Institutions of International Justice.

• Author: Roht-Arriaza, Naomi

The year 1998 was a watershed in efforts to create an international architecture capable of responding to massive or systematic violations of basic human rights. In July of that year, some 120 nations came together to create the governing Statute for the International Criminal Court (ICC Statute), which will have jurisdiction over genocide, crimes against humanity and war crimes.(1) For the first time, the ICC Statute creates a permanent forum not tied to a specific conflict in which individual criminal responsibility for crimes related to human rights can be adjudicated under international law.

The creation of the International Criminal Court (ICC) represents only one of several ways to institutionalize international justice, one which relies both on criminalizing human rights abuses and on the building of multilateral institutions controlled by states. As such, it is a creature--at least initially--of the political will of states, which must be willing to pursue and turn over suspects, supply evidence and adequately fund the ICC.

Other events in 1998 demonstrated alternative routes. The controversy in Spain and the United Kingdom regarding the extradition of former Chilean dictator General Augusto Pinochet to Spain is only one of a number of cases pending in European courts against Chilean and Argentine military officers accused of genocide and terrorism committed while they were in power.(2) These cases demonstrate the continuing possibility of instituting civil and criminal actions in foreign courts, at least when the alleged perpetrators travel outside their home countries. They highlight the continued vitality of the concept of universal jurisdiction, under which some crimes are considered so heinous that any state that finds an offender within its territory has the right to try him or her.(3)

Also in 1998, the South African Truth and Reconciliation Commission (TRC) presented its report on the gross human rights violations committed under apartheid.(4) The report was based on 18 months of hearings, testimony and debate, including the testimony of those who applied for amnesty after confessing their crimes to a special unit of the TRC in exchange for not being prosecuted. The TRC--even more than similar commissions in a number of Latin American countries--represents the most ambitious attempt yet to uncover the truth, and perhaps adhere to justice, through nonjudicial methods in the wake of conflict and atrocities.

These examples suggest that international justice is becoming institutionalized in a number of different ways, and that national courts as well as extraterritorial jurisdiction will continue to play a critical role in this process. The wide range of these examples also suggests that justice must be understood in a broad sense to include truth-telling, recognition of wrongs done and reparations as well as prosecution. Furthermore, the different paths of international justice are becoming increasingly intertwined and interdependent.

In the first part of this essay, I briefly explore some of the difficulties in defining and delimiting the acts that are the principal subject of concern. Second, I consider why the institutional architecture has been, and continues to be, so difficult to construct. Third, I suggest that the outcome of the emerging internationalization of justice through the ICC will not be a reproduction of the kinds of international trials held at Nuremberg, but rather an increase in states' willingness to allow national-level prosecutions under loose international supervision. Such an outcome, I conclude, may be appropriate given the advantages of local prosecutions, but it will require improvements in international enforcement capability, increased political will and a better understanding of how national, international, judicial and nonjudicial strategies intersect and complement each other. Finally, I consider the question of redress for victims, focusing on the relationship of national proceedings to the ICC.

DEFINING THE SCOPE OF INTERNATIONAL JUSTICE

The kinds of atrocities that have been the focus of international concern involve large-scale or systematic deprivations of the right to life or liberty, including the right to be free from torture or other similar violations of physical integrity. Although the second half of the 20th century has seen no shortage of international crimes and human rights violations, an effective international response has been slow in coming. The difficulties relate in part to the understandable reluctance of states to prosecute their own officials for acts carried out in pursuance of state policy. There have also been difficulties in determining the appropriate characterization of and remedy for crimes and the appropriate forum for action. Finally, designing a workable mechanism of international supervision has been problematic.

A particularly difficult issue has been the relationship between international crimes and human rights violations. In principle, the two categories are distinct: international crimes such as drug-trafficking and terrorism give rise to individual penal responsibility, while human rights violations incur only state responsibility at the international level. Not all human rights violations are crimes. Some violations are criminal acts under either national and/or international law. The consequences of state responsibility are not penal in nature; a finding of responsibility entails a declaratory judgment, and allows states to take legal countermeasures or demand damages.

The global human rights regime is based largely on the treaty commitments of states to respect and ensure human rights, and on customary international law--the practice of states followed out of a sense of legal obligation. The consequences of non-compliance with customary international law or a human rights treaty are generally limited to moral and political censure. International human rights bodies affiliated with the United Nations, such as the U.N. Human Rights Commission, or those established under various treaties, also scrutinize and make recommendations. Only under two regional human rights regimes, those of the Inter-American and the European Courts of Human Rights, can an international judicial body order a state to pay compensation to affected individuals.(5)

Conversely, individual penal responsibility does not necessarily involve state responsibility; hijacking, terrorism and drug trafficking may violate international criminal law, but they are not human rights violations. Similarly, some but not all violations of humanitarian law--the laws of war--may give rise to international penal responsibility To complicate matters further, some of the definitions of these acts can be found in human rights treaties, some in international penal treaties and some in no treaty at all, but rather in customary international law.

These overlapping categories involve both different subjects (individuals and states) and different penalties (criminal and civil). Thus, in trying to define the subset of acts at the intersection of the human rights and international criminal regimes, scholars have used the terms "atrocities" or "administrative massacres,"(6) "grave violations of human rights,"(7) "gross and massive violations of human rights recognized as international crimes"(8) or similar terms. The varied terminology reflects the conceptual difficulty.

With this difficulty in mind, the ICC Statute's three "core crimes" are an appropriate starting place for an attempt at definition. These crimes--war crimes, genocide and crimes against humanity--are universally considered to give rise to at least individual criminal responsibility, whether or not they violate a treaty.

War Crimes

The laws of war, one of the earliest developments of international law, proscribe certain kinds of warfare and, to a certain extent govern the treatment of noncombatants. The major impetus for the development of the current international humanitarian law regime was the atrocities committed by the Axis powers during the Second World War. The Nuremberg and Tokyo tribunals established two major principles. First, they established that a government's treatment of its own citizens within its own borders is a proper matter for international concern and action. This principle has become one of the cornerstones of the development of human rights law and is reflected in the major human rights instruments (treaties and other human rights-related documents) and monitoring bodies established under them. The law of human rights now encompasses the responsibility of the state to protect, ensure and promote the human rights of its inhabitants, including such basic rights as the right to life; the right to be free from torture and cruel, inhuman and degrading treatment; the right to not be subject to slavery or arbitrary detention; and the right to receive a fair trial.(9)

Second, the Nuremberg and Tokyo trials reaffirmed the principle of individual criminal accountability for violations of certain basic human rights. Accountability for state officials and private citizens rests on the notion that atrocities cannot be justified on the basis that the perpetrator was simply "following orders" and, conversely, that commanders are responsible for the acts of their subordinates.

The tribunal also raised the idea that such crimes require an international tribunal for adjudication--an idea that did not fare well until recently. In keeping with reigning expectations in 1948, for example, the Genocide Convention allowed prosecution by the courts of the state where the genocide occurred and by an international tribunal that was then expected to be quickly established. But, as the plans for that tribunal languished for fifty years in a Cold War desert, national prosecutions were limited mostly to situations where a new government assumed complete control and could put the ancien regime on trial. In a...