CHECK AGAINST DELIVERY              24.06.2009

Statement by Antonio CASSESE

President of the Special Tribunal for Lebanon,

Former President of the International Criminal Tribunal for the former Yugoslavia

on the occasion of the third part of the 2009 Ordinary Session

of the Council of Europe Parliamentary Assembly

(Strasbourg, 22-26 June 2009)

HOW TO ENSURE THAT THE AUTHORS OF GROSS AND LARGE-SCALE VIOLATIONS OF HUMAN RIGHTS ARE BROUGHT TO BOOK

1. Introduction

There is no doubt that bringing the authors of serious and large-scale violations of human rights to justice constitutes the most efficacious means of reacting to such violations. Plainly, to make the perpetrators personally accountable means that they cannot shelter behind the State on whose behalf they normally act as State officials. To bring individuals to account means to strike at the very originators of grave misdeeds. Individual criminal liability is more effective than State responsibility for the purpose of both preventing future violations and alleviating the suffering of the victims or their next-of-kin. However, criminal justice is far from being a panacea. Indeed, the deterrent effect it aims to produce is less apparent than other two effects attaching to international conviction and sentence: stigmatization of the criminal conduct and retribution.

In spite of these limitations, criminal accountability processes remain a valid tool for addressing the range of gross violations of human rights, in particular those violations that, being uniquely odious in character and collective in nature, amount to such international crimes as torture, crimes against humanity, genocide, war crimes or terrorism.

What should be done to enhance the existing accountability procedures and bolster their effectiveness? I would suggest that one should endeavour to take a number of different avenues: 1) to make the International Criminal Court more effective so as to better use its universality potential;

2) to strongly urge the implementation of the principle of universal criminal jurisdiction over such international crimes as torture, crimes against humanity, genocide and terrorism;

3) to insist on the notion that no amnesty for gross violations of human rights amounting to international crimes is permissible under current international law;

4) to prompt the European Court of Human Rights to give greater bite to its decisions by making explicit what is now mostly implicit in some of its rulings;

5) to establish a Commission of Inquiry available to States and individuals for promptly establishing whether egregious violations of human rights have occurred that amount to international crimes and thereby triggering the necessary sanctioning mechanisms.

I will briefly discuss each of these points.

2. Enhancing the International Criminal Court

The ICC is likely to gradually move from its present stand, where it is still testing the waters and experimenting with its complex procedural rules, to a firm position where it will fulfil its important mission efficaciously. Particularly if the Prosecutor decides to stop waiting for the deferral of situations by States or by the Security Council and begins to exercise the important and unique power he has been granted under the ICC Statute, namely to initiate investigations proprio motu, the Court is likely to increase its effectiveness. I should emphasise that initiating investigations proprio motu whenever a situation so requires does not necessarily mean that many more cases will be heard by the Court: the mere fact that investigations are launched and suspects or accused persons are named, may “shame” States enough to prompt them to initiate proper investigations and prosecutions themselves, thus adhering to the principle of complementarity, albeit in a more “aggressive” form.

Should the Prosecutor take this approach, in the long run the Court’s universal potential could be expected to bear fruits, by showing that it can be not only fair and impartial, but also expeditious in holding the major perpetrators of crimes accountable. This, I believe, would result in a growing number of States gradually becoming parties to the Court’s Statute.

3. Expanding National Prosecution

The second avenue to be taken hinges on the expansion of national prosecution and adjudication of crimes against humanity, torture, genocide and terrorism. This expansion is justified, on two grounds. First, the investigative authorities and courts of the State where a crime has been committed or of the State to which the alleged perpetrator belongs are those best suited to investigate and try the crime, for they are in a better position to collect and hear the necessary evidence. Secondly, while international criminal tribunals for various reasons usually concentrate on military and political leaders, national courts can also bring to justice the executioners and other “secondary” perpetrators, who indeed should be punished no less than those who masterminded, planned, ordered or instigated the crimes. Let us not forget that this is what happened after the Second World War, when many (though not enough) lower level perpetrators were tried not at Nuremberg, but by national tribunals, both in Germany and elsewhere. This is also the avenue that is being followed by the ICTY, which is sending back cases – or simply investigative material – to the courts of the former Yugoslavia, limiting itself to dealing with the persons who are allegedly the most responsible.

