Global Policy Forum

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.

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

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

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 prosecutions 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."

Dying to take action

In the final months of the 20th century, some critical developments and interventions took place that suggested the world was getting ready to make individuals accountable for violation of human rights and crimes against humanity.

General Pinochet was arrested in London; Serb and Croat generals, and concentration-camp commandos, were arrested by NATO forces in the Balkans; and in Arusha, Tanzania, the former prime minister of Rwanda was convicted of genocide. Even Libya finally handed over the two suspects implicated in the bombing of a Pan American jumbo jet over the Scottish town of Lockerbie.

Then, in Rome in June 1998, 120 states agreed to set up the International Criminal Court (ICC) that would come into effect four years later following ratification by 60 states. Those good intentions however failed in1994 when the international community did not intervene in the Rwandan genocide of ethnic Tutsis. This would suggest that intervention is not based on human rights issues alone. Nevertheless, interventions into human rights violations did take place in 1999 in the case of NATO's invasion of Yugoslavia, to halt the "ethnic cleansing" in Kosovo; and in the case of the Australian-led, UN-backed coalition that invaded East Timor to end massacres by militias supported by the Indonesian army.

Although there are those such as Noam Chomsky, one of America's most prominent political dissidents and a professor of linguistics at MIT, who see these interventions being driven by political interests. Meanwhile, others such as David Rieff, the political analyst, claim: "The conflict over Kosovo, the first ever waged by the NATO alliance, was undertaken more in the name of human rights and moral obligation than out of any traditional conception of national interest."

Whatever other strategic reasons may have motivated these interventions, it appeared that nations were prepared to kill for human rights and equally allow their soldiers to be killed defending human rights. For Robertson, this movement may have owed something to: "A sickness at the atrocities of the twentieth century and a wish to do better in the twenty-first. But it did seem to foreshadow a millennial shift, from appeasement to justice, as a dominant factor in diplomatic relations."

Biting the bullet: the ad hoc tribunals for former Yugoslavia and Rwanda

In light of the protracted and brutal Balkan conflict of the early 1990s, the international conscience hoped to use the courts to make up for what they failed to do on the ground. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established while the conflict still raged. It seemed the world was finally biting the bullet of international justice, with sufficient political will and some force to implement it.

Based in The Hague, the tribunal functions as an ad hoc court and, following the legacy of Nuremberg, makes individuals responsible for violations of the laws or customs of war, genocide and crimes against humanity. It can only try individuals, not organisations or governments, and the maximum sentence it can impose is life imprisonment. Created in 1993, it issued its last indictment in March 2004. It aims to complete all trials by 2008 and all appeals by 2010. As of 16 March 2006, the ICTY had indicted 161 people. Only six of these remained "at large". The cases against 85 of the indicted had been concluded: 46 were found guilty; eight acquitted; 25 had their indictments withdrawn; and six died (four in custody and three while their cases were being heard). Four cases had been sent to national courts in Serbia or Croatia, for trial. Seventeen of those convicted had completed their sentences and had been released by May 2006.

Those indicted ranged from soldiers to generals and police commanders, as well as prime ministers. Slobodan Milosevic was the first sitting head of state indicted for war crimes; he died while still being tried in March 2006. Other "high level" indictees included Milan Babic, Croatian Serb prime minister of Republika Srpska Krajina; Ramush Haradinaj, Albanian prime minister of Kosovo; Radovan Karadzic, Montenegrin former President of Republika Srpska; and Ratko Mladic, the Bosnian Serb army commander.

The International Criminal Tribunal for Rwanda (ICTR) based in Arusha, Tanzania, is another ad hoc international court operating under the auspices of the United Nations. Cases there relate to offences committed in Rwanda during the genocide of 1994. The tribunal was created in November of the same year and has jurisdiction over genocide, crimes against humanity and war crimes - which are defined as violations of Common Article 3 of the Geneva Conventions (dealing with war crimes committed during internal conflicts).

To date, the Tribunal has convicted sixteen people, with a further eight appealing convictions; another twenty-seven people are still on trial and 15 are awaiting trial in detention; 18 remain at large.

The first trial, of Jean-Paul Akayesu, began in 1997. Jean Kambanda, the interim prime minister, pleaded guilty and was convicted of genocide. This gave the court early credibility that what happened between April and June 1994 was in fact genocide, and not just civil warfare as many of the defendants claimed. As with the ICTY, all trials will be completed by the end of 2008, and appeals will continue up to 2010.

Handing over the tribunal's torch

Realising that both the ICTY and ICTR would not have completed all their cases by 2010, and recognising the need to pursue justice in the former Yugoslavia and Rwanda, plans have been made to ‘hand over the torch.'

