Academic journal article Journal of International Affairs

Institutions of International Justice

Academic journal article Journal of International Affairs

Institutions of International Justice

Article excerpt

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. …

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