Generals will again fail in their reasoning. Regardless of the fact
that the SPDC Generals have never ratified the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,184 it appears that under the ICC “no specific purpose need be
proved for [torture].”185 Overall, if torture is shown to be a widespread or
systematic method being employed knowingly by the Regime against
civilians and enemies alike, it will be impossible for the Generals to avoid
guilt for torture—regardless of their alleged purposes for using the practice.
178. CRIMES IN BURMA, supra note 16, at 67; Special Rapporteur on the Situation of
Human Rights and Fundamental Freedoms of Indigenous People, Report of the Special
Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous
People: Addendum: Analysis of Country Situations and other Activities of the Special
Rapporteur, delivered to the UN Econ. & Soc. Council, ¶ 60, U.N. Doc.
E/CN.4/2006/78/Add.1 (Jan. 18, 2006).
Comm’n on Human Rights pursuant to Resolution 2002/36, ¶ 32, U.N. Doc. E/CN.4/2003/3
(Jan. 13, 2003).
180. See CRIMES IN BURMA, supra note 16, at 65; Pinheiro Comment August 5, supra
note 176, ¶ 56.
181. See CRIMES IN BURMA, supra note 16, at 65; Pinheiro Comment August 5, supra
note 176, ¶ 56.
Comm’n on Human Rights pursuant to Resolution, ¶ 32, 2002/36 U.N. Doc. E/CN.4/2003/3
(Jan. 13, 2003).
183. See SCHABAS, supra note 2, at 90.
184. See generally Elements of ICC Crimes, supra note 161.
185. Elements of ICC Crimes, supra note 161, art. 7(1)(f), n. 14.
Justice in Burma
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4. Imprisonment
For imprisonment to qualify as a crime against humanity, it must—like
murder and torture—meet a humanity crime’s basic elements,186 as well as
be a “severe deprivation of physical liberty in violation of fundamental rules
of international law.”187 Perhaps the most well–known example of an SPDC
imprisonment would be that of Aung San Suu Kyi—the democratic voice of
Burma.188 It is important to once again consider the entry into force date of
the Rome Statute—July 1, 2002. It is within this context that we must look
at the imprisonment of Suu Kyi, as before this date there is no ICC
accountability.
On May 30, 2003—a date which became known as “Black Friday,” an
SPDC–recruited mob violently attacking Burmese citizens who were
praising Aung San Suu Kyi and her political party, the National League for
Democracy (“NLD”).189 While more than 100 people were killed or injured
in the attack, no one in the mob was ever tried for a crime.190 “This brutal
attack was the [SPDC’s] response to the unwavering support shown to the
NLD during Aung San Suu Kyi’s numerous trips through–out [Burma],
following her release from 19 months of house arrest in May 2002.”191 As a
result, this well–known victim would return to house arrest from May 30,
2003 until November 13, 2010.192 Suu Kyi’s physical liberties were harshly
divested from her, as she was limited to her home and removed from nearly
all human contact.193 Moreover, “Navi Pillay, the UN high commissioner for
human rights, accused Myanmar’s military leaders…of persecuting the
Nobel peace laureate [Aung San Suu Kyi]. . . . [Pillay would assert that Suu
Kyi’s] continued detention . . . [was a] breach [of] international standards of
due process and fair trial.”194 While Aung San Suu Kyi’s string of house
arrests have concluded as of this Article, her detention in itself still
186. Rome Statute, supra note 9, art. 7.
187. Id. art. 7(1)(e).
188. See supra note 14.
189. Ellen Nakashima, Burma’s Iron ‘Aunty,’ WASH. POST (Oct. 13, 2003),
http://www.washingtonpost.com/ac2/wp-dyn?pagename=article&contentId=A181072003Oct12&notFound=true.
190. See id. (stating that it may be assumed that no one in the mob was judicially held
accountable for their crimes on “Black Friday,” as the mob was recruited by Burma’s
military junta, the SPDC, to carry out these acts of violence).
191. ASEAN INTER–PARLIAMENTARY MYANMAR CAUCUS, THE DEPAYIN MASSACRE 2
ON,
JUSTICE
DENIED
1
(2005),
available
at
YEARS
http://www.aseanmp.org/resources/Depayin%20Massacre.pdf.
192. Burma Releases Pro–Democracy Leader Aung San Suu Kyi, BBC NEWS (Nov.
13, 2010), http://www.bbc.co.uk/news/world-asia-pacific-11749661.
193. NAT’L DEMOCRATIC INST., supra note 14. (noting that the terms of Suu Kyi’s
house arrest included a prohibition against visitors to her home without the consent of SPDC
leadership).
194. UN: Suu Kyi Detention ‘Illegal,’ AL JAZEERA (May 16, 2009),
http://english.aljazeera.net/news/asia-pacific/2009/05/2009515144939393754.html.
700
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constitutes an imprisonment crime committed by the SPDC. By itself, it
would not constitute a crime against humanity, as it was a crime directed
against Suu Kyi and not the civilian population of Burma—despite the
immense anguish it caused her supporters. However, when her case is added
to the political prisoners still being held by the SPDC—a number estimated
at more than 2,200 people195—the political imprisonments in Burma easily
reach the level of a humanity crime before the ICC.
In essence, (1) (2) the attack committed against these civilian prisoners is
their imprisonment itself—a deprivation of their physical freedom that was
made outside the norms of international law, which requires basic due
process and a fair trial. Judicial fairness has not existed for these 2,200+
individuals—who include many NLD members and Buddhist monks who
led peaceful anti–SPDC protests in 2007.”196 The vast number of political
prisoners, along with their wide array of peaceful affiliations and
backgrounds, (5) makes their holding by the Regime a widespread action.
The SPDC’s decision to imprison virtually anyone who publically opposes
their policies makes the situation a systematic action as well. With the
Generals on trial before the ICC having (4) specific knowledge of these
incarcerations, and (3) openly taking part in their implementation,197 it is
clear that their actions constitute a crime against humanity in the form of
imprisonment.
Once again, the Defendants’ only option for defense would be self–
defense or military necessity. Yet the protests for change and freedoms in
Burma have never been violent, nor should they bring concern to the SPDC
for their own self–defense. Instead, these peaceful calls for change only
strike fear in the hearts of the SPDC Generals for the fact that change would
probably mean a loss of their ability to rule over Burma. It emphasizes that
the shocking violence brought against these protestors by the Regime has
been far from a rational, military necessity. In fact, it is about as far from an
appropriate response as is possible, and this basic logic will easily defeat
any defense to the Defendants’ political imprisonments.
195. Who are Burma’s Political Prisoners?, BBC NEWS (Nov. 13, 2010),
http://www.bbc.co.uk/news/world-asia-pacific-11741612.
196. Id. See also Burmese Riot Police Attack Monks, BBC NEWS (Sept. 26, 2007),
197. See NAT’L DEMOCRATIC INST., supra note 14 (noting that Aung San Suu Kyi’s
illegitimate imprisonment extension for violating her “house arrest conditions” was reduced
significantly by General Than Shwe, yet this also indicates that he had a part in—and
significant knowledge of—its implementation. In other words, General Than Shwe had the
ability to suspend Suu Kyi’s imprisonment but chose not to do so in defiance of the basic
rules of international law).
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Justice in Burma
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5. Sexual Violence
The Rome Statute’s list of crimes against humanity also includes “[r]ape,
sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity.”198
For purposes of this Article, rape will be the predominant focus, as it
appears to be the most frequent sexual crime committed against the people
of Burma by SPDC soldiers.199 In order to constitute a criminal charge of
rape before the ICC, the elements of a humanity crime must be met;200 as
well:
The perpetrator [must have] invaded the body of a person by conduct
resulting in penetration, however slight, of any part of the body of the
victim or of the perpetrator with a sexual organ, or of the anal or genital
opening of the victim with any object or any other part of the body. 201
This action must also have been:
[C]ommitted by force, or by threat of force or coercion, such as that
caused by fear of violence, duress, detention, psychological oppression or
abuse of power, against such person or another person, or by taking
advantage of a coercive environment, or the invasion was committed
against a person incapable of giving genuine consent. 202
The UN Rapporteurs for Burma and various UN Committees have
consistently stressed that sexual violence, and particularly rape, has been an
epidemic during the Regime’s control. It is especially concerning because
while sexual violence has been labeled “an area of major concern,” it is very
realistic that “reports are likely to be below the real numbers of abuses.”203
These international investigators have detailed that (1) (2) rape and other
sexual attacks by SPDC soldiers have been especially directed at the women
of numerous ethnic populations living in rural parts of Burma—including
against “the Shan, Mon, Karen, Palaung, and Chin ethnicities.”204 Often
these populations have been targeted by SPDC soldiers “as ‘punishment’ for
allegedly supporting ethnic armed groups. . . . The [SPDC] authorities
sanction violence against women and girls committed by military officers
198. Rome Statute, supra note 9, art. (7)(1)(g).
201. Elements of ICC Crimes, supra note 161, art. 7(1)(g)–1(1).
202. Elements of ICC Crimes, supra note 161, art. 7(1)(g)–1(2).
203. CRIMES IN BURMA, supra note 16, at 57.
204. Id.; U.N. Comm. On the Elimination of Discrimination against Women,
Concluding Observations of the Committee on the Elimination of Discrimination Against
Women: Myanmar, ¶ 24, U.N. Doc. CEDAW/C/MMR/CO/3 (Nov. 7, 2008).
702
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. . . as a means of terrorizing and subjugating the population.”205 This
evidences (5) a blatant, systematic policy—one that traces its roots to higher
level agents within the SPDC hierarchy. There is also a widespread practice
of rape by the Regime’s soldiers—undoubtedly coordinated by the
Defendants’ direct or indirect mandate.206 A multitude of horrifying stories
have been reported: two sisters from Wan Zing village were raped by
Regime soldiers while they were in the fields reaping rice—their father was
tied to a tree to stop him from preventing it.207 Another woman living in
Kho Lam village was gang–raped by SPDC troops who accused her of
being the wife of a resistance movement soldier.208 And “[i]n 2004, the
Myanmar Rapporteur received reports of 125 cases of rape in Karen State
alleged to have occurred over a year and a half period.”209 The widespread
existence of rape in Burma is beyond troubling, and it is obvious from its
targeted nature that (4) Generals Than Shwe, Maung Aye, and Thura Shwe
Mann should have immense knowledge of this SPDC policy, as well as (3)
a say in its implementation amongst the Regime’s soldiers.
Accordingly, the Generals will have no affirmative defense to prevent
the crime of sexual violence, and more specifically rape, from being
attributed to them via command responsibility. While the defendants may be
able to put forward some form of argument to defend against most crimes
against humanity on the basis of arguments like military necessity or self–
defense—especially against rival, militarized groups that wish to remove
them from power—sexual violence will never even remotely be considered
a means for defense. Like murder, torture, and imprisonment noted supra,
sexual violence by the SPDC has generally been used to target civilians—an
appalling way to maintain national power. But unlike the three crimes
previously discussed, sexual crimes are generally held at a higher level of
205. CRIMES IN BURMA, supra note 16, at 57; The Special Rapporteur on Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment, Civil and Political Rights,
Including the Questions of Torture and Detention: Addendum: Summary of Information,
Including Individual Cases, Transmitted to Governments and Replies Received, delivered to
the UN Econ. & Soc. Council, U.N. Doc. E/CN.4/2006/6/Add.1 (Mar. 21, 2006).
206. Elements of ICC Crimes, supra note 161, art. 7(1)(g)–1(1–4).
Disappearances and Summary Executions: Addendum: Summary of Cases Transmitted to
Governments and Replies Received, delivered to the U.N. Econ. Soc. Council, Comm’n on
Human Rights, ¶ 474, U.N. Doc. E/CN.4/2006/53/Add.1 (Mar. 27, 2006).
Disappearances and Summary Executions: Addendum: Summary of Cases Transmitted to
Governments and Replies Received, delivered to the U.N. Econ. Soc. Council, Comm’n on
Human Rights, ¶ 471, U.N. Doc. E/CN.4/2006/53/Add.1 (Mar. 27, 2006).
209. CRIMES IN BURMA, supra note 16, at 56; The Special Rapporteur on the situation
of human rights in Myanmar, Report of the Special Rapporteur on the Situation of Human
Rights in Myanmar, delivered to the General Assembly, ¶ 30, U.N. Doc. A/61/369 (Sept. 21,
2006).
2011]
Justice in Burma
703
distain, as often the victims are innocent women or children and the crime
involves a destruction of intimate privacy. The author is hopeful that many
victims will have the courage to appear before the Court with their accounts.
Their personal stories, combined with third–party witness accounts and
medical records where available, will be eternally significant in holding the
Generals accountable for these appalling policies.
6. Forced Displacement210
The forced transfer of a population becomes a crime against humanity
when a perpetrator meets the requisite humanity crime elements, and
transfers by force or deports “one or more persons to another State or
location, by expulsion or other coercive acts.”211 The force needed to trigger
ICC liability does not have to be physical either; force may also exist as a
threat made by a perpetrator against a victim in the form of a “fear of
violence, duress, detention, psychological oppression or abuse of power.”212
The elements of forced displacement further require that the victim was
“lawfully present in the area from which they were so deported or
transferred”213 and that the perpetrator was aware of this lawful presence.214
In Burma, the displacement of rural populations has become an epidemic
in the last decade. According to reports, these forced internal transfers have
been conducted as a “security measure” in response to armed resistance
factions who oppose the Regime; for all intents and purposes, (1) (2) the
SPDC has sought to displace civilian populations having the mere capability
to hide or aid groups that might be detrimental to their power. 215 In one
instance, SPDC soldiers physically attacked Karen State villages when
conducting military operations against Karen National Union rebels. The
soldiers then ordered the villagers to move to Regime–authorized relocation
sites, causing civilians to either follow Regime orders or flee the SPDC and
“hide in the forest or seek asylum in Thailand.”216 The fear of continued
210. Rome Statute, supra note 9, art. 7(1)(d).
211. Elements of ICC Crimes, supra note 161, art. 7(1)(d)(1) (if international law
customarily permits the grounds upon which a transfer is being made, then it cannot be a
humanity crime).
212. Id. art. 7(1)(d)(1), n. 12.
213. Id. art. 7(1)(d)(2).
214. Id. art. 7(1)(d)(3).
Summary or Arbitrary Executions, Implementation of General Assembly Resolution 60/251
of 15 March 2006 Entitled “Human Rights Council”: Report of the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions: Addendum: Summary of Cases Transmitted
to Government and Replies Received, U.N. Doc. A/HRC/4/20/Add.1, 222 (Mar. 12, 2007).
