No more Mr. Nice World for war crime

With the beginning of the 21st century, the world has become a decidedly uncomfortable — indeed dangerous — place for perpetrators of major human rights violations. This is somewhat surprising. From the end of the Nuremberg trials through the 1990s, the international legal system gave all indications of not pursuing the ground-breaking precedent those trials had established.

The post-Holocaust Nuremberg trials had proclaimed the direct responsibility of individuals to international law, in the framework of an international — as opposed to national — tribunal. Regrettably, the precedent established by Nuremberg was not built upon for some 45 years after the close of the trial. In the last eight years, however, beginning with the 1993 Security Council resolution establishing an international tribunal for war crimes in the former Yugoslavia, there has been an extraordinary flurry of activity. International criminal law is now bringing perpetrators of major human rights violations to justice in ways which could not reasonably have been imagined as little as a decade ago.

New models

Not only has the Nuremberg model finally been built upon and developed, but a number of other significant models have grown up alongside it.

In the summer of 1998, UN agreed on terms to create a permanent International Criminal Court. The statute, which has not yet been ratified, would remedy one of the long-standing criticisms of the Nuremberg model, which had created an ad hoc tribunal controlled by the victors in the recently concluded conflict.

Many national courts have also become more active in applying international criminal law to bring violators to trial. National legislation in countries such as Australia, Britain, Canada and elsewhere has laid a firm foundation for intervention by national courts.

The Pinochet case [of former Chilean dictator Gen. Augusto Pinochet] provides a third model, with a judge in one country — Spain — issuing a request for extradition of a defendant from a second country — England — over charges relating to atrocities committed in a third country — Chile. The fact that Britain, citing Pinochet’s ill health, refused to extradite him does not alter the importance and the novelty of the model thus created — a model which is already being applied in relation to Argentina.

At the same time, the Cambodian case presents an interesting possibility. Negotiations there aim to establish a war crimes tribunal involving both the Cambodian and international legal systems.

And the trial of two Libyans on charges of blowing up a Pan Am flight, while not directly a human rights case, presents a model of a national court — Scotland in this case — trying defendants under its own laws while sitting in the territory of another country — here, Holland. This model could be applicable in a human rights context.

No time limits

The historical reach of these tribunals is particularly significant. In the cases of Pinochet and Cambodia, the legal system is reaching back into the 1970s. In a well-publicized case in Hungary, defendants were tried for acts committed during the Hungarian Revolution, nearly 45 years ago. And of course, all cases still arising out of the Holocaust extend at least 55 years back into history.

All of which adds up to a radically different international legal environment for dictators both past and present, especially those who have blood on their hands. The hiatus between the end of the Nuremberg trials and the Yugoslavia tribunal created serious reservations about the willingness and ability of the international legal system to deal seriously with major human rights violations. The extraordinary spate of activity since then, however, has created a wholly new environment.

Reicher, representative to the United Nations for Agudath Israel World Organization, is an adjunct professor at the Law School.

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Originally published on February 15, 2001