International Criminal Justice: Is it Really so Needed in the Present World

Community?
Antonio Cassese
1 Introduction: my main argument
For the sake of clarity, I shall set forth my principal argument at the outset. My argument is
as follows: in the world today we witness, on the one hand, the spread of violence and
gross violations of human rights, and, on the other hand, a deep crisis in the international
means of effectively reacting to those gross violations. Enforcement y the !" #ecurity
Council and other !" odies is in deep troule, and #tates hesitate to take unilateral
peaceful sanctions against the offenders, unless they are motivated y some ulterior
motive such as self$interest. %his legal vacuum is eing filled y resorting to a numer of
fall$ack mechanisms and devices. &owever, the one that has proved to e y far the most
effective 'sanction( is the prosecution and punishment y national and international courts
of those accused of perpetrating gross violations.
2 The general background
%o grasp the profound significance that criminal )ustice, and in particular that dispensed y
international courts, has in the present world community, it is necessary to place it in its
general conte*t. +ou will therefore allow me to outline riefly some essential conditions of
the international community, which to my mind constitute the conte*t in which criminal
)ustice must e appraised.
A The failure of international sanctions against serious State delinquencies
,ne of the striking features of the current international community is the failure of the
collective odies that are charged with enforcing international law to discharge this
function. In recent years, the !nited "ations #ecurity Council has proved to e unale to
solve ma)or international crises. It has ecome a truism that, after the demise of Cold -ar
nationalism, religious fundamentalism and ethnic and religious hatred have spawned
violence, ethnic cleansing and loodshed. Internal conflicts have mushroomed. %he
#ecurity Council has een unale to keep up with the staggering increase in violence. "o
one can contest its inaility to react promptly and effectively to, and to put a stop to,
massacres amounting to serious threats to the peace or reaches of the peace in #omalia,
the former +ugoslavia including .osovo, #ierra /eone, Ethiopia and Eritrea, Indonesia, the
Middle East, and so on.
%he failure to enforce international law not only relates to the resort to force proper. It also
concerns the adoption of economic sanctions, often a fall$ack for the #ecurity Council or
other international organs when they are unale to enforce international law. "ormally,
these sanctions prove ineffective, or carry little weight. Fre0uently, they are unfair and
counterproductive, for they do not target the #tate officials responsile for the international
delin0uencies, ut the civilian population or other innocent persons.
,ne should add that under the !" Charter the #ecurity Council is only competent to deal
with international crises that are likely to )eopardi1e, or actually endanger, international
peace and security. %he #ecurity Council is not e*pected to handle relatively minor frictions
or conflicts, which conse0uently fall within the province of the #tates concerned. In other
words, the settlement of such disputes is left to the #tate directly affected y the friction or
conflict. As a conse0uence, the more powerful #tates eventually impose their own solution.
In addition, individual #tates have had scant, if any, resort to one particular legal weapon
availale to them as a response to gross violations of human rights and other atrocities,
namely, peaceful reprisals, currently termed countermeasures. Countermeasures include
such measures as the suspension or termination of commercial treaties, the suspension of
treaties granting special rights to nationals of the offending #tate, e*pulsion of those
nationals, trade emargoes, the free1ing or sei1ure of assets elonging to the foreign #tate
or to its nationals, and so on.
-hy do #tates refrain from taking countermeasures against gross violations of international
law such as massacres, ethnic violence, large$scale reaches of human rights, torture, and
so on2 %he reason is simple: #tates tend to resort to countermeasures when their own
interests are at stake and other #tates have infringed upon those interests y reaching
international law. In other words, #tates tend to react y peaceful means to the reach of
reciprocal oligations y other #tates. In contrast, they incline to turn a deaf ear to
reaches of international oligations protecting asic values, such as the oligations not to
threaten or reach the peace, not to engage in genocide, not to torture, not to discriminate
racially, and so on. %hese are what I would call community obligations. %hey e*hiit two
asic features: first, they are incument upon each and every memer of the world
community towards all other memers3 and, secondly, any other memer of that community
has a correlative right to demand fulfilment of these oligations and, in case of reach, has
the right to resort to countermeasures. 4lainly, the gross reaches of international law we
are discussing are normally reaches of precisely such community oligations. A strong
reaction y #tates to these reaches presupposes the e*istence of a community interest to
put a stop to such reaches. &owever, the community interest in their fulfilment is still more
potential than real. #tates are still dominated y self$interest3 they still pursue short$term
national interests rather than care aout gloal human values. &ence the disinclination of
#tates to intervene to stop latant infringements of community values enshrined in legal
rules imposing community oligations.