Summary or Arbitrary Executions, Implementation of General Assembly Resolution 60/251
of 15 March 2006 Entitled “Human Rights Council”: Report of the Special Rapporteur on
Extrajudicial, Summary or Arbitrary Executions: Addendum: Summary of Cases Transmitted
to Government and Replies Received, U.N. Doc. A/HRC/4/20/Add.1, 222 (Mar. 12, 2007).
704
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violence felt by the villagers—along with the psychological oppression and
abuse of power exhibited by the Regime’s soldiers—undoubtedly triggered
these sizeable movements.
A myriad of civilians in Burma have experienced involuntary
displacement—a process that never includes measurable assistance or
compensation from the SPDC.217 To make matters worse, “[p]rohibitions are
put in place for returning to their villages, and if caught they may be shot on
sight.”218 “In October 2007, sources estimated that the total number of
internally displaced persons in eastern Burma was 503,000. These included
295,000 people in ceasefire zones, 99,000 hiding in the jungle, and 109,000
elsewhere in Burma—including in [Regime–authorized] relocation sites.”219
These degrading attacks on the population have led the Myanmar
Rapporteur to believe that the practice of forced displacement is (5)
unquestionably widespread in Burma—in addition to being a systematic
element of SPDC counter–insurgency.220 The author of this Article strongly
believes that involuntary displacement—an aspect of the Regime’s brutal
“Four Cuts Policy”221 for counter–insurgency—is far more disastrous for
Burma’s civilians than it ever could be for the resistance fighters the policy
is meant to undermine. This is a disheartening observation which at least
provides one constructive note—the fact that forced displacement is
generally considered an element of a larger SPDC policy means that (3) (4)
the Defendants would be expected to have knowledge of it and play a key
role in its implementation. Thus, as long as the ICC Prosecutor is able to
confirm that the forcibly displaced victims were lawfully present in Burma
at the time of their transfer, and that the SPDC was aware they were forcing
217. CRIMES IN BURMA, supra note 16, at 46–47; Special Rapporteur of the Comm’n
on Human Rights on the Situation of Human Rights in Myanmar, Interim Rep. of the Special
Rapporteur of the Commission on Human Rights on the Situation of Human Rights in
Myanmar, transmitted by Note of the Secretary–General, ¶ 17, U.N. Doc. A/57/290 (Aug. 9,
2002) (by Paulo Sergio Pinheiro) [hereinafter Pinheiro Comment August 9].
218. CRIMES IN BURMA, supra note 16, at 47; Pinheiro Comment August 9, supra note
217, ¶ 17.
219. CRIMES IN BURMA, supra note 16, at 44; The Special Rapporteur on the Situation
of Human Rights in Myanmar, Human Rights Situations that Require the Council’s
Attention: Report of the Special Rapporteur on the Situation of Human Rights in Myanmar,
delivered to the General Assembly, Human Rights Council, ¶ 69, U.N. Doc. A/HRC/7/18
(Mar. 7, 2008).
220. CRIMES IN BURMA, supra note 16, at 49; See The Special Rapporteur on the
Situation of Human Rights in Myanmar, Report of the Special Rapporteur on the Situation of
Human Rights in Myanmar, delivered to the General Assembly, ¶ 47, U.N. Doc. A/61/369
(Sept. 21, 2006).
221. Sabyashci Basu Ray Chaudhury, Burma: Escape to Ordeal, in INTERNAL
DISPLACEMENT IN SOUTH ASIA 213, 219 (Paula Banerjee et al. eds., 2005) (“The Four Cuts
policy . . . aims to cut the supplies of food, funds, recruits and information to resistance
groups by systematically terrorizing, controlling, and impoverishing the civilian population
in resistance areas so that they have neither the opportunity nor the means to provide any
form of support to the opposition.” One pillar of the Four Cuts policy is “forced relocation to
sites and villages directly under the control of the SPDC military troops.”).
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Justice in Burma
705
the relocation of legally present individuals, then the Generals on trial will
be in clear violation of forced displacement under the Rome Statute’s
crimes against humanity.
Defending against charges of forced displacement may be one area
where the SPDC Generals have a slight advantage over the Prosecutor. This
advantage stems from the Prosecutor’s potential difficulty in proving all
required elements of forced displacement. Unlike the humanity crimes of
sexual violence and torture—where relevant medical records may have been
gathered by international groups to corroborate victim accusations—
validating a forcibly displaced person’s legal presence in Burma may be
harder to accomplish.222 This is because a person’s legal presence in a
country is highly predicated on the country itself—in this situation Burma.
With most of these displaced persons originating in rural Burmese
communities near the national borders, it may be common for them not to
have documentation proving their legal status—even if they were born
within the territory of the State. The Prosecutor’s best option would be to
emphasize the potential disconnect between rural and city communities,
showing that birth certificates, marriage licenses, and other documentation
are not commonly possessed by people in rural Burma. If the Prosecutor can
validate this argument and show that their lack of legal documentation is
caused by deficiencies in the Regime’s governance, then it may be
unnecessary to prove a person’s legal presence in Burma past the testimony
of third–party witnesses.223 The testimony of third–party witnesses may also
suffice if the Prosecutor emphasizes to the Court that these displaced
persons were separated from legal status documentation through the
displacement itself. Regardless, a Trial Chamber that chooses to strictly
interpret the elements of forced displacement might not accept these lines of
reasoning, so the Prosecutor’s safest angle would be to locate as many
displaced persons with legal status paperwork as possible to establish the
practice as a widespread or systematic policy of the Regime.
While the Generals may attempt to assert the affirmative defenses of
military necessity and self–defense once more, these defenses would again
222. See supra note 219 (noting that internal displacement figures are generally
estimates). The sheer numbers of those displaced may lead to difficulties in gathering
statistics.
223. See Rome Statute, supra note 9, art. 69(3) (“The Court shall have the authority to
request the submission of all evidence that it considers necessary for the determination of the
truth.”). See also SCHABAS, supra note 2, at 125–26 (noting that “[t]o be admissible, evidence
must be relevant and necessary”). This does not mean, however, that evidence must be
wholly validated in order to be submitted to the Court’s record. Generally, the Rome Statute
implies that evidence need only be prima facie reliable—a nod to civil law traditions—which
technically means that even indirect evidence or hearsay evidence could be submitted when
deemed necessary by the judges. This point is eternally significant to this Article, as the
findings of the UN Rapporteurs for Myanmar (Burma) may at times fall into this category of
evidence, and without these findings being admissible it would be slightly more difficult to
convict the SPDC Generals for crimes under the Rome Statute.
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falter when viewed in proper context. While the Defendants would argue
that their forced displacement of populations throughout Burma is done to
prevent aid and support from reaching armed resistance groups, this still
does not change the fact that these groups are only being hindered
indirectly—the brunt of this punishment is still being placed on innocent
civilians. These noncombatants are being used as pawns in the SPDC’s
internal struggle against opposition fighters, and forced displacement is just
another strategy—like the murders, torture, imprisonments, and sexual
violence noted supra—for retaining dominion over Burma.
C. War Crimes
1. Rome Statute Definition
It is undeniable that the Rome Statute’s war crimes provisions are
challenging to decipher. In fact, the extensive provisions make it difficult
for a casual reader of the law to walk away with a real understanding of
their application. While some might argue that the Statute’s vast detail is
positive—signifying the contemporary regard for war crimes prosecution,
others argue that this comprehensive set of elements only makes it harder to
prove the guilt of defendants beyond a reasonable doubt.224
Generally, “[t]he Court shall have jurisdiction . . . [over] war crimes . . .
committed as part of a plan or policy or as part of a large–scale commission
of such crimes.”225 Building on this requirement, the war crimes elements of
Article 8 may be divided into two divisions: those applying to international
armed conflicts and non–international armed conflicts respectively. Should
an armed conflict be deemed international in nature, war crimes will equal
“[g]rave breaches of the Geneva Conventions of 12 August 1949” that are
committed “against [the] persons or property” protected by these
Conventions—these generalized breaches are noted under Article 8(2)(a).226
224. See SCHABAS, supra note 2, at 43 (“The greater the detail in the provisions, the
more loopholes exist for able defence arguments.”).
226. Violations of the Rome Statute’s Article 8(2)(a) are namely:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or
health;
(iv) Extensive destruction and appropriation of property, not justified
by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve
in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected
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Article 8(2)(b) also spells out a second category of war crimes applying to
international armed conflicts. This list, which is more specific in its criminal
requirements, is largely an extension of traditional laws known as “Hague
Law” to the Rome Statute—an installment of older, accepted laws of war
into the contemporary system of the ICC.227
However, should an armed conflict be deemed non–international, war
crimes will equal:
[S]erious violations of article 3 common to the four Geneva Conventions
of 12 August 1949, namely, any of the following acts committed against
persons taking no active part in the hostilities, including members of
armed forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating
and degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of Executions without
previous judgement pronounced by a regularly constituted court,
affording all judicial guarantees which are generally recognized as
indispensable.228
Article 8(2)(e) spells out another category of war crimes applying to
non–international armed conflicts. This list, which is more specific in its
criminal requirements than Article 8(2)(c), largely consists of Protocol
Additional II—an expansion on common Article 3 of the Geneva
Conventions that was adopted by UN members in the 1970s.229 Like with
“Hague Law” under Article 8(2)(b), the drafters of the Rome Statute
person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
See also SCHABAS, supra note 2, at 46 (explaining that while “[n]othing in [Article 8(2)(a)]
insists that these [breaches] apply only to international armed conflict . . . the context
suggests that this must necessarily be the case.”). For an explanation of this “context,” see
SCHABAS, supra note 2, at 46, n. 82.
227. Convention Concerning the Laws and Customs of War on Land (Hague IV), Oct.
18, 1907, 36 Stat. 2277, 205 Consol. T.S. 279 [hereinafter Hague IV]. See SCHABAS, supra
note 2, at 47.
228. Rome Statute, supra note 9, art. 8(2)(c)(i–iv).
229. See SCHABAS, supra note 2, at 51; Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of Victims of Non–
International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol
Additional II].
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seemed to defer to their earlier laws of war by incorporating Protocol
Additional II directly into the modern Court’s extensive structure. However,
it is important to note that “internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence” do not qualify as war crimes for
purposes of non–international armed conflicts230—an indicator to States that
the Court will not interfere with infrequent occasions of violence out of
customary deference to national sovereignty.231
2. Application to Burma
As was observed supra in Part IV(B), the heinous actions that the SPDC
Generals have been accused of are internal in nature—and often have taken
place as a result of the SPDC’s armed conflicts with resistance groups. In
light of the non–international character of these actions, Articles 8(2)(c)–(f)
and the Elements of Crimes of the International Criminal Court232 will be
the sole basis for war crime elements in this Article. From these sources of
ICC law, general war crime elements may be deciphered: (1) an “armed
conflict” must exist,233 (2) the “internal” armed conflict cannot simply be a
“riot” or “disturbance” or “isolated and sporadic,”234 and (3) the alleged war
crimes must have been “committed as part of a plan or policy or as part of a
large–scale commission of such crimes.”235 Every war crime that the
Prosecutor charges the Defendants with will require that these elements be
met for conviction—as well as individual elements specific to each charge.
3. Murder
Explicitly detailed in Part IV(B)(2), murders have been conducted
against civilians by SPDC soldiers in order to make them fearful of
supporting armed resistance groups.236 This demonstrates that (1) an armed
conflict exists between the SPDC and various opposition groups in Burma.
Evidence also demonstrates that (3) these murders are committed according
to a large–scale Regime policy; this may be deduced from the fact that
numerous Rapporteurs have expressed concerns to the Generals over the
innocent civilian murders being committed by their forces, and to no
avail.237 This further proves that (2) the murders taking place in Burma are
neither sporadic nor isolated. With the three general war crime elements met
230.
231.
232.
233.
234.
235.
236.
237.
See Rome Statute, supra note 9, arts. 8(2)(d), 8(2)(f).
See id. art. 8(3).
See generally Elements of ICC Crimes, supra note 161.
See Rome Statute, supra note 9, art. 8(2)(c)–(f).
Id. arts. 8(2)(d), 8(2)(f).
Id. art. 8(1).
See supra notes 166–67.
CRIMES IN BURMA, supra note 16, at 65.
Justice in Burma
2011]
709
for murder, we must assess which war crimes may be charged to the
defendant Generals through command responsibility.
A war crime pertaining to murder is Article 8(2)(c)(i), “[v]iolence to life
and person, in particular murder of all kinds, mutilation, cruel treatment and
torture.” This war crime requires that an innocent civilian be killed by a
perpetrator in the context of a non–international armed conflict. Moreover,
the civilian killed must not have taken part in the hostilities, and the
perpetrator must have been aware of this fact.238 Each element appears
sufficiently met by the facts of the preceding paragraph, as long as witness
testimony is able to corroborate the victim’s innocence. With the Regime’s
Generals having command responsibility over the actions of their soldiers—
especially with these murders being brought to their immediate attention by
reputable investigators like UN Rapporteurs—General Than Shwe and his
fellow Defendants on trial may be held criminally responsible for
potentially hundreds of murder–based war crimes, as each individual killing
may constitute an offense before the Court if properly evidenced.
4. Torture
Broadly noted supra in Part IV(B)(3), torture has been another technique
enacted against Burma’s civilian population in order to make them hesitant
about assisting local groups opposing the despotic Regime. This again
demonstrates that (1) an armed conflict exists between SPDC forces and
rebel groups opposed to their rule in Burma. Torture’s widespread,
systematic use also shows that (3) it is a large–scale practice by SPDC
soldiers239—a policy that would be incredibly hard for the Defendants to
deny knowledge of and responsibility for. As torture appears to be Regime
policy,240 (2) it would be exceedingly difficult for the Generals to claim it is
a sporadic or isolated action. With the general war crime elements for
torture met, we must determine which war crimes may be charged to the
SPDC Generals through command responsibility.
