Book Reviews

Zanardi, Pierluigi Lamberti and Gabriella Venturini (eds). Crimini di guerra e competenza delle giurisdizioni nazionali. Milan: Giuffré, 1998. Pp. xi + 326.

This collection of essays contains the lectures and addresses presented at a conference held at the University of Milano in honour of Professor Alessandro Migliazza, 15-17 May 1997. The conference examined the competence of national jurisdictions to prosecute individuals accused of war crimes. The book is divided into seven sections, each of which deals with different aspects of the issue. After a short introductory section, outlining the structure of the volume, Sections II and III look respectively at the instruments available for the prosecution of war crimes under international law and the issue of national implementing legislation. Sections IV and V analyse the relationship between international politics and war crimes, and investigate the role of NGOs in the diffusion and implementation of the law of war crimes. Section VI reproduces a round table discussion on the status of Italian legislation on war crimes and projects for reform. Finally, a documentary section contains various texts, namely, the relevant provisions of the Geneva Conventions and Additional Protocol I, the national laws on war crimes of several European states (Italy, Belgium, Spain, France), as well as Italian draft legislation which would bring the Italian legal order in line with international humanitarian law.

In Section II, Professor Condorelli outlines the general principles of international humanitarian law pertaining to war crimes as codified by the Geneva Conventions of 1949 and the Additional Protocols of 1977. He points to the existence of four main principles which give shape to the international system for the repression of war crimes.¹ In the final part of his paper Professor Condorelli examines the distinction between `grave breaches' and other `serious violations' that are not characterized as `grave breaches' pursuant to the provisions of the Geneva Conventions. He highlights the evolution of international customary law on war crimes committed in internal conflicts and the leading role played in this respect by the International Criminal Tribunal for the former Yugoslavia (and, namely, the decision on the interlocutory appeal on jurisdiction in the Tadiæ case, IT-94-1-AR72, 2 October 1995).

In this same section, Professor Flavia Lattanzi provides a comprehensive analysis of the relationship between international criminal courts and national jurisdictions. Professor Lattanzi, who was a member of the Italian delegation to the Rome Conference for the establishment of the ICC and who has extensively studied the issue of international criminal jurisdiction, underscores the relevance of the preventive function played by the international criminal jurisdiction. Indeed, she considers the prevention of war crimes as the main purpose for the creation of an international system of prosecution of war criminals. Professor Lattanzi shows, including through specific examples, how the existence of an international criminal court could enhance deterrence by allowing timely and immediate intervention for the prosecution of violations as soon as they occur, rather than after the conflict has been concluded. The argument, which is certainly of substance, shows its main weakness in the wake of the experience of the Yugoslav conflict, where the atrocities committed in Srebrenica actually occurred despite the existence of an international tribunal with jurisdiction over those crimes.

This section also contains a description of the efforts on the part of the International Red Cross to strengthen the system of prosecution of war crimes in order to develop respect for international humanitarian law. Written by Yves Sandoz, `Directeur du droit international et de la doctrine' at the ICRC, this chapter argues that respect for the principles of humanity in armed conflicts can be mainly pursued by extending to internal armed conflicts those provisions that impose the obligation to punish certain acts which occur in the context of international armed conflicts.

The contribution by Professor Gaja brings this section to a close. The author expresses serious concern about the mechanism on the basis of which the principle of complementarity operates. In particular, he criticizes the criteria that the ICC should adopt to determine the situations over which it can exercise jurisdiction (inability or unwillingness of the national system to genuinely exercise jurisdiction). Professor Gaja highlights the risk of the Court remaining entangled in disputes with national authorities over the conditions under which those criteria are met. If that were the case, the Court would be obliged to `accuse' national authorities of inadequacy in order to be able to exercise jurisdiction and, therefore, in all likelihood the authorities of the state concerned would not be willing to cooperate to the fullest extent with the Court. Finally, the author suggests different solutions to the problem. Principally, he submits that other criteria for deferral of a case from the national level to the jurisdiction of the Court could be added, such as connection to another case before the Court. In sum, Professor Gaja argues for more neutral criteria which would not create a climate of hostility between the ICC and national authorities. However, the example brought, i.e. the ICTY system, has shown that the cooperation of state authorities does not only depend on the grounds for deferral. As the author points out, the ICTY has always used the third criterion provided for by Rule 9 of its Rules of Procedure and Evidence: it has insisted on the fact that the issue was closely related to another investigation by the Tribunal. Nevertheless, the authorities of the Federal Republic of Yugoslavia have repeatedly refused to cooperate.