Unfortunately, however, for a number of political and practical reasons courts in many States are loath to exercise territorial jurisdiction or to act upon the active nationality principle, even with respect to such atrocious, organized and large-scale offences as war crimes, crimes against humanity and other international crimes. As a consequence, the moral imperative –stemming from the human rights doctrine-- not to let authors of appalling crimes to go scot-free, imposes resort to extraterritorial jurisdiction based on the universality principle.

I am fully aware that many States, particularly in Africa, claim that the universality principle is being used by some European countries as a subtle and pernicious way of interfering in the sovereignty of those African countries where the defendants live. African countries also insist on the emergence of a double standard in international criminal justice. In their view Western countries or some Great Powers whose State officials engage in war crimes or crimes against humanity in fact eschew any effective prosecution, because those countries have remained outside the ICC and in addition fail to prosecute their own nationals. In contrast, so the argument goes, nationals of African countries are brought to trial or at least accused either by the ICC or by the national courts of some European States.

I feel that there is some truth in this double standard argument, although things are more complex and far from a black-or-white approach. A sound solution should be found in a two-pronged action. On the one hand, African States should be encouraged to exercise their jurisdiction effectively over their own nationals suspected or accused of international crimes. On the other, European States should be prompted to subject the exercise of their extraterritorial jurisdiction to a set of conditions designed to prevent international justice from causing undue interstate friction.

To this effect, some recommendations recently made by a Working Group of “Experts on the Principle of Universal Jurisdiction”, appointed by the European and the African Union, should, in my view, be taken up by European countries.¹ For instance, when a European court has evidence that serious international crimes have been committed abroad by a foreign senior State official, before exercising universal jurisdiction it should (i) consider requesting the territorial or national State to prosecute the alleged offender, (ii) refrain in any case from taking steps that might publicly and unduly expose the suspect or accused, (iii) take into account the personal immunities that the suspect or accused may enjoy under international law, and (iv) where there is serious reason to believe that the territorial State or the State of the offender’s nationality is unable or unwilling to prosecute him or to conduct a fair trial, the European court should try to issue a summons to appear rather that an arrest warrant, with a view to avoid exposing the foreign State official to public condemnation before trial.

4. Insisting on the Inadmissibility of Amnesties for International Crimes

Another track could usefully be taken: to emphasise that under the general principles of international law currently prevailing in the world community, States are not allowed to pass laws granting amnesty to authors of those very serious violations of human rights which bear the hallmarks of international crimes.

Of course, generally speaking sovereign States are free to decide whom to punish under their criminal law and whom instead to absolve from guilt or set free if convicted and sentenced. Nevertheless, current international law sets some serious limitations on this freedom. Whenever individuals (be they private persons or State officials) grossly breach values held to be fundamental by the whole international community, they must be held accountable and consequently may not be relieved of their criminal responsibility, on whatever ground. As the UN Human Rights Committee stated in 1994 with regard to torture “Amnesties are generally incompatible with the duty of States to investigate such acts [as torture], to guarantee freedom from such acts within their jurisdiction, and to ensure that they do not occur in the future.”² The same stand has been taken by international and domestic courts.³

All these decisions, as well as a number of treaties, show that States are no longer allowed to contravene fundamental human rights values by turning a blind eye to, or otherwise forgiving, atrocious acts committed by individuals against other human beings.⁴ If a sovereign State decides to flout international standards by passing a law granting amnesty for international crimes, neither international courts and tribunals nor the courts of other sovereign countries are bound by such law. The perpetrator (or alleged perpetrator) thus knows that he will enjoy a safe haven only in the territory of the State applying the amnesty law, and only as long as that law is not repealed. Outside that territory he can be prosecuted and, if found guilty, convicted. Moreover, if the necessary procedural conditions exist, international proceedings can be instituted against the State before an international court with a view to ruling that the passing of that amnesty law is in breach of international rules and that the State has therefore incurred international responsibility.