One war crime concerning torture is Article 8(2)(c)(i), “[v]iolence to life
and person, in particular murder of all kinds, mutilation, cruel treatment and
torture.” This war crime requires that an innocent person have “severe
physical or mental pain or suffering” inflicted upon them by a perpetrator in
the context of a non–international armed conflict. Additionally, the civilian
being tortured must not have taken part in the hostilities, and the perpetrator
must have been aware of this fact. Overall, the torture must have been
conducted for the purposes of “obtaining information or a confession,
punishment, intimidation or coercion or for any reason based on
238. See Elements of ICC Crimes, supra note 161, art. 8(2)(c)(i)–1(1–5).
239. See CRIMES IN BURMA, supra note 16, at 65; See Pinheiro Comment August 5,
supra note 176, ¶ 56.
240. See generally infra Part IV.B.3.
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discrimination.”241 Each element appears to be suitably met by the facts of
the prior paragraph, as long as the victim’s and/or any witness testimony is
able to properly substantiate the innocence of the victim. With the
Defendants holding command responsibility over the actions of their
soldiers—and torture apparently being a standard method for instilling
preemptive fear in citizens to preempt support for armed resistance
fighters—the SPDC Generals on trial may be held criminally responsible
for possibly hundreds of torture–based war crimes, as each instance may
constitute an offense before the Court if appropriately confirmed.
5. Sexual Violence
Duly noted in Part IV(B)(5), atrocious instances of sexual violence have
taken place against rural civilians near resistance group strongholds; the
attackers of these civilians have notoriously been SPDC soldiers aiming to
prevent local assistance of armed resistance fighters through fear,
punishment, and anxiety.242 This brutality–triggering paranoia of the
Regime’s military forces demonstrates that (1) a formidable armed conflict
exists between the SPDC and militarized opposition groups within Burma.
Moreover, the pervasive nature of rape and other aggravated sexual crimes
in the State show that (2) the sexual violence in Burma is not isolated or
sporadic. In fact, with rape and other sexual aberrations seeming to coincide
with most Regime attacks on rural populations, the condition certainly has
the makings of (3) a large–scale SPDC policy. With the three standard war
crime elements met for sexual violence, we must consider which war crimes
may be charged to Generals Than Shwe, Maung Aye, and Thura Shwe
Mann by way of command responsibility.
One war crime connected to sexual violence—and rape more
specifically—is Article 8(2)(e)(vi), “[c]ommitting rape, sexual slavery,
enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2
(f), enforced sterilization, and any other form of sexual violence also
constituting a serious violation of article 3 common to the four Geneva
Conventions.” This war crime specifies that the general actus reus elements
of rape under crimes against humanity shall also be the standard for rape as
a war crime.243 With the SPDC noticeably aware of the connection between
their sexual crimes and the non–international turmoil they face from armed
militias,244 each element appears sufficiently met by the facts of the
preceding paragraph. Additionally, it is important to note that the elements
for proving rape as a war crime do not include provisions requiring non–
241. See Elements of ICC Crimes, supra note 161, art. 8(2)(c)(i)–4(1–6).
243. See Elements of ICC Crimes, supra note 161, art. 8(2)(e)(vi)–1(1–2). Compare
with Id. art. 7(1)(g)–1(1–2).
244. Id., art. 8(2)(e)(vi)–1(3–4).
2011]
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active participation by the victim in any armed conflict against the crime’s
perpetrator.245 This point is significant, as it dictates that rape and other
heinous sexual attacks are never permitted under the pretexts of combat.
With the Regime’s Generals having command responsibility over the
actions of their soldiers, General Than Shwe and his fellow Defendants may
be held criminally responsible for countless instances of rape, as each
sexual attack may constitute an offense before the Court if properly
substantiated by evidence and testimony.
6. Forced Displacement
Part IV(B)(6) observed in detail the forced displacement of rural civilian
populations in Burma—a technique employed by the SPDC to obstruct
possible aid for armed resistance movements.246 Again, the rudimentary
facts demonstrate that (1) an armed conflict exists between Regime forces
and resistance groups opposed to SPDC control over Burma. Additionally,
the widespread, systematic use also shows that (3) involuntary displacement
is a large–scale practice by SPDC soldiers247—a policy for which it would
be exceedingly difficult for the Defendant to deny all responsibility and
knowledge. This is especially true with the practice being considered a
component of the SPDC’s “Four Cuts” policy. 248 Thus, it would be nearly
impossible for the Generals to claim that forced displacement was (2) a
sporadic or isolated action. With the basic war crime elements for
involuntary displacement met, we must then determine which war crimes
may be charged to the Defendants through command responsibility.
One war crime concerning forced displacement is Article 8(2)(e)(viii),
“[o]rdering the displacement of [a] civilian population for reasons related to
[a] conflict, unless the security of the civilians involved or imperative
military reasons so demand.” This war crime’s elements state that a
perpetrator in a position of influential authority must have ordered a civilian
population’s displacement in light of an armed conflict known to the
perpetrator. In addition, the displacement must not have been justified by
“military necessity” or the security of the civilians.249 Each element appears
to be appropriately met by the facts of the prior paragraph, as long as the
victims and other witnesses are able to demonstrate the viciousness of the
displacements. No forced displacements on the basis of civilian security
would feasibly include violence against the citizens themselves—the
presence of cruelty in the SPDC’s rural population displacements seemingly
defeats this justification. With the Defendants holding command
245.
246.
247.
248.
249.
See id., art. 8(2)(e)(vi)–1(1–4).
See supra notes 215–19.
See supra note 220.
See Chaudhury, supra note 221.
See Elements of ICC Crimes, supra note 161, art. 8(2)(e)(viii)(1–4).
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responsibility over the actions of their soldiers—and forced displacement
being a standard facet of greater Regime strategy—the SPDC Generals may
be held criminally responsible for the displacement of hundreds of
thousands of civilians, as the practice will probably constitute a war crime.
7. The Use of Child Soldiers
While the previously discussed war crimes of torture, forced
displacement, rape, and murder required less factual study in light of their
detailed analysis under crimes against humanity,250 the war crime of child
soldier use has been untouched so far in this Article. Nevertheless, this does
not mean that the issue is of any less concern to the international
community. In fact, in October 2002 it was estimated “that 70,000 or more
of the [SPDC’s] estimated 350,000 soldiers may be children.”251 In 2006 the
Human Rights Education Institute of Burma would build on this statistic by
asserting that SPDC “child recruitment rates remain essentially unchanged”
from the figures noted by Human Rights Watch in October 2002.252 The
Regime once claimed that its military, the Tatmadaw, was solely comprised
of volunteers who are eighteen years of age or older.253 However, in what
may be construed as a partial admission of guilt, the SPDC leadership
eventually “agreed to cooperate [with the UN] in the establishment of a
monitoring and reporting mechanism on child rights violations. . . . The
[SPDC] also agreed to provide the details of actions taken against army
recruiters who recruited children.”254 While these pledges were an important
step forward in protecting Burmese children from the horrors of armed
conflict, their enactment has been more rhetorical than truly action–based.255
250. See generally Part IV.B.
251. See HUMAN RIGHTS WATCH, “MY GUN WAS AS TALL AS ME” – CHILD SOLDIERS
IN BURMA 3 (Oct. 2002), available at http://www.hrw.org/legacy/reports/2002/burma
[hereinafter MY GUN WAS AS TALL AS ME].
252. See Burma: Use of Child Soldiers Continues Unabated, HUMAN RIGHTS WATCH
(Sept. 12, 2006), http://www.hrw.org/en/news/2006/09/11/burma-use-child-soldierscontinues-unabated [hereinafter Use of Child Soldiers Continues].
253. HUMAN RIGHTS WATCH, SOLD TO BE SOLDIERS – THE RECRUITMENT AND USE OF
CHILD SOLDIERS IN BURMA 6 (Oct. 2007) [hereinafter SOLD TO BE SOLDIERS], available at
http://www.hrw.org/sites/default/files/reports/burma1007webwcover.pdf.
254. The Secretary General, Report of the Secretary–General on Children and Armed
Conflict, ¶ 64, U.N. A/62/609–S/2007/757 (Dec. 21, 2007), available at
http://www.ceipaz.org/images/contenido/Children%20and%20armed%20conflict_ENG.pdf.
255. See Burma Army Frees Boy after Mother Pleads through Media, BBC NEWS
(Feb. 1, 2010), http://news.bbc.co.uk/2/hi/asia-pacific/8491376.stm (noting the forced
conscription of a fourteen year old male; the immediate release of the child from SPDC
military service following international media attention underscores that child soldier use is
still a problem in Burma as recently as 2010—as the child’s mother was paraphrased as
stating, “the boy’s release was probably an attempt by the [SPDC] to limit the damage from
the case, which had attracted a lot of public attention and threatened to damage the army’s
2011]
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Jo Becker, an advocate for children’s rights at Human Rights Watch, has
contended that “[m]ilitary recruiters are literally buying and selling children
to fill the ranks of the Burmese armed forces.”256 The receipt of money and
other types of compensation for child soldier recruitment—along with high
military desertion rates and the Regime’s desire to expand militarily—have
all contributed to the SPDC’s use of child soldiers in the Tatmadaw.257 Even
the Regime’s military recruiters have an incentive to conscript child
soldiers, as military recruits are typically worth rewards for the recruiter.258
Children are often threatened into military service through physical
beatings, or intimidated with the threat of arrest for loitering or not
possessing an identity card.259 On occasion, threats are substituted with
misleading enticements such as free education, a job, or clothing.260
Regardless of the method, Becker believes that “[the SPDC’s] continued
recruitment of child soldiers separates children from their families, subjects
them to abusive military training, and exposes them to horrific violence.”261
Some of the children recruited for military training have been as young as
nine years old, while some as young as eleven have been placed in active
military battalions.262 It is hard to imagine a child of this age range having
the mental stability or physical capability to endure such an intense burden.
Like with the other war crime actions detailed in this Article, the
aforementioned facts on child soldier use in Burma indicate that (1) an
armed conflict exists between Regime forces and resistance groups opposed
to their control over Burma. One of the SPDC’s key reasons for
conscripting child soldiers undoubtedly stems from their underlying fear of
armed paramilitary threats. Tragically, using child soldiers is a quick fix for
their lack of military volunteers.263 Moreover, the vast quantity of child
military enlistments—once estimated at roughly 70,000 or more of the
SPDC’s military forces—shows definitively that (3) the recruiting of child
soldiers is a large–scale practice by SPDC forces.264 Thus, it would be
virtually impossible for the Defendants to assert that child soldier use is (2)
a sporadic or isolated action. With the basic war crime elements for child
soldier use met, we must then determine which war crimes may be charged
to the SPDC Generals through command responsibility.
reputation.” Furthermore, “[t]he Coalition to Stop Child Soldiers says Burma has thousands
of children in its armed forces, some as young as 11 years old.”).
256. Nora Boustany, Report: Brokers Supply Child Soldiers to Burma,
POST
(Oct.
31,
2007),
http://www.washingtonpost.com/wpWASH.
dyn/content/article/2007/10/30/AR2007103002072.html.
257. Id.
258. SOLD TO BE SOLDIERS, supra note 253, at 37.
259. Id. at 7.
260. Id.
261. Use of Child Soldiers Continues, supra note 252.
262. SOLD TO BE SOLDIERS, supra note 253, at 43.
263. See Boustany, supra note 256.
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One war crime concerning child soldier use is Article 8(2)(e)(vii),
“[c]onscripting or enlisting children under the age of fifteen years into
armed forces or groups or using them to participate actively in
hostilities.”265 This war crime’s elements state that a perpetrator cannot
conscript or enlist individuals into armed forces or use them “actively in
hostilities” if they are under the age of fifteen and the perpetrator should
have known or knew their age to be disqualifying for military service. As
well, the perpetrator must have been aware of an armed conflict connected
to the enlistment/conscription need.266 Each element appears to be properly
met by the facts established in Part IV(C)(7), as long as witnesses and
military service documents are able to help substantiate the inappropriate
age of these child soldiers, along with the blatant disregard by SPDC
officials for military age requirements.267
Still, a major difficulty with war crime prosecutions for child soldier use
is the basic fact that children are involved. While some children may be old
enough to testify as victims of the Regime, others may still be too young to
be asked to testify in such a tough situation. In other circumstances, the
victims may not be allowed justice because they became child soldiers at,
for example, the age of sixteen. Since the Rome Statute specifies that war
crimes for child soldier use may only be charged if the children are under
the age of fifteen when conscripted or enlisted, this may lead to the
elimination of countless war crime counts the international community
unwittingly thought were applicable against the Defendants—as commonly
the global norm for childhood is when an individual is under the age of
eighteen. Despite children in trial proceedings being a sensitive subject to
address on many fronts, enough victims and witnesses will probably be able
to come forward in order to hold the Generals accountable. With 70,000
child soldiers as a rough estimate for the Tatmadaw’s condition,268 this
means that conservatively hundreds of war crime counts could be attributed
to the Defendants. With the Generals Than Shwe, Maung Aye, and Thura
Shwe Mann undoubtedly aware of the child soldier problem in their armed
forces—especially since the issue has been brought to their attention
without suitable correction,269 it will be appropriate to place command
responsibility on them for their inaction in fixing the problem.
Consequently, the use of child soldiers in the Regime’s Tatmadaw will
probably constitute many war crime charges for these Defendants.
265. Rome Statute, supra note 9, art. 8(2)(e)(vii).
266. See Elements of ICC Crimes, supra note 161, art. 8(2)(e)(vii)(1–5).
267. See SOLD TO BE SOLDIERS, supra note 253, at 48. According to one former
Tatmadaw child soldier, Than Myint Oo, “[SPDC soldiers] asked my age so I said, ‘I’m 14
and I was forced, I don’t want to be here.’ They said, ‘That’s impossible’ and left. After they
left we were made to lay down and were kicked and beaten.”). Id.
268. MY GUN WAS AS TALL AS ME, supra note 251, at 3.
Justice in Burma
2011]
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8. War Crime Defenses
While defenses of the SPDC Generals were not covered as extensively
for war crimes as they were for crimes against humanity, there certainly is a
reason behind this omission. The crimes against humanity allegedly
committed by the Defendants raised no strong defenses that could
conclusively eliminate the liability facing the Generals. Since the war
crimes allegations are generally based on the same heinous actions as the
crimes against humanity allegations, it logically appears as if the same
affirmative defenses would fail under both broad criminal topics. Self–
defense and military necessity were noted as the major attempts for defense
that would be put forward by the Generals, and in no way will war crimes
like murder, torture, and rape be justified by either. Self–defense, or even
third–party defense, could theoretically legitimize certain uses of forced
displacement, but these uses would need to be based on appropriate security
needs for the SPDC or civilians respectively. Here, the Regime has been
shown to use involuntary displacement as an attack on citizens who have
not been proven to support any armed resistance group. The SPDC has
displaced citizens on the basis of hypothetical threats and speculation, and
this is never an adequate use of displacement. Finally, there is no proper
defense for the use of child soldiers, as self–defense and military necessity
could never provide an argument for their purpose in conflict. Simply put, if
you have a shortage of volunteer, age–appropriate military recruits, then
maybe you need to change conditions, rights, or policies being enacted in
your State. Something must be leading citizens to forego their desire to
defend State ideologies through military service, and Burma is one such
State where this is evident. True discontent has persisted for years over the
harsh rule of SPDC leadership.