In January 2003, the Office of the High Representative in Bosnia and Herzegovina (OHR), and the ICTY, issued a set of joint conclusions recommending the creation of a War Crimes Chamber Project (WCCP). This project would consist of a specialised chamber for war crimes within the Court of Bosnia and Herzegovina (BiH), and a corresponding special department for war crimes within the Prosecutors Office of BiH. These were established in January 2005, and comprise international and national judges, and prosecutors.

Already the WCCP is taking shape with the transferral of war crimes cases to the appropriate national governments within the states of the former Yugoslavia. In September of 2005, Radovan Stankovic was transferred from the ICTY to the custody of the Court of BiH. In November 2005, Gojko Jankovic was transferred. Future transfers are expected. On 3 February 2006, the WCCP began hearing its first genocide case starting with the trial of 11 members of the Ministry of Internal Affairs of Republika Srpska, indicted for genocide and complicity to genocide in the Srebrenica massacre.

The future of the ICTR is still the subject to international debate while Rwanda still has the death penalty. The ICTR is also unsure that indictees would get a fair trial in Kigali. Rwanda on the other hand, has expressed a willingness to take over outstanding cases, and is keen to do so. The UN and court officials continue to explore options, including Tanzania taking over the court. However, one thing is certain: the trials must go on.

Netting the big fish

Another important court illustrating recent progress towards international justice - though considered a hybrid - is the Special Court for Sierra Leone. It is an independent judicial body set up to "try those who bear greatest responsibility" - the so-called "big fish" - for the war crimes and crimes against humanity committed during the country's civil war. The court is located in Freetown.

This court was set up following a direct request to United Nations Secretary-General, Kofi Annan, in June 2000, from the then president Ahmad Tejan Kabbah. By August that year, the UN Security Council adopted Resolution 1315, requesting the Secretary-General to start negotiations with the Sierra Leonean government to create a Special Court. By 2002 the court was operational.

To date, the court has indicted 11 people for war crimes, crimes against humanity and other violations of international humanitarian law. Of the 11, 10 are in the custody of the Special Court - including the recently arrested former Liberian President, Charles Taylor. Only the deposition of Johnny Paul Koroma remains uncertain. Koroma was widely reported to have been killed in June 2003, but, as definitive evidence of his death was never provided, his indictment has not been dropped.

Those found guilty face a prison sentence or may have their property confiscated. Like the ITCY and ITCR, the Special Court does not have the power to impose the death penalty. Apart from the Special Court, there are currently three other active hybrid jurisdictions, incorporating both international and national features. These are the Serious Crimes Panels in the District Court of Dili (East Timor); the "Regulation 64" Panels in the courts of Kosovo; and the Extraordinary Chambers in the Courts of Cambodia, currently being established in Phnom Penh to try the remnants of the Pol Pot regime. According to Cesare Romano: " These internationalised criminal bodies are an expression of the international community's concerns but, at the same time, they are part of the reconstruction enterprise of a new judicial system in countries where the entire administration had been destroyed by civil wars (Kosovo, East Timor), or they facilitate acceptance of accountability to justice of former national rulers (Cambodia and, in some respects, Sierra Leone), in view of a purely national process of reconciliation." Romano echoes other observers who consider that all these hybrid courts, "bear witness to the will of the international community to have its own peremptory norms respected but, at the same time, they generally answer a national need and, at least to some extent, fulfill national purposes."

A more detailed description of the global varieties of hybrid courts, and truth and reconciliation mechanisms, is available in another IRIN report.

The ICC: the perpetrators' nemesis?

The three courts of the ICTY, ICTR and the Special Court of Sierra Leone, have come under considerable criticism ranging from questions concerning the courts' legality and their impartiality, to their competence. Despite this and the modest number of convictions handed down by these tribunals, it is considered that the momentum produced by the creation of ICTY, and ICTR in particular, has opened the way for the establishment of the ICC.

This train has been slow coming; the idea of an international criminal court or penal tribunal was proposed as early as 1937 by the League of Nations. In the late 1940s and early 1950s the International Law Commission produced some draft statutes for the idea, but it was the 1990s that saw a serious resurgence of the idea that is now, as the ICC, the embodiment of Nuremburg justice - where war criminals and those with command responsibility are indicted and punishing as individuals.

Finally, the main perpetrators of terror and violence have their nemesis. A system and a court has been specifically created to deal with the individuals who wreak havoc, holding them dividually responsible. However, with more than 100 countries refusing to sign or ratify the Rome Statute to date, there remain many places for indictees to hide.

The ICC was established in 2002 as a permanent tribunal to prosecute individuals for genocide, crimes against humanity and war crimes, as defined by several international agreements, most prominently the Rome Statute of the International Criminal Court of 1998 (the "Statute").

