State-sponsored oppression - Essay Example

"That international law imposes duties and liabilities upon individuals as well as upon s has long been recognised.Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." (International Military Tribunal, Nuremberg (1946), 41 AJIL (1947) 172.) Introduction The phenomenon of state-sponsored oppression has been extensively researched and discussed all over the world. (Steiner, 2006). Such killings and torture demonstrate grave violations of political rights and liberties. It has been opined that political rights and liberties are of paramount importance because of their impact on other rights, such as social and economic rights (Joseph, Schultz, Castan, 2004). The universal condemnation of state-sponsored repression is due in large part to the globalized ideal of human rights, (Steiner & Alston, 2000) where we see a whittling down of the concept of sovereignty in favor of the acceptance of international norms of human rights. Indeed, the protection of human rights is one of the fundamental aspirations of international law To quote from Hersch Lauterpacht, in his article International Law and Human Rights (1950), An international legal system which aims at effectively safeguarding human freedom in all its aspects is no longer an abstraction. It is as real as man's interest in the guarantee and the preservation of his inalienable rights as a rational and moral being. International law, which has excelled in punctilious insistence on the respect owed by one sovereign State to another, henceforth acknowledges the sovereignty of man. For fundamental human rights are superior to the law of the sovereign State. In international law, the primacy of the State is the core principle of the international legal regime as it is traditionally known. It is the duty of international law, therefore, to interlock authority with power (Higgins, 1994), and to ensure that authorized decision-makers regulate the actions of States. When the United Nations was created in 1948 by a world still reeling from the ravages of the Second World War and intent on healing the wounds wrought by it, it was tasked to become the primary agency in defining and advancing human rights. From then on, various other agencies were created, addressing specific human rights concerns. (Joseph, Schultz, Castan, 2004) Notable examples of this are the International Labor Organization and the UNICEF. However, the international legal system was saddled with a limitation: only states could be parties to an international law dispute. This paper will argue that this conception of international law is anachronistic in light of the atrocities committed by individuals that deserve punishment in the international regime. The Holocaust, the butchery in Serbia, the genocide in Rwanda, and most recently, the barbaric killings in Sudan are crimes of such magnitude that it requires nothing less than an international tribunal to try these crimes against humanity. II. Substantive Issues History and Evolution of International Individual Criminal Responsibility International individual criminal liability is, in essence, the ascribing of responsibility for certain crimes against individuals in an international forum. The crimes for which individuals may be held responsible are not simply ordinary crimes of theft or of reckless imprudence. They must be of such a nature that they invite universal condemnation. They are considered erga omnes obligations, or obligations owed to the world. Examples of these are piracy, genocide, crimes against humanity and slavery. According to Kelsen, "The offenses for which retribution may be claimed are, in the first place, violations of international law committed by having resorted to war in disregard of general or particular international law." (1943) In a manner of speaking, the assigning of individual criminal responsibility in the international sphere is a huge departure from traditional conceptions of international law. Pursuant to Article 34 of the International Court of Justice (ICJ) Statute, "only states may be parties in cases before the Court." In the famous Nottebohm case, such principle was likewise applied with the International Court of Justice held that only a state may seek redress for crimes or offenses perpetrated against its citizens, and the "nexus of nationality" must be established between the state seeking redress and the citizen for whom it seeks redress. Said Abrams and Ratner (2001): As defined by the positivist school that dominated the field between from the late eighteenth century, (international law) governed principally relations between states (and their sovereigns) with individuals usually at best third-party beneficiaries. The notion that the law would even govern behavior of governments vis--vis their own citizens, let alone prescribe accountability for individuals for misconduct, was anathema to the entire exercise. In that respect, internal sovereignty was, until early in the twentieth century, nearly complete and insulated from the law of nations. However, in view of the atrocities being committed by individuals, the concept of international individual criminal liability emerged. (Harris, 2004) The evolution of war crime tribunals may be said to be the product of pain, blood and conflict of horrifying inhuman proportions. War crime tribunals are a fairly new innovation, considering that war crimes can be traced back even before the time of Jesus Christ. Although there were efforts after the First World War by victorious allied powers to prosecute war crimes committed by axis powers, nothing much had come out of this endeavor. In 1919, two treaties were entered into - the Treaty of Sevres (between the allied powers and Turkey) and the Treaty of Versailles (between the allied powers and Germany - which contained clauses that provided for the prosecution of the architects of the widescale atrocities, such as Kaiser Wilhelm II before an international tribunal. Owing perhaps to a lack of political will, these efforts never took off and no one was prosecuted or sentenced. Wilhelm II was given sanctuary in the Netherlands, and despite furor from the victims, war criminals from Turkey were granted amnesty. The end of World War II ushered in a milestone for international criminal responsibility. The axis powers were completely annihilated and the allied powers were now determined not to repeat the mistakes