International criminal justice
« Le caractère transnational des crimes contre l’humanité au cours de la Seconde Guerre mondiale a eu pour conséquence, à l’issue des conflits, la mise en place de juridictions internationales à Nuremberg (accord du 8 août 1945) puis à Tokyo (proclamation du 19 janvier 1946) chargées d’appliquer un principe fondamental, jamais démenti depuis : la responsabilité personnelle des chefs d’États, des membres du gouvernement, des parlementaires, des chefs militaires est recherchée. La fin de la guerre froide a vu repartir un tel processus, avec notamment des juridictions internationales pour l’ex-Yougoslavie et le Rwanda puis avec la création de la Cour pénale internationale, mais avec combien d’hésitations, de réticences, voire d’hostilité, sans oublier les difficultés matérielles. »
“The transnational nature of crimes against humanity during the Second World War resulted, at the end of the conflicts, in international courts being set up in Nuremberg (agreement of 8 August 1945) and then in Tokyo (proclamation of 19 January 1946) to apply a fundamental principle, and they have not been disproved since: they are wanting heads of state, members of government, parliamentarians and military leaders to take responsibility for their actions. The end of the Cold War saw this kind of process start again, with international courts for the former Yugoslavia and Rwanda and the creation of the International Criminal Court but there was a lot of hesitation, reluctance and even hostility towards this establishment, not to mention material difficulties. ”
Trying for crimes against humanity. 20 years after the Barbie trial, Lyon, ENS Éditions, 2009
While, on the surface, the definition of crimes against humanity and the trial of criminals are a matter of law, in practice, delivering justice to restore peace (but also to recognise history) highlights the tensions between law and politics, because looking for the truth, which is necessary for any fair trial, can be dangerous.
The “ad hoc” courts
In the early 1990s, new courts were created, with their jurisdiction being limited to a specific conflict. These were the “ad hoc” courts, which disappeared when the trials were over.
International Criminal Tribunal for the former Yugoslavia (ICTY)
In 1991, the breaking-up of the Yugoslav federation once again brought war to the heart of Europe. Serbia were undertaking a policy of “ethnic cleansing” in Bosnia and Croatia. Crimes were being committed. By resolution 827 of 25 May 1993, the UN Security Council established an International Criminal Tribunal for the former Yugoslavia, though the conflict was not over yet.
Located in The Hague (Netherlands), this tribunal tried people for genocide, crimes against humanity and war crimes that were committed in the former Yugoslavia from 1 January 1991 on. It was made up of judges chosen by the UN General Assembly.
Slobodan Miloševic was the first Head of State in office to be indicted (24 May 1999) before an international court; he was the President of the Republic of Serbia. Arrested on 1 April 2001, he died on 11 March 2006 during his trial.
International Criminal Tribunal for Rwanda (ICTR)
At the beginning of April 1994 and for about a hundred days, nearly a million people were massacred in Rwanda; 90% were Tutsis. On 8 November 1994, Security Council Resolution 955 established the International Criminal Tribunal for Rwanda (ICTR), which was modelled on that of the ICTY. Located in Arusha (Tanzania), this tribunal tried people for genocide and other serious violations of international humanitarian law that had been committed in Rwanda or on neighbouring states’ territory in 1994. It was made up of judges chosen by the UN General Assembly.
When the court was closed, 8 people were still wanted. Their cases were transferred to Rwandan courts or to a new UN agency: the “Mechanism”.
When the ICTs for the former Yugoslavia and Rwanda were closed, a number of cases had not yet been closed (including Mladic et Karadžic) or people were still wanted (8 people for the events in Rwanda). These cases were transferred to national courts or assigned to a new UN agency: the “Mechanism”. Made up of judges, its functions are to complete ongoing proceedings, to monitor the execution of sentences imposed, to ensure the protection of victims and to preserve archives.
Internationalised courts and “truth and reconciliation” boards
At the end of the 20th century, other “ad hoc” courts were created to try the perpetrators of crimes against humanity committed in Sierra Leone (Special Court for Sierra Leone), Cambodia (Extraordinary Chambers in the Courts of Cambodia), East Timor (Special Panels and Serious Crimes Unit in East-Timor) and Kosovo (Regulation 64 Panels in the Courts of Kosovo).
Some countries established “Truth and Reconciliation” boards (South Africa, Peru and others)
The International Criminal Court
After several years of negotiations, with pressure from non-governmental human rights organisations, the Court was created by an international convention signed in Rome on 17 July 1998. It came into force on 1 July 2002. It was the first permanent international criminal court.
In 2018, 123 of the 193 UN Member States adopted the Statute of the International Criminal Court.
Unlike the “ad hoc” criminal tribunals, which have a limited mandate, the ICC has universal jurisdiction and has no time restrictions (for acts committed from 2002 onwards). Its purpose is to try the perpetrators of genocide, crimes against humanity and war crimes. The Court is also expected to rule on crimes of aggression.
The traditional reason of state and the desire to moralise public life in the name of the universal values of humanity openly clash and it is only under constant pressure from civil society that international justice can truly exist.
Who is competent to try the perpetrators of crimes against humanity?
The International Criminal Court intervenes depending on the complementarity principle:
it deals with cases where the competent States do not have the political will or are unable (countries in ruins, in administrative disorganisation, etc.) to prosecute the perpetrators of the crimes themselves.
State parties go to the International Criminal Court:
- when the crimes are committed on their territory
- when the crimes are committed by one of their citizens.
Whereas states that have incorporated these offences into their national law
are competent themselves for:
- crimes committed on their territory (territorial jurisdiction)
- crimes committed by or against their nationals (active or passive personal jurisdiction).
Another jurisdiction that is tending to develop is universal jurisdiction. It allows a State to try any perpetrator of crimes against humanity who was arrested on its territory. A Belgian law of 1993 that was amended in 1999 and that has now been repealed, was even more bold, as it gave Belgian judges the power to judge any perpetrator of a crime against humanity as soon as a lawsuit was filed in Belgium, even if the person concerned was not present in that country.
In applying these different possibilities, it is quite common for torturers to be arrested in a country that is not where they committed their crimes. In some cases, Heads of State or Government have even been accused before a foreign court:
- Augusto Pinochet, who was arrested in London in 1998 at the request of the Spanish courts.
- Hissène Habré, who was prosecuted in Senegal in February 2000 for crimes committed in Chad under his presidency (ongoing proceedings).
As international law stands at present, the diplomatic immunity of incumbent Heads of State and Government, is only waived before international criminal courts.