In-depth: Justice for a Lawless World? Rights and reconciliation in a new era of international law

Justice Unfettered? Internationalising Justice in the human rights era

NAIROBI, 27 June 2006 (IRIN) - (June 2006) The age of impunity may be giving way to a new kind of global justice. Thanks to television and radio, millions of people worldwide have learned of the atrocities suffered by other human beings, and have become outraged at what they have seen and heard. People no longer accept that perpetrators profit from impunity for their crimes. So, could this be the beginning of a new era of human rights and international justice?

Samantha Power, Harvard professor and author of “Problem from Hell – America and the Age of Genocide”, visited Darfur, western Sudan, in the summer of 2005. She asked many people where they would go if they could escape the violence that oppressed them daily. The common answer was “The Hague”. Power said they had heard it was home to a court and they “wanted to go testify”.

"I wouldn’t say they knew about the International Criminal Court (ICC). What they knew was that there was this thing called “The Hague”, a place where bad people were sent, and where over the course of recent years people [who had suffered like them] had had the ability to go and testify," reported Professor Power.

People are beginning to realise that there are courts outside their own countries - international courts - where the culture of impunity may finally be stemmed and where those guilty of abuses may be punished. The dream of “The Hague” for brutalised Darfurians is emblematic of this change.

The new measure of human rights

Increasingly, those in power - politicians, the judiciary, police, soldiers and companies - are being measured not only against regional or national standards, but also by universal standards. The same applies to local traditional customs and practices.

As news of human rights violations reaches governments and civilians across the world, a collective sense of outrage against the perpetrators is growing. While the crimes committed are not necessarily new, widespread respect for human rights is. This respect has been bolstered by the idea that it is now possible to prosecute those who commit atrocities.

Slowly, but steadily, the international community is developing conditions where, in extreme circumstances, the long-guarded notion of national sovereignty may yield to a higher order of international justice.

Cesare Romano, of the New York–based Center on International Cooperation, echoes the views of many observers who claim that international criminal justice is “one of the most significant changes in the international architecture that has taken place in the post-Cold War era”.

This evolution in international relations and international law is not yet complete, and has spawned controversy and attracted criticism. However, progress is being made, although it is still too soon to tell to what extent these changes will become permanent.

BASRA MASSACRE OF ’99. Twenty-nine of 34 sets of remains were identified by family members. All 29 names of those identified appear on the execution list. Under Saddam Hussein’s authoritarian rule numerous crimes against humanity were perpetrated. He is currently being tried in Iraq.
Credit: Human Rights Watch

The erosion of the Westphalian Model

Since the end of the Cold War, international cooperation has taken a new direction. In today’s international society, a growing number of states agree that the worst human rights abuses should be punished at an international level – albeit in national courts.

The importance of this shift away from a system of national justice that dates back to the 17th century cannot be overstated.

The “Peace of Westphalia” of 1648 saw the end the outright authority of the Pope or the Holy Roman Emperor, and ushered in a state system that has been in use since. The “Westphalian Model” means that individual states need not recognise any superior authority beyond their own sovereignty.

It was another three hundred years before states began to work together to achieve common goals, e.g. as telecommunications agreements, the protection of the Antarctic, or maritime law. These accords and agreements were created using international institutions.

An attempt to limit the brutality of war came with the Geneva Conventions of 1864 and 1865. Here standards were laid out and agreed upon by a majority of powerful states.

Before the ‘globalisation’ of criminal courts, it was the job of national courts to prosecute human rights offenders. Governments and politicians may remain resistant to any erosion of the “Westphalian Model” and state sovereignty, but support for international justice is gathering pace and looks set to continue.

As the former UN Secretary-General, Javier Perez de Cuellar, put it in 1991: “We are clearly witnessing what is probably an irresistible shift in public attitudes towards the belief that the defence of the oppressed in the name of morality should prevail over frontiers and legal documents.”

Internationalising justice in the twentieth century

“We are at the beginning of an age in which it will be insisted that the same standards of conduct and of responsibility for wrong shall be observed among nations and their governments that are observed among the individual citizens of civilized states”

Woodrow Wilson declaring war in 1917

The aftermath of the First World War saw several failed attempts to create an international judicial body to try suspects for major crimes against humanity.

French and British moves to try Kaiser Wilhelm II were successfully opposed by the USA, fearing a breach of head-of-state impunity. The Versailles Peace Conference of 1919 and the Covenant of the League of Nations did not mention the concept of human rights, despite the 8.5 million lives lost in the war.

