by Bill Sundhu
Since the beginning, human beings have aspired for justice and dignity. Philosophers and prophets spoke its promise in earthly or other domain. In the modern era, the human aspiration for rights and liberty took impetus from the “seventeenth and eighteenth centuries, and of a growing and spreading enlightenment generally.”1 These ideas bore through revolutions, declarations of rights and violent conflicts. The motives were a desire for rights, freedoms and a new order.
Ideas and movements spread across borders, but were seen to only affect events inside countries. “Other States took little note and expressed little concern for what a government did to its own citizens. In general, the veil of Statehood was impermeable.”2 Treaties between states formed the basis of international law on humanitarian law of war, diplomatic immunity and regulation of fisheries. These arose to serve the needs of States, given the costs of war and colonial trade. The law of state responsibility for injury to aliens was necessitated by foreign economic operations. Even today, “only treaties can create, and define the powers or jurisdiction of, international institutions in which state parties participate and to which they may owe duties.”3 Article 38(1)(a) of the Statute of the International Court of Justice maintains “international conventions.” and treaties remain the “primary expression of international law.”
Human rights treaties and declarations continue to extend protection to persons against governmental and other forms of abuse. Customary international law has been instrumental and responsive to the advancement of new ideas within this framework. In The Paquete Habana4, involving the seizing of fishing vessels by the U.S. during war with Spain, the United States Supreme Court referred to a European doctrine exempting coast fisherman from capture as part of war, saying:
International law is part of our law…where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations…founded on considerations of humanity…it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct.
The Chattin Case5, involving a U.S. citizen who was a conductor on a railroad in Mexico charged with embezzlement of fares, and the Minority Schools In Albania6 reveal prejudices based on notions of superiority. The former said Mexico had “a criminal procedure so far below international standards of civilization” and the latter appeared slanted in favour of a Greek Christian minority over a Muslim majority on the regulation of private schools. Nonetheless, state primacy and sovereignty “was to some extent eroded”7 by treaty, which subjected the state’s internal treatment of its citizenry to international law and bodies. Sometimes, treaties give birth to rules of customary law.
In the aftermath of WWII, the Allies set up the International Military Tribunal to try mostly Nazi leaders. This was a watershed development for the application of international law doctrines and ideas to impose criminal sanctions against individuals from the defeated States. Whereas, previously, prosecutions occurred in a state court, this was an international criminal tribunal. The tribunal Charter granted jurisdiction based on individual responsibility for Crimes Against Peace, War and Against Humanity. The Judgment of Nuremberg Tribunal8 states:
The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts…Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can provisions of international law be enforced…
…individuals have international duties which transcend the national obligations of obedience imposed by the individual state…this in conformity with the law of all nations…
The judgment referenced treaties, including the Hague Convention and the Kellogg-Briand Pact as binding on the Axis Powers. The General Assembly of the U.N. affirmed the principles on international law in the Charter and the “judgment of the tribunal.” The concept of individual criminal responsibility was broadened in and the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the Geneva Conventions of 1949. Article IV of the former makes it applicable to “private individuals” as well.
The U.N. Charter and the Universal Declaration of Human Rights have become symbols and powerful instruments in human rights. The UDHR is described as the “constitution of the entire movement.”9 It lacks formal authority derived from treaty, but is a significant reference point in customary international law. The Covenants (i.e. ICCPR), however, are global treaties and complemented by multilateral treaties known as “Conventions” (i.e. Genocide, Torture). The debate surrounding “universal” values or “cultural relativism” has interjected itself into human rights and its bodies. The crux of the debate flows from a failure or, uneven, response to crimes and atrocities despite declarations and proclamations in the decades ensuing the Nuremberg Trials and human rights treaties.
The end of the Cold War and heightened awareness of events elsewhere increased momentum to hold offenders of mass crimes accountable. Development has been in the area of individual liability. This may be traced to Nuremberg that “crimes against international law are committed by men, not by abstract entities.”10 “It is indicative of this tendency that the provisions of the 1949 Geneva Conventions on compensation by States for grave breaches have remained a dead letter, whereas there is increasing resort to the criminal provisions of the Conventions.”11 It is, also, easier and more justifiable to pursue individuals or groups who act “within and on behalf of the State.”
Individualization of responsibility for human rights violations is helping universalize obligations. The International Criminal Tribunals for Yugoslavia and Rwanda (ICTY and ICTR) and the permanent International Criminal Court (ICC) were significant developments with acceptance amongst many states and expansion in international criminal law. The ICTY appeared to expand culpability of certain crimes from those committed during international to internal armed conflict and defined the ingredients of the offence of “crimes against humanity.”12 The Krstic13 judgment added to the legal character of genocide.
There has been varied experience in composition and locale of the tribunals, whether international, mixed or domestic. The Iraqi domestic tribunal lacked the appearance of impartiality, in the execution of Saddam Hussein. The death penalty is not in use by modern international tribunals. The hybrid U.N.- East Timorese Serious Crimes Unit Court is frustrated in requests “for extradition of military and militia leaders by the Indonesian government. The Dili Court has thus been limited to trying low-level militia members in East Timor.”14
Unlike, the Ad-hoc tribunals, the ICC is permanent. Its jurisdiction is limited to “ serious crimes of concern to the international community as a whole” (Article 5). Although, several states (i.e. China, USA) do not recognize it’s jurisdiction over them, their citizens appear bound to it’s authority if accused of committing crimes in a party state.
