(b. Dakar, 1939; d. Nairobi, 6 May 2001) Kama started his career in the judiciary of his country, Senegal, first as Examining Judge, 1969–1973; then as a Public Prosecutor, 1973–1995, appearing before various courts including the Supreme Court of Appeal. One of the leading criminal justice experts in West Africa, Kama contributed to the establishment of, and taught at, the Ecole Nationale de la Magistrature in Dakar, and participated in the drafting of Benin’s criminal procedure code.
A long-time defender of human rights, Kama was a member of the Senegalese delegation to the UN Commission on Human Rights, 1983–1990. In 1991, he joined as an expert the Commission’s newly-established working group on arbitrary detention and participated in its development, including taking part in its in situ visits.
Elected judge of the ICTR in 1995, Kama presided over most of the first trials and rendered several key judgments, including Akayesu—the first conviction of genocide by an international court—and Kambanda—former Prime Minister of Rwanda and first head of government tried before an international court. In 1995 Kama was elected President of the ICTR and served in this position until 1999. He remained a judge at the ICTR until his passing away.
(b. Pawtucket, Rhode Island, 11 Jan. 1888; d. 8 Dec. 1954) Keenan was Chief Prosecutor of the Tokyo IMT. He is known for many aspects of his conduct of the prosecution. His opening speech was characterized by florid rhetoric, such as his statement that the Tribunal was to render the ‘judgment of civilisation’, an assertion that betrayed little cultural sensitivity, and which has since been excoriated by Japanese nationalist critics of the Tribunal. Even the President of the IMTFE, Judge Webb, who was not known for understatement, admonished Keenan for the purple prose in his opening speech (Tokyo IMT Transcripts, 137).
Although Keenan was considered by some to be a strong administrator, the overall appraisal of him is negative. Keenan had a weakness for alcohol, and was frequently absent from Tokyo, including just before the cross-examination of the lead defendant at the Tribunal, Tojo Hideki. At short notice he took over Tojo’s cross-examination, and did not perform well. Keenan’s judgment was questioned on a number of occasions by other members of the Prosecution team, who sought his removal when he tried to drop the war crimes charges after the Prosecution had completed its presentation on point, on the sole basis that it would save time.
After the IMTFE closed, Keenan published a book setting out the approach of the Prosecution at the IMTFE, Crimes Against International Law (1950). This work set out an avowedly (philosophically) naturalist approach to international law. It also showed the link between his staunch anticommunism and his legal philosophy. After returning from Tokyo he went back to the world of private practice and politics.
Keenan’s Papers are held at Harvard Law School Library, HULPR ACZ6442/ALEPH 601634 and are available online at: <http://oasis.lib.harvard.edu/oasis/deliver/~law00155>.
- J.B. Keenan and B.F. Brown, Crimes Against International Law (Washington D.C.: Public Affairs Press, 1950).
- R.H. Minear, Victors’ Justice—The Tokyo War Crimes Trial (Princeton: Princeton University Press, 1971).
- B.V.A. Röling and A. Cassese, The Tokyo Trial and Beyond (Oxford: Polity Press, 1993).
(b. Prague, 11 Oct. 1881; d. Berkeley, California, 19 Apr. 1973) A leading Austrian jurist and philosopher of law, Kelsen did not approach the themes of ICL and justice until World War II. Despite some opinions to the contrary, the reasons for his relative neglect reside in some central aspects of his theory of international law. If it is true that Kelsen’s theory was open to the idea of recognizing the individual as a subject of international law, it is also true that Kelsen remained throughout his life faithful to a traditional and strict view of legal responsibility and its consequences. Every act performed by an individual in command or with the authorization of his (p. 402) government is ipso facto an ‘act of state’, over which no other state can claim jurisdiction, regardless of its being characterized as a crime under domestic or international law. The centrality of the state model, which Kelsen inherited from the nineteenth century legal thinking, and which to a certain extent paradoxically permeated his view of international law, prevented him from seeing the potential role of international criminal justice in attaining that civitas maxima, which he himself had envisaged as the ultimate goal of his theory.