of the past. It was only through punishing the guilty that the horrors and wounds of the victims could be assuaged. The allied states created the International Military Tribunal (IMT) for the prosecution of the men behind the Holocaust, those who orchestrated the widespread slaughter of Jews in concentration camps. This came to be known as the Nuremberg Tribunal. Not too long after, a similar tribunal was established in Asia, the Tokyo tribunal, with the intent of seeking recompense for the atrocities of the Japanese in the Far East. This included the systematic rape of women - called "comfort women" - from villages in Korea, the Philippines and other countries. These trials, however, were met with no small amount of criticism. Says Cassette (2000): Although they adhered to certain minimum basic principles of justice (for example, the accused were provided with legal representation and were entitled to interpreters), they were subsequently criticised for failing to live up to prevailing standards of criminal justice. For example, rather than being international tribunals, they were really 'victors' tribunals' - examples of a few victorious states getting together and collectively exercising their powers and jurisdiction. There was also no broader international participation in the establishment of these tribunals (although certain other states did express their adherence to the agreement establishing them). Importantly, the tribunals were restricted to the prosecution of war criminals belonging to or representing the enemy powers for crimes committed by them during the war. They had no authority to prosecute war crimes committed by any members of the allied forces. For these reasons, they were criticised as constituting little more than 'victors' justice'. This was particularly the case with the Tokyo tribunal. Many criticised the hypocrisy of prosecuting Japanese leaders for war crimes, when the Americans were guilty of the nuclear bombings of Hiroshima and Nagasaki. Be that as it may, these trials are significant in that it planted the seeds of international individual criminal liability. It was the first time that a legal precedent was set that will act as a deterrent "against possible future resort to illegal war." (Schick, 1947, p. 770). Prior to these, the concept of crimes against humanity was unheard-of, though it was perhaps the only apt way of describing the wholesale, systematic and systemic annihilation of Jews during the time of the Holocaust. After these fledgling attempts, society has come a long way towards preserving human rights, and righting the wrongs of the past with justice and accountability. Says Abrams and Ratner (2001): Societies long reluctant to investigate or prosecute human rights abusers have begun to do so with greater frequency. These include both those inquiring into the abuses of their own officials or former officials, as well as those investigating or prosecuting individuals who have committed abuses in other countries. The former group includes states as different as Indonesia, Guatemala, South Africa, and Chile. Some are revisiting amnesties or other forms of immunity that have shielded former abusers from trial; others have built on the experiment with truth commissions begun in the 1980s. The latter group includes a number of European States that have initiated proceedings against civilian and military officials from Rwanda, Bosnia, Chile, Argentina, Guatemala and elsewhere. Still others have enacted legislation providing for universal jurisdiction over international crimes. The combined effect of these domestic processes is to chip away, if only incompletely at the culture of impunity that has characterized much of the modern attempts at accountability. An alternative to tribunals are truth commissions, which is another mechanism used in the imposition of international individual criminal liability. The recognition of the universality of human rights is perhaps the strongest force that underlies initiatives made towards the creation of the mechanism that is a truth commission. A fairly recent innovation, it was developed with the end in view of sweeping off the dust that has settled over past atrocities and demanding that its perpetrators face accounting in history. Perhaps most importantly, its aim is to give the victims a forum through which their story may be told before it becomes obscured by a society unwilling to confront its unpleasant and inconvenient truths. There are a variety of mechanisms or policies implemented to try and reach the objectives of truth commissions: holding trials in domestic or international courts; purging wrongdoers from public or security posts; creating a commission of inquiry; providing individualized access to security files; awarding reparation to victims; building memorials; or putting in place military, police, judicial, or other reforms. Examined vis a vis judicial tribunals, truth commissions can be either a substitute for them, as in cases wherein amnesty or immunity are provided in exchange for participation in truth commission hearings, or supplementary to them, as in cases wherein final commission reports are turned over to State prosecutors. Most if not all truth commissions were established in a post-conflict milieu, the aim being to put behind the dark period of either a repressive military regime, as in Argentina and Chile; or a civil war/armed resistance, as in El Salvador and Guatemala and South Africa. Most truth commissions were constituted at the initiative of the sitting government. A notable exception is the El Salvador model as the Commission on the Truth for El Salvador was the result of a UN-brokered peace accord between the government and the leftist guerrillas of FMLN. Argument against International Individual Responsibility: The "Nullum Crimen" Booby Trap There are those who have posited arguments against the notion of International Individual Responsibility. One such argument has to do with the concept of "Nullum crimen sine lege" or, there is no crime if there is no law punishing it. This problem was highlighted during the Nuremburg trials when it was claimed as a defense that the charges being leveled against the accused were not codified in statute at the time they were committed. This principle, when applied to international criminal law, can indeed have the effect of exculpating criminals for offenses that contemporary sensibilities