V. AFTERMATH OF THE TRIAL
A. Probable Trial Chamber Decision
With three judges presiding over a Trial Chamber’s case, any decision of
guilt or innocence on the charges facing a defendant must hold a simple
majority.270 Likewise, the decisions of innocence or guilt on each charged
crime must be determined by the judges beyond a reasonable doubt.271
When considering the trial of Generals Than Shwe, Maung Aye, and Thura
Shwe Mann, potentially thousands of allegations may be leveled at these
Defendants, which are certainly not limited to the crimes discussed in this
Article. However, the specific charges against these SPDC Generals will
depend on the Prosecutor’s preferences—which may rest on the credibility
270.
271.
Rome Statute, supra note 9, art. 74(3).
Id. art. 66(3).
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of evidence, availability of victim and witness testimony, the ability of the
Defendants to defend against a certain charge, and other additional factors.
Expectantly, these SPDC Generals will still face hundreds of charges, of
which it is likely they will be found guilty of most beyond a reasonable
doubt. The extensive documentation of heinous crimes committed by the
Regime is astounding. From Rapporteurs assigned by the United Nations—
to independent investigations by concerned third party organizations—to
stories being conveyed by witnesses and victims alike through media
outlets—the evidence overwhelming favors a guilty verdict for each
General by way of command responsibility.272 These guilty charges will
encompass numerous crimes: under crimes against humanity the defendants
will assuredly be found guilty on charges of torture, rape, murder, forced
displacement, and unsubstantiated imprisonments; under war crimes the
defendants will unquestionably be found guilty on charges of murder, rape,
forced displacement, torture, and the use of child soldiers. Other charges
may yet exist, but it will require in depth investigation by the ICC
Prosecutor and OTP to bring their details to greater light.
B. Sentencing and Appeal
Once the SPDC Generals have been convicted of war crimes and crimes
against humanity, the judges presiding over the case in the Trial Chamber
will be required to establish an appropriate sentence corresponding to their
guilt.273 It is important to note that “[t]here is a strong presumption in favour
of a distinct sentencing hearing following conviction. Though not
mandatory, it must be held upon the request of either the Prosecutor or the
accused, and, failing application from either party, the Court may decide to
hold such a hearing.”274 This technical separation of sentencing from the
trial itself is important to both the Prosecution and Defense for one major
reason: time. This added time will allow the Prosecutor and Defense a
chance to submit aggravating and mitigating evidence that is relevant to the
sentencing phase. In essence, both sides will be able to offer evidence that
may not have been permitted at trial but may be relevant for submission
once guilt or innocence has been determined.275 Examples of Prosecution
submissions might include “proof of bad character” for a defendant or their
“prior convictions,” while Defense Counsel offerings may include
“testimony by the convicted person” or their “psychological reports.”276
In order to avoid undue speculation, fine points on added evidence in the
case at hand will be avoided in this Article. Thus, with hundreds of charges
272.
273.
274.
275.
276.
See Rome Statute, supra note 9, art. 28(a).
Rome Statute, supra note 9, art. 76.
SCHABAS, supra note 2, at 131–32.
Id. at 132.
Id. at 132–33.
2011]
Justice in Burma
717
facing the SPDC Generals—which would probably lead to a multitude of
criminal convictions—the Trial Chamber would surely impose a sentence of
life imprisonment each for SPDC Chairman, Senior General Than Shwe,
Regime Vice–Chairman, General Maung Aye, and a former Joint Chief of
Staff Thura Shwe Mann. The Generals may also be required to financially
compensate victims in some situations.277 Their collective knowledge of
their soldier’s actions is abhorrent, especially when viewed in the context of
the grisly acts committed by these military against the citizenry of Burma.
With alarms about these deeds being sounded the world over, it would be
impossible for the Generals to deny their awareness of the crimes. In fact,
their lack of real attempts to stop the crimes noted in this Article would
suggest that the crimes are not sporadic, but Regime policy. With leaders
like this, Burma and its people will never thrive as a nation. Their actions
have been a cancer on humanity, and the permanent removal of these
Generals from our global society would be a benefit for all. With no death
penalty available under the Rome Statute, the next best option is
unequivocally imprisonment for the remainder of their natural lives.278
It is likely, with their convictions and subsequent penalties of life
imprisonment, that the Generals will appeal to the ICC Appeals Chamber
for mitigation of their sentences or an overturning of their convictions on
the basis of “procedural error,” “error of fact,” “error of law,” or “[a]ny
other ground that affects the fairness or reliability of the proceedings or
decision.”279 There are countless areas of a case which the Defendants may
appeal from; this includes the ICC’s basic jurisdiction and admissibility and
basic elements of the trial itself. In fact:
Where the Appeals Chamber grants the appeal on a point of law or fact
that materially influenced the decision, or because of unfairness at the trial
proceedings affecting the reliability of the decision or sentence, it may
reverse or amend the decision or sentence, or order a new trial before a
different Trial Chamber. 280
However, absent knowledge of specifics that would entice the Defense
Counsel to appeal the Defendants’ convictions—like new evidence being
discovered or credible reports that evidence used at trial was falsified281—
277. See Rome Statute, supra note 9, art. 77(2)(a).
278. See id. art. 77(1)(b) (life imprisonment is applicable “when justified by the
extreme gravity of the crime and the individual circumstances of the convicted person.”).
The author of this Article believes that life imprisonment may be a harsher punishment for
the SPDC Generals, and rightly so, as death is a constant worry when operating a military
regime and the Generals may be numb to its possibility. Instead, divesting them of their
riches and power and shaming them through life imprisonment may actually be a fate worse
than death.
279. Id. art. 81(1)(b)(i–iv).
281. Id. at 135.
718
[Vol. 19:3
the decision of guilt and the life sentence convictions of the Trial Chamber
will be upheld by the Appeals Chamber. In addition, with the Rome Statute
not addressing appeals past the Appeals Chamber, it may be properly
argued that a decision by the ICC Appeals Chamber is a final decision.282
C. Incarceration
The process of imprisonment for the guilty SPDC Generals presents an
interesting state of affairs, as the ICC does not have the authority to operate
a permanent prison. Instead, the Court depends on Rome Statute’s State
parties to volunteer their prison systems for these incarcerations.283 If no
State party steps forward to offer their services, then the burden of
incarceration will fall upon the ICC’s host nation—The Netherlands—with
the costs and imprisonment being “borne by the Court.”284 Regardless of
their final confinement location, it will be comforting for the people of
Burma to know that these Generals will be unable to preside over future
crimes in their homeland and that justice has been served through their
fitting sentence. Hopefully their punishment will prevent future heinous
crimes from taking place within Burma’s borders. Maybe the removal of
these Generals will allow Burma a real opportunity to alter their governance
structure for the better—in a way where human rights and basic civilized
dignities are lauded and truly venerated.
CONCLUSION
While mankind has always sought to hold select behavioral norms
sacred, the methods for upholding these societal values have traditionally
been inconsistent, culture–specific, or enforced at the predisposed hands of
a conflict’s victors. Even feeble inaction has plagued the maintenance of
humanity–based justice—as nations have often watched in horror as the
ruling authorities in other States have been free as “sovereigns” to harm
their own citizens. In light of these problems, the birth of the International
Criminal Court may be considered one of the greatest achievements in
human history. The involvement of a myriad of States in its creation
signaled a desire to solidify what clearly offends the global conscience.
While far from perfect, the Court is predominantly a signal of hope for
people who have endured unspeakable atrocities at the whims of cruel
dictators, military juntas, and other oppressive regimes. While customary
rules of autonomy had often prohibited or deterred States in the past from
interfering in the internal crimes of other States, the ICC categorically
opened an avenue for bringing justice to these oft–forgotten victims. No
282.
283.
284.
Id.
See Rome Statute, supra note 9, art. 103.
Id. art. 103(4).
2011]
719
Justice in Burma
longer would the international community allow blatant human rights
abuses to be deceitfully ignored by national governments and judiciaries—
or so it was assumed would be the case.
Tragically, Burma remains to this day a nation of forgotten victims. It is
true that aspects of the Burmese struggle have been globally publicized—
like the Saffron Revolution of Burma’s Buddhist monks in 2007,285 the
horrors brought about by Cyclone Nargis’ landfall in 2008,286 and the
nation’s efforts for democracy under the support of Nobel Peace Prize
Laureate Aung San Suu Kyi.287 Yet sadly the people’s struggles against war
crimes and crimes against humanity remain a misfortune being addressed by
the international community with arguably less fervor. Ignorance cannot be
used as an excuse, as the United Nations, global advocates, media outlets,
and world leaders alike have all noted the brutality of the SPDC. In its
simplest form, the problem is not a lack of information on the heinous
events taking place under Regime policy—it is a fundamental lack of action
by a global community claiming to take human rights seriously. And actions
truly do speak louder than words.
With this Article, I urge the United Nations Security Council to allow for
referral of the events in Burma to the International Criminal Court. The
world cannot continue to be indifferent to the cruelties the Burmese people
face at the hands of the Regime and its leadership. Until the case is able to
reach the ICC for trial, I urge concerned advocates to continue publicizing
the plight of these people. Like with the Court’s creation, a movement is
more powerful when its purpose and voice are globally unified. But while
the work is far from over, it must be done quickly. After years of anguish,
the victims in Burma deserve nothing less.
Within a system which denies the existence of basic human rights, fear
tends to be the order of the day. Fear of imprisonment, fear of torture, fear
of death, fear of losing friends, family, property or means of livelihood,
fear of poverty, fear of isolation, fear of failure. A most insidious form of
fear is that which masquerades as common sense or even wisdom,
condemning as foolish, reckless, insignificant or futile the small, daily acts
of courage which help to preserve man’s self–respect and inherent human
dignity . . . Yet even under the most crushing state machinery courage
rises up again and again, for fear is not the natural state of civilized man.
-Daw Aung San Suu Kyi288
285. See generally Burmese Riot Police Attack Monks, supra note 196.
286. See generally Burma ‘Guilty of Inhuman Action,’ BBC NEWS (May 17, 2008),
http://news.bbc.co.uk/2/hi/uk_news/politics/7406023.stm.
287. See generally supra notes 189–93.
288. FREEDOM FROM FEAR, supra note 1, at 184 (quote selected from Aung San Suu
Kyi’s essay, Freedom from Fear).
720
[Vol. 19:3
IN ADDENDUM
APRIL 2011
Our world has changed significantly in the few short months since the
completion of Justice in Burma. In this timeframe, we have all witnessed
the upheaval taking place in the Middle East; it is a remarkable unrest that
has reverberated through states like Tunisia, Egypt, and Libya. 289 The
dissatisfaction with oppressive governance is apparent, and it appears the
citizens of these nations are finally ready to rise up against the crushing
state machinery that ensnares them. Their demand for basic human rights
and dignities has been heard by all, and their differing means for achieving
this end are being observed closely by repressed populations globally.
The Middle East’s demand for change is obviously being absorbed by the
oppressed citizens of Burma,290 yet it is fair of them to question the strength
of their own future resistance actions without real pressure and support from
the United Nations and other global actors. Recently, the UN Security
Council voted 10–0 to impose a no–fly zone over Libya in order to help
protect civilians from violence being committed by the Gaddafi Regime.291
This response to the uprising in Libya was conducted rather quickly—yet
when the people of Burma peacefully demonstrated for change against the
SPDC in 2007’s Saffron Revolution, the UN Security Council failed to
issue more than effortless statements condemning the brutal retaliation the
people subsequently received at the hands of the angered Regime.292
There has also been talk of the ICC investigating the Gaddafi Regime for
crimes against humanity.293 While the author considers this investigation to
be appropriate given the Gaddafi Regime’s recent treatment of the Libyan
people, its swiftness does raise questions of hypocrisy regarding Burma.
Gaddafi’s current exploits have been heinous, but what about the horrors the
Burmese people have suffered for years at the hands of the SPDC?
289. See generally Fouas Ajami, How the Arabs Turned Shame Into Liberty, N.Y. TIMES
(Feb 26, 2011), http://www.nytimes.com/2011/02/27/opinion/27ajami.html.
290. See Molly McHugh, Burma Joins the Facebook Revolutions, DIGITAL TRENDS (Mar.
3, 2011), http://www.digitaltrends.com/social-media/burma-joins-the-facebook-revolutions.
291. Libya: UN Backs Action Against Colonel Gaddafi, BBC NEWS (Mar. 18, 2011),
http://www.bbc.co.uk/news/world-africa-12781009 (UN Resolution 1973 had five Security
Council Members abstain from voting, including China and Russia. The Resolution included
a “‘ban on all flights in Libyan airspace’ except for aid planes” and authorization for “‘all
necessary measures” to be taken in order to “‘protect civilians and civilian populated areas
under threat of attack.’”). See S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011).
292. See UN Security Council Resolutions and Statements on Burma – ALTSEAN
Burma, http://www.altsean.org/Research/UN%20Dossier/UNSC.htm (noting that zero UN
Security Council Resolutions imposed sanctions on—or authorized force against—the SPDC
from January 2007–August 2009).
293. Htet Aung, ICC for Libya . . . Why Not Burma?, THE IRRAWADDY (Mar. 3, 2011)
http://www.irrawaddy.org/opinion_story.php?art_id=20865.
2011]
Justice in Burma
721
One would generally believe that the global community would be more
likely to seek some level of justice when crimes take place in the public eye,
but this theory fails when you consider the failed Saffron Revolution—a
Burmese event that mirrors today’s Middle East situation and was made
known to the world in similar fashion. Simple condemnation is one thing,
but what is preventing global institutions and states from holding the
SPDC’s leadership accountable for their actions? Sadly, this is a question
we continue to ask of the global community, despite the clear presence of
the International Criminal Court. Hopefully the Middle East’s contemporary
unrest will bring about more answers than questions for the Burmese people
and those of us who hear their call for help.
