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Ending the impunity of perpetrators of human rights atrocities: A major challenge for international law in the 21st century
Published online by Cambridge University Press: 27 April 2010
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- International Review of the Red Cross , Volume 82 , Issue 838: Revue Internationale de la Croix-Rouge International Review of the Red Cross , June 2000 , pp. 369 - 389
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- Copyright © International Committee of the Red Cross 2000
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l For example, “The World Conference of Human Rights expresses its dismay at the massive violations of human rights especially in the form of genocide, ethnic cleansing and the systematic rape of women in war situations (…) While strongly condemning such abhorrent practices it reiterates the call that perpetrators of such crimes be punished and such practices immediately stopped.” 1993 Vienna Declaration and Programme of Action, World Conference on Human Rights, UN Doc. A/CONF.157/24 (Pt.1), 13 October 1993, para. 128, cited by Dugard, John, “Bridging the gap between human rights and humanitarian law: The punishment of offenders”, IRRC, No. 324, September 1998, pp. 445–453.CrossRefGoogle Scholar
2 Barcelona Traction Light and Power Company Limited, Judgment, I.C.J. Reports 1970, p. 32, cited in Gasser, Hans-Peter, “Ensuring Respect for the Geneva Conventions and Protocols: The Role of Third States and the United Nations”, in Fox, Hazel and Meyer, Michael (eds), Armed Conflict and the New Law, Vol. 2: Effecting Compliance, British Institute of International and Comparative Law, London, 1993, pp. 21–22Google Scholar
3 From the human rights perspective: UN General Assembly Resolution 2444 (XXIII) of December 1968, “Respect for human rights in armed conflicts”, and Resolution 2675 (XXV) of December 1970, “Basic principles for the protection of civilian populations in armed conflicts”, Article 1 of which states that “[f]undamental human rights, as accepted in international law and laid down in international instruments, continue to apply fully in situations of armed conflict”. Both resolutions are regarded as declaratory of customary international law.
4 Same view: Gasser, op. cit. (note 2), pp. 22–23.
5 Doswald-Beck, Louise and Vité, Sylvain, “International humanitarian law and human rights law”, IRRC, No. 293, March/April 1993, pp. 94–119.CrossRefGoogle Scholar
6 See e.g. Convention on the Prevention and Punishment of the Crime of Genocide (1948); (United Nations) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), Articles 2, 4 and 5; Convention on the Suppression and Punishment of the Crime of Apartheid (1973) — apartheid has been declared a crime against humanity by the UN General Assembly on several occasions since 1966 and by SC Res. 556 of 13 December 1994; Convention against the Taking of Hostages (1979); Convention for the Suppression of Terrorist Bombings (1988). In relation to gaps between the Conventions on hostage-taking and terrorist bombings and international humanitarian law, see Dugard, op. cit. (note 1).
7 In the case Nicaragua v. United States, Merits, I.C.j. Reports 1986, p. 220, the Court took the view that Article 1 common to the 1949 Geneva Conventions, which obliges States parties to respect and ensure respect for the Conventions, also applies to conflicts regulated by common Article 3. The obligation imposed by Article 1 may include penal suppression of violations. On this point, see Meron, Theodor, “International criminalization of internal atrocities”, American Journal of International Law, Vol. 89, July 1995, p. 570.CrossRefGoogle Scholar
8 UN War Crimes Commission for Yugoslavia, UN Doc. S/1994/674, annex (1994): “The content of customary law applicable to internal armed conflicts is debatable. As a result, in general (…) the only offences committed in internal armed conflicts for which universal jurisdiction applies are ‘crimes against humanity’ and genocide, which apply irrespective of the conflicts' classification” (para. 42). “There does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes” (para. 52). Cited by Meron, ibid., p. 559.
9 In Prosecutor v. Dusko Tadic (jurisdiction), Case No. IT-94–1-AR72, 2 October 1995, the Appeals Chamber concluded “that the conflicts in the former Yugoslavia have both internal and international aspects, that the members of the Security Council clearly had both aspects of the conflicts in mind when they adopted [the Statute], and that they intended to empower the International Tribunal to adjudicate violations of humanitarian law that occurred in either context” (paras. 74–78). For analyses of this approach see Aldrich, George, “Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia”, The American Journal of International Law, Vol. 90, January 1996, p. 64CrossRefGoogle Scholar, and Fenrick, William, “The development of the law of armed conflict through the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia”, Journal of Armed Conflict Law, Vol. 3, December 1998, pp. 200–210.Google Scholar
10 Report of the UN Secretary-General pursuant to Paragraph 2 of Security Council Resolution 808, UN Doc. S/25704, para. 34 (1993), cited in Akhavan, Payam, “The International Criminal Tribunal for Rwanda: The politics and pragmatics of punishment”, The American Journal of International Law, Vol. 90, 1996, p. 503.CrossRefGoogle Scholar
11 Report of the Secretary-General pursuant to Paragraph 5 of Security Council Resolution 955 (1994), UN Doc. S/1995134, para. 12.