B How to put a stop to so many atrocities? Trends in current international practice
Faced with the prolem of how to stem rampant violence in the world community, and given
the failure of international collective or individual sanctions, a trend has gradually emerged
to resort to a variety of fall$ack solutions. 5arious mechanisms or devices can e
discerned.
(i) National courts take upon themselves the task of dealing with atrocities perpetrated
abroad
First of all, in some countries national courts take over, in a way, the functions of
governments 6which, all too often, seem unmoved y grave violations7 and sustitute
themselves for the international enforcement agencies that either do not e*ist or have
proved e*tremely ineffectual.
%hus, since no international ody had passed )udgment on the lawfulness of the atomic
oming of &iroshima and "agasaki, and in addition the 8apanese 9overnment had
eventually changed its mind on the matter, in :;<=, in the famous Shimoda case, a group
of survivors sued the 8apanese 9overnment efore the %okyo >istrict Court. %hey claimed
compensation, arguing that y the peace treaty of :;?@ the 9overnment had unlawfully
waived its rights and claims and those of its nationals against the !# 9overnment,
including claims for compensation for the illegal atomic oming. %he Court pronounced
the oming illegal, although in the final analysis it held against the complainants. In other
cases, domestic courts have passed criminal )udgment on individuals whom the territorial
#tate failed to prosecute. %he most important case in this respect is the famous Eichmann
case. In its )udgment of @; May :;<@, the #upreme Court of Israel dismissed all the
sumissions of the appellant, Eichmann, who claimed that Israeli courts lacked )urisdiction
over his alleged crimes ecause there was no territorial or personal link etween those
crimes and Israel. In its final remarks, the Court held as follows:
"ot only do all the crimes attriuted to the appellant ear an international
character, ut their harmful and murderous effects were so emracing and
widespread as to shake the international community to its very foundations.
%he #tate of Israel therefore was entitled, pursuant to the principle of
universal )urisdiction and in the capacity of a guardian of international law
and an agent for its enforcement, to try the appellant. %hat eing the case,
no importance attaches to the fact that the #tate of Israel did not e*ist when
the offences were committed.
%his )udgment was in a way taken up y a !# court in the Yunis case. +unis, a resident
and citi1en of /eanon accused of participating in the hi)acking of a 8ordanian airliner
which resulted in the holding hostage of the passengers 6including several Americans7, was
rought to trial in the !# after eing arrested y !# authorities on the high seas. +unis
challenged the !# courts( )urisdiction, arguing that there was no ne*us etween the
hi)acking and !# territory 6the aircraft never flew over !# airspace and had no contact with
!# territory7. In its )udgment of :@ Feruary :;AA, the !# >istrict Court of the >istrict of
Columia dismissed the defendant(s motion and affirmed the )urisdiction of !# courts. It
held:
"ot only is the !nited #tates acting on ehalf of the world community to
punish alleged offenders of crimes that threatened the very foundations of
world order, ut the !nited #tates has its own interest in protecting its
nationals.
:
It is in fact the !nited #tates whose national courts have taken the most vigorous action
against crimes committed aroad. %he courts there have taken down from the shelf and
skilfully dusted off an old statute passed in :BA;. %his is the Alien %orts Claim Act, under
which '%he C!#D district courts shall have original )urisdiction of any civil action y an alien
for a tort only, committed in violation of the law of nations or a treaty of the !nited #tates.(
%he !# courts have applied this statute to gross violations of human rights perpetrated
aroad y #tate officials 6or individuals acting in a private capacity7 against foreigners, thus
oliging the culprits to pay compensation for those violations. #ince :;AE, !# courts have
in this way pronounced on torture in 4araguay 6in the celerated Filartiga case7, political
assassination ordered y Chilean authorities 6the Letelier case7, torture and racial
1
See 681 F. Supp. 896 (DDC), at 903.
discrimination for economic gain in Argentina 6the Siderman case7, torture, aritrary arrest
and forced disappearance in Argentina 6the Suare!"ason case7, aritrary killing in East
%imor 6the "urdani case7, torture, summary e*ecution and forced disappearances in the
4hilippines 6the "arcos case7, atrocities in Fosnia and &er1egovina 6the #aradic case7,
torture and aritrary detention in &aiti 6the $vril case7, torture in 9uatemala 6the %rama&o
case7, torture in Ethiopia 6the Negewo case7 and the terrorist oming of a 4an Am aircraft
over /ockerie in #cotland 6the $l!"egrahi and Fhimah case7.
"o one can deny the great significance of these !# court decisions. In all these cases, !#
courts filled the gap e*isting oth at the international level 6no international collective ody
took action, nor did other #tates intervene against the #tate to which the offending #tate
officials elonged7 and at the domestic level 6no authority of the territorial #tate stepped in7.