find abhorrent or reprehensible, but were perfectly legitimate and acceptable at the time they were committed. An example of this is slavery. Not applying the principle, however, could be even more dangerous, as it would right roughshod over elementary considerations of due process. To quote from Abrams and Ratner (2001): Unlike the domestic criminal law of most countries, much of international criminal law is not codified in treaties or in any other agreed code. As a result, the "law" required for criminality under the nullum crimen maxim, at the international level, comes to include not merely conventional (i.e., treaty-based law) but also customary and other law. This interpretation, however, is fraught with dangers for defendants in criminal cases, who may face judges with different methodologies and approaches to the derivation of custom or other law. Arguments for International Individual Responsibility That said, however, this paper argues that there is more to be gained from international individual criminal responsibility, and that at the end of the day, it will have the most maximum effect in whittling down a culture of impunity, violence and despotism. A. Domestic laws are ill-equipped to bring forth justice. The precedents set by the Nuremberg and Tokyo Tribunals had paved the way for other tribunals and mechanisms seeking to eliminate the culture of impunity among despots and human rights abusers. The overriding need to ensure that these issues of fundamental and universal importance are not straitjacketed by municipal laws and subjected to the vagaries of domestic political landscapes are explained by Joyner (1996) as follows: Since war criminals often operate with the knowledge and assistance of local political and legal authorities, domestic law does little to deter these actors. Prevention and punishment of war crimes thus become legal concerns and moral obligations not just for those governments in whose territory crimes occur but for all states. Indeed, the effective prosecution and punishment of war criminals remain essential to the prevention of such crimes, the protection of human rights and fundamental freedoms, and the promotion of international peace and security. The reality, unfortunately, has been that successful prosecutions of wrongdoers in courts are more the exception than the rule. The numbers of perpetrators can be overwhelming, so that even in those rare circumstances where the judicial system functions well enough to expect fair trials and there has not been a general grant of amnesty, only a very small number of the total are likely to be prosecuted. Trials in international courts have also been limited. Compared to the great numbers of accused war criminals, only a relative small number of persons have been indicted by the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. And even among this small number, the tribunals have had difficulty gaining custody over most of them, particularly the most senior of the accused war criminals. Tribunals would also require an intensive record-keeping mechanism, something which domestic courts could ill-afford to provide, given that what can usually be expected is a post-conflict scenario where poverty and lack of social services are more urgent problems being faced by the new government. In Argentina, about 7,000 individual statements were taken, 1500 survivors were interviewed, and 365 torture camps were inspected in a period of 9 months. This led to the documentation of the names of 8,960 desaparecidos, previously unidentified. In Chile, 2,920 cases of Pinochet-related atrocities were studied by an 8-member committee composed equally of pro-Pinochet and anti-Pinochet commissioners. Its mandate however, was limited only to cases that led to death (i.e"investigate disappearances after arrest, executions,and torture leading to death committed by government agents or people in their service,as well as kidnappings and attempts on life of persons carried out by private citizens for political reasons") In El Salvador, 7,000 cases of disappearances, tortures, rapes, and the like were documented and the Argentine Forensic Investigation Team was brought in. In South Africa, perhaps the most well-known truth commission model, 21,000 victims and witnesses came out. Lastly, in Guatemala, 46,000 cases of atrocities had been documented. More sinister, of course, than these logistical constraints are the political realities. In some jurisdictions, like Chile, the head of state is granted immunity for life. If the Chile Supreme Court did not lift the immunity of Augusto Pinochet, the proceedings against him would not have commenced. In yet other cases, officials of the previous regime still litter the new government, hindering at every turn efforts to seek justice and make the previous regime accountable for its sins to the people. One particular mechanism is the concept of Universal Jurisdiction, which is premised on the theory that crimes of humanity are of such a magnitude that all courts may take cognizance over it or have jurisdiction to try the offender. One good example of this is the International Criminal Tribunal for Former Yugoslavia (ICTY) which was established via resolution 827 of the United Nations Security Council and has jurisdiction over crimes having to do with breaches of the Geneva conventions, violations of the laws and customs of war, genocide and crimes against humanity. B. International Individual Criminal Responsibility leads to a refinement of International Humanitarian Law, still relevant and crucial in an age of conflict and strife. Since crimes against humanity and other misdeeds for which individual responsibility is sought have taken place in the context of a war or an armed conflict, it is but natural that they are inextricably intertwined with the developments in International Humanitarian Law. In a sense, that may well be said to be a benefit of the recognition of international individual criminal responsibility. (Cassese, 1998.) It is necessary, at this juncture, to recall basic international humanitarian law concepts-first and foremost, that it is the object of international humanitarian law to regulate hostilities in order to attenuate their hardships (Pictet, 1985, p. 62). To crystallize it further, in a principle also known as the basic law of war: "Belligerents shall not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy the or weaken the military strength of the enemy." From this foregoing principle, the Principle of the Law of Geneva is derived: "Persons placed hors de combat and those not directly participating in the hostilities shall be respected, protected and treated humanely." It cannot be gainsaid that the concept of international individual responsibility has been responsible to some extent for the full flowering of International Humanitarian Law. To quote again from Cassette: As a result of the Nuremberg and Tokyo precedents, several treaties or laws expressly providing for the prosecution of persons guilty of committing 'international' crimes, including war crimes, were adopted in subsequent decades. The first such treaty was the Genocide Convention of 1948. The concept of genocide - the extermination or intended extermination of a whole population (the worst form of crime against humanity) - was a new legal concept conceived in response to Nazi German atrocities. The Convention provides that signatory states have an obligation to punish offenders. Offenders are supposed to be tried either by the state where the crime of genocide was committed, or by an international criminal court established to prosecute genocide. Although a draft statute for an international criminal court was produced in 1951, due to political reasons no such international court was ever established. C. It address the issue of non-state actors who do not recognize domestic jurisdiction. The issue of non-state actors is a particularly important one - not only because they invoke the right to self-determination which has been understood to mean the international recognition of the right of the inhabitants of a colony to choose freely their independence or association with another state. (Henkin, 1987), but also because history is replete with evidence that non-state actors can be equally as guilty of war crimes and atrocities as the States. The developments in international humanitarian law have also made it applicable to non-international armed conflicts, or what are called internal conflicts. The line separating particularly violent internal tensions and disturbances from low-level armed conflict may sometimes be blurred and not easily determined. Such situations typically involve riots, isolated and sporadic acts of violence resulting in mass arrests, the use of police, and, sometimes, the armed forces to restore order. The foregoing do not amount to what humanitarian law would call armed conflict. Instead, they are governed by domestic and human rights law. A gray-zone conflict would actually be an internal armed conflict if, at a minimum, it was protracted and involved armed clashes between government forces and relatively organized armed groups. (Internet, Freeman, 2005). Determining what counts as protracted and well-organized requires a case-specific analysis of the facts. (Internet, Allison and Goldman, 2005) This is important because there are principal norms of IHL and IHRL applicable in internal armed conflicts. There is the principle that an insurgent force exercising governmental authority over specific territory for a significant period of time may be considered as a de facto government. As such, it may be regarded as a "para-statal [entity] possessing a definite if limited form of international legal personality." (Fitzmaurice, 1954) Other insurgent authorities have entered into similar agreements with some governments in the past, and therefore been considered as having capacity to enter into treaties. Nevertheless, there remains the view that "insurgent authorities cannot be subjects of international law unless they represent the state in the process of formation." (Lukashuk, 1971). Because governments have been unwilling to recognize insurgents as subjects of international law, international law has introduced conceptions that have made governments' unilateral recognition unnecessary before the application of the standards of Geneva. A confrontation is deemed to be an internal armed conflict when the fighting is intense, organized, and protracted enough to go beyond temporal disturbances and tensions. Additionally, the conflict must be confined within a State's borders and generally not involve foreign parties. As soon as the situation on the ground meets these criteria, parties are expected to conform to a distinct body of humanitarian law crystallized most notably in Common Article 3 of the Geneva Conventions of 1949 and in Additional Protocol II. These rules apply regardless of the legal standing of the parties. If international law does not provide a mechanism with which to punish non-state actors, then domestic courts would be hard put to gain jurisdiction over them, given political and logistical realities. They could be in political asylum in another country, and therefore beyond the territorial jurisdiction of a State. A good example of this would be Prof. Joma Sison, leader of the Communist Party of the Philippines and its armed wing, the New People's Army. Conclusion With conflict and strife tearing our world apart and leading to poverty and bloodshed for many of this world's children, our most important goal as a race would be to end the culture of impunity that has led leaders of the past to commit wholesale and systematic acts of violence. We must all adhere to a basic human rights framework and that states may no longer act with impunity and expect no censure from the international community. Certainly, there should also be moves to actively pursue human rights offenders and punish human rights violations - whether large or small scale. While forgetting may seem an alluring option for some, unwilling as they are to face the disquietude brought about by rousing old skeletons, there is a greater ethical and moral imperative to exhume the past if only to serve as lessons for the future. We must be ready to discard our anachronistic legal fictions so that we may envision a future where human rights are protected, diversity is celebrated and ever individual is allowed to blossom to his or her fullest potential. Works Cited Abrams J., Ratner, S. Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, 2nd ed. (OUP, 2001), 1-25, 160-227. Allison, Ewen & Goldman, Robert. GRAY AREAS IN INTERNATIONAL LAW at www.crimesofwar.org, visited April 15, 2007. Allison, Ewen and Goldman, Robert. BELLIGERENT STATUS. 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