[The State Peace and Development Council was officially dissolved as the
ruling Regime in Burma on March 30, 2011.294 Now, the Union Solidarity
and Development Party (“USDP”) controls the State by holding a majority
of Burma’s parliamentary seats, which were gained in what most experts are
referring to as a sham election.295 It appears the SPDC leadership intends
this governmental shift to mask its past indiscretions while allowing high–
ranking SPDC leaders to maintain control over the State in various USDP
roles. Already, newly–elected President (and former SPDC Prime Minister)
U Thein Sein296 has established the eleven member National Defense and
Security Council,297 which is eerily similar to the old Regime’s hierarchy of
generals. In other words, this is a hollow change that the world must not be
fooled by. Moreover, this “change” does nothing to erase any of the
criminal liability the former SPDC leadership holds for its vicious treatment
of the Burmese population; if anything it shows that (now “retired”) top
SPDC officials like Than Shwe, Maung Aye, and Thura Shwe Mann298 are
worried that the world is starting to wake up and recognize the crimes they
have committed. Thus, a United Nations Security Council referral to the
International Criminal Court must still be the desired goal.]
294. See also Kocha Olarn, Myanmar Swears in New President, CNN.COM (Mar. 30,
2011), http://edition.cnn.com/2011/WORLD/asiapcf/03/30/myanmar.new.government.
295. See Zin Linn, Is Burma’s New Government in Military’s Sheepskin?, ASIAN TRIBUNE
(Mar. 31, 2011), http://www.asiantribune.com/news/2011/03/30/burma%E2%80%99s-newgovernment-military%E2%80%99s-sheepskin.
296. Id.
297. Myanmar Forms National Defense, Security Council, XINHUA (Mar. 31, 2011),
http://news.xinhuanet.com/english2010/world/2011-03/31/c_13807811.htm.
298. See Larry Jagan, The Look of Burma's New Government, ASIA SENTINEL (Apr. 1,
2011), http://www.asiasentinel.com/index.php?option=com_content&task=view&id=3102&
Itemid=164 (noting the alleged retirement of Than Shwe and Maung Aye from Burmese
leadership, but also noting a “‘military auxiliary law’” that would technically “‘allow Than
Shwe to return to lead the army and country if he feels he needs too.’”). See also Burma’s
Generals, supra note 144 (noting that [on or before August 31, 2010] “number three leader
[ ] Thura Shwe Mann [was] said to have stepped down” from his SPDC leadership position).
THE CURIOUS CASE OF ANWAR AL–AULAQI:
IS TARGETING A TERRORIST FOR EXECUTION BY
DRONE STRIKE A DUE PROCESS VIOLATION WHEN
THE TERRORIST IS A UNITED STATES CITIZEN?
Michael Epstein
INTRODUCTION ........................................................................................... 723
I. APPROVAL FOR EXECUTION WITHOUT DUE PROCESS? .......................... 724
A. Who is Anwar al-Aulaqi? ........................................................... 724
B. The Justice Department’s Response ........................................... 727
C. The ACLU’s Arguments ............................................................ 729
II. TERRORISM, NATIONAL SECURITY, AND THE POST–SEPTEMBER 11
LEGAL FRAMEWORK ............................................................................ 732
A. Terrorism and “Enemy Combatants” ......................................... 732
B. Due Process Abroad ................................................................... 734
1. 9/11 and the War on Terror Due Process Abroad ............. 734
2. Applicable Due Process Framework .................................. 736
3. The Political Question Doctrine ......................................... 737
III. IS TARGETING AL-AULAQI A DUE PROCESS VIOLATION? ................... 739
IV. THE DECISION AND DISMISSAL ........................................................... 741
CONCLUSION .............................................................................................. 744
INTRODUCTION
In response to the horrific attacks of September 11, 2001 by al-Qaeda
upon the United States, the U.S. Government has responded with a vast
“War on Terror,” both domestically and abroad. The U.S.’s pursuit of alQaeda and other affiliated terrorists abroad has led to increased use of
advanced technology, which in turn allows the U.S. to pursue terrorists and
enemy combatants in far away countries where they have little or no troop
presence. These operations, occurring most often in the form of remote–
controlled drone strikes, have been the increasingly favored method of
combating terrorists both in Afghanistan, where the U.S. is at war, as well
as territories where Taliban and al-Qaeda operatives have fled, such as
Michael Epstein is a Juris Doctor Candidate (Expected May 2011) at Michigan
State University’s College of Law, and served as the Editor-in-Chief of the Journal of
International Law for Volume 19. He is grateful for the hard work and dedication of the
Journal’s staff and editorial board, as well as the support and guidance of Professor Bruce W.
Bean. Any errors remain his own.
724
[Vol. 19:3
Pakistan and Afghanistan.1 President Barack Obama allegedly even has a
secret kill list of high–risk terrorists who have been pre-approved for killing
if they are found by U.S. operatives.
This increased use of allegedly pre-approved strikes has led to significant
controversy. This Article explores the claims of Nasser al-Aulaqi on behalf
of his son, Anwar al-Aulaqi, who has allegedly been placed on the Obama
Administation’s pre-approved terrorist kill list. Part I of this Article
introduces Anwar al-Aulaqi and his father’s proposed injunction to have
him taken off the targeted kill list. Part II of this Article lays out all of the
current statutory and case law that the U.S. government currently acts under
when pursuing and prosecuting terrorists. Part III of this Article explores
the applicability of this legal framework to al-Aulaqi’s case and the merits
of the plaintiff’s case in light of the government’s motion to dismiss. Part
IV examines the D.C. Circuit’s grant of the government’s motion to
dismiss. Ultimately, this case raises fundamental issues regarding the Due
Process owed to U.S. citizens engaged in acts of terrorism abroad, but the
sensitive nature of national security and military concerns and prudential
requirements will ultimately keep full adjudication of these issues awaiting
their day in court.
I. APPROVAL FOR EXECUTION WITHOUT DUE PROCESS?
A. Who is Anwar al-Aulaqi?
Who is Anwar al-Aulaqi, and why does President Obama want him
dead? In April, 2010, President Obama allegedly added al-Aulaqi to the list
of terrorism suspects pre-approved for targeted killing.2 The Obama
Administration has identified al-Aulaqi as a leader of al-Qaeda in the
Arabian Peninsula (AQAP), and alleges that he has “recruited individuals to
join AQAP, facilitated training at camps in Yemen in support of acts of
terrorism, and helped to focus AQAP’s attention on attacking U.S.
1. For a full discussion of the U.S. military and C.I.A. use of increased drone strikes
in Afghanistan and Pakistan, see, e.g., for Kenneth Anderson, Targeted Killing in U.S.
Counterterrorism Strategy and Law (Brookings Inst., Georgetown Univ. Law Ctr., Hoover
Inst., Working Paper, 2009), available at http://ssrn.com/abstract=1415070;Mary Ellen
O’Connell. Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009.
(Notre Dame Law Sch., Legal Studies Research Paper No. 09-43, 2010), available at
http://ssrn.com/abstract=1501144.
2. Scott Shane, U.S. Approves Targeted Killing of American Cleric, N.Y. TIMES,
Apr.
7,
2010,
at
A12,
available
at
http://www.nytimes.com/2010/04/07/world/middleeast/07yemen.html. Much information
about al-Aulaqi is publicly known due to extensive reporting of the New York Times; none
of the information in this Article was gleaned from any documents released by Wikileaks.
2011]
The Curious Case of Anwar al–Aulaqi
725
interests.”3 AQAP has been taken responsibility for several attacks on
South Korean, Yemeni, Saudi Arabian and U.S. targets. 4 Al-Aulaqi has
been designated a “Specially Designated Global Terrorist” (SDGT) by the
Obama Administration,5 as well as placed on the United Nations’ list of
known associates of al-Qaeda.6 Specifically, al-Aulaqi is accused of
training and aiding Umar Farouk Abdulmutallab, the attempted Detroit
Christmas Day airline bomber,7 and has also been linked to Major Nidal
Hasan, who is the accused killer of thirteen people at Fort Hood, Texas.8 AlAulaqi is well known for his multitude of postings on YouTube;
Abdulmutallab, Hasan, and several others suspected of crimes or attacks
have cited al-Aulaqi’s YouTube postings as inspirations for their actions.9
In March of 2011, a former British Airways employee was convicted of
conspiring with al-Aulaqi to blow up a United States-bound airplane.10
The fact that the Obama Administration has approved military action in
the form of targeted killing of a terror suspect is not unique11 and is justified
3. Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in
Support of Defendant’s Motion to Dismiss at 5, Al-Aulaqi v. Obama, 727 F. Supp. 2d 1
(D.D.C. 2010) (No. 10-cv-01469) [hereinafter Motion to Dismiss].
4. Unclassified Declaration in Support of Formal Claim of State Secrets Privilege
by James R. Clapper, Director of National Intelligence at 8, Al-Aulaqi v. Obama, 727 F.
Supp. 2d 1 (D.D.C. 2010) (No.10 cv 1469) [hereinafter Clapper Declaration].
5. Designation of Anwar Al Aulaqi Pursuant to Executive Order 13224 and the
Global Terrorism Sanctions Regulations, 31 C.F.R. Part 594, 75 Fed. Reg. 43233, 42334
(July 23, 2010) [hereinafter Al-Aulaqi Executive Order].
6. Press Release, Security Council, Security Council Al-Qaida and Taliban
Sanctions Committee Adds Names of Four Individuals to Consolidated List, U.N. Press
Release SC/9989 (July 20, 2010).
7. Robert F. Worth, Cleric in Yemen Admits Meeting Airliner Plot Suspect,
Feb.
1,
2010,
at
A7,
available
at
Journalist
Says,
N.Y. TIMES,
http://www.nytimes.com/2010/02/01/world/middleeast/01yemen.html?ref=umar_farouk_abd
ulmutallab. In an interview with a Yemeni journalist, al-Alaqui admitted that he
communicated with Abdulmutallab and that he was a “student” of his. Al-Alaqui denied
having any knowledge about the attack before it occurred, but noted that he supported the
attack and was proud of Abdulmutallab. Id.
(Dec.
24, 2009),
8. Muslim Clergyman Speaks, N.Y. TIMES
http://www.nytimes.com/2009/12/24/us/24hood-002.html?ref=nidal_malik_hasan.
9. John F. Burns & Miguel Helft, YouTube Withdraws Cleric's Video, N.Y. TIMES,
Nov. 4, 2010, http://www.nytimes.com/2010/11/05/world/05britain.html?ref=anwar_al_
awlaki. Roshonara Choudhury, a British theology student who was convicted of attempted
murder of British legislator Stephen Timms, stated that she was inspired to “punish” Timms
for his Iraq War vote after watching hundreds of hours of al-Aulaqi’s videos online. Id. The
videos have since been removed from YouTube. Id.
10. Britain: Former Airline Employee Gets 30 Years in Terrorism Case, N.Y. TIMES.,
Mar.
18,
2011,
http://www.nytimes.com/2011/03/19/world/europe/19briefs-ARTBritain.html?ref=anwaralawlaki.
11. In September of 2010 alone, the C.I.A. launched 20 targeted drone attacks on
militants in Pakistan accused of aiding the Taliban in Afghanistan. See Mark Mazzetti &
Eric Schmitt, C.I.A. Steps Up Drone Attacks on Taliban in Pakistan, N.Y. TIMES, Sept. 28,
2010, at A1, available at http://www.nytimes.com/2010/09/28/world/asia/28drones.html.
726
[Vol. 19:3
under the Congressional Authorization of Use of Military Force (AUMF)12
and international legal principles of self–defense;13 al-Aulaqi’s case raises
questions of both domestic and international law because he is a U.S.
citizen.14 The approval of the targeted killing of a U.S. citizen is believed to
be without precedent,15 although the classified nature of such designations
makes this difficult to confirm.16
After President Obama allegedly placed al-Aulaqi on the designated kill
list, his father, Nasser al-Aulaqi,17 retained the American Civil Liberties
Union and Center for Constitutional Rights to “provide him with legal
representation in connection with the government’s reported decision to add
his son . . . to its list of suspected terrorists authorized to be killed.”18
Nasser al-Aulaqi sought to prevent the Obama Administration (specifically
the President, the Secretary of Defense, and the Director of the C.I.A.) from
killing Anwar al-Aulaqi without articulating a “concrete, specific, and
imminent threat to life or physical safety” that he may pose; the proposed
injunction also sought that, even if al-Aulaqi was found to pose such a
threat, targeted killing be the last resort once it is determined that “there are
no means other than lethal force that could reasonably be employed.”19
The plaintiffs’ complaint alleged that the government’s policy of
targeting U.S. Citizens abroad without articulating a specific crime or threat
violated said citizens’ “Fourth Amendment right to be free from
unreasonable seizures and . . . [their] Fifth Amendment right not to be
12. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224
(2001).
13. U.N. Charter art.51 (“Nothing in the present Charter shall impair the inherent
right of individual or collective self-defence if an armed attack occurs against a Member of
the United Nations.”).See also North Atlantic Treaty art. 5, Apr. 4, 1949, 63 Stat. 2241, 34
U.N.T.S. 243 (recognizing individual or collective right to self-defense).
14. See Motion to Dismiss, supra note 3, at 5; Scott Shane, U.S. Approves Targeted
Killing of American Cleric, N.Y.TIMES, April 7, 2010, at A12. Al-Alaqui was born in New
Mexico. Id. at A12.
15. Scott Shane, U.S. Approves Targeted Killing of American Cleric, N.Y. TIMES,
Apr. 7, 2010, at A12 (“A former senior legal official in the administration of George W.
Bush said he did not know of any American who was approved for targeted killing under the
former president.”).
16. Id. Although the Los Angeles Times and New York Times were able to confirm
that al-Aulaqi was placed on either the C.I.A. or D.O.D. “kill lists,” they were only able to do
so through anonymous sources.
17. Nasser al-Aulaqi, a citizen of Yemen, brought his suit under the Alien Tort
Statute, 28 U.S.C. § 1350 (2006).
