Ibrahim, Abadir Mohamed (2009) International Mechanisms Dealing with Gross Violations of Human Rights: Opportunities and Challenges for the International Criminal Court. Masters thesis, Addis Ababa University.
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Abstract
The advent of the Nuremberg and Tokyo tribunals after the end of the Second World War was taken to imply that the world had found a solution to the question of how to respond to gross violations of human rights and humanitarian law. The optimism evoked by the presumed effectiveness of individual criminal prosecution would not however be seen in practice until the formation of the International Criminal Tribunal for the former Yugoslavia in 1993 and the formation of the International Criminal Tribunal for Rwanda the following year. In the years between the military and ad hoc tribunals the international community had to content itself with numerous but less enthusiastic institutions and mechanisms. The ad hoc tribunals for Yugoslavia and Rwanda inspired and paved the way for the establishment of a permanent International Criminal Court on July 2002. Despite post war optimism by the time the Nuremberg and Tokyo trials were concluded it was clear that the major players in the war were already in disagreement about the basic meaning and significance of human rights. Even when they agreed about meaning or significance they were least enthusiastic about promoting let alone enforcing whatever they agreed upon. Therefore; we can see that it was because of this that neither the United Nations Charter nor the Universal Declaration of Human Rights gave human rights monitoring in general or collective international response to gross violations in particular any attention whatsoever. That is also why the United Nations and its human rights organs were primarily concerned with standard setting up until the 1960’s. The United Nations General Assembly was the first to show its frustration with the continued passivity of the United Nations and the international community concerning gross and systematic violation of human rights. This frustration culminated in the General Assembly’s choice, in 1962, to cross over into the turf of the Security Council in order to impose what could in effect be characterized as an embargo against South Africa. Following the lead of the General Assembly the United Nations Economic and Social Council ushered in the first international mechanisms dealing with gross violations of human rights. The United Nations Human Rights Commission (established by the United Nations Economic and Social Council in 1946) later developed the ‘country specific’ and ‘thematic’ mechanisms some of which dealt with gross violations issues. Although the Security Council followed suit soon after it did so only where it believed that the violations had some nexus to ‘international peace and security’. Though it dealt with the same issues the Special Committee on Israeli Practices in occupied Territories had a limited geographical coverage. In 1976 the International Covenant on Civil and Political Rights came into the scene of international human rights law. Not only did this covenant, together with the Economic, Social and Cultural Covenant complete the normative circle of international human rights law but it also introduced an innovative mechanism for human rights enforcement. The procedural innovation of the covenant was later repeated in five specific normative fields of human rights.1 While international mechanisms for human rights implementation evolved under the United Nations distinct but complementary systems were also evolving on three of the continents of the world. Although with salient differences, the ‘regional’ or ‘continental’ human rights regimes are characterized by the possession of a commission and later a court of human rights. These systems first evolved in Europe and later in the Americas and in Africa. Although the evaluation of the accomplishment of international human rights enforcing mechanisms is of mixed results, no one could have failed to appreciate that the mechanisms were phenomenal when looked at relative to what prevailed just before or even at the time of the formation of the United Nations. Good offices, state reporting, interstate complaints, individual/group complaints, fact-finding, investigative reporting, on-site visits, technical advice, country reports and thematic reports, judicial determinations and enforcement action were all types of procedures associated with the success of the internationalization of human rights. But if the international community was to content itself by thinking that these procedures were sufficient the incidents in the former Yugoslavia and Rwanda served as an unfortunate wake up call. The atrocities in the former Yugoslavia and Rwanda once again reignited the call for international criminal prosecution. A call thought to have gone into oblivion with the memory of Nuremberg and Tokyo. The rekindled interest in international criminal prosecution and the belief that it is the best deterrent against gross violations of human rights and humanitarian law culminated in the establishment of the ad hoc International Criminal Tribunals for the former Yugoslavia and Rwanda, and finally the permanent International Criminal Court (ICC). The Rome Statute of the International Criminal Court (re)introduced a prosecutorial approach to the existing mechanisms in that it seeks to bring to justice perpetrators of gross violations of human rights and humanitarian law. The types of serious violations that the court would deal with are defined in the Rome statute as including; the crime of genocide, crimes against humanity, war crimes and the crime of aggression.2 Although its name might indicate otherwise the Court does not therefore deal with all international crimes but with those that are defined in its statute. As far as the study area of this dissertation goes the spotlight will be turned on genocide and crimes against humanity and not on war crimes and the crime of aggression as the later are of interest to international humanitarian law rather than international human rights law proper. The cold war out of the way, the international community has set its sight on exercising international jurisdiction over individuals suspected of committing gross violations as defined by the Rome Statute. The basic aspiration behind the International Criminal Court’s establishment seems to be the weariness of the international community over the culture of impunity that continues throughout the world. Thus the logic is that prosecuting individual perpetrators will serve as a deterrent to would be violators. And even if deterrence is not achieved prosecution would still serve the interests of justice and that of ensuring an end to impunity.
| Item Type: | Thesis (Masters) |
|---|---|
| Subjects: | H Social Sciences > HM Sociology H Social Sciences > HN Social history and conditions. Social problems. Social reform J Political Science > JX International law |
| Divisions: | Africana |
| Depositing User: | Tim Khabala |
| Date Deposited: | 24 May 2018 14:12 |
| Last Modified: | 24 May 2018 14:12 |
| URI: | http://thesisbank.jhia.ac.ke/id/eprint/4040 |
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