It does not seem that Kelsen spent much time reconsidering his thoughts on ICL after World War II. In his Principles of International Law, first published in 1952, New York: Rinehart, 1952; 2nd edn. ed. by R. W. Tucker (New York: Holt, Rinehart and Winston, 1966); see also ‘Collective and Individual Responsibility for Acts of State in International Law’, 1 Jewish Yearbook of International Law (1948) 226 et seq.), Kelsen limited himself to rearranging all the themes that he had previously discussed. Under the heading of ‘Individuals as Subjects of International Obligations and Responsibilities’, Kelsen lists a series of norms, which ‘exceptionally’ establish a direct individual responsibility, without however even attempting to detect any system or logic in the list. war crimes are quite perfunctorily mentioned after a reference to the 1884 Convention for the Protection of Submarine Telegraph Cables, and the mention of breach of blockade and carriage of contraband. Quite astonishingly, Kelsen is silent on the four GCs that had been signed three years earlier, but he somehow incongruously mentions Art. 3 of the 1907 IV HC, which affirms the liability of the belligerent party to pay ‘compensation for any violations of the Regulations annexed to the Convention and committed by her army forces’ (at 128).
This apparent incongruity can only be understood, if one recalls Kelsen’s quite singular view of the marginal role which international law can play with regard to war crimes and their punishment. As late as 1944, Kelsen had labelled as ‘war crimes’ ‘specific acts of illegitimate warfare committed by private individuals against the armed forces of the occupant State’ for which international law authorized punishment (cf. Peace through Law (Chapel Hill: University of North Carolina Press, 1944), 77). At the same time, as already mentioned, Kelsen maintained that an act of war performed by an individual as an act of state could not be punished by the enemy state, ‘even if the act in itself constituted a so-called war crime’ (ibid., at 96).
Intermingled with this view was Kelsen’s assumption that the responsibility for acts performed on superior orders was a specific issue of criminal law, to be decided according to the competent domestic law system—not international law. That view was out of date even at the time of Kelsen’s writing. As early as 1920 another leading Austrian scholar (actually one of his disciples), Alfred Verdross had demonstrated (in his book on Die völkerrechtswidrige Kriegshandlung und der Strafanspruch der Staaten [Internationally Unlawful Belligerent Actions and States’ Assertion of Criminal Jurisdiction over Them] (Berlin: H.R. Engelmann, 1920)) that whereas the applicable law for the punishment of war crimes would be, as a rule, that of the national state of the perpetrator, international law still dictated some general principles, including the exoneration of responsibility for the soldier who obeyed a wrongful order coupled with the responsibility of the superior. In 1944 Kelsen had also taken issue with Sir Hersch Lauterpacht on the punishment of war crimes. In the fifth edition of Oppenheim’s manual of international law, published in 1935 under the editorship of Lauterpacht, the distinction was still made between violations of rules regarding warfare committed by order of their government, in which case the members of the armed forces could not be punished by the enemy, and violations ordered by commanders, in which case the commanders alone would be held responsible. However, in the sixth edition, published in 1940, the distinction was dropped and violations were considered war crimes in both instances. Kelsen considered this view ‘more than questionable’ (Peace through Law, 98). In his view, since the rule granting criminal jurisdiction over prisoners of war to the captor state already represents an exceptional restriction of the general rule on the immunity of armed forces of foreign states abroad, this exception must be interpreted restrictively and there would be ‘no reason’ for an exception permitting criminal jurisdiction over acts performed as acts of state.
