“Justice is an indispensable ingredient of the process of
national reconciliation. It is essential to the restoration
of peaceful and normal relations between people who
have had to live under a reign of terror. It breaks the
cycle of violence, hatred and extra-judicial retribution.
Thus Peace and Justice go hand-in-hand." (Antonio
Cassese, former president of the International criminal
tribunal for the former Yugoslavia).
Origins of international justice
The idea of a international tribunal jurisdiction was suggested for the first time in 1872 by Gustave Moynier, a founding member of the Red-Cross, in reaction to the crimes committed during the Franco-Prussian war. The first modern attempt of international criminal justice was born after the First World War. Article 227 of the Treaty of Versailles provided that a special tribunal would be constituted to try the former German emperor William II on the charges of a supreme offence against international morality and the sanctity of treaties. However, after the war William II fled to the Netherlands who refused to hand him over to be tried.
It is during the interwar period that a movement in favor of the prosecution of serious crimes on the ground of the responsibility of States, but also on the ground of individual responsibility, arose. Henri Donnedieu de Vabres engaged in a reflection on the application of foreign criminal laws by national tribunals and on the acknowledgment of the international weight of repressive judgments. He supported the idea of a true international criminal justice and favored the creation of an international criminal court competent for judging not only States but individuals as well.
In 1945, the discovery of the extermination of millions of people by the Nazi regime led to the creation of the International military tribunal of Nuremberg (London Agreement of August 8, 1945). It was the first step taken towards an international criminal justice. The following year, a similar tribunal was instituted to judge the Japanese who bore the greatest responsibility for the war: the International military tribunal for the Far-East or Tokyo tribunal. However, these two experiments cannot be regarded as true examples of international justice for they only embodied the idea of justice according to the Allied; they were widely seen as handing down only ‘victor’s justice’.
Directly following the Nuremberg experience, the General assembly of the United Nations recognized the need for a permanent international court to judge war criminals and the authors of other war atrocities, notwithstanding their nationality or the territory on which the crimes were committed. The 1948 Convention on the prevention and the repression of the crime of genocide reflects the same idea, and provides for the creation of a forthcoming international criminal court. However, the immediate beginning of the cold war postponed the project for four decades.
It is only during the 1990s, with the warming up of international political relations, that the subject of international justice was brought back to the table of negotiation. In May 1993, faced with the overwhelming evidences of “ethnic cleansing” and genocide committed on the territory of the former Yugoslavia, the Security Council took action and created the International Criminal Tribunal for the former Yugoslavia, the first international criminal tribunal since the Nuremberg trials. In November of the following year, it voted in favor of the creation of a similar jurisdiction competent to judge the authors of the Rwandan genocide, the International Criminal Tribunal for Rwanda.
Those events, as well as the arrest of General Augusto Pinochet in London in 1998, paved the way for a new international movement aiming at fighting the impunity of the authors of the worst exactions, and allowed for the negotiations, long suspended, on the creation of a permanent international criminal jurisdiction to resume.
As early as 1993, the General Assembly of the United Nations had asked the International law commission to work on the draft of a convention for the creation of such a jurisdiction. On July 17, 1998, the proceedings came to an end with the adoption by 120 States of the Rome Statute of the International Criminal Court (ICC). The preamble of the Statute underlines the relationship between justice and peace, impunity for the most serious crimes being an obstacle to the return of a lasting peace. The idea that by fighting impunity one prevents the commission of such crimes in the future is also enshrined in the Statute. The Statute became effective on July 1st, 2002, once it was ratified by 60 countries, and turned the main principles of international criminal law into norms of conventional value. The Court has jurisdiction over the crime of genocide, crimes against humanity, crimes of aggression (although the notion is not defined as of today), as well as over war crimes, provided they were committed after July 1st, 2002, when the Statute became effective.
However, in some cases, the international-only answer to judiciary post-conflict issues is not always fit. This observation led to the creation of internationalized jurisdictions giving improved consideration to national issues. These jurisdictions, in which both international and national judges sit, allow for a better acknowledgment of the victims and of their suffering. Moreover, according to experts, these systems allow for a faster, more efficient and less expensive justice. The Special Court for Sierra Leone (SCSL), created in July 2002, was the first of the kind. The court is the result of an agreement between the United Nations and the authorities of Sierra Leone that was ratified by the Parliament and is now part of the national judiciary system even though it benefits from heavy international backing. The same was done for Cambodia in March of 2003 with the Extraordinary Chambers inside the Courts of Cambodia (ECCC).
Another solution that emerged was the one chosen 1999, in Kosovo, by the Security Council who gave the United Nations Interim administration mission (UNMIK) the power over the judiciary authorities of Kosovo, in particular to prosecute the most serious crimes. In 2000, in East Timor, the Special Panels were set up by the United Nations Transitional administration in East Timor (UNTAET) to judge serious crimes committed during the conflict.
Recently, a Special tribunal for Lebanon was created by the Security Council on May 30, 2007, in order to judge the people involved in the assassination of, among others, former Prime Minister Rafic Hariri.
Truth and reconciliation commissions
A criminal-only answer to atrocities committed in conflicts has turned out to be insufficient where rebuilding a social network that has been destroyed by years of war and restore a national peace is at stake. The issue of reconciling former enemies and teaching them to live together again requires collective recovery mechanisms, which is something that tribunals do not offer. This is the reason why, in the last twenty years, the use of truth and reconciliation commissions has increased in post-conflict societies. With them, a new aspect of transitional justice arose, with no judges or tribunals, and giving the victims a more important role in the proceedings.