5. Strengthening the Role of the European Court of Human Rights

So far I have discussed various ways of putting the whole, impressive body of international criminal law to the service of human rights, by bringing the authors of serious and large-scale violations to trial before international or national criminal courts. I will now move to two others possible avenues that one could take, and which are not strictly speaking linked to criminal law. One hinges on a more efficacious use of the European Court of Human Rights, the other aims at establishing a new monitoring body.

In my view, the European Court of Human Rights should be urged to give more clout to its judgments concerning violations of Articles 2 (the right to life), 3 (the right to be free from torture) and 4 (the right to be free from slavery or forced labour). How can this be done? To my mind, where the Court makes a finding of a grave breach of a substantive or a procedural obligation flowing from these provisions (for instance a violation of the obligation not to torture, or of the obligation to carry out a proper investigation at the domestic level of alleged acts of torture), the Court should explicitly enjoin the State to institute criminal proceedings to punish the individuals responsible for the unlawful taking of human life, or for torture or slavery.

I do not see any legal obstacle to this approach. Indeed, on a number of occasions the European Court has rightly stated that some provisions of the Convention such as Articles 2 and 3 not only contain a ban but also impose upon State authorities, once apprised of possible serious breaches of the Convention, the obligation to carry out all the investigations necessary to determine whether and how the Convention has been infringed. Plainly, the purpose of such investigations is not only to establish what has occurred, but also, where it transpires that a breach has been perpetrated, to bring to justice and punish the perpetrator. This being so, after finding that a breach has occurred, the Court should also expressly enjoin the responsible State to institute criminal proceedings against the offender.

This stand is not barred by the text of the European Convention: Articles 42 and 44 (2) of the Convention confine themselves to tersely providing that, on certain conditions, judgments of the Court shall be final. It is for the Court to decide, after making a finding of a serious breach of the Convention, what measures the State concerned must take, subject of course to the possibility of also applying Article 41, on « just satisfaction ».

Furthermore, this approach clearly derives from, and is indeed necessitated by, the very object and purpose of the Convention. The Convention aims at safeguarding the fundamental rights of individuals in any area where a Contracting State exercises its jurisdiction over such individuals; to this end, an important supervisory body, the Court, has been tasked to guarantee that human rights are really and fully respected by those States. It therefore follows that whenever a State infringes upon one of those rights, it must subsequently not only make good the damage, but also ensure, to the maximum possible extent, respect for the rights violated. This cannot be done solely by obliging the State concerned to pay some money to the victim of the violation. If this were the case, the material and moral authors of the violation might simply escape any responsibility, with the consequence that they could well commit the same breach again, knowing that in any case they would not incur any responsibility and would therefore escape punishment. To fully realize human rights it it is instead necessary to prevent all participants in grave human rights violations – the material perpetrators, their « sponsors» and anybody willingly involved in such violations-- from repeating the same or other breaches.

Hence, it would be crucial for the European Court to explicitly rule, whenever this is necessary, that the State concerned is legally bound not only to pay compensation to the victim but also to bring the perpetrators to justice and duly punish them, if found guilty.

This conclusion, besides being dictated by the text and the object and purpose of the European Convention, is also consonant with the very notion of justice. Where an individual is subjected to torture or slavery, or is unlawfully deprived of his right to life, can the payment by a State of some money to him or to his next-of-kin be held to be an appropriate response to that serious wrongdoing? Unlawful killing, torture and slavery are very grave breaches both of values upheld in the State community where the misdeeds have occurred, and of universal values. How can one think that a monetary satisfaction is sufficient to remedy an intolerable attack on those values ? Perhaps in some cases the monetary response can contribute to placate the suffering of the victim. However, it will not restore the national and international «public order» (ordre public) injured by the misconduct. The possible meeting of subjective exigencies will not be matched by the objective need to provide a congruous and proportionate response to blatant deviations from universal values. The only way of re-establishing «public order» when such serious breaches occur is to require the State concerned to take action at the domestic level against the author of the serious misdeeds, so as to ensure that similar acts will not be repeated.