One of the issues that Kelsen examined thoroughly was the retroactivity (see Non-retroactivity) of international norms criminalizing individual behaviour, an issue which was much discussed in the last phases of World War II, in anticipation of the establishment of an International Military Tribunal to judge the major German war criminals. Kelsen tried to escape the irksome question of whether a norm prohibiting aggressive war (see aggression) existed in international law at the time. He maintained that, at any rate, a treaty attaching a sanction to a certain act ex post facto would be retroactive only from a strictly legal point of view ‘if … the act was at the moment of its performance morally … wrong’ (cf. Peace through Law, 87). Moreover, in his view Page Id: 402ReferencesConvention between the Argentine Republic, Austria-Hungary, Belgium, Brazil, Costa Rica, Denmark, Dominican Republic, France, Germany, Great Britain, Greece, Guatemala, Italy, the Netherlands, Portugal, Roumania, Russia, Salvador, Servia, Spain, Sweden-Norway, Turkey, the United States and Uruguay for the Protection of Submarine Cables, signed at Paris, 14 March 1884 OHT PCTHague Convention respecting the Laws and Customs of War on Land USTS 539, UKTS 100 (1910)Annex Regulations respecting the Laws and Customs of War on Land, Section I On Belligerents, Ch.I The Qualifications of Belligerents, Art.3(p. 403) the rule banning ex post facto laws presupposes that the action must be legal in itself at the moment of its commission, and that, therefore, the perpetrator could not foresee that a punishment would later be attached to it. This was not the case with aggressive wars, already considered an international crime before 1939 and for which the risk of subsequent international agreements providing for individual punishment, like the London Statute of the Nuremberg IMT, was ‘certainly not unforeseeable’ (cf. ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’, 1 ICLQ (1947) 153 et seq., at 162).
As regard international criminal justice, already in 1943 Kelsen had proposed the establishment of a ‘Permanent League for the Maintenance of Peace’, whose main organ would have been a court endowed with compulsory jurisdiction over interstate disputes as well as individual responsibility for violation of international law. Although inspired by a de lege ferenda perspective, many of Kelsen’s views on the advantages of international criminal jurisdiction over domestic courts are pragmatic and remain valid today. This is the case with the arguments that international courts (i) are generally above suspicion of partiality; (ii) their jurisprudence guarantees that punishments are, to a certain extent, uniform; and (iii) their international nature is likely to meet with less resistance from the states concerned. Less convincing are some other grounds, such as the alleged incompetence of a state to pass judgment upon the acts of another, or the fact that an international court could ‘exclude the plea of superior command, if this should seem necessary to the development of international justice’ (cf. Peace through Law, 110 et seq.). Kelsen also insisted that international criminal tribunals should not be made up of nationals of the victor states, but should also include nationals of neutral countries, so as to ensure the independence and impartiality of such tribunals.
In addition, Kelsen made an interesting distinction between the Court’s jurisdiction over individual responsibility relating to acts of state, and individual responsibility for violations of international law, unrelated to acts of state. With respect to the former, Kelsen proposed that the Court should proceed only after having decided that the state had violated international law. In the case of the gravest offences, such as resort to war in disregard of general or conventional international law, the international proceedings should be initiated at the request not only of the injured state, but also of the international agency entrusted with the task of maintaining collective security. With respect to the latter category, the Court would function mostly as a court of appeal when petitioned by the injured state or by the convicted individual.
Although in the spring of 1945 Kelsen had become legal adviser to the UN War Crimes Commission, his contribution does not seem to have been taken into account in addressing the legal aspects of the Nuremberg IMT. Later on, he criticized the very way in which the Tribunal had been established through agreement between the major Allied Powers: he held that the only two correct ways would have been through either an agreement with Germany or via a decision by the Four Powers Control Council as the legitimate successor of the last German Government (‘Will the Judgment of the Nuremberg Trial, etc.?’, 167). He also reaffirmed his view that Art. 7 of the London Agreement—stating the irrelevance of the official position of the defendant—was inconsistent with international law, and finally condemned as a ‘privilegium odiosum’ the fact that the Tribunal’s jurisdiction did not extend to the punishment of war crimes committed by subjects of the victor states (ibid., at 170).