Almost all states participating at the Rome adoption conference voted in favour of the Statute; only the United States, Israel, the People's Republic of China, Iraq, Qatar, Libya and Yemen voted against. Israel went on to sign the Statute just before it was closed for signatures, but later nullified its signature. The United States under Bill Clinton signed the treaty, but never submitted it for ratification. When George W. Bush took office shortly afterwards, he nullified the signature amid generalised congressional consensus. The Statute became a binding treaty after it received its 60th ratification, which was deposited at a ceremony at United Nations Headquarters on 11 April 2002. The ICC legally came into existence on 1 July 2002, and can only prosecute crimes that occurred after this date. It is regarded as a major development by activists working towards ending impunity and internationalising justice. However, to date, less than half the world's nations have signed or ratified the treaty, and it has fierce opponents.

The ICC is designed to complement existing national judicial systems, however, it can can exercise its jurisdiction if national courts are unwilling or unable to investigate or prosecute such crimes. It is what is known as a "court of last resort," leaving the primary responsibility to exercise jurisdiction over alleged criminals to individual states.

The Chief Prosecutor of the court, Luis Moreno-Ocampo, has decided to open investigations in Uganda, the Democratic Republic of Congo (DRC) and Sudan in the last two years. He declined a recent request to investigate the invasion of Iraq and remains undecided whether to open investigations in the Central African Republic following a request from its government in January 2005. Both Uganda and the DRC requested ICC investigations, while the case of Sudan and the atrocities carried out in Darfur was referred to the court by the UN Security Council in March 2005.

The capacity of the ICC to investigate and prosecute will be limited, which will inevitably result in numbers actually indicted and convicted at the ICC being even fewer than those of the ad hoc tribunals. Ocampo is realistic concerning the issue of the "big fish" versus the "small fish" dilemma, and told IRIN: "It is only my job to do one or two cases, to make my contribution and then leave. The countries themselves continue the work. This doesn't mean our work is only symbolic. The ICC is just part of the solution not the whole solution. But we have practical issues and have to try to maximise the impact by gathering the leaders. To stop organised crime you have to stop the leaders."

Many protagonists for the ICC would argue that the ICC is valuable in and of itself. They argue that a permanent tribunal of this kind should exist for principled reasons alone, despite the limitations it will face and questions of whether it will actually deter future violence. For Power, the deterrent effect remains important albeit unquantifiable. She cites other effects the court may have: "Perhaps its greatest impact will be to expedite the development of domestic legal enforcement tools in countries where atrocities actually happen. Where proud statesmen don't want to turn over their thugs and want to do it at home for a range of reasons. So the threat of the ICC, the spectre of Louis Moreno Ocampo, might make countries go ahead and prosecute their bad guys themselves."

Towards universal jurisdiction?

The developments in the last 100 years towards internationalising justice and ending individual impunity for atrocities have been significant, and show signs of gathering more momentum. Prosecuting perpetrators is a key element of the increasingly active sector known as "transitional justice", where societies emerging from repressive rule or armed conflict seek to address past abuses through different mechanisms that now include the ICC, as well as the many truth commissions.

Ending immunity for past abuses is not only the interest of the people concerned but is also of global concern, not least because abusive regimes or genocidal events rarely only affect people within the confines of a single territory.

For legal analysts such as Robertson, the politicians have lost the lead, having been taken over by civil society. The "CNN factor" of millions of people being aware of, and appalled by, wrongdoing they see on their screens has led to a growing number of people across the world who will expect nothing less than justice systems capable of ending impunity.

On the eve of the first ICC arrest (Thomas Lubanga in early 2006 from the DRC), investigations Prosecutor Ocampo re-emphasised his personal commitment to the success of universal jurisdiction: "We need to have this idea of world justice. If we have global communication and global business, we also need global justice. Ultimately I am optimistic." To date, however, the ICC is the only palpable evidence of concrete change.

In 1993, Belgium passed an extraordinary War Crimes Law that embodied universal jurisdiction. They argued that certain crimes pose so serious a threat to the international community, that any single state should be able to prosecute an individual responsible for it. It allowed anyone to bring war crimes charges in Belgian courts, which is exactly what people did, resulting in an explosion of impossible depositions often involving serving world leaders.

By 2003, the scope of the ‘Belgian Law' was restricted by its own government after considerable criticism from outside Belgium. Was its existence and aspirations emblematic of the current zeitgeist where activists, in some cases states, agree that forms of universal jurisdiction are now required and appropriate? Or was its failure indicative that the world is not yet ready for the inherent degree of loss of sovereignty that such a law expressed?

Historically the willingness of nations to yield some sovereignty to give space to justice represents a huge change. Despite major forces resisting theses changes, Power told IRIN: "A shift has occurred. Is it a sufficient shift? Hardly. Is it the beginning, potentially, of a movement towards accountability and enforcement? I think it is, unquestionably."