International criminal justice
Establishing international criminal justice
«At the end of the Second World War, the transnational nature of crimes against humanity during the conflict resulted in international courts being set up first in Nuremberg (8th August 1945 agreement), then in Tokyo (19th January 1946 proclamation) in order to apply a basic principle that has never since been refuted: personal responsibility of heads of State, government members, parliamentarians and military chiefs is sought. The end of the Cold War saw this process restart, specifically through international courts for ex-Yugoslavia, then with the setting up of the International Criminal Court; although there was widespread hesitation, reticence, even hostility, without overlooking the physical problems.»
Juger les crimes contre l’humanité. 20 ans après le procès Barbie [Judging crimes against humanity. 20 years after the Barbie trial], Lyon, ENS Éditions, 2009
Whilst it would appear that defining crime against humanity and trying criminals are legal issues, in practice, dispensing justice to re-establish peace (but also for the historical record) reveals tensions between law and politics, since the search for truth, a condition necessary to every equitable trial, is a hazardous exercise.
“Ad hoc” jurisdictions
New jurisdictions were set up in the early 1990s, their competence being limited to a specific conflict. These are termed “ad hoc” jurisdictions and they are intended to disappear when the trials are over.
The International Criminal Tribunal for the former Yugoslavia
With the break-up of the Yugoslav federation in 1991, war returned to the heart of Europe. Serbia implemented an “ethnic cleansing” policy in both Bosnia and Croatia. Crimes were committed. United Nations Security Council Resolution 827 of 25th May 1993 led to the establishment of the International Criminal Tribunal for the former Yugoslavia even before the end of the conflict. Installed at the Hague (Netherlands), this court has been trying people responsible for war crimes and crimes against humanity (including possible genocide) committed on ex-Yugoslav territory since 1991.
The International Criminal Tribunal for Rwanda
At the start of April 1994 and for around a hundred days, nearly a million people were massacred in Rwanda; 90% were Tutsis. On 8th November 1994, UN Security Council Resolution 955 led to the establishment, based on the model of the ICT for the former Yugoslavia, of the International Criminal Tribunal for Rwanda. Installed at Arusha (Tanzania), this court tries people responsible for genocide or other crimes against humanity committed in Rwanda between 1st January and 31st December 1994, as well as Rwandan citizens guilty of similar crimes committed on the territory of neighbouring States.
The International Criminal Court
On 11th April 2002, 60 States ratified the Treaty of Rome (1998), confirming the official existence of the International Criminal Court. This treaty instituting ICC as the highest international court came into force on 1st July 2002.
On 1st July 2004, ninety-four States ratified the Treaty of Rome: Twenty-four countries in Africa, forty-one in Europe, eighteen in Latin America and the Caribbean and eleven in Asia.
Unlike the “ad hoc” criminal courts, which exercise only a limited mandate, the ICC enjoys a competence that is both universal and unlimited in time. Its vocation is to try war criminals and perpetrators of crimes against humanity.
Reasons of State and the wish to bring morality to public life in the name of universal human values are openly opposed and it is only under constant pressure of civil society that international justice can truly emerge.
Who is competent in relation to trying perpetrators of crimes against humanity?
The International Criminal Court intervenes based on the principle of complementarity: it steps in if the competent States do not have the political will or are incapable (country in ruins, administrative disorganisation, etc.) of prosecuting perpetrators of crimes themselves.
States that have gone to the International Criminal Court:
• when crimes have been committed on their territory
• when crimes have been committed by one of their nationals.
States that have integrated these charges into their national law.
They are then competent for:
• crimes committed on their territory (territorial competence)
• crimes committed by their nationals or against their nationals (active or passive personal competence).
Another form of competence is tending to develop: universal competence. This enables a State to prosecute any perpetrator of a crime against humanity arrested on its territory. A Belgian law of 1993, amended in 1999 and now repealed, went even further. It granted Belgian judges the competence to try any criminal against humanity, if a charge had been lodged in Belgium and even if the person targeted was absent from that country.
When these different options have been applied, perpetrators have quite frequently been arrested in a country having no direct relation to their crimes. Heads of State or government have even been pursued by foreign jurisdictions:
• Augusto Pinochet, arrested in London in 1998 at the request of Spanish authorities
• Hissène Habré, prosecuted in Senegal in February 2000 for crimes committed in Chad under his presidency (proceedings underway).
Under current international law, diplomatic immunity of heads of State and government in office is lifted only before international criminal jurisdictions.