%hose courts therefore acted on ehalf of the international community at large, to vindicate
rights pertaining to human dignity. In so doing, they proclaimed in )udicial decisions some
fundamental human values.
&owever, one should not e unmindful of the limits of this approach. First, these are civil
cases, when the alleged perpetrator of serious crimes is only ordered to pay compensation3
no conviction is issued at the criminal level. In addition, the defendant is often aroad when
the decision is issued and can therefore easily avoid paying the compensation. %he
decision thus ends up having an e*clusively symolic value. #econdly, as these are cases
involving civil litigation only, and as the defendant is normally asent, no in$depth
e*amination of the evidence takes place. %hirdly, this )udicial trend has occurred in one
country only. %here is a danger that the courts of this country will set themselves up as
universal )udges of atrocities committed aroad. %his sort of humanitarian imperialism may
give rise to concerns. Fy itself, this might not e a prolem, if it did not go hand in hand
with the tendency of the !# 9overnment to take upon itself the task of policing the world.
(ii) 'onclusion of international treaties providing for universal &urisdiction of courts of the
contracting States
Another way of filling the gap left y international collective odies and #tates has een the
drafting of multilateral treaties concerning such matters as torture and terrorism, which
impose an oligation on the courts of the contracting #tates to e*ercise universal
)urisdiction over such crimes. %he :;AG !" Convention Against %orture and various
conventions on terrorism come to mind. %hey provide that the courts of each contracting
#tate can and indeed must e*ercise )urisdiction over crimes perpetrated on their territory or
aroad, when the alleged offender is on their territory 6so$called forum deprehensionis7. If
they do not e*ercise this )urisdiction, they have to surrender the alleged offender to another
#tate concerned 6aut &udicare aut dedere principle7.
It is on the strength of one of these treaties, the %orture Convention, that the &ouse of
/ords held that !. courts had )urisdiction over the crimes of torture allegedly committed y
4inochet and could therefore e*tradite him to #pain. It is also y virtue of this Convention
that the former Chadian dictator &issHne &arI was arrested in and rought to trial in
#enegal for the alleged torture of Chadians 6although he was suse0uently released,
proaly on political grounds7, and a Moroccan police officer was prosecuted in France for
the alleged torture of his fellow nationals in Morocco.
!nfortunately, the application of these treaties y national courts is still sporadic and
sometimes su)ect to the vagaries of political interests.
(iii) (he establishment of international criminal tribunals
Another way of sustituting for international enforcement is the estalishment of
international criminal triunals entrusted with the task of prosecuting and punishing those
responsile for serious atrocities and other international crimes. In :;;=, the !" #ecurity
Council, eing unale to stop the war in the former +ugoslavia, decided among other things
to set up the International Criminal %riunal for Former +ugoslavia. %he following year it
estalished the International Criminal %riunal for Jwanda. In :;;A, the #tatute of the
International Criminal Court was adopted in Jome, and this year the #pecial Court for
#ierra /eone was created, to e followed soon, it is hoped, y a 0uasi$international court
for Camodia.
-e will look later at the advantages and disadvantages of these international courts.
(iv) (he revitaliation of the clauses on universal &urisdiction of the )*+* %eneva
'onventions on war victims
For a long time, the clauses of the :;G; 9eneva Conventions on war victims concerning
the universal )urisdiction of any #tate party over grave reaches of the Conventions have
remained unapplied. Fortunately, after some GE years of disuse, national courts have
started applying them, in the aftermath of the estalishment of the International Criminal
%riunal for Former +ugoslavia. %hus, 9erman, >anish and #wiss courts have made use of
this universal )urisdiction y prosecuting and trying persons who had allegedly perpetrated
grave reaches in the former +ugoslavia.
(v) (he broad interpretation by national courts of the notion of universal &urisdiction
Another interesting development is the attempt y some national )udges to place a road
interpretation on the notion of universal )urisdiction laid down in the 9eneva Conventions
and the First Additional 4rotocol of :;BB. %his was tried, unsuccessfully, y a French
investigating )udge in :;;? 6he intended to institute proceedings against Fosnian #ers
who had allegedly committed grave reaches of the 9eneva Conventions and who found
themselves on the territory of Fosnia and &er1egovina7.