18. Complaint for Declaratory and Injunctive Relief, American Civil Liberties Union
v. Geithner (No. 1:10-cv-01303) (D.D.C., Aug. 3, 2010). The ACLU first filed for injunctive
relief challenging the Office of Foreign Asset Control (OFAC)’s regulation which made
providing “legal services” to those designated as “Specially Designated Global Terrorists”
(“SDGTs”) an inchoate crime under the Global Terrorism Sanctions Regulations. See AlAulaqi Executive Order, 75 Fed. Reg. 43233.
19. See Motion to Dismiss, supra note 3, at 5 (citing Proposed Preliminary
Injunction at 2, Al Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) (No. 10-cv-01469)).
2011]
727
deprived of life without due process of law.”20 The complaint also alleged
that “the United States’ refusal to disclose the criteria by which it selects
U.S. citizens like plaintiff’s son for targeted killing independently violates
the notice requirement of the Fifth Amendment Due Process Clause.”21 In
other words, al-Aulaqi’s father was essentially asking the U.S. government
to not kill his son without charging him with a crime or without specific
evidence that he was about to commit a crime.
B. The Justice Department’s Response
On September 24, 2010, the Obama Administration responded with a
lengthy motion to dismiss.22 The motion confirmed speculation that the
Justice Department would seek to quickly have the motion dismissed and
avoid having the particulars of its operations against certain terrorists from
being litigated in court; there appeared to be internal debate within the
Administration whether to invoke the “political question doctrine” or the
“state secrets” doctrine.23 The state secrets privilege, first articulated in
United States v. Reynolds, essentially allows the Executive branch to
prevent the disclosure in litigation of any “military matters which, in the
interests of national security, should not be divulged.”24 There was some
question as to whether the Obama Administration would invoke the state
secrets doctrine in this case,25 especially in light of President Obama’s
Inauguration–pledged changes in policy regarding the War on Terror.26
While the Justice Department’s response articulated several arguments as
to why the injunction should not be granted,27 the motion did indeed invoke
20. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 12 (D.D.C. 2010).
21. Id.
22. Motion to Dismiss, supra note 3, at 1.
23. Charlie Savage, U.S. Debates Response to Targeted Killing Lawsuit, N.Y.TIMES,
Sept. 16, 2010, at A10.
24. United States v. Reynolds, 345 U.S. 1, 10 (1953).
25. Savage, supra note 22, at A10.
26. See Editorial, Shady Secrets, N.Y. TIMES, Sept. 30, 2010, at A38. The New York
Times Editorial Board noted that “[d]espite President Obama’s promises of reform in this
area, the public still cannot reliably distinguish between legitimate and self-serving uses of
the national security claims.”See also Michael B. Mukasey, The Obama Administration and
the War on Terror, 33 HARV. L. & POL’Y REV. 953, 955-56 (2010). Mukasey, the United
States Attorney General from 2007-2009, stated that the Obama Administration’s proposed
sweeping changes to U.S. policy regarding the capture and prosecution of terrorists and
“willingness to disclose the limits of how we gather intelligence adds to the risk that
defendants will turn legal processes into a source of intelligence for themselves and into a
forum for expressing their views.” Id. at 961.
27. For example, the motion asserts that “[t]his Court should not recognize the novel
[Alien Tort Statute] cause of action plaintiff seeks to assert for the alleged ‘arbitrary killing’
of his son” because doing so would improperly allow injunctive relief under the ATS when,
combined with the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), only monetary damages
are allowed. See Motion to Dismiss, supra note 3, at 40-41.
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the state secrets privilege to bar further litigation of the complaint.28 The
motion presented several justifications to be considered before the state
secrets doctrine; notably, the political question doctrine.29 The political
question doctrine excludes political and policy questions from judicial
review when said questions are the exclusive purview of the executive or
the legislative branches.30 The Administration argued that enforcement of
such an injunction would insert the Judiciary into an area of decision–
making where the courts are particularly ill–equipped to venture, i.e., in
assessing whether a particular threat to national security is imminent and
whether reasonable alternatives for the defense of the Nation exist to the use
of lethal military force. Courts have neither the authority nor expertise to
assume these tasks.31
In response to Nasser al-Aulaqi’s argument that use of lethal force
against Anwar outside of the borders of Iraq and Afghanistan should be
barred because it is not a part of any “armed conflict,” the Administration
asserted that “the very determination of whether and in what circumstances
the United States’ armed conflict with al-Qaeda might extend beyond the
borders of Iraq and Afghanistan is itself a non-justicable political
question.”32 The thrust of the argument was essentially that the injunction
would force the courts to handcuff the Administration’s military operations
against al-Qaeda and terrorists abroad by articulating a standard for “what
actions the President and U.S. forces may take against an operational
leader” of al-Qaeda.33
The Administration’s last main argument against Nasser al-Aulaqi’s
proposed injunctive relief invoked the state secrets privilege; in doing so,
the Justice Department noted that it determined the privilege should be
invoked after complying with the Attorney General’s detailed policy that
the privilege only be invoked when absolutely necessary.34 Specifically, the
Administration asserted that the injunction sought by al-Aulaqi would
require the disclosure of highly sensitive military and intelligence
28. Motion to Dismiss, supra note 3, at 43 (“[I]nformation protected by the military
and state secrets privilege and related statutory protections [are] necessary to litigate
plaintiff’s claims . . . and the case therefore cannot proceed without significant harm to the
national security of the United States.”).
30. See Baker v. Carr, 369 U.S. 186 (1962).
31. Motion to Dismiss, supra note 3, at 19-20 (citing Aktepe v. United States, 105
F.3d 1400, 1402-04 (11th Cir. 1997) (“[f]oreign policy and military affairs figure prominently
among the areas in which the political question doctrine has been implicated”)).
32. Id. at 22.
33. Id. at 23.
34. Id. at 43.The Attorney General’s policy noted that the Justice Department would
require independent submissions from the pertinent government agencies involved with
invocation to determined the exact nature of the information, the possible significant harm,
and the reason why release of the information would cause such a harm. Id. at 44.
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729
operations and activities abroad.35 The motion attached as exhibits public
declarations by Secretary of Defense Robert M. Gates, Director of National
Intelligence James R. Clapper and Central Intelligence Agency Director
Leon E. Panetta each formally asserting the privilege.36
The motion concludes by noting that without the facts excluded by the
state secrets privilege, al-Aulaqi’s case could only rely upon the New York
Times and other media reports about the alleged targeting which “conflict
with each other and vary from allegations in the complaint . . . [a]nd, of
course, these media reports are devoid of any substantive discussion of the
imminence of a threat . . . or any operational details for implementing
alleged lethal force or carrying out the alleged targeting of al-Aulaqi.”37
Thus, without any factual basis, the motion for injunctive relief would be
essentially stopped in its tracks.38
C. The ACLU’s Arguments
On October 8, 2010, the ACLU and CCR responded to the Justice
Department’s lengthy motion with a lengthy reply brief of their own.39 The
plaintiffs’ brief summarized the government’s argument as being “that the
executive, which must obtain judicial approval to monitor a U.S. citizen’s
communications or search his briefcase, may execute that citizen without
any obligation to justify its actions to a court or to the public.”40 The brief
pointedly noted that the Administration’s assertion that al-Aulaqi can avoid
harm by turning himself in confirms that he is indeed at risk of suffering
said harm (death by predator drone strike).41 Further, the plaintiffs’ brief
noted that the argument about avoiding the harm through surrender also
confirmed the illegality of the government’s action because “the
government lacks authority to summarily execute fugitives from the law.
The government cannot kill its own citizens simply because they refuse to
present themselves to the proper authorities.”42
35. Id. at 44-45.
36. See Clapper Declaration, supra note 5;Unclassified Declaration in Support of
Formal Claim of State Secrets Privilege by Robert M. Gates, Secretary of Defense, AlAulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) (No. 10-cv-01469);Unclassified
Declaration in Support of Formal Claim of State Secrets Privilege by Leon E. Panetta,
Director of the Central Intelligence Agency, Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C.
2010) (No. 10-cv-01469).
37. Motion to Dismiss, supra note 3, at 57-58.
38. With the proper invocation of the state secrets doctrine, al-Aulaqi and the
ACLU’s chances of success were rather slim.
39. Reply Memorandum in Support of Plaintiff’s Motion for a Preliminary
Injunction and In Opposition to Defendants’ Motion to Dismiss, Al-Aulaqi v. Obama, 727 F.
Supp. 2d 1 (D.D.C. 2010) (No. 10-cv-01469) [hereinafter Reply Memorandum].
40. Id. at 1.
41. Id. at 3.
42. Id. at 9.The Plaintiff’s brief also points out that, as of the time of filing, AlAulaqi had not been charged with a crime by either the United States or Yemen, but on
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On the issue of relief, the plaintiffs’ brief argued that the claim is not
speculative and is indeed tied to a particular fact situation: the anticipated
use of “lethal force against a specific American whom the government has
labeled an enemy of the state.”43 The plaintiffs’ brief also asserted that the
relief sought by the injunction is not necessarily an abstract judicial
command, but a declaration of what law applies to this particular situation.44
Specifically, the plaintiffs pointed out that the administration has couched
this situation in terms of the law of armed conflict, but was asking the court
to declare what law applies and order the compliance with the specific legal
constraints that apply to “the government’s avowed intent to use lethal force
against a citizen outside armed conflict.”45 The plaintiffs admitted that, due
to the sensitive nature of military operations abroad, the injunction may
only be enforceable in an after–the–fact contempt motion or judgment for
damages, as opposed to judicial command of the military mid-operation.46
The plaintiff strongly asserted that the government is being overbroad in
declaring that judicial review could never apply to military situations,
noting the various Guantanamo detention cases as recent and prominent
examples of judicial review of military conduct; specifically, that the D.C.
Circuit has become “accustomed to evaluating information that is sensitive
for reasons of foreign policy, military strategy, and national security.” 47
The plaintiffs also attacked the government’s reliance on Gilligan, the Kent
State University National Guard case, as standing for the proposition that
the courts will not second guess or interfere with complex military
procedures and training.48 The plaintiff also noted that the Gilligan court
encouraged damages or injunctive relief for specific unlawful actions, as
opposed to the broad potential violations of National Guard procedures at
issue in Gilligan.49
The plaintiff argued that the political question doctrine does not bar these
claims because the supposedly non-justicable questions that it is raising
have already been litigated.50 The plaintiff argued that “the question of
November 6, 2010, a Yemeni court ordered the “forcible arrest” of Al-Aulaqi after AQAP
claimed responsibility for a foiled bombing plot using packages on cargo planes. Robert F.
Worth, Yemen Judge Orders Arrest of Qaeda-linked Cleric, N.Y. TIMES, Nov. 7, 2010 at
A14.
43. Reply Memorandum, supra note 38, at 15.
44. Id. at 16.
45. Id. at 17.
46. Id.
47. Id. at 18.
48. Id. at 19. Specifically, the plaintiff’s brief points out that mootness was one of
the reasons the court did not grant the requested relief in Gilligan: The injunction sought
compliance with new procedures that had been implemented by the time the argument got to
the court, and there was no allegation of violation of the newly installed procedures. Id.; see
also Gilligan v. Morgan, 413 U.S. 1, 10 (1973).
50. Id. at 22.
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731
whether and in what circumstances the government may target and kill an
American citizen in Yemen is no less justicable than the question of
whether the executive branch could indefinitely detain an American citizen
captured in Afghanistan, a question the Supreme Court addressed in
Hamdi.”51 The plaintiff also argued that the interpretation of the AUMF
itself, and the determination of the appropriate force involved in its use, is
an issue of statutory interpretation which necessarily falls to the judicial
branch.52 The plaintiff again noted that the Administration’s reliance on
Gilligan is faulty because Gilligan itself specifically noted that it did not
stand for the assertion that unlawful conduct by the military could not be
litigated in a judicial forum.53
One of the plaintiff’s strongest arguments comes from El-Shifa.54 The
D.C. Circuit previously held in El-Shifa that there is a substantive difference
between evaluating military action as proper or improper, versus evaluation
of whether action taken by the military was within proper legal authority.55
The plaintiffs’ summary of the argument frames the case as a purely legal
one: “whether the targeted killing of [a] U.S. citizen . . . outside of armed
conflict, and in absence of an imminent threat that cannot be addressed with
non-lethal means, violated the Constitution and international law.”56
Because the plaintiffs were asking for injunctive relief, they argued that
they are merely seeking the injunction to lay the groundwork for a later
judicial determination of whether the future government actions taken
against al-Aulaqi are legal, and this would itself be a legal determination
and not a policy judgment.57
Regarding the AUMF, the plaintiffs assert that it is inapplicable to
AQAP.58 The plaintiff notes that “by its plain terms the AUMF . . . requires
a nexus to the individuals and organizations responsible for the September
11 attacks. While al-Qaeda and the Taliban fall under this rubric, AQAP is
a separate and distinct group that is not known to have any actual
association with al-Qaeda, whether in terms of command structure or
activities, and no connection to September 11.”59
In response to the invocation of the state secrets doctrine, the plaintiffs
allege that the leak of al-Aulaqi’s placement on the “kill” list was a
51. Id.
52. Id. at 23.
53. Id. at 28. The plaintiff also cites Laird v. Tatum, 408 U.S. 1, 16 (1972) (noting
that “[t]here is nothing in our Nation’s history or in this Court’s decided cases, including our
holding today, that can properly be seen as giving any indication that actual or threatened
injury by reason of unlawful activities of the military would go unnoticed or unremedied.”).
54. Reply Memorandum, supra note 38, at 29 (citing El-Shifa Pharm. Indus. Co. v.
U.S., 607 F.3d 836 (D.C. Cir. 2010).
55. Id.
56. Id.
57. Id at 30.
58. Id at 38.
59. Id.
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deliberate leak by the administration, and thus the most important secrets
regarding this particular issue have already been revealed and been made
publicly known.60 The plaintiffs assert that if the government really did not
want the fact that al-Aulaqi was being targeted to be known that it would be
restrained the senior intelligence officials who allegedly leaked the
information to the New York Times and Washington Post.61
Finally, the plaintiffs close by noting that they are aware that the case
raises broad and important questions of national security, but assert that “no
principle can be more firmly embedded in our constitutional system than the
centrality of the right to life, and the gravity of its deprivation at the hands
of the government.”62
II. TERRORISM, NATIONAL SECURITY, AND THE POST–SEPTEMBER 11
LEGAL FRAMEWORK
A. Terrorism and “Enemy Combatants”
In the wake of the terrorist attacks of September 11, 2001, Congress
passed the AUMF.63 One of the difficulties presented by the terrorist
attacks of 9/11 was defining exactly who the U.S. was fighting; the AUMF
granted the President the power to:
use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed,
or aided the terrorist attacks that occurred on September 11, 2001, or
harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the United States by such nations,
organizations or persons.64
The broad scope of the AUMF has raised significant questions about the
“necessary and appropriate force” required to fight terrorists abroad.65 In
identifying broadly the parties responsible for the attacks of September 11
and those who aided or harbored them, it would appear that this was
intended to allow the military to use the AUMF when it inevitably came
61. Id.
62. Id. at 49.
63. Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224
(2001).