Section III covers the problem of implementation, at the national level, of the system for punishment of war crimes outlined by the Geneva Conventions and Protocols. It includes two papers on the status of the Italian system. The first, by Professor Chiavario, discusses - from the perspective of criminal law and criminal procedure - the question of the values protected by the criminal provisions of international humanitarian law and problems relating to the activation of the jurisdiction of military tribunals in time of war: the functioning of military tribunals, under Italian law, is subject to a decision of the supreme commander. The second paper, by Professor Benvenuti, deals more specifically with the issue of how the relevant provisions of international humanitarian law have been implemented in Italy and the reforms presently being drafted. The author affirms that the need for the creation of the UN ad hoc tribunals and the establishment of the ICC is evidence that there is a substantial lack of enforcement at the national level of the norms concerning war crimes. Thus, Professor Benvenuti suggests that the primary role of international tribunals is to put national authorities under pressure, given that the general enforcement of international humanitarian law rests with national jurisdictions.

This section also contains an interesting contribution on various recent national statutes on war crimes. André Andries, from Belgium, deals with the problem of the general failure of states to enact an effective system of punishment for war crimes. He then presents the Belgian law on war crimes adopted on 16 June 1993. He argues that the will of the Belgian legislator to recognize specificity in the criminal provisions of international humanitarian law emerges in that the law is not an amendment to the criminal code or the military criminal code, but is rather a so-called special law (loi spéciale). Moreover, another element that proves the peculiar role attributed to these norms is the seriousness of the penalties attached to the commission of war crimes. The law also includes within its scope the commission of war crimes in internal conflicts. Finally, the author refers to the draftsmen's `propos didactique' (an educational purpose), which, in particular, emerges in that the law highlights the international character of these crimes. The situation of national implementation of international rules on war crimes in France is described by Professor Daillier. He describes the controversial role of the principle of universal jurisdiction, which is operational in France only with the agreement of the executive branch. Moreover, Professor Daillier emphasizes the recognition of a need for a national criminalization of acts defined by international law as war crimes. The author refers to the evolution of a general restrictive tendency to interpret international rules which criminalize certain acts. Finally, the last paper in this section, by Professor Perez Gonzalez, deals with the current situation of Spanish legislation. In Spain the obligation under international law to prosecute war criminals was partially fulfilled by the military criminal code; nevertheless there was a lacuna in general criminal law. It was therefore necessary to amend the criminal code, introducing norms that would criminalize the types of conduct proscribed by international humanitarian law. In contrast to the Belgian solution, the Spanish legislator decided to opt for an amendment to the criminal code. Thus, there is now a specific section of the Spanish criminal code that deals with war crimes. The section is called `Crimes against the International Community' and includes war crimes and crimes against humanity. The double criminalization of certain conducts, both in the military code and in the general criminal code, is mainly due to the fact that the military legislation did not incorporate the liability of civilians who commit prohibited acts. Nevertheless, these parallel incriminations may create problems. These could be solved, according to Professor Perez Gonzalez, by suppressing the provisions of the military code and substituting them with a reference to the general system provided for in the criminal code. Lastly, although the criminal code affirms that there is no statute of limitation for the crime of genocide, it does not provide the same for war crimes; according to the author this has been expressly avoided.

Section IV contains two papers on legal theory and political philosophy in relation to war crimes. Professor Santoro's paper, entitled `Winners and Victors' Considerations on the Political Philosophy of War Crimes', constitutes an ultra-realist reading of the war crimes trials based on the assumption that the wrongfulness of acts qualified as war crimes depends upon the outcome of the conflict: the winner is right and vae victis. This approach is criticized by Antonio Intelisano, Chief Military Prosecutor in Rome (p. 246). The second paper, `Order and Justice in the International System', by Professor Calzini, is an attempt to show that the globalization process shaping international relations leads, rather inevitably, to the creation of an international criminal jurisdiction. Contemporary international society is moving from a model based on competition and war towards a paradigm of cooperation. The author claims that there has been a shift from an anarchical society to a better organized and more integrated community. New tensions, however, are emerging. These are linked, on the one hand, to the increasing activism on the international political arena of states, such as Japan, India and China, and, on the other hand, to the rise of nationalism. Thus, the goal of cohesion pursued by the globalization process is challenged both by these emerging countries, which bring all the weight of their strong cultural roots to the international political scene, and by nationalist movements which tend to emphasize regional peculiarities rather than common traits.