More recently, a Felgian e*amining )udge at the Frussels (ribunal de ,remi-re .nstance
has issued an international arrest warrant against the acting foreign minister of the
>emocratic Jepulic of Congo for grave reaches of the 9eneva Conventions and the two
Additional 4rotocols, as well as for crimes against humanity. It would seem that the crimes
of which the Congolese foreign minister is accused were allegedly committed y him on
Congolese territory against Congolese nationals, and the accused was not on Felgian
territory when the arrest warrant was issued. %hus Felgium would not e the forum
deprehensionis. As is well known, the Congo has filed an application with the International
Court of 8ustice, claiming that the arrest warrant runs counter to the principle of sovereign
e0uality of #tates and the rules on diplomatic immunity attached to such a #tate official.
%he case will e heard y the International Court of 8ustice ne*t week, on @E "ovemer.
(vi) (he upholding by international courts and human rights monitoring bodies of
e/traterritorial &urisdiction0 i1e1 of &urisdiction over crimes perpetrated abroad by
officials of one of the contracting parties
#tates, when they undertake oligations in the area of human rights, tend to conceive of
such oligations as applying to the individuals su)ect to their )urisdiction in their own
territory. In other words, they construe these oligations as having a strictly territorial scope.
%his, for instance, was the interpretation they inclined to place on Article @ of the !"
Covenant on Civil and 4olitical Jights, wherey 'Each #tate 4arty K undertakes to respect
and to ensure to all individuals within its territory and su)ect to its )urisdiction the rights
recogni1ed in the present Covenant K(.
&owever, international odies responsile for scrutini1ing compliance with human rights
standards have increasingly interpreted those oligations as also having an e/traterritorial
scope. %hus, for instance, in :;;? the !" &uman Jights Committee, in commenting on the
report sumitted y the !#, noted that it could not share the view of the !# 9overnment
that the !" Covenant on Civil and 4olitical Jights lacked e*traterritorial reach under all
circumstances. #uch a view L it went on to point out L is 'contrary to the consistent
interpretation of the Committee on this su)ect that, in special circumstances, persons may
fall under the su)ect matter )urisdiction of a #tate party even when outside that #tate
territory(.
@
More specifically, in 2elia Sald3as de Lope v1 4ruguay, the Committee had
already ruled that !ruguay had violated the Covenant when its security forces had
aducted and tortured in Argentina a !ruguayan citi1en living there. It noted that:
%he reference in Article : of the ,ptional 4rotocol to 'individuals su)ect to
its )urisdiction( does not affect the aove conclusion Cthat the Covenant also
covered crimes perpetrated y !ruguayans acting on foreign soilD ecause
the reference in that Article is not to the place where the violations occurred,
ut rather to the relationship etween the individuals and the #tate in relation
to a violation of any of the rights set forth in the Covenant, wherever they
occurred. Article @.: of the Covenant places an oligation upon a #tate party
to respect and to ensure rights 'to all individuals within its territory and
su)ect to its )urisdiction(, ut it does not imply that the #tate party concerned
cannot e held accountale for violations of rights under the Covenant which
its agents commit upon the territory of another #tate, whether with the
ac0uiescence of the 9overnment of that #tate or in opposition to it K In line
with this, it would e unconscionale to so interpret the responsiility under
Article @ of the Covenant as to permit a #tate party to perpetrate violations of
the Covenant on the territory of another #tate, which violations it could not
perpetrate on its own territory.
=
In an important case, Loiidou v1 (urkey, the European Court of &uman Jights carried this
doctrine even further. %he 0uestion had arisen of whether the denial y %urkish armed
forces stationed in "orthern Cyprus of access y the applicant 6a Cypriot7 to her property in
"orthern Cyprus, if imputale to %urkey, fell under %urkey(s )urisdiction pursuant to Article :
of the European Convention on &uman Jights. %he Court gave an affirmative answer. In its
decision on preliminary o)ections, it held that a #tate may e held responsile for
2
UN Doc. CCPR/C/79/Add 0 (199), pa!a. 19.
3
Dec"#"o$ o% 29 &u'( 1981 (Co))u$"cat"o$ No. 2/1979), "$ *u)a$ R"+,t# Co))"ttee,
Selected Decisions (Second to Sixteenth Sessions) (198) 91, pa!a# 12.2-12.3.
violations of human rights committed y its officials aroad. It noted the following:
C%Dhe Court recalls that, although Article : sets limits on the reach of the
Convention, the concept of ')urisdiction( under this provision is not restricted
to the national territory of the &igh Contracting 4arties. According to its
estalished case law, for e*ample, the Court has held that the e*tradition or
e*pulsion of a person y a Contracting #tate may give rise to an issue under
Article =, and hence engage the responsiility of that #tate under the
Convention K In addition, the responsiility of Contracting 4arties can e
involved ecause of acts of their authorities, whether performed within or
outside national oundaries, which produce effects outside their own territory
K
Fearing in mind the o)ect and purpose of the Convention, the responsiility
of a Contracting 4arty may also arise when as a conse0uence of military
action L whether lawful or unlawful L it e*ercises effective control of an
area outside its national territory. %he oligation to secure, in such an area,
the rights and freedoms set out in the Convention derives from the fact of
such control whether it e e*ercised directly, through its armed forces, or
through a suordinate local administration.