6. Establishing a European Commission of Inquiry

Let me now turn to my last point, relating to the possible establishment of a Commission of Inquiry available to States and individuals alike. The assumption on which this suggestion is grounded is threefold. First, currently States are no less reluctant than in the past to submit the possible misconduct of their agents to international adjudication. Secondly, States are instead more amenable to fact-finding, which is felt to be less intrusive and hence less prejudicial to their sovereign prerogatives. Thirdly, where nevertheless an international adjudicatory mechanism has exceptionally been set up, as is the case with the European Court of Human Rights, the proceedings before such body have proved to be exceedingly lengthy and time-consuming.

It would therefore seem that an international non-judicial oversight mechanism could usefully fulfil the task of rapidly establishing whether acts of torture, genocide, crimes against humanity or terrorism have been perpetrated. A Commission of Inquiry capable of being activated either by the victims or by the territorial State (or even by the national State of the victim), would have the advantage of acting promptly and discharging its task expeditiously. In addition, it would be acceptable to States if its findings were devoid of any legally binding force. Such findings could be handed over confidentially to the State, while the individual complainants might be given only a summary account of the findings. Under such a scheme, it would however be wise to allow for the Commission’s right to disclose its findings whenever the State in question contumaciously failed to comply with the conclusions articulated in the Commission’s report. If this Commission were made up of independent experts having impeccable professional credentials and great moral authority, its findings would carry much weight; they would be likely automatically to be followed up by national criminal proceedings against the persons found to be responsible by the Commission.

An added merit of such Commission of Inquiry would be to alleviate the heavy burden of the European Court. The Commission would thus parallel the European Committee for the Prevention of Torture; it would have a broader scope (fact-finding relating to any gross and systematic violation of human rights) but would act only at the specific request of the persons or the State concerned and on the assumption that such request be prima facie well-founded.

7. Final Remarks

Whether or not the various avenues I have hinted at are held to be realistic, it is axiomatic that it is crucial to deprive those who engage in criminal conduct against the most fundamental human rights of other individuals, of the belief that they can offend and yet remain unpunished. Although there are still senior State officials including heads of State who breach fundamental human rights on a daily basis, the notion has now taken a firm hold in the world community that no one, not even a head of State, is immune from prosecution for international crimes. If in the early 1920s the idea of bringing to trial the Emperor of Germany seemed a total aberration even to democratic leaders and lawyers, nowadays no one can be held to be above the law. What matters, as Cesare Beccaria already admonished back in 1764, is not to impose heavy penalties on the offenders, but to inculcate the notion that a penalty for serious crimes will never fail. It is not an easy task, but it is a task worth working for.

¹ See the Report of the Working Group annexed to the document of the Council of the European Union 8672/09, REV.1, of 16 April 2009, §§ 46 and R1 through R17.

² UN Human Rights Committee, General Comment no.20 on Article 7 of the UN Covenant on Civil and Political

Rights.

³ See the pronouncements on amnesty by the International Criminal Tribunal for the Former Yugoslavia in

Furundžija in 1998 (§ 155); by the Inter-American Court for Human Rights in 2001 in Barrios Altos; by the Special

Court for Sierra Leone in Kondewa in 2004. The same principle has also been proclaimed and applied by national

courts such as the Supreme Court of Chile in Sandoval (2004) and in Fernando Guillermo Polanco Gallardo and

others (Sentencia de reemplazo of 25 May 2009, unpublished, at pp. 18 and 49 of the typescript) and the Supreme

Court of Argentina in Simón, Julio Hector y otros (2005).

⁴ The contention can however be made that prosecution of international crimes may exceptionally be waived when a Truth and Reconciliation Commission is established at the national level which effectively ensures that (i) the alleged offenders are publicly confronted with the victims, (ii) they publicly confess all their crimes, and possibly also disclose evidence concerning crimes perpetrated by other offenders, and in addition (iii) they compensate the victims or in any case make reparation. The granting of individual amnesty on a case by case base is arguably admissible if the Commission is judicial in nature and decides in each specific case whether all the conditions are met for the granting of individual amnesty.