The following is a talk I gave at a conference organized on 10 December (World Human Rights Day) by the Estonian Institute of Human Rights in Tallinn on the occasion of its 20th anniversary. I was part of the first panel which was focused on Human Rights and Security: Protecting Victims and Providing Justice. A number of issues and questions were put forward for discussion by the organizers: In the modern world, the vast majority of casualties in armed conflicts are civilians. How should the international community react to human rights violations in conflict zones? Could a conflict exist between the requirements of peace on the one hand and justice, on the other? How can we implement the concept of Responsibility to Protect in practice? How does the promotion of human rights influence the ability of Western nations and institutions to interact with the rest of the world?
The keynote speech was delivered by Stephen J. Rapp, United States Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice. Three short presentations followed Ambassador Rapp’s speech, given by Anthony Dworkin, Senior Policy Fellow of European Council on Foreign Relations, myself, and the United States Ambassador in Estonia, Jeffrey D. Levine. The panel was very ably moderated by Riina Kionka, Head of Central Asia Division, European External Action Service. There were a few rounds of questions and comments from the participants.
My contribution to the conference follows below (is is mainly based on a chapter entitled ‘The Role of International Courts in Post-Conflict Societies’, in I. Boerefijn et al (eds), Human Rights and Conflict: Essays in Honour of Bas de Gaay Fortman, (Intersentia, 2012), pp. 367-385):
First, I would like to thank the organizers for inviting me to speak to this important event and to congratulate the Estonian Institute of Human Rights on the occasion of their 20th anniversary conference.
It is both a pleasure and an honor to be able to join and exchange thoughts on important human rights issues with such a distinguished gathering of speakers and participants.
The topic I will address today is ‘The Role of the International Courts and Tribunals in the Pursuit of Peace, Justice and the Responsibility to Protect’. My remarks will focus on the role of international courts and tribunals in pursuing peace and justice and in implementing the responsibility to protect. In the limited time at my disposal I will elaborate a number of points and raise a number of questions for further consideration and discussion.
My talk is based on the following three inter-related premises, which I will elaborate further:
First, peace and justice are intrinsically linked and mutually dependent. They are connected like Siamese twins. The activity of international courts and tribunals serves both these noble aims.
Second, international courts and tribunals are a very important component of the international system because of their role and contribution to ensuring accountability of individuals and of States for internationally wrongful acts which violate basic human rights and endanger international peace and security. Their activity contributes to strengthening the rule of law at an international level.
Third, for it to take roots, the activity of international courts and tribunals must be accompanied by strong support for national legal structures and processes. At the same time that activity must be effectively supported by the main organs of the UN, regional and security organizations and the States concerned. International courts and tribunals are limited in what they can reach and have considerable costs. International criminal law is a fairly blunt instrument and international criminal law mechanisms cannot substitute for domestic prosecutions, truth and reconciliation commissions, civil society movements as well as economic investments and international assistance in the consolidation of State structures and the rule of law.
Having stated the three premises let me elaborate briefly on the first premise, the relationship between peace and justice.
Construing the discourse about the situation in several countries affected by violent conflict in terms of a peace versus justice dilemma is too simplistic and misguiding. As stated by the UN Secretary-General, justice, peace and democracy are not mutually exclusive objectives, but rather mutually reinforcing imperatives.
In recognizing the important link between peace and justice, the preamble of the Statute of the International Criminal Court (ICC) states that ‘grave crimes threaten the peace, security, and well-being of the world’ and affirms that States Parties are ‘determined to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes.’ Since the Statute’s adoption in 1998, there has been and increasing recognition of this important link between peace and justice. In September 2009, the UN Secretary- General, Ban Ki-moon, acknowledged that ‘the debate is no longer between peace and justice, but between peace and what kind of justice.’ Also, the Secretary-General has often emphasized that ‘peace and justice go hand in hand.’ Dictators and warlords cannot be allowed to dictate the terms of a peace, which they do not want in the first place.
Let me now turn to the second premise, that is, the important contribution of international courts and tribunals towards ensuring accountability of individuals and of States for internationally wrongful acts which violate basic human rights and endanger international peace and security and in enforcing obligations arising under the responsibility to protect.
The important role played by international courts and tribunals in developing, interpreting and enforcing human rights and humanitarian law norms is self-evident. The International Court of Justice (ICJ) and the ICC, both of permanent nature, stand out among other international judicial bodies. These courts are instrumental in enforcing legal obligations arising under the responsibility to protect. The ICJ is one of the main organ of the United Nations, and its principal judicial organ, entrusted with settling inter-state disputes, whereas the ICC is the permanent court entrusted with ensuring individual criminal responsibility for perpetrators of genocide, war crimes and crimes against humanity. These are the very crimes falling under the responsibility to protect, as defined in paragraphs 138 and 139 of the 2005 World Summit Outcome document. International courts can and have been involved with a conflict situation mainly during the conflict, and in the post-conflict phase. Let me mention here by way of illustration the Legality of Use of Force cases (1999) and the Armed Activitiescases (1999) as well as the case between Georgia and Russia (2008) brought before the ICJ and the situations in Darfur (Sudan) (2005) and Libya (2011) brought before the ICC by the UN Security Council. There are many other examples.
What about the relationship between these international courts and the responsibility to protect? Together with some colleagues we have dealt with this issue in detail in an edited book which will come out with Cambridge University Press in summer 2013, but let me make a few brief remarks here. Responsibility to protect, a doctrine of collective security and human rights protection, is founded on the premise that, at a minimum, every State must protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity. In case of State failure, that responsibility must be borne by the organized international community of States. The responsibility to protect stems from the fundamental principle of ‘elementary considerations of humanity’, coined and developed by the ICJ, as a principle which requires respect for human life and human dignity, and forms the basis of international human rights and humanitarian law.
