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... To achieve justice for all
"For nearly half a century -- almost as long as the
United Nations has been in existence -- the General Assembly has
recognized the need to establish such a court to prosecute and
punish persons responsible for crimes such as genocide. Many thought
. . . that the horrors of the Second World War -- the camps, the
cruelty, the exterminations, the Holocaust -- could never happen
again. And yet they have. In Cambodia, in Bosnia and Herzegovina, in
Rwanda. Our time -- this decade even -- has shown us that man's
capacity for evil knows no limits. Genocide . . . is now a word of
our time, too, a heinous reality that calls for a historic
response."
-- Kofi Annan, United Nations Secretary-General
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An international criminal
court has been called the missing link in the international legal system.
The International Court of Justice at The Hague handles only cases between
States, not individuals. Without an international criminal court for
dealing with individual responsibility as an enforcement mechanism, acts
of genocide and egregious violations of human rights often go unpunished.
In the last 50 years, there have been many instances of crimes against
humanity and war crimes for which no individuals have been held
accountable. In Cambodia in the 1970s, an estimated 2 million people were
killed by the Khmer Rouge. In armed conflicts in Mozambique, Liberia, El
Salvador and other countries, there has been tremendous loss of civilian
life, including horrifying numbers of unarmed women and children.
Massacres of civilians continue in Algeria and the Great Lakes region of
Africa.
... To end impunity
"A person stands a
better chance of being tried and judged for killing one human being than
for killing 100,000."
-- José Ayala Lasso,
former United Nations High Commissioner for Human Rights
The Judgment of the
Nürnberg Tribunal stated that "crimes against international law are
committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law
be enforced" -- establishing the principle of individual criminal
accountability for all who commit such acts as a cornerstone of
international criminal law. According to the
Draft Code of
Crimes against the Peace and Security of Mankind, completed in 1996 by
the International Law Commission at the request of the General Assembly,
this principle applies equally and without exception to any individual
throughout the governmental hierarchy or military chain of command. And
the Convention on the Prevention and Punishment of the Crime of Genocide
adopted by the United Nations in 1948 recognizes that the crime of
genocide may be committed by constitutionally responsible rulers, public
officials or private individuals.
... To help
end conflicts
"There can be no
peace without justice, no justice without law and no meaningful law
without a Court to decide what is just and lawful under any given
circumstance."
-- Benjamin B. Ferencz,
a former Nürnberg prosecutor
In situations such as
those involving ethnic conflict, violence begets further violence; one
slaughter is the parent of the next. The guarantee that at least some
perpetrators of war crimes or genocide may be brought to justice acts as a
deterrent and enhances the possibility of bringing a conflict to an end.
Two ad hoc international criminal tribunals, one for the former Yugoslavia
and another for Rwanda, were created in this decade with the hope of
hastening the end of the violence and preventing its recurrence.
... To remedy the deficiencies of ad hoc tribunals
The establishment of an ad
hoc tribunal immediately raises the question of "selective justice". Why
has there been no war crimes tribunal for the "killing fields" in
Cambodia? A permanent court could operate in a more consistent way.
Reference has been made to
"tribunal fatigue". The delays inherent in setting up an ad hoc tribunal
can have several consequences: crucial evidence can deteriorate or be
destroyed; perpetrators can escape or disappear; and witnesses can
relocate or be intimidated. Investigation becomes increasingly expensive,
and the tremendous expense of ad hoc tribunals may soften the political
will required to mandate them.
Ad hoc tribunals are
subject to limits of time or place. In the last year, thousands of
refugees from the ethnic conflict in Rwanda have been murdered, but the
mandate of that Tribunal is limited to events that occured in 1994. Crimes
committed since that time are not covered.
... To take over when national criminal justice
institutions are unwilling or unable to act
"Crimes under
international law by their very nature often require the direct or
indirect participation of a number of individuals at least some of whom
are in positions of governmental authority or military command."
-- Report of the
International Law Commission, 1996
Nations agree that
criminals should normally be brought to justice by national institutions.
But in times of conflict, whether internal or international, such national
institutions are often either unwilling or unable to act, usually for one
of two reasons. Governments often lack the political will to prosecute
their own citizens, or even high-level officials, as was the case in the
former Yugoslavia. Or national institutions may have collapsed, as in the
case of Rwanda.
... To deter future war criminals
"From now on, all
potential warlords must know that, depending on how a conflict develops,
there might be established an international tribunal before which those
will be brought who violate the laws of war and humanitarian law. . . .
Everyone must now be presumed to know the contents of the most basic
provisions of international criminal law; the defence that the suspects
were not aware of the law will not be permissible."
-- Hans Corell, United
Nations Under-Secretary-General for Legal Affairs
Most perpetrators of war
crimes and crimes against humanity throughout history have gone
unpunished. In spite of the military tribunals following the Second World
War and the two recent ad hoc international criminal tribunals for the
former Yugoslavia and for Rwanda, the same holds true for the twentieth
century. That being said, it is reasonable to conclude that most
perpetrators of such atrocities have believed that their crimes would go
unpunished. Effective deterrence is a primary objective of those working
to establish the international criminal court. Once it is clear that the
international community will no longer tolerate such monstrous acts
without assigning responsibility and meting outappropriate punishment --
to heads of State and commanding officers as well as to the lowliest
soldiers in the field or militia recruits -- it is hoped that those who
would incite a genocide; embark on a campaign of ethnic cleansing; murder,
rape and brutalize civilians caught in an armed conflict; or use children
for barbarous medical experiments will no longer find willing helpers.
United Nations
1998-1999 |