Section V deals with the role of NGOs in pushing for the implementation of international humanitarian law. Professor Patrnogic, President of the Institut international de droit humanitaire, and Cristina Pellandini, legal adviser of the ICRC, explain the role played by leading NGOs in the field of international humanitarian law. They have the important functions of disseminating knowledge of the norms of the Geneva Conventions and Protocols and engaging in an ongoing dialogue with parties in conflict in an attempt to foster respect for these norms.

Section VI contains the texts of the numerous addresses made at a round table on the status of Italian law and the prospects for amendments. The crucial issue of the debate was certainly the absence - in Italy - of adequate legislation. This state of affairs was criticized for two main reasons: on the one hand, the difficulties of Italian jurisdictions to deal with cases of war crimes (cf., for instance, the address by Giuseppe Mazzi, judge for preliminary investigations at the Military Tribunal of Rome, p. 266 et seq., and the remarks by Professor Sacerdoti, p. 263 et seq.); on the other hand, for the negative impact that this situation would have created for Italy on the occasion of the Diplomatic Conference convened in Rome to establish the ICC (cf. the comments by Professor Treves, in which he also expressed the hope that the Diplomatic Conference on the establishment of the ICC would not adopt a minimalist attitude, p. 270 et seq.).

The discussion focused on the possibility for national judges to apply international norms in the absence of adequate national legislation to transform international obligations into national rules. Professor Sacerdoti was an isolated voice arguing in favour of direct application at least of certain rules, such as those regarding statutes of limitation in respect of prosecutions for war crimes. The conclusions of the conference were drawn by Professor Pocar, who highlighted the need for continuous cooperation between international organs and national authorities in protecting fundamental rights and in prosecuting war criminals. The real issue is to determine the respective spheres of competence of national and international authorities. Pocar underscored the need for national legislation on war crimes, in accordance with the principle of nullum crimen sine lege. He concluded with a warning against the risk that states may intend to establish the international criminal court in order to shun their obligations to enforce international law and to prosecute war criminals.

This book is extremely informative on recent national legislation on war crimes and on the problems underlying the national implementation of international humanitarian law in respect of criminal acts. It contains a number of learned analyses concerning the interplay between the international system proscribing war crimes and the activation of national jurisdictions in prosecuting war criminals. There is also a firm assertion, repeated in almost every paper, of the need for national implementing legislation to give shape, at the national level, to the system of prosecution of acts in breach of international humanitarian law. In particular, most contributors strongly criticized the Italian legislation on war crimes as it currently stands.

The resulting overall picture is that of an international system for the prosecution of war crimes which is quite well developed, but which has not yet been fully implemented at the national level. At the same time, we can see that an attempt is also being made to strengthen the enforcement of this system through international adjudication - namely, the ICC. As Professor Pocar suggests in his concluding remarks, it is important to recall that the creation of an international organ does not per se relieve states of their obligations.

This collection of essays has the undeniable merit of focusing on a highly sensitive issue, providing the reader with interesting information on recent laws and draft legislation. A fundamental problem of international humanitarian law is clearly highlighted: the urgent need for national implementation of provisions on war crimes. However, one cannot fail to note the relatively limited scope of the comparative survey on national legislation, which presents the situation of only four Western European countries (Italy, Belgium, France and Spain). Furthermore, it is striking that the volume does not include any diverging opinions as to the fundamental tenet set out in the book; namely, that the role of international criminal jurisdiction is mainly to force municipal authorities to intervene at the national level. This is certainly a widespread opinion. However, other considerations that played a role in the establishment of international criminal tribunals could have been the subject of an interesting debate. One such possibility could have been the idea that the establishment of an international criminal court serves the need to foster an international stigmatization of certain particularly heinous crimes.

Salvatore Zappalà
European University Institute

1 The first principle is enshrined in the obligation imposed on states to introduce legislation. As the rules on war crimes of the Geneva Conventions are not, according to Professor Condorelli, self-executing, this obligation implies a specific duty incumbent on national authorities to adapt in detail their national legislation to international humanitarian law. In this respect, the author also criticized the status of Italian law (reinforced by many other panelists during the conference). Another general principle is the obligation for national authorities to search for alleged war criminals. Professor Condorelli affirmed that this obligation extends to extraterritorial missions where states are entitled to legitimately exercise their authority in a foreign territory (express reference is made to the NATO troops in Bosnia Herzegovina). The other general principles of the system for the repression of war crimes are the obligation aut dedere aut iudicare, and the duty of states to cooperate with each other to prosecute war criminals (Art. 88 Additional Protocol I) in respect of `grave breaches'.

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