64. Id.
65. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization
and the War on Terrorism, 118 HARV. L. REV. 2047 (2005);Tung Yin, Procedural Due
Process to Determine “Enemy Combatant” Status in the War on Terrorism, 73 TENN. L.
REV. 351 (2006);Elizabeth Sepper, The Ties that Bind: How the Constitution Limits the CIA's
Actions in the War on Terror, 81 N.Y.U. L. REV. 1805 (2006).
2011]
733
into conflict with those it later discovered harbored and aided al-Qaeda; i.e.,
the Taliban in Afghanistan.
On September 23, 2001, President Bush issued Executive Order 13224,
“Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten To Commit, or Support Terrorism.”66 This order
authorized the seizing of property and prohibitions of transactions with
anyone who posed a:
significant risk of committing, acts of terrorism that threaten the security of
U.S. nationals or the national security, foreign policy, or economy of the
United States,” as well as those who “assist in, sponsor, or provide
financial, material, or technological support for, or financial or other
services to or in support of, such acts of terrorism.” 67
The Office of Foreign Assets Control passed regulations to implement
Executive Order 13224, which took specific actions against those identified
by the Order as “Specially Designated Global Terrorists” (SDGTs).68 The
regulations define terrorism as:
an activity that:
(a) Involves a violent act or an act dangerous to human life, property, or
infrastructure; and
(b) Appears to be intended:
(1) To intimidate or coerce a civilian population;
(2) To influence the policy of a government by intimidation or
coercion; or
(3) To affect the conduct of a government by mass destruction,
assassination, kidnapping, or hostage–taking.69
These regulations include specific provisions that require applying for a
license to provide legal aid to anyone accused of violating the statute, either
by committing a terrorist act or aiding someone through assistance,
sponsorship or other “financial, material, or technological support.”70
Although some applications of the Order have been held unconstitutionally
vague, the civil and criminal liabilities for providing “material support”
66.
Order].
67.
68.
69.
70.
Exec. Order No. 13,224, 66 Fed. Reg. 49079 (Sept. 5, 2001) [hereinafter Exec.
Id.
31 C.F.R. §§ 594.101-594.901 (2009).
Id. § 311.
Id. § 594.506(a); Exec. Order, supra note 65.
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have been upheld.71 The regulations provide that material support includes
“legal, accounting, financial, brokering, freight forwarding, transportation,
public relations, educational, or other services to a person whose property or
interests in property are blocked pursuant to § 594.201(a).”72 Thus, the
regulations provide civil and criminal penalties for providing any training or
services to potential terrorists.73
The force authorized for use against al-Qaeda following September 11
and the advanced criminal sanctions for those SDGTs would seem to be
meant for tandem use, as both target terrorist groups. However, while the
foreign asset regulations impose civil and criminal sanctions for violations
of statutory law, “[b]ecause the [AUMF] contemplates warfare, it is
reasonable to assume that . . . Congress intended to authorize the President
to take at least those actions permitted by the laws of war.”74 As will be
explored infra, the Supreme Court authorized detention of detainees and
other acts under the AUMF as bound by the laws of war;75 however, the
Court has also held that certain minimum due process is required even in the
theater of war.76
B. Due Process Abroad
1. 9/11 and the War on Terror Due Process Abroad
One of the first cases the U.S. Supreme Court heard arguments stemming
from the War in Afghanistan was Hamdi v. Rumsfeld.77 Yaser Esam Hamdi
was captured on the battlefield in Afghanistan, and eventually transferred to
Guantanamo Bay once the U.S. military realized that Hamdi was a U.S.
citizen.78 The Bush Administration declared Hamdi an “enemy combatant,”
and stated that such status justified “holding him in the United States
indefinitely—without formal charges or proceedings—unless and until it
makes the determination that access to counsel or further process is
warranted.”79 Hamdi, through his father,80 eventually challenged his
“enemy combatant” status all the way to the Supreme Court, which granted
certiorari on the question of “whether the Executive has the authority to
71. See Humanitarian Law Project v. Gonzales, 380 F.Supp.2d 1134 (C.D. Cal.
2005).
72. 31 C.F.R. § 594.406 (2009).
73. Id.; 18 U.S.C. § 3571 (2006) (specifying that the felony criminal conviction
could carry a maximum of a $250,000 fine per count).
74. Bradley, supra note 64, at 2091.
75. See Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (plurality opinion).
76. See Boumediene v. Bush, 553 U.S. 723 (2008).
77. 542 U.S. 507.
78. Id. at 510.
79. Id. at 510-11.
80. Id. Hamdi’s father filed a petition for a write of habeas corpus in the Eastern
District of Virginia, as next friend. Id. at 510.
2011]
735
detain citizens who qualify as ‘enemy combatants.’”81 The Court noted that
although the Bush Administration had not provided a definition for “enemy
combatant,” that “[t]here can be no doubt that individuals who fought
against the United States in Afghanistan as part of the Taliban, an
organization known to have supported the al-Qaeda terrorist network
responsible for [9/11] . . . are individuals Congress sought to target in
passing the AUMF.”82
While Hamdi’s argument hinged on whether he could be held
indefinitely while challenging his enemy combatant status, the Court noted
in its plurality opinion that U.S. citizens were not exempt from becoming
enemy combatants and treating U.S. citizens as such on the battlefield was a
necessary incident of warfare.83 In its narrow plurality holding, the Court
held that a citizen detained as an enemy combatant was due the opportunity
to challenge his status before a neutral decision–maker after receiving the
government’s factual basis for detaining him.84 However, in the opinion,
Justice O’Connor noted that “[s]triking the proper constitutional balance
here is of great importance to the Nation during this period of ongoing
combat. But it is equally vital that our calculus not give short shrift to the
values that this country holds dear or to the privilege that is American
citizenship.”85
The cases and petitions that followed Hamdi have laid out some of the
challenges involved with the due process owed to combatants abroad. In
Rasul v. Bush, the Court held that 28 U.S.C. § 2241 extended statutory
habeas corpus jurisdiction to Guantanamo Bay.86 In Boumedine v. Bush, the
Court held that the Military Commissions Act (MCA)87 unconstitutionally
suspended habeas corpus by not following the mandates of the Suspension
Clause.88 The Court noted that “[w]here a person is detained by executive
order, rather than, say, after being tried and convicted in a court, the need
for collateral review is most pressing . . . [i]n this context the need for
habeas corpus is more urgent.”89 Writing for the majority, Justice Kennedy
noted that:
[t]he political branches, consistent with their independent obligations to
interpret and uphold the Constitution, can engage in a genuine debate
about how best to preserve constitutional values while protecting the
Nation from terrorism . . . . [t]he laws and Constitution are designed to
81.
82.
83.
84.
85.
86.
87.
88.
89.
Id. at 516; Rodriguez v. Bexar Cnty.,540 U.S. 1099 (2004) (granting cert.).
Hamdi, 542 U.S. at 516.
Id. at 519.
Id. at 533.
Id. at 532.
See Rasul v. Bush, 542 U.S. 466, 473 (2004).
28 U.S.C. § 2241 (2006).
See Boumendiene, 553 U.S. at 770.
Id. at 783.
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survive, and remain in force, in extraordinary times. Liberty and security
can be reconciled; and in our system they are reconciled within the
framework of the law.90
Kennedy’s opinion built its moral authority and reasoning, among other
things, upon the original motivations of the Framers in including the writ in
the Constitution; specifically, Kennedy noted that the Framers were highly
paranoid of a strong central government and saw habeas as an essential
protection of individual liberty.91
Thus, even in the War on Terror, a framework of legal protection was
afforded to those captured in the battlefield. The question which remains
unanswered is what process is due actors, such as al-Aulaqi, before they are
captured. As the Administration has argued, the actions authorized by the
Executive Branch under the AUMF, to be carried out by the military
branches abroad, may fall outside the scope of judicial review before any
action is taken.
2. Applicable Due Process Framework
The Supreme Court has a well established line of cases and legal basis
for due process claims.92 Specifically, the Court has held that “[t]he
requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment’s protection of liberty
and property. When protected interests are implicated, the right to some
kind of prior hearing is paramount.”93 The Court recognized that enemy
combatants, such as Hamdi, had a cognizable liberty interest and thus were
entitled to some degree of due process.94 In determining the process owed
to Hamdi, the Court applied the balancing test from Mathews v. Eldridge95to
determine “the procedures that are necessary to ensure that a citizen is not
‘deprived of life, liberty, or property, without due process of law.’”96
The Court articulated the Mathews factors as weighing the private life,
liberty, or property interest that faces deprivation against the government’s
claimed interest in such a deprivation and the burden the government would
face if such process were granted; the scale of the private interest versus the
government interest is then balanced “through an analysis of ‘the risk of an
90. Id. at 798.
91. Id. at 742.
92. See Goldberg v. Kelly, 397 U.S. 254 (1970) (holding that constitutional due
process restraints apply to deprivation of property, including public benefits); Bd. Of Regents
v. Roth, 408 U.S. 564 (1972) (holding that no process is due without a cognizable liberty or
property interest).
93. Roth, 408 U.S. at 570.
94. Hamdi, 542 U.S. at 529; Tung Yin, Procedural Due Process to Determine
“Enemy Combatant” Status in the War on Terrorism, 73 TENN. L. REV. 351 (2006).
95. 424 U.S. 319 (1976).
96. Hamdi, 542 U.S. at 529 (citing U.S. Const., amend. V.).
2011]
737
erroneous deprivation’ of the private interest if the process were reduced
and the ‘probable value, if any, of additional or substitute procedural
safeguards.’”97 The Court held that Hamdi’s freedom was a basic liberty
right that implicated this test;98 it seems logical to conclude that the
potential deprivation of life would trigger the same balancing test to
determine what process is due.
While the distinction between U.S. citizens and foreign combatants
became an important distinction for the line of cases concerning
Guantanamo detainees, the Court specifically recognized the “fundamental
nature of a citizen’s right to be free from involuntary confinement by his
own government without due process of law.”99 On the other hand, the
Court recognized the exigencies imposed by a state of war and the
necessary delegation of broad power to the Executive in carrying out
military acts.100 In balancing the rights owed and the process due to Hamdi
and U.S. citizens in the battlefield, the Court recognized the potential
burden upon military and the government’s argument that “military officers
who are engaged in the serious work of waging battle would be
unnecessarily and dangerously distracted by litigation half a world away,
and discovery into military operations would. . . intrude on the sensitive
secrets of national defense.”101
3. The Political Question Doctrine
The sensitive nature of issues of national security that are inevitably
presented by enemy combatant and terrorist claims has brought many of
these claims under the scope of the political question doctrine; this has the
potential to prevent due process claims from being adjudicated on the merits
when this issues are found to implicate the decision–making of the political
branches. Although the courts have recently adjudicated several legal issues
after detention in the battlefield, as seen in Hamdi and Boumedine, the
question of prospective relief regarding potential military action seems to
implicate specific policy judgments that may fall outside the scope of
judicial review.
In Baker v. Carr, the Supreme Court laid out the Political Question
doctrine, which prevents the litigation of issues intended for consideration
by the political branches and not the judiciary.102 The Court laid out a
specific test, holding that an issue falls under the scope of a political
question if any of the following factors are present:
97.
98.
99.
100.
101.
102.
Id. (citing Mathews v. Eldridge, 424 U.S. 319 (1976)).
Id.
Id. at 531 (emphasis added).
Id.
Id. at 531-32.
369 U.S. 186 (1962).
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[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate branches
of government; or [5] an unusual need for unquestioning adherence to a
political decision already made; or [6] the potentiality of embarrassment
from multifarious pronouncements by various departments on one
question.103
The Court has held that issues of foreign relations104 and national
security105 can fall outside the scope of judicial review by implicating such
factors; however, the Court has also noted that there are circumstances
regarding military action where the judiciary has a proper role.106 In
Gilligan, although the Court held that the specific questions presented by
the petitioners regarding the actions taken by the National Guard were not
justicable under the political question doctrine, the Court stated that:
it should be clear that we neither hold nor imply that the conduct of the
National Guard is always beyond judicial review or that there may not be
accountability in a judicial forum for violations of law for specific
unlawful conduct by military personnel, whether by way of damages or
injunctive relief.107
Recently the D.C. Circuit has held that “[t]he political question doctrine
bars our review of claims that, regardless of how they are styled, call into
question the prudence of the political branches in matters of foreign policy
or national security constitutionally committed to their discretion.”108 In ElShifa, the owners of a pharmaceutical factory that was destroyed in a preemptive strike against Osama bin Laden and what was believed to be a plant
producing chemical weapons brought suit against the U.S. government for
the destruction of the property; it was discovered soon after the attack that
the plant actually had no connection to bin Laden at all.109 In dismissing the
plaintiff’s claim for damages stemming from the destruction of the plant,
the court held that the political question doctrine required the dismissal of
the claim because “[i]f the political question doctrine means anything in the
103. Id. at 217.
104. Bancoult v. McNamara, 445 F.3d 427, 433 (D.C. Cir. 2006).
105. Haig v. Agee, 453 U.S. 280, 292 (1981).
106. Gilligan v. Morgan, 413 U.S. 1 (1973).
107. Id. at 12.
108. El-Shifa, 607 F.3d at 842.
109. Id. at 839. Further factual development did not occur beyond the plaintiff’s
initial claims because the case came to the D.C. Circuit Court of Appeals from dismissal for
lack of subject matter jurisdiction. Id.
2011]
739
arena of national security and foreign relations, it means the courts cannot
assess the merits of the President’s decision to launch an attack on a foreign
target, and the plaintiffs ask us to do just that.”110
It is important to note, however, that the D.C. Circuit considered the
specific question of military action against a foreign target based on a law–
of–nations claim.111 Examining this alongside Gilligan, however, the
implication seems to be that U.S. military action against a U.S. citizen and
its legality is not automatically outside the scope of judicial review.
