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Guest Post: The Domestic Judge as a Double-Edged Sword in International Law

marzo 10, 2015

By Jessica Almqvist

 The engagement of domestic courts in the application and interpretation of international law is a recurrent theme in the contemporary legal debate. A growing number of cases reveal how domestic judges are eager to act as guardians of international law. This approach is also present in human rights research fosters an image of the domestic judge as a principal guarantor of access to justice and legal remedies in response to human rights violations. The same theme is gaining relevance as a result of the progressive development of international criminal law. The Rome Statute establishing the International Criminal Court (1998) affirms the existence of a universal duty to investigate and prosecute those responsible for grave crime. While acknowledging that domestic judges may not always be able or willing to meet this duty in practice, the Rome Statute insists on their primary responsibility to bring the perpetrators of grave crime to justice (art. 17).

The trust placed in domestic judges in international law has not fostered a balanced view of their role in international law. Not enough attention has been paid to their possible implications in the commission of human rights abuses and grave crime. Even so, recent empirical research on judicial behaviour reveals that judges are shaped by the political context in which they perform their functions. Specifically, domestic courts that operate in political contexts known to be hostile towards the idea of human rights, such as military dictatorships, tend to conform their decisions with the politics of repression promoted by such political regimes. Even if domestic courts may in some cases provide forums to express dissent against political measures in dictatorial regimes, in others, judges may well sympathize with the politics of these regimes, and participate actively or passively in the enforcement of repressive measures. Indeed, real life examples of judicial heroism in these circumstances are actually quite rare.

Even so, there are hardly any international law cases involving the criminal investigation and prosecution of judges, prosecutors or lawyers for judicial complicity in grave crime. The Justice case adjudicated in Nuremberg in 1947 following the end of the Second World War is unique in that it prosecutes ten jurists, two of them judges, for having participated and contributed to the commission of war crimes and crimes against humanity.

The concept of complicity in serious human rights abuses is recognised in several key treaties: article 3.e of the Genocide Convention (1948), article 3 of the Apartheid Convention, and article 4.1 of the Torture Convention. It is also included in article 7.1 of the ICTY Statute, article 6.1 of the ICTR Statute, and article 25.3 of the Rome Statute. The concept has become popular in contemporary international criminal justice. Several cases attest to a genuine interest in not limiting international criminal investigations and prosecutions to high-ranking military and political leaders, but to consider the involvement of other actors in the commission of grave crime. To illustrate, ICTR has prosecuted members of government, the Church, businesses, the armed forces and the police, journalists, and even a musician. In a similar vein, the ICTY has brought a range of persons to justice, including political leaders, military commanders, the police, and prison guards. However, none of these tribunals have adjudicated important cases involving judges, prosecutors and lawyers. The narrow mandate of the hybrid or mixed criminal tribunals, such as the Extraordinary Chambers in Cambodia and the Special Court of Sierra Leone, requiring the investigation and prosecution of the persons most responsible for the atrocities perpetrated in these countries, has led to the exclusion of officials from medium or lower rank positions. The Rome Statute does not impose any formal restriction ratione personae, which requires the ICC to exclude these cases. The focus of the ICC Office of the Prosecutor on persons who bear the greatest responsibility for grave crime is the result of a prosecutorial strategy that may change in the future.

In this light, I highly recommend you to read the recently published Usted también, doctor? Complicidad de jueces, fiscales y abogados durante la dictadura, edited by Juan Pablo Bohoslavsky. The book provides a rich, thoughtful, and also provocative collection of studies on judicial complicity in grave crime during the Argentinean dictatorship. Its publication could not be timelier, considering the initiation of judicial proceedings against judges, prosecutors and lawyers in Buenos Aires last year (2014). The focus of the book goes well beyond international and national legal analysis. It entails excellent accounts of the sociological, anthropological and political dimensions of judicial participation in grave crime, which should be of interest to international lawyers. At the heart of the book is the need to deepen our understanding of the role of the judges, lawyers and prosecutors during the Argentinean dictatorship. Also under consideration is what the judges have done given the circumstances prevailing at the time? Furthermore, can the lawyers, prosecutors and judges who participated in the commission of these crimes be held legally responsible for their acts and omissions? How was law taught during the time of the Argentinean dictatorship)? Did a judicial reform or vetting take place in the Argentinean democratization process? Is judicial complicity a question of international and Argentinean law?