In this connection the respondent 9overnment have acknowledged that the
applicant(s loss of control of her property stems from the occupation of the
northern part of Cyprus y %urkish troops and the estalishment there of the
C%urkish Jepulic of "orthern CyprusD. Furthermore, it has not een disputed
that the applicant was prevented y %urkish troops from gaining access to
her property.
It follows that such acts are capale of falling within %urkish ')urisdiction(
within the meaning of Article : of the Convention.
In its decision on the merits, the Court then ruled that what mattered for estalishing
whether %urkey was responsile was the 0uestion of whether %urkey had effective or
overall control over the armed forces stationed in an area outside its national territory.
G
%he Inter$American Commission of &uman Jights spelled out this doctrine even more
forcefully in 'oard v1 4S. %he 0uestion at issue was whether the !# could e held
responsile for violating the :;GA American >eclaration on the Jights and >uties of Man
.
/C*R (199) Se!"e# A, No. 310, at pa!a. 620 Merits, /C*R, 18 Dece)1e! 1996,
Reports (1996234) 2230, at pa!a. 7.
for allegedly holding incommunicado and mistreating :B 9renadian nationals in 9renada in
,ctoer :;A=, when !# and Cariean armed forces invaded the island, deposing the
'revolutionary government(. In its report of @; #eptemer :;;;, the Commission replied in
the affirmative, noting that:
9iven that individual rights inhere simply y virtue of a person(s humanity,
each American #tate is oliged to uphold the protected rights of any person
su)ect to its )urisdiction. -hile this most commonly refers to persons within
a #tate(s territory, it may, under given circumstances, refer to conduct with
an e*traterritorial locus where the person concerned is present in the territory
of one #tate, ut su)ect to the control of another #tate L usually through
the acts of the latter(s agents aroad. In principle, the in0uiry turns not on the
presumed victim(s nationality or presence within a particular geographic
area, ut on whether, under the specific circumstances, the #tate oserved
the rights of a person su)ect to its authority and control.
?
It should e noted that this case law is consistent with the o)ect and purpose of human
rights oligations: they aim at protecting individuals against aritrariness, ause and
violence, regardless of where the #tate(s actions were carried out.
It follows from the aove that #tates are to respect human rights oligations not only on
their own territory ut also aroad, when they e*ercise there some kind of authority or
power, whether the individuals su)ect to this authority or power have the #tate(s nationality
or are foreigners. In addition, y 'e*ercise of authority(, one means not only the display of
sovereign or other powers 6law$making, law$enforcement, administrative powers, and so
on7, ut any e*ercise of power, however limited in time 6for instance, the use of elligerent
force in an armed conflict7.
(vii) (he lifting by national courts of the immunity from prosecution normally granted to
senior State officials
#ince time immemorial, senior #tate officials have en)oyed immunity from prosecution
under international law, for acts performed in the discharge of their official duties. If, in
performing their functions, they acted against international law, they were not personally
liale. ,nly the #tate for which they were acting could incur international responsiility. %his
rule was significantly undermined after -orld -ar II, when international treaties and )udicial

Ca#e No. 10.91, Repo!t No. 109/99, 29 Septe)1e! 1999, pa!a. 37.
decisions upheld the principle wherey such immunity no longer protected senior #tate
officials accused of war crimes, crimes against peace or crimes against humanity. More
recently, this principle has een e*tended to torture.
First the English &ouse of /ords and then the Court of Appeal of #antiago and the Chilean
Constitutional Court have confirmed that a former head of #tate cannot invoke immunity for
ordering or planning torture. #imilarly, in ,ctoer of this year, a French Court of Appeal
held that 9hadafy could e prosecuted in France for acts of terrorism ordered in /iya.
&owever, there is still resistance to this trend. For e*ample, in March of this year, the !#
#tate >epartment let an alleged 4eruvian torturer go free on the grounds that he en)oyed
diplomatic immunity. /et me say a few words aout this case, which is indicative of the
reluctance of #tates to emrace a new and forward$looking approach to international
crimes. %hey prefer instead to cling to old values such as respect for #tate sovereignty and
its corollary of the immunity of #tate officials or diplomatic immunity.