12 Tadic (jurisdiction), loc. cit. (note 9), para. 134.
13 See Meron, op. cit. (note 7), pp. 565–568, and Moir, Lindsay, “The implementation and enforcement of the laws of non-international armed conflict”, Journal of Armed Conflict Law, Vol. 3, December 1998, p. 164.Google Scholar
14 Tadic (jurisdiction), loc. cit. (note 9), para. 134.
15 Ibid., para. 127
16 Rome Statute of the International Criminal Court, 17 July 1998, Art. 8 para. 2(a) and (c).
17 Ibid., Art. 8, para. 2 (b) and (e).
18 On this point see Cassese, Antonio, “The International Criminal Court: Some preliminary reflections”, European journal of International Law, Vol. 10, 1999, p. 152.Google Scholar
19 Tadic (Jurisdiction), loc. cit. (note 9), paras. 119–124.
20 Rome Statute, Article 8, para. 2(f).
21 Tadic (Jurisdiction), loc. cit. (note 9), para. 141.
22 Prosecutor v. Tadic, Case IT-94–1-T, Opinion and Judgment, 7 May 1997, para. 652.
23 Rome Statute, Article 7, paras. 1 and 2(a). Tadic (Judgment), loc. cit. (note 9), paras. 635, 646, 653–655.
24 Rome Statute, Art. 7, para. 1 (a)-(k).
25 Tadic (Jurisdiction), loc. cit. (note 9), paras. 79–84.
26 Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 (Bosnia-Herzegovina v. Yugoslavia), I.C.J. Reports, 1996, para. 32.
27 Meron, op. cit. (note 7), p. 569.
28 Ibid.
29 On this point see Moir, op. cit. (note 13), p. 169. See also the approach of the US Appeals Court, Second Circuit, in Kadic v. Karadzic, 70 F 3d 232 (2d Cir 1995).
30 First Geneva Convention, Article 49, para. 3; Second Geneva Convention, Article 50, para. 3; Third Geneva Convention, Article 129, para. 3; and Fourth Geneva Convention, Article 146, para. 3. See Meron, op. cit. (note 7), p. 569.
31 Ibid., p. 570.
32 For a comprehensive survey of State practice in relation to the right to exercise universal jurisdiction over “war crimes” committed in internal armed conflicts, see Graditzky, Thomas, “Individual criminal responsibility for violations of international humanitarian law committed in internal armed conflicts”, IRRC, No. 322, March 1998, pp. 29–56.CrossRefGoogle Scholar
33 R v. Evans and Another, ex parte Pinochet Ugarte; R v. Bartle, ex parte Pinochet Ugarte, Judgment, 28 October 1998.
34 R v. Bow Street Metropolitan Stipendiary Magistrates Court and Others, ex parte Pinochet Ugarte [1998] 4 All England Law Reports 897.
35 Per Lord Nicholls, pp. 939–940.
36 R v. Bow Street Metropolitan Stipendiary Magistrates Court and Others, ex parte Pinochet Ugarte (No. 2) [1999] 1 All England Law Reports 577.
37 R v. Bow Street Metropolitan Stipendiary Magistrates Court and Others, ex parte Pinochet Ugarte (No. 3)[1999] 2 All England Law Reports 97.
38 Per Lord Browne-Wilkinson, p. 108, and Lord Millett, p. 178.
39 Spain had ratified the UN Torture Convention in October 1987 and Chile had ratified it in September 1998.
40 “It is a cliché of modern international law that the classical theory no longer prevails in its unadulterated form”. Lord Millett. — William Aceves regards the Pinochet case as evidence of the emergence of a universal system of transnational law litigation, a system “which gains its very legitimacy by functioning within the state-centric world even as it seeks to undermine the prominence and preeminence of the nation-state”. See “Liberalism and international legal scholarship: The Pinochet case and the move toward a universal system of transnational law litigation”, Harvard International Law Journal, Vol. 41, No. 1, 2000, p. 183.Google Scholar
41 Nuremberg Charter, Article 7, and Judgment, pp. 41–42. Affirmed by the UN General Assembly and reiterated by the International Law Commission in its Statement of Principles of International Law recognized by the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal (1950) and its Draft Code on Crimes against the Peace and Security of Mankind (1991).
42 Klabbers, Jan, “The general, the Lords and the possible end of State immunity”, Nordic Journal of International Law, Vol. 68, 1999, p. 89CrossRefGoogle Scholar. See also Robertson, Geoffrey, Crimes against Humanity: The Struggle for Global Justice, Penguin, London, 1999, p. 372.Google Scholar
43 Filartiga v. Pena-lrala (1980), 630 F 2d (2d Cir 1980). See Malanczuk, Peter, Akehurst's Modern Introduction to International Law, Routledge, RICR Juin IRRC June 2000 Vol.82 No838 London and New York, 1997. 7th ed., p. 114Google Scholar
44 Robertson, op. cit. (note 42), p. 362.
45 Braid, Mary, “Exiled dictators to face criminal charges for murder and torture”, The Independent, 23 June 1999, p. 16Google Scholar
46 In August 1999 the Austrian government decided not to apprehend Izzat Ibrahim al-Duri, President Saddam Hussein's second- in-command, who visited Vienna for medical treatment, although a criminal complaint was filed alleging his complicity in genocide. In November, the former dictator of Ethiopia, Mengistu Haile Mariam, who is exiled in Zimbabwe and is accused of genocide and crimes against humanity by authorities in Ethiopia, was not detained when he visited South Africa. See: Human Rights Watch, “The Pinochet precedent: How victims can pursue human rights criminals abroad”, www.hrw.org/campaigns/chile98/precedent.htm
47 Ibid.
48 Graditzky, op. cit. (note 32).
49 Klabbers, op. cit. (note 42), p. 95 (in relation to the original House of Lords' ruling).