International tribunals or courts, properly constituted with an independent and impartial judiciary, can be powerful expressions of universal values and law. They are an important component of justice for crimes that shock the conscience of the world or “an unspeakable human evil.” 15
Prosecutions of serious violations are imperative, given the gravity of the violations and the objective of human rights. Denunciation of crimes is an expression of universal values as contained in international legal instruments, including treaties. Deterrence is difficult to quantify as a factor or motivator. Most violators of international human rights have been correct to think they will never be caught and punished. “Appalling offences such as genocide, crimes against humanity, and torture have been committed in time of peace. It would be facile to blame all these misdeeds on human wickedness…that since time immemorial man has been inhuman to man. It is a fact that the worst planners, perpetrators, or instigators of these crimes, including decision-makers, military leaders, and senior executors, have seldom been brought to account for their misdeeds.”16 Violators exercise power in order to victimize. “Power is central to the creation of law” 17 and its enforcement. History proved offenders had good reason to think the international community will do little or nothing. The influence of deterrence may be hard to prove, but its absence ought not be discounted.
The “stigmatization of criminality and retribution”18 is another objective. Criminal tribunals make “visible the sober operation of the law.” Witnesses are able to tell what happened and judgments provide a record of evidence and historical context. The Ad-Hoc tribunals are less susceptible to criticisms of biased justice. They are comprised of international judges and prosecutors less invested in national or vengeful outcomes. The opportunity to witness impartial justice enhances the credibility of international human rights law enforcement and reduces vengeance and resentment in rebuilding communities and societies. Another compelling reason for international prosecutions and punishment is simply without it, there is real risk of decline of respect of human rights and international law. Perhaps, the most important function of international criminal prosecutions is the denial of impunity.
“Like it or not, critics of law must accept that there has been a global trend for ensuring greater accountability for mass crimes, and national and international courts and commissions are increasingly the places of choice for victims, perpetrators, and bystanders to tell their stories about past atrocities.”19 The Statute of the International Criminal Court (ICC) is an extension of this trend. Its provisions for prosecution of those accused of serious crimes and recognition of harm to victims is designed to promote international justice, including compensation and punishment. It is a legal innovation and it remains to be seen whether it is successful.
The concept of state sovereignty and the realities of international politics make for inconsistent results. The “ICC cannot conduct an investigation unless the accused persons own country is unwilling or unable to do so.”20 The U.N. referred the matter of Darfur to the ICC, with jurisdiction to investigate and issue indictments, over the objections of Sudan. The permanent members did not exercise veto, despite previous positions on the ICC. The absorption of human rights and international norms continues despite the resistance of major power interests and state sovereignty. Individual liability for international crimes thus continues to expand and offer some minute hope to human rights supporters. The promise is as uncertain as the reconfiguration of international politics. Power and politics is still determinative. And, yet, it doesn’t mean offenders shouldn’t be punished. Necessity and ability are not the same concepts. Credibility, however, is integral to respect for human rights.
“Truth and Reconciliation” commissions can be an aid to restorative justice and respect for human rights as a complementary process. They are not a substitute for the prosecution of mass violations of human rights, a necessary component of an effective system of international law. They are not mutually exclusive.
The impetus and consciousness for human rights continues to evolve. It is borne out of the human aspiration for dignity and security. International law appears to recognize the principle that state sovereignty will not be a shield against crimes that shock the conscience and involve mass atrocities. There are emerging limits on prohibitions against international interference on “domestic jurisdiction” of another state. The movement for international human rights, and its supporting treaties and conventions, are a powerful and gradual force in moving international law away from nation-state dominance and in impelling efforts to protect vulnerable people from mass atrocities and harm.
The structures to prevent mass violations and challenges of a complex world have been inadequate and, at times, despairingly non-existent. The recent movement and establishment of international tribunals to prosecute and punish violators is a significant, albeit one- faceted, response to mass violations of human rights. It deserves commitment to deliver on promises made – that violators will be held accountable and punished.
1. Louis Henkin, International Law: Politics, Values and Functions, 216 Collected Courses of The Hague Academy of International Law (Vol. IV, 1989) 13, Chapter X, p. 208.
2. ibid, p. 132 as reproduced in Steiner, Alston, Goodman, International Human Rights In Context, 3rd edition, Oxford University Press, 2008.
3. Steiner, Alston, Goodman, p. 107.
4. 175 U.S. 677, 20 S.Ct. 290.
5. United States of America (B.E. Chattin) v. United Mexican States, United States- Mexican Claims Commission, 1927, at 422, 4 U.N.R.I.A.A. 282.
6. Advisory Opinion, Permanent Court of International Justice, 1935 Series A/B- No. 64.
8. International Military Tribunal, Nuremberg (1946) 41 Am. J. Int. L. 172 (1947).
10. International Military Tribunal, supra.
11. A. Cassesse, International Criminal Law (Oxford University Press), 2003), p. 447.
12. Prosecutor v. Tadic [Interlocutory Appeal] 1995 & (Case No. IT-94-1-T), Judgment of the Trial Chamber, 7 May 1997.
13. Prosecutor v. Krstic (Case No. IT-98-33-T), Judgment of the Trial Chamber, 2 Aug. 2001
14. Diane Farsetta, Independence and Beyond”, Z Magazine, 15:8 (Sept. 2002), online: www.zmag.org/ZMag/articles/sep02farsetta.html
17. Michael Byers, Globe and Mail Books, Canada, February 9, 2008, p. 1.
19. Richard Ashby Wilson, Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia, Human Rights Quarterly 27 (2005), p. 917.