Ma)or %omas Jicardo Anderson .ohatsu, a retired official of 4eru(s notorious Army
Intelligence #ervice, who in :;;B, according to the !# #tate >epartment, had allegedly
perpetrated 'horrendous crimes(, was sent y 4eru in early March to appear efore a
hearing of the Inter$American Commission on &uman Jights in -ashington. %he
Commission was hearing allegations of 4eru(s involvement in torture and wire$tapping.
Anderson was sent y the 4eruvian authorities to defend their human rights record. -hen
he was aout to leave the !#, he was detained y FFI agents, pursuant to the :;AG !"
Convention Against %orture, duly ratified y the !# and implemented in the !# through the
:;;@ %orture 5ictim and 4rotection Act. &owever, a few hours later he was released
following a decision of !nder$#ecretary of #tate, %homas 4ickering. According to 4ickering,
the 4eruvian official was entitled to diplomatic immunity, for he had een granted a 9$@
visa, which applies to accredited memers of the staff of the 4eruvian Mission to the
,rgani1ation of American #tates. Conse0uently, he could not e arrested or prosecuted.
It has een pointed out y Michael Jatner, a leading lawyer of the !# Center for
Constitutional Jights, that Anderson had not in fact een accredited to the 4eruvian
Mission. At any rate, what is even more important is, first, that the %orture Convention does
not permit a diplomatic immunity e*emption, and, secondly, it was for the !# courts to
make a determination on the matter. As Jatner pointed out, in the case of Anderson, unlike
4inochet, 'despite serious douts as to Anderson(s claimed immunity, the decision to allow
him to return to 4eru was made y the #tate >epartment and not the courts(.
!d"antages o# criminal $ustice o"er other res%onses to atrocities
A few words are fitting on the merits of the )udicial response to the commission of serious
violations of international law.
4rosecution and punishment are etter than resort to peaceful reprisals, or
countermeasures, ecause, first, they constitute a civili1ed response to crimes, whereas
reprisals are ararous3 secondly, they target the culprits, and not innocent persons, as in
the case of reprisals3 and, thirdly, they do not lend themselves to ause, as reprisals do.
Admittedly, reprisals may constitute an immediate and effective means of stopping
violations, whereas criminal )ustice normally works e/ post facto and much later, when the
conflict is over.
%o ring the alleged criminal to trial is also a much etter means than relying on such
monitoring entities as, for e*ample, so$called 'protecting powers( or the ICJC, in the field of
international humanitarian law, ecause all too often such means are, for a numer of
reasons, ineffective.
In addition, )ustice is etter than other reactions to the perpetration of crimes. 8ustice is
etter than revenge. Jevenge is undoutedly a primitive form of )ustice, a private system of
law enforcement. It has, however, an altogether different foundation from )ustice: an
implacale logic of hatred and retaliation. Jevenge can only e the last resort for persons
who have een denied due process, as is shown y what occurred after -orld -ar I in the
case of the Armenians 6they took )ustice into their own hands to punish those whom they
regarded as responsile for the genocide of Armenians that had occurred in :;:?7.
8ustice is etter than forgetting through the granting of amnesties or simply letting crimes
fall into olivion. Forgetting eguiles future dictators or authoritarian leaders into relying on
impunity. &itler is reported to have said, when deating whether to proceed with his
genocidal policies against the 8ews: '-ho after all, speaks today of the annihilation of the
Armenians2( In addition, forgetting entails that the victims are murdered twice: first, when
they are physically e*terminated, and thereafter when they are forgotten. Furthermore, the
memory of massacres and other atrocities is never really uried along with the victims. It
always lingers and, if nothing is done to remedy the in)ustice, festers.
Instead, to ring alleged culprits to trial has at least these merits. First, trials estalish
individual responsiility over the collective assignment of guilt. #econdly, trials dissipate the
call for revenge, ecause, when the courts mete out the right punishment to the
perpetrator, the victim(s call for retriution is met. %hirdly, y dint of dispensation of )ustice,
victims are prepared to e reconciled with their erstwhile tormentors, ecause they know
that the latter have now paid for their misdeeds. And, fourthly, a fully reliale record of
atrocities is estalished, so that future generations can rememer and e made fully
cogni1ant of what happened.
& Trends in the %ractice o# national courts
%he penal repression of violations of the laws of war 6and, more generally, of international
crimes7 y national courts should e assessed on its merits and shortcomings in the light of
the fundamental distinction drawn y the great >utch international lawyer, F.5.A. JMling,
etween 'individual( and 'system( criminality. %he former encompasses crimes committed y
comatants on their own initiative and for 'selfish( reasons 6rape, looting, murder, and so
on7. %he latter refers to crimes perpetrated on a large scale, chiefly to advance the war
effort, at the re0uest of, or at least with the encouragement or toleration of, the government
authorities 6the killing of civilians to spread terror, the refusing of 0uarter, the use of
prohiited weapons, the torture of captured enemies to otain information, and so on7.
