While this year marks the 60th anniversary of the 1949 Geneva Convention, prosecuting heads of state under international criminal law is still a developing field around the world, reports Sarah Sharples
If former UK Prime Minister Winston Churchill could have had his way, Adolf Hitler would have been placed in an electric chair and executed without trial along with other top Nazi officials, Cabinet papers released in 2006 revealed.
Hitler was not the only head of state to escape prosecution though. It has been estimated by the United Nations that between 1945 and 1990 approximately 150 and 180 million people died in conflicts, but with virtually no accountability for the deaths, according to Steven Freeland, associate professor in international law at the University of Western Sydney.
However, since then, there have been developments in bringing heads of state to publicly account for international crimes via legitimate legal channels. Since 1990, 67 former heads of state or government have been prosecuted for serious human rights breaches or financial crimes.
High-profile trials include former Iraq leader Saddam Hussein, former Yugoslavia President Slobodan Milosevic, Liberia and Sierra Leone's Charles Taylor and Augusto Pinochet from Chile.
Also in 1998, 120 states adopted the Rome Statute, which is the legal basis for establishing the International Criminal Court (ICC). This is the first permanent, treaty-based court which aims to end impunity for perpetrators of serious crimes. The latest countries to become parties include Chile and the Czech Republic.
Freeland, who is also a visiting professional at the ICC, was speaking at a debate about immunity and impunity for prosecuting heads of state, hosted by the Red Cross and Mallesons Stephen Jaques last week. He told the audience that the establishment of the ICC was a significant part of an ongoing matrix of the internationalisation of justice.
"Over recent years, whereas heads of states might have regarded themselves as above the law [or] beyond the law, that is no longer the case," he said.
"What are the goals of [the ICC]? Confirming that the most serious crimes of concern to the international community as a whole most not go unpunished [and] determination to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of these crimes ... Of course, practically speaking, will we ever end impunity forever? Of course not, but it's certainly a goal that this court and many other mechanisms of justice are trying for."
While the aims of the ICC and international criminal law may be easily identifiable, putting it into practice in this developing field is a challenge faced by both prosecution and defence lawyers.
Graham Blewitt, who was the deputy chief prosecutor at the War Crimes Tribunal in the Hague between 1994 and 2004, said that a prosecution of a head of state can only be as strong as the evidence available.
"There are complications if the investigators don't have access to the evidence if ... [they] have no access to the country ... particularly if the head of state controls the territory and is excluding the investigators from entering the territory," he says.
However, evidence can be obtained outside the country in some cases, such as for the prosecution of Slobodan Milosevic in which Blewitt was involved.
"There was literally tens of thousands of refugees who had fled the former Yugoslavia and were seeking refuge in various countries around the world, in particular Western Europe, and in that instance the [International Criminal Tribunal for the former Yugoslavia (ICTY)] investigators had direct access to those refugees who proved to be both victims to those crimes and eye witnesses to those crimes," he said.
Blewitt added that the capacity for the defence to interrupt the flow of prosecution by filing motions and seeking production of material, which could literally include millions of documents, is also difficult.
But, Mark Ierace SC, the senior public defender at the NSW Public Defender's Office, who was a senior trial attorney at the UN Criminal Tribunal in the ICTY, argued that the defence must also contend with a number of issues and the added pressure that the outcome of the trial can be extremely onerous for their client.
Amongst the issues are the admission of hearsay evidence, such as newspaper articles quoting people who are not to be called as witnesses, and differing resources, with the prosecution employing a staff of around 80 people, whereas the defence have three to four full-time workers, one or two assistants and forensic experts as required, he said.
The role that victims can play in a trial, including the ability to have separate representation at the bar table, the right to make submissions to the court and being able to seek leave to question witnesses, can also be a disturbing factor, said Ierace.
"It concerns me that the role of the victims does not distort the trial process ... The [relevant statute]provides for a trust fund from which there is to be restitution - compensation to victims - [and] the court as part of the sentence of the offender can impose a fine or order a forfeiture of both goods, which the offender has gone by as a direct consequence of the crime," he said.
"In other words, the victims have a financial interest in the outcome of the trial [and] in the conviction of the accused. I have, of course, absolutely no problem with victims having the right to compensation but whereas in our system that is kept separate from the trial process; in the ICC it is combined."
For the International Committee of the Red Cross (ICRC), the ICC remains the last step in the process of achieving justice, with their focus on providing protection and assistance to victims of armed conflicts, rather than bringing perpetrators to account, said legal adviser to the ICRC regional delegation in the Pacific, Kelisiana Thynne.
"It is the victims about whom we are most concerned. Therefore, although we see violations constantly, we do not testify publicly, we do not investigate violations and we do not give evidence before international tribunals," she said.
"You only need to look at the humanitarian impact that the arrest warrants against persons in Sudan have had to realise that if the ICRC, so present in the Darfur region, would risk being asked to leave Sudan, if there was a chance that we could give evidence before the ICC. Thirteen organisations have been asked to leave, leaving hundreds of thousands of victims without humanitarian assistance."
Thynne said the ICRC's approach was to encourage states to adopt the Geneva Conventions and ICC Acts and implement the ability to prosecute domestically those who commit grave breaches of international humanitarian law.
Freeland believed that the ICC and other courts are contributing to the ICRC's ultimate goal.
"How will we measure [courts'] success? Is it the end of all wars or the reduction or wars? Or is it many, many hundreds of prosecutions? Or is it, as I think it probably is, a greater accountability at the national level - countries themselves taking on the responsibility of themselves prosecuting the perpetrators of these crimes," he said.
"Clearly there is the desire to end the culture of impunity and despite what one might argue it is not an isolated occurrence but an emerging and growing trend. There will be more such prosecutions.
"In 2007 the Economist magazine quoted Libya President Gadhafi, who, coincidentally or perhaps not, is at the moment chair of the African union. President Gadhafi when responding to the arrest of his ex protégé Charles Taylor said: 'This means that every head of state could meet a similar fate - it sets a dangerous precedent.' Let us all keep our fingers crossed that President Gadhafi is correct [in saying that such heads of state can be brought to account]."