III. IS TARGETING AL-AULAQI A DUE PROCESS VIOLATION?
Before any Due Process balancing test can be applied to al-Aulaqi’s
case, the procedural hurdles pose significant potential difficulty in reaching
any discussion of the merits. Arguably, the thrust of the argument that
would justify a lack of any legal process in light of the political question
doctrine is that the real time military decisions, such as the decision to kill
or not to kill al-Alaqui, is a military policy judgment delegated to the
Executive. Further, as argued by the Administration, the exigency involved
with an “imminent” threat arising from the military operations in Yemen
against al-Qaeda and AQAP is specifically authorized by Congress through
the AUMF, bringing it under the dual auspices of the political branches.
The Obama Administration argued that in the conflict with al-Qaeda and
terrorists:
whether a threat is “imminent,” and whether reasonable alternatives exist
to the use of lethal force, may depend upon a variety of factors, including
the existence of highly sensitive U.S. intelligence information concerning
that threat, the capabilities of the terrorist operative to carry out a
threatened attack, what response would be sufficient to address that threat,
possible diplomatic considerations that may bear on such responses, the
vulnerability of potential targets the terrorists may strike, the availability
of military and non-military options, and the risks to military and
nonmilitary personnel in attempting application of non-lethal force.112
Essentially, the Administration argued that whether a particular terrorist
is a “threat,” let alone an “imminent” threat, is a policy determination that
can never be properly litigated in a court.113
The Administration also differentiated the due process claims involved
with habeas review from those involved with military engagement, noting
110. Id. at 844.
111. Id.
113. Id. (citing El-Shifa, 607 F.3d at 843, the Administration noted that “[a]ddressing
the Baker standards, the Court in El-Shifa observed that ‘whether the terrorist activity of
foreign organizations constitute threats to the United States’ are ‘political judgments’ vested
in the political branches.’”).
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[Vol. 19:3
that the due process considerations articulated in Hamdi only applied to
persons held in detention subsequent to capture, and that no such process
was due to enemy combatants who had yet to be captured.114 In the
Mathews balancing test, the government argument is that the weight of
terrorist combatants’ right to notice and hearing is clearly outweighed by the
potential burden upon the military during real time combat operations.
However, the ACLU and CCR made a strong case that the force behind
the U.S.’s actions abroad, the AUMF, must have some appreciable limit;
they cited Hamdi for the proposition that “a state of war is not a blank check
for the President when it comes to the rights of the Nation’s citizens.”115
While the AUMF indeed authorized broad actions against al-Qaeda in the
wake of September 11, the connection between al-Qaeda and al-Qaeda in
the Arabian Peninsula, or AQAP, name aside, seems more attenuated than
the clear aiding and abetting the Taliban provided bin Laden and his
cohorts. If anything, AQAP was likely inspired by al-Qaeda and the
September 11 attacks, so future acts would be clearly separate acts and not
aiding and abetting stemming from the original attack. This can be seen
from the AUMF itself, which goes beyond authorizing force against nations,
but against “organizations” and “individuals,” which implies that “[i]f an
individual had no connection to the September 11 attacks, then he is not
covered as a “person” under the AUMF even if he subsequently decides to
commit terrorist acts against the United States.”116 However, under the
broad definition of “organization,” joining together for a common purpose,
either before or after September 11, could bring a group such as AQAP
within the realm of affiliation for purposes of the AUMF.117
Further, one of the Administration’s main justifications for the nonjusticability of this issue and the invocation of the political question doctrine
seems to be hamstrung by two issues. First, Gilligan and its progeny do not
seem to limit the injunctive relief sought here. Second, as Hamdi, Hamdan,
Boumedine and the other Guantanamo cases demonstrate, there has already
been significant judicial review and evaluation of the force used abroad by
the U.S. military in the War on Terror. Because these cases arose out of the
U.S.’s conflict in Afghanistan and Iraq, the real question becomes whether
the War on Terror and the AUMF extend beyond the scope of these wars to
any military action taken against terrorists in the region. If this is a mere
extension of the same conflict, then the potential actions taken against alAulaqi would seem to fall in line with the other issues the Supreme Court
115. Reply Memorandum, supra note 38, at 22 (quoting Hamdi, 542 U.S. at 536).
116. Bradley, supra note 64, at 2108.
117. Id. Bradley and Goldsmith note that “a terrorist organization that joins al Qaeda
in its conflict with the United States, even after September 11, can be viewed as part of the
“organization” against which Congress authorized force . . . [this] is also consistent with
Congress’s definitions of “terrorist organization” in other statutes, all of which conceptualize
terrorist organizations in broad, functional terms.” Id.
2011]
741
has previously addressed.
However, if these actions are separate
enforcement or action against terrorists abroad, the AUMF and its broad
authorization of force which would justify killing al-Aulaqi without prior
judicial action may not necessarily apply. In that case, there would appear
to be a significant due process violation.
The Administration’s invocation of the state secrets privilege makes
sense if it has sensitive and confidential information about future terrorist
acts al-Aulaqi may be involved in planning; otherwise it would appear that
all of the substantive information about al-Aulaqi’s criminal terrorist
behavior is known. Any of the support or training he provided to
Abdulmutallab to aid him in attempting to bomb Detroit certainly would
qualify as “material support” under the global terrorist sanctions, so the lack
of any collateral damage due to the attack’s failure would not prevent any
criminal sanctions. However, the Administration has not yet publicly
accused al-Aulaqi of any specific crime under the statute, and has only
placed him on the SDGT list due to his affiliation with AQAP. Thus, the
main implications of force justifying action against al-Aulaqi seem to come
from the AUMF, as claimed by the Administration in its brief.
Inevitably, the process due to al-Aulaqi would seem to necessarily weigh
the power granted by the AUMF against the constitutional protections
afforded U.S. citizens engaged in or planning terrorist acts abroad. As seen
in Hamdi, the Supreme Court recognized that U.S. citizens will ultimately
be owed some form of due process of liberty deprivations stemming from
such conflicts. It would appear that the Court could similarly take into
account the burdens and constraints upon the military that such process may
pose, and balance the possibility of error causing deprivation of life or
liberty in light of the government’s concerns in applying the Mathews
balancing test to this situation. While the government would be able to
argue that the potential harm that could occur during military operations is
great, it strains the imagination to think of a loss more grave than the
erroneous loss of one’s own life. Although the government can articulate
import national security and policy considerations to balance their side of
the Mathews scale, the risk of erroneous loss of life would seem to
counterbalance it in a way that would demand some sort of due process.
While these important concerns may not be enough to outweigh the
potential loss of one’s own life once the question of “what process is due”
under Mathews is reached, as the D.C. Circuit’s decision demonstrates, even
reaching adjudication of such claims requires overcoming significant
obstacles.
IV. THE DECISION AND DISMISSAL
On November 8, 2010, the District Court of D.C. heard oral arguments
from the ACLU and CCR on behalf of Yasser al-Aulaqi and the Obama
Administration’s team from the Justice Department; foreshadowing his
742
[Vol. 19:3
decision, Judge John Bates asked the parties to tailor their arguments to the
prudential issues of standing, the political question doctrine and the state
secrets privilege.118 The arguments were lengthy, and went on for
approximately three hours. Judge Bates posed difficult questions to both
sides; he asked the government how “judicial review could be required for
electronic surveillance of a citizen overseas, permitted for the taking of
property of a citizen overseas, yet forbidden for the killing of a citizen
overseas;” he asked the CCR “[i]f the targeting of a pharmaceutical plant in
Sudan is a political question, why is not the targeting of a person in
Yemen?”119 While Judge Bates seemed sympathetic to some of the
plaintiff’s claims, in discussing the state secrets doctrine he did not seem to
dispute the notion that “it may simply not be possible to litigate this case
without disclosing important secrets.”120
On December 7, 2010, Judge Bates released his opinion granting the
government’s motion to dismiss.121 Judge Bates recognized that “[t]his is a
unique and extraordinary case. . . . Can the Executive order the
assassination of a U.S. citizen without first affording him any form of
judicial process whatsoever, based on the mere assertion that he is a
dangerous member of a terrorist organization?” Judge Bates noted that
although these issues are incredibly important, without proper jurisdiction
the constitutional and statutory claims cannot be heard.
Judge Bates held that Yasser al-Aulaqi did not qualify as having either
next friend or third party standing to bring claims on behalf of his son.122
Ultimately, on both issues, the fact that Anwar al-Aulaqi could surrender
himself to the U.S. and avail himself of the U.S. courts without what the
court found to be an adequate explanation as to why such access was not
feasible prevented the court from holding that Anwar was unable to appear
on his own behalf.123 While Judge Bates recognized that the plaintiff may
have a realistic fear that his son would be held in an indefinite manner
similar to the claimants in Padilla and Hamdi, “[t]o the extent that Anwar
Al-Aulaqi is currently incommunicado, that is the result of his own
choice.”124 Further, because al-Aulaqi has been able to release YouTube
videos and other statements criticizing the U.S. government since the
commencement of this case, “there is no reason to believe that he could not
convey a desire to sue without somehow placing his life in danger.”
As to third–party standing, the Judge Bates noted that Yasser al-Aulaqi
could not claim “injury in fact if his adult child is threatened with a future
118. Benjamin Wittes, Notes from the Al Aulaqi, LAWFARE (Nov. 8, 2010),
http://www.lawfareblog.com/2010/11/notes-from-the-al-aulaqi-argument/.
119. Id.
120. Id.
121. Al-Aulaqi, 727 F. Supp. 2d at 8.
122. Id. at 35.
123. Id. at 17.
124. Id. at 21.
2011]
743
extrajudicial killing.”125 Although Judge Bates expressed sympathy for the
potential loss of an adult child, “a plaintiff can only establish an Article III
injury in fact based on emotional harm if that alleged harm stems from” a
“legally protected” or “judicially cognizable” right originating from
common or statutory law.126 Judge Bates noted that “[t]o date . . . no court
has held that a parent possesses a constitutionally protected liberty interest
in maintaining a relationship with his adult child free from indirect
government interference.”127 Because his son’s threatened extrajudicial
killing did not rise to the level of violating an international law norm, and
because the U.S. had not waived sovereign immunity for such a claim,
Judge Bates also dismissed the plaintiff’s Alien Tort Statute claim.128 The
lack of next friend or third party standing doubly hurt the plaintiff, as not
only did a lack of a cognizable claim under the ATS bar litigation, but even
if the threat of extrajudicial killing was a cognizable tort under the ATS, the
lack of standing prevents the plaintiff from bringing the claim on behalf of
his son.129
Regarding the political question doctrine, Judge Bates adopted the
holding from El-Shifa that “national security, military matters and foreign
relations are ‘quintessential sources of political questions.’”130 Judge Bates
notes that the questions that would arise during litigation of this case,
specifically questions of Anwar al-Aulaqi’s affiliation with al-Qaeda and
AQAP, AQAP’s relationship with al-Qaeda, and whether al-Aulaqi posed a
“concrete, specific and imminent threat” are “precisely the types of complex
policy questions that the D.C. Circuit has historically held non-justicable
under the political question doctrine.”131 Judge Bates specifically states that
even the injunctive relief and after–the–fact judicial review requested by the
plaintiff would be barred by the political question doctrine, as “any post hoc
judicial assessment as to the propriety of the Executive’s decision to employ
military force abroad ‘would be anathema to . . . separation of powers’
principles.”132
Because Judge Bates found a political question and that itself barred
adjudication of plaintiff’s claim, he did not need to reach the invocation of
the state secrets privilege.133 Judge Bates makes note in a footnote,
however, that the fact that some of the details about al-Aulaqi were leaked
125. Id. at 24.
126. Id. at 25.
128. Id. at 37 (“there is no basis for the assertion that the threat of a future statesponsored extrajudicial killing – as opposed to the commission of a past state sponsored
extrajudicial killing – constitutes a tort in violation of the ‘law of nations.’”).
129. Id. at 38.
130. Id. at 45 (citing El-Shifa, F.3d at 841(internal citations omitted)).
131. Id. at 46.
132. Id. at 448 (citing El-Shifa, F.3d at 844).
744
[Vol. 19:3
to the media did not constitute a full waiver of the weighty state secrets
privilege, and that “[p]artial disclosure of some aspects of the relevant
subject matter does not warrant disclosure of other information that risks
serious harm to the national security.”134
CONCLUSION
How is it that judicial approval is required when the United States decides
to target a U.S. citizen overseas for electronic surveillance, but. . . judicial
scrutiny is prohibited when the United States decides to target a U.S.
citizen overseas for death? . . . . Can the Executive order the assassination
of a U.S. citizen without first affording him any form of judicial process
whatsoever, based on the mere assertion that he is a dangerous member of
a terrorist organization?135
While these questions reach the core of constitutional rights to life and
liberty, it appears that proper answers to these questions must await another
day.
Judge Bates ultimately recognizes that this case, or at least parts of it,
very likely could have been litigated, and still may, because “Anwar Al–
Aulaqi could have brought suit on his own behalf, but . . . he has simply
declined to do so.”136 Whether it be by military tribunal or the criminal
process in the U.S. courts, if al-Aulaqi surrendered himself he would take
the government’s ability to kill him without process of law off the table, and
would instead face specific charges through notice and hearing. Although
Judge Bates’ opinion obliquely recognizes that al-Aulaqi could eventually
end up with a claim for the violation of his constitutional rights after being
held incommunicado like the prisoners in Hamdi and Padilla, Judge Bates
did not see the potential years of being held indefinitely without due process
to itself be a due process violation. In other words, fearing deprivation of
due process is not a substantive due process violation in its own right.
It seems terribly ironic that the only way to get the issue of whether the
President can unilaterally order the assassination of a U.S. citizen and
deprive them of their life into the courts is to surrender yourself to the court
system and (at least temporarily) surrender your liberty. However, our life,
liberty and property interests are protected by the due process afforded by
the courts and guaranteed by the constitution. If Anwar al-Aulaqi really
wants a declaration that President Obama cannot legally assassinate him
without criminal charges, he can avail himself to the courts for such a
declaration. However, it appears that his father will be unable to obtain
judicial confirmation that the U.S. government cannot kill his terrorist son
via targeted killing in the absence of formal criminal charges.
134.
135.
136.
Id. at 54, n. 17.
Id. at 9.
Id. at 32.

Volume 19, Issue 3 - Digital Commons at Michigan State University

Transcription

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