"ormally, 'individual criminality( is repressed y the culprit(s national authorities 6army
commanders do not like this sort of misehaviour, for it is ad for the morale of the troops
and makes for a hostile enemy population7. Fy contrast, 'system criminality( is normally
repressed only y international triunals or y the national )urisdiction of the adversary.
%here are, of course, e*ceptions, such as the 'alley case, 'a typical e*ample of system
criminality( 6JMling7, urged upon the !# authorities y American and foreign pulic opinion.
Fy and large, repression of 'individual criminality( is a more fre0uent occurrence than that of
'system criminality(, for the simple reason that the latter involves an appraisal and
condemnation of a whole system of government, of misehaviour involving the highest
authorities of a country.
In addition, as I have already pointed out, #tates have confined themselves to the more
traditional criteria, and in practice have instituted criminal proceedings only against alleged
authors of crimes committed on their territory or against persons living on their territory and
having ac0uired their nationality.
' The merits o# international criminal $ustice
International triunals en)oy a numer of advantages over domestic courts, particularly
those sitting in the territory of the #tate where atrocities have een committed.
First of all, it is a fact that national courts are not inclined to institute proceedings for crimes
that lack any territorial or national link with the #tate. !ntil :;;G, when the estalishment of
the International Criminal %riunal for Former +ugoslavia gave a great impulse to the
prosecution and punishment of alleged war criminals, the criminal provisions of the :;G;
9eneva Conventions had never een applied. "ational courts are still #tate$oriented and
are loath to search for, prosecute and try foreigners who have committed crimes aroad
against other foreigners. For them, the short$term o)ectives of national concerns seem still
to prevail. %his is also due in part to the failure of national parliaments to pass the
necessary legislation granting courts universal )urisdiction over international crimes.
#econdly, the crimes at issue eing international, that is, serious reaches of international
law, international courts are the most appropriate odies to pronounce on them. %hey are in
a etter position to know and apply international law.
%hirdly, international )udges may e in a etter position to e fully impartial, or at any rate
more even$handed than the national )udges who were caught up in the milieu in which the
crime in 0uestion was perpetrated. %he punishment of the alleged authors of international
crimes y international triunals normally meets with less resistance than national
punishment, as it hurts national feelings much less.
Fourthly, international courts can investigate crimes with ramifications in many countries
more easily than national )udges. ,ften the witnesses reside in different countries, other
evidence needs to e collected thanks to the cooperation of several #tates, and in addition
special e*pertise is needed to handle the often tricky legal issues raised in the various
national legislations involved.
Fifthly, trials y international courts may ensure some sort of uniformity in the application of
international law, whereas proceedings conducted efore national courts may lead to a
great disparity oth in the application of that law and the penalties given to those found
guilty.
Finally, the holding of international trials signals the will of the international community to
reak with the past, y punishing those who have deviated from acceptale standards of
human ehaviour. In delivering punishment, the international community(s purpose is not so
much retriution as stigmati1ation of the deviant ehaviour, in the hope that this will have a
deterrent effect.
( The main %roblems besetting international criminal %roceedings
%he crucial prolem international criminal courts must face is the lack of enforcement
agencies directly availale to those courts, for the purpose of collecting evidence, sei1ing
important documents, e*ecuting arrest warrants and other )udicial orders, and so on. As a
conse0uence, international courts rely heavily on the cooperation of #tates. As long as
#tates refuse outright to assist those courts in collecting evidence or arresting the indictees,
or do not provide sufficient assistance, international criminal )ustice can hardly fulfil its role.
%his of course also applies to those cases, such as that of the International Criminal
%riunal for Former +ugoslavia, where assistance can e provided y a multilateral force
estalished under the aegis of the !" 6here I refer of course to the "A%, forces operating
in Fosnia and &er1egovina and, more recently, in .osovo7.
In addition, there e*ists a need for international criminal courts to amalgamate the various
)udges, each with a different cultural and legal ackground.
