Inconsistency and Impunity in International Human Rights Law: Can the International Criminal Court Solve the Problems Raised by the Rwanda and Augusto Pinochet Cases

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Representatives from 120 countries gathered in Rome in 1998 and drafted the statute for a future International Criminal Court (ICC) to judge "those accused of genocide and other comparable crimes."1 In order for the court to become a reality, sixty nations must ratify the treaty before December 31, 2000.2 The ICC represents a giant step forward in the development of international human rights law that began with the Nuremberg and Tokyo Tribunals following World War II, and the signing of the Universal Declaration of Human Rights in 1948.3 Only seven nations, including Libya, China, Iraq, Israel and the United States, opposed creation of the new court while twenty-one others abstained from voting.4

This Note addresses the role the ICC will play in the development of international human rights law by examining its potential effects on solving problems of inconsistency and impunity which have dominated the field for the past fifty years. Looking at the International Criminal Tribunal for Rwanda and the recent extradition hearings of former Chilean dictator General Augusto Pinochet in England, this Note considers the way international human rights law is currently enforced. These cases, attempting to bring international criminals to justice over the past decade, demonstrate the inconsistent application of international human IMAGE FORMULA106

rights law. In the Rwandan situation, for example, international law is being enforced through a combination of national judicial systems and an international tribunal; in the Pinochet case justice was sought only in the courts of Spain and England.5 This Note examines the legal and sovereignty issues presented by these cases, concluding that benefits can be attained through a permanent international criminal court.

Section I briefly examines the development of international criminal human rights law from the war trials following World War II to the recent developments of the 1990s. Section II then addresses the historical background of the Rwanda tribunal and the Pinochet case. Section III examines the drawbacks of the two cases by examining their role in destroying national sovereignty and expanding universal jurisdiction. Section IV analyzes the ICC Statute and argues that a permanent court may present a method for relieving some of the problems presented by other enforcement mechanisms.

*. BACKGROUND OF INTERNATIONAL HUMAN RIGHTS LAW

A. Pre-World War II International Criminal Trials and Treaties Although it is commonly believed that international criminal law is a creature of the twentieth century, the first international criminal court was established in Beisach, Germany in 1474.6 At the trial in this earliest court, judges of the Holy Roman Empire judged and condemned Peter von Hagenbach for allowing his troops to rape and kill innocent civilians and pillage their property.7 Hagenbach's defense was that he had been following the orders of his superiors.8 The court rejected this defense and sentenced him to death.9

Aside from the Hagenbach case, efforts to create and enforce international crimes against humanity were mostly unsuccessful prior to World War II. Following World War I, the Allied powers attempted to bring German war criminals, including Kaiser WilIMAGE FORMULA109

helm, to trial for committing acts of aggression.10 There was also an attempt to punish Turkey, Germany's ally during the war, for its genocide of Armenians living within the Ottoman Empire in 1915.11 Considerations concerning European stability and politics, however, made the trials of German war criminals untenable.12 In order to avoid humiliating Germany further, German authorities were allowed to try their war criminals in German courts.13 The attempt to prosecute Turkish officials before an international court was abandoned in 1923 at the Lausanne Conference, which officially ended the war with Turkey. …