It was not until 1922 that the Permanent Court of International Justice, sometimes called the World Court, was established by the League of Nations. Between 1922 and 1940 the court dealt with 29 cases between states, and delivered 27 advisory opinions. It was replaced in 1946 by the International Court of Justice (ICJ) when the United Nations was founded, although it handled only legal disputes between states. Cases could not be brought by individuals or non-governmental groups, nor could individuals or groups be tried.

The ICJ however is hampered by the fact that its adjudication and jurisdiction has to be recognised by the state being tried. This lack of power is the court’s over-riding problem – a problem which is echoed in other agreements.

An ambitious international treaty was developed in 1928 with the Kellogg-Briand Pact, also known as the Pact of Paris. This pact provided for the “renunciation of war as an instrument of national policy”, and is regarded as an important international multilateral treaty because it established the idea that the use of military force can be unlawful.

The Pact was signed by 62 nations, among them Germany. This paved the way for the conviction of those found guilty of starting World War Two (WW2) at the Nuremberg Trials.

The Rome Statute of the International Criminal Court (ICC) condemns crimes of aggression, but cannot make a ruling until clear definitions have been drawn out – this is not expected to happen before 2009.

For some observers this represents an important missed opportunity to outlaw war as an instrument of national policy, and make it an indictable international offence. For others it suggests that Nuremburg may have represented a false, or premature, dawn for international justice. Experts meanwhile have suggested a deadline of 2009 is optimistic while the ICC remains a difficult issue for many governments.

Nuremburg and Tokyo: symbolic inspiration?

The Nuremberg and Tokyo military tribunals, established in the wake of WW2 to prosecute German and Japanese crimes, were keenly promoted by the US. British and Russian leaders favoured execution for German and Japanese leaders, although in the case of Russia, albeit following perfunctory military hearings.

Up until recent years, and before the creation of new international legal bodies, Tokyo and Nuremburg served as the most powerful examples of and most symbolic inspiration for international justice. The Chief Prosecutor of the Nuremburg trials, Robert Jackson, described them thus: “Four great nations, stung with injury, stay the hand of vengeance and subject their captive enemies to the judgement of the law … one of the most important tributes that Power has ever paid to Reason”.

However, although as tools of international justice against acts of inhumanity, the trials had their drawbacks. According to Romano: “They were criticised for playing fast and loose with principles of criminal law to ensure convictions, for their slanted military character, and because their ultimate legitimacy rested on the victor’s right to decide the fate of the defeated enemy rather than on law”.

These trials coincided with the new period of post-war commitment to ensuring that such wartime horrors were never repeated through the creation of international agreements and the UN Charter. Any effective action however was frozen from the late 1940s for the duration of the Cold War.

Cold War Cynicism

Despite the 1948 Genocide Convention obliging member states to intervene, in 1994 no country acted to halt the slaughter by the Rwandan Hutus which resulted in the death of almost one million Tutsi’s and moderate Hutu. These sculls are testament to the limits of non-enforceable international agreements, when put to the test.
Credit: IRIN

Well-intended calls for global harmony made in the wake of WW2 were short-lived as the world divided itself into teams lining up behind the two super-powers. However, the Cold War period which lasted until 1990 spawned a number of conventions and commitments for a peaceful world, but as one critic suggested, “the road to hell is paved with good conventions.”

While the prosecution for human rights violations were left to the national courts to hear, in practice, crimes went unpunished during this period. In particular, wide-scale violations of rights took place throughout colonial Africa, Spain, apartheid South Africa, Stalinist Russia, China under Mao and the Gang of Four, during the Korea and Vietnam wars and in Central and Latin America.

Millions of people were affected as states and individuals perpetrated violations virtually without sanction. Despite the volumes of human rights treaties and conventions introduced during this period, for many experts the Cold War represented the most cynical period of multilateral efforts towards global rights and justice.

But, the drive to prosecute and avert impunity for international crimes picked up pace at the end of the Cold War. Jurist and human rights writer, Geoffrey Robertson, wrote: “After a half-century of ineffectual treaties and diplomatic thumb-twiddling, there came this end-of-century stampede to put global justice systems in place: an international court, a ‘prosecute or extradite’ regime for torturers, a precedent for intervening in the internal affairs of sovereign states out of humanitarian necessity.”


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