A serious prolem is the length of international criminal proceedings. %his length primarily
results from the adoption of the adversarial system, which re0uires that all the evidence e
orally scrutini1ed through e*amination and cross$e*amination 6whereas in the in0uisitorial
system the evidence is previously selected y the investigating )udge7. In addition, the
protracted nature of proceedings is often accentuated y the need to prove some
ingredients of the crime 6for instance, the e*istence of a widespread or systematic practice,
in the case of crimes against humanity7 or y the need to look into the historical or social
conte*t of the crime. It should also e noted that the adversarial system was conceived of
and adopted in most common law countries as a fairly e*ceptional alternative to the
principal policy choice, namely avoidance of trial proceedings through plea$argaining. In
fact, on account of this feature, the adversarial model works sufficiently well in most
common law countries. &owever, in international criminal proceedings defendants tend not
to plead guilty, ecause of, among other things, the serious stigma attaching to
international crimes. %hey therefore prefer to stand trial, in spite of the length inherent in
the e*amination and cross$e*amination of witnesses. %his is rendered, at the international
level, more intractale y language prolems: while at the national level all proceedings are
normally conducted in only one language, efore international courts at least two, and
possily three or more, languages are used, with the conse0uence that all documents and
e*hiits need to e translated into those languages. %his factor, coupled with the need L
as I have already emphasi1ed L of upholding a typical feature of the in0uisitorial system,
namely to keep the accused in custody oth in the pre$trial phase and during trial and
appeal, makes for a state of affairs that is hardly consistent with the right to a 'fair and
e*peditious trial( and the presumption of innocence accruing to any defendant.
Fortunately, international courts are aware of these and other practical prolems, and are
already putting in hand the necessary remedial measures.
) The need #or com%lementarity: in *hat cases is the %rimacy o# international courts
necessary?
Clearly, international courts cannot pronounce on all crimes against humanity or gross
reaches of human rights or humanitarian law occurring daily in so many parts of the world.
%hey may have no )urisdiction over some of these crimes. ,r, if they do have )urisdiction,
prosecution and trial proceedings may turn out to e very protracted, if only ecause of the
difficulty in collecting the necessary evidence. Fy and large, the principle of
complementarity enshrined in the Jome #tatute of the International Criminal Court seems
sound: as a rule it is for national courts to ad)udicate international crimes. %o this end,
national legislatures should provide those courts with the necessary legal wherewithal
enaling them to e*ercise criminal )urisdiction on the strength of the universality principle.
&owever, when national )udicial authorities are either unale or unwilling to prosecute the
crimes at issue, or are considered not to e conducting thorough prosecutions or fair trials,
international courts should take over and deal with those crimes.
+ The need to e,%and the role o# national courts
%he idea ehind universal criminal &urisdiction over gross violations is that one of the est
means of putting a stop to, or at least significantly limiting, gross violations of human rights
lies in ringing to trial those responsile for such violations. At present, most #tates lack
national legislation authori1ing or oliging national courts to e*ercise universal )urisdiction
ased on the forum deprehensionis principle. ,nly a few #tates have such legislation, while
all #tates parties to such treaties as the :;AG !" Convention Against %orture, y
implementing the provisions of these treaties, are authori1ed to e*ercise the )urisdiction at
issue in the limited area covered y the relevant treaty. A case in point is the two recent
decisions of Australian courts on the alleged acts of genocide against Australian aorigines
ordered or connived at y Australian #tate officials.
&uman rights have y now ecome a bonum commune humanitatis, a core of values of
great significance for the whole of humankind. It is only logical and consistent to grant the
courts of all #tates the power and also the duty to prosecute, to ring to trial and to punish
persons alleged to e responsile for unearale reaches of those values. Fy so doing,
courts would eventually act as 'organs of the world community(. In other words, they would
operate not on ehalf of their own authorities, ut in the name and on ehalf of the whole
international community. %hus, at long last the theoretical construct put forward in the
:;=Es y the great French international lawyer 9eorges #celle, the construct he termed
d5doublement fonctionnel 6role$splitting7, for long a utopian doctrine, would e rought to
fruition and translated into reality. #celle emphasi1ed that, since the international legal
order lacks legislative, )udicial and enforcement organs acting on ehalf of the whole
community, national organs perforce fulfil a dual role: they act as #tate organs whenever
they operate within the national legal system3 and they act 6ua international agents when
they operate within the international legal system. In a way, for #celle, national officials
operate in a >r 8ekyll and Mr &yde manner, e*hiiting a split personality. In other words,
although from the point of view of their legal status they are and remain #tate organs, they
can function either as national or as international agents.
As a result of the present state of affairs and the trends emerging in the world community,
#celle(s doctrine has come to ac0uire an enhanced vitality, at least as far as the social
function of law enforcement is concerned.
/et us hope that national as well as international courts will step up their enforcement
action in the area of gross violation of human rights, thus gradually prompting #tates
eventually to make use of the wealth of legal means and instrumentalities they have
availale ut tend to neglect out of a myopic pursuit of short$term self$interests.