- C. Leben, ‘Hans Kelsen and the Advancement of International Law’, 9 EJIL (1998) 287.
- F. Rigaux, ‘Hans Kelsen on International Law’, Ibid., 325.
- D. Zolo, ‘Hans Kelsen: International Peace through International Law’, Ibid., 306.
- R. Walter et al. (eds), Hans Kelsen und das Völkerrecht (Wien: Manz, 2004).
- A. Jakab, ‘Kelsen’s Doctrine of International Law: Between Epistemology and Politics’, 9 Austrian Review of International and European Law (2006) 49.
Kosovo Special Courts
The international presence in Kosovo derives its legitimacy from SC Res. 1244 (1999) which established the UN Mission in Kosovo (UNMIK). The general legal framework for the judicial system in Kosovo is based on both Regulation 1999/24 and the Constitutional Framework of Kosovo. Although initially based on local judges and prosecutors, shortcomings together with certain violent events in early 2000 made an international involvement necessary. Therefore, a mixed judicial system was established in order to address issues such as ethnic bias and pressures on judges and prosecutors. Regulation 2000/6 promulgated by the Special Representative of the Secretary General, the highest authority in Kosovo, allowed for the appointment of international judges and prosecutors (IJPs) in the Mitrovica District Court. Later this possibility was extended to all five regional district courts. Regulation 2000/64 gave the prosecutors, the accused, or the defence counsel the right to ask for IJPs involvement in a serious case, or a change Page Id: 403ReferencesAgreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and establishing the Charter of the International Military Tribunal (International Military Tribunal [IMT]) 82 UNTS 279, UNTS Reg No II-251, EAS No 472, 59 Stat 1544, 3 Bevans 1238Annex The Nuremberg Charter, II Jurisdiction and General Principles, Art.7(p. 404) of venue. The legal framework was further completed with the adoption in 2003 of the Provisional Criminal Code and of the Criminal Procedure Code of Kosovo (for the organization of the justice system in Kosovo see <http://www.unmikonline.org/justice/organigram_justice.htm>).
International judges sit on panels throughout Kosovo on a case-by-case basis, while international prosecutors take over cases where it is thought that local prosecutors would be unwilling or unable to perform their duty in a proper and efficient manner. Thus, IJPs are fully integrated into the Kosovo judiciary along with their local colleagues. The jurisdiction of these panels encompasses a wide range of serious crimes, including ethnic and war crimes, and more recently cases of organized crimes. UNMIK also instituted rigorous case-monitoring practices and passed Regulation 2001/2 to ensure that international prosecutors could resurrect cases abandoned by their Kosovar counterparts. The passing of Regulation 2001/20 on the Protection of Injured Parties and Witnesses in Criminal Proceedings was an important addition to the legal framework of the justice system in Kosovo. In such a closely knit community, coming forward as a witness in war crimes or ethnic crime cases would not have been possible without measures encompassing not only protection of their anonymity, but also their resettlement abroad if necessary.
The ICTY has offices in Kosovo and in view of its Completion Strategy it is possible for referrals of cases to be made to the Kosovo Special Courts. Consequently, IJPs might be entrusted with complementing the work of the ICTY in Kosovo. Their limited number, short mandate, and different backgrounds have sparked some criticism with regard to their potential contribution to the justice system in Kosovo. However, although limited in number, they have managed to try a number of sensitive cases thereby ensuring neutrality and professionalism. Their contribution comprises the establishment of a culture of accountability, of the rule of law and the independence of the judiciary, as well as a certain capacity-building.
- K. Ambos and M. Othman (eds), New Approaches in International Criminal Justice: Kosovo, East Timor, Sierra Leone and Cambodia (Freiburg: Max-Planck-Institute for Foreign and International Criminal Law, Iuscrim Verlag, 2003), 21–70.
- C.P.R. Romano, A. Nollkaemper, J. Kleffner (eds), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford: Oxford University Press, 2004), 41–78.