The ICJ and the ICC can contribute in a number of ways to enforcing obligations arising under the responsibility to protect. Thus, these courts can clarify the respective legal obligations incumbent upon States and individuals under the responsibility to protect and at the same time ensure their compliance therewith. An advisory opinion by the ICJ could provide the necessary clarity on the components and legal obligations arising under this principle for States and international organizations. Provisional measures orders by the ICJ can potentially serve to stop or avert harm to populations at risk of mass atrocities. On its part, the preliminary investigations conducted by the ICC and the international criminal proceedings in cases brought before it ensure that this court can potentially deter and in the alternative it can hold accountable individuals who are responsible for genocide, war crimes, crimes against humanity.
In clarifying the nature of the duty to prevent genocide, the ICJ has stated that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide. The obligation of States party to the Genocide Convention is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. According to the ICJ, a State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred, if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. That seems to establish a fairly high threshold for State responsibility, considering the seriousness and gravity of this crime. The ICJ has also referred to the notion of ‘due diligence’, as a test which allows for assessing a State’s measures to comply with the duty to prevent genocide. This test is composed of objective criteria, as well as of legal criteria.
[In laying out the ‘due diligence’ test for assessing a State’s measures to comply with the duty to prevent genocide the Court noted that the first aspect, varying greatly from one State to another is, the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. That capacity depends among others on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. Additionally to these largely practical considerations, the Court stated that a State’s efforts had to be assessed also on the basis of legal criteria. Thus, in the Court’s view, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide and the limits permitted by international law. (Application of the Genocide Convention, ICJ Reports 2007, p. 221, para. 430)]
I’ll now turn to the third premise, the need for supporting the activity of international courts and tribunals at the national level and through the coordinated efforts of the main organs of the UN, regional and security organizations, and the States concerned.
The generally ex post facto response of the international community to mass atrocities cannot and should not overshadow the primary duty incumbent upon individual States and the organized international community of States to prevent mass atrocities from happening. The widespread and systematic human rights violations committed in the recent past in the former Yugoslavia and Rwanda and those ongoing in the Democratic Republic of the Congo, Sudan, Libya, Syria and other places around the world have drawn attention to the responsibility of States and of the United Nations in protecting vulnerable populations from genocide, war crimes, ethnic cleansing and crimes against humanity.
While criticism has often been voiced on whether international criminal courts and tribunals have furthered socio-political progress in post-conflict societies, it should be noted that strictly speaking their mandate is only limited to prosecuting high-level perpetrators of genocide, war crimes and crimes against humanity. At the same time, lists of the main objectives of international criminal justice include providing justice for the victims and the international community as a whole by punishing the principal perpetrators, truth-finding and narration of historical tragedy, reconciliation of the concerned post-conflict society, and deterring such crimes in the future. These are anything but modest objectives. A number of questions arise with regard to the aims and the activity of international criminal justice mechanisms. Is justice properly served by trying only a small number of perpetrators; that is, those who bear the greatest responsibility? What about truth-finding and narration of historical tragedy? Is or can the whole truth about the human tragedy of such events going to emerge through criminal legal proceedings? How does the public perception of the court affect its legitimacy and in turn its contribution to the reconciliation of conflict-torn societies? What can we say about the deterrent effect of the international criminal courts and tribunals? These are hard questions, for which there are no simple answers, and which largely revolve around how much we can realistically expect from a criminal trial.
Trying the main perpetrators of mass atrocities is just a part, albeit an important part, of the process of rebuilding a society in the aftermath of a conflict. All the actors concerned in a justice and peace-building effort, including international courts and tribunals, should pay close attention to psychosocial processes, socio-economic conditions and the political context of the adversely affected society. The effectiveness of international judicial mechanisms in enforcing human rights depends upon access to justice, legal and judicial activism, action by relevant political organs, and civil society awareness and participation. Both the ICJ and the ICC have been seized of cases which are highly important for societies affected by conflict. These international courts can provide the necessary legal guidance and oversight in the process of the institutionalization and implementation of the responsibility to protect.
States, international organizations, and regional and security organizations need to do more to support the work of international courts and tribunals. There should be more cooperation and support for the International Criminal Court from States and from international and regional organizations, so as to enable the Court to continue its work and fulfill its important mission. The serious financial difficulties faced by the Special Court for Sierra Leone and most recently by the Extraordinary Chambers in the Courts of Cambodia show that there is much room for improvement when it comes to the obligation of the international community to support institutions working to ensure justice for victims of mass atrocities. I greatly admire the fundraising efforts made by dedicated international prosecutors as David Crane, Ambassador Rapp, Brenda Hollis and Andrew Cayley to ensure that these hybrid accountability mechanisms are able to complete their mission.
the ICJ, the ICC and a number of other international courts and tribunals serve the interests of peace and justice and contribute to developing and enforcing the responsibility to protect in a number of ways. These courts clarify the respective legal obligations under the responsibility to protect incumbent upon States, international organizations and individuals and at the same time ensure their compliance therewith. Ensuring compliance with the relevant and legally binding international legal standards is not an easy task and while international courts and tribunals are important, their work needs to be supported by other important international and national stakeholders.
While, on the one hand, political, socio-cultural and legal constraints create a less than perfect working environment, on the other hand, expectations on the work of the ICJ and the ICC are very high. These international judicial bodies have to satisfy the, at times, differing expectations of a wide range of actors including the international community of States, the victims of these crimes, civil society and other critical followers of their work, including human rights scholars. The activity of the international courts and tribunals clearly shows that justice for gross human rights violations, albeit partial and limited, is possible. At the same time, their work and results attest to the fact that peace and justice are not a matter of ‘either, or’, but aims that can be pursued simultaneously.