Introduction to Human Rights Week 2: The internationalization of Human Rights V. The precursors: international criminal law Interview with Sévane Garibian The Red Cross Museum also broaches the subject of international criminal law. We are here in the chamber of witnesses. We can see behind us Carla Del Ponte, the former prosecutor for the International Criminal Tribunal for the former Yugoslavia. And I am here with Sévane Garibian. Hello, Sévane. Hello, Maya. Sévane, you are Associate Professor at the University of Geneva and excellence scholarship holder. You are also teaching at the University of Neuchâtel. Your research is about international criminal law. For your PhD thesis, you have analysed the crimes against humanity through the eyes of the founding principles of the modern State. That's right Thank you very much for being here with us and answering to some questions on international criminal law. Thank you for the invitation. A first basic question: What is international criminal law? International criminal law is actually an emerging subject. The formation and the development of this subject were laborious, difficult and complex. This is due to the particularity of its object. What is the object of international criminal law? I really think that this is what makes it so specific. The object of this subject is the incrimination - so the definition -the crackdown but also the prevention of crimes unlike other crimes. So, what kind of crimes are we talking about? They are serious crimes which have a particular extent. They have a particular extent in the sense that they are mostly mass crimes committed by a State. We therefore often talk about State crime or mass crimes or mass crimes perpetrated under State control. You can straightaway see the extent of the criminal situation. Then, there is the seriousness. Indeed, in all cases there is a grave violation of the most fundamental rights of the human person. For their extent as well as their seriousness, these crimes are not like other ones. Because they are not like other crimes, we take it as self-evident that their commissions affect the whole international community. Basically, these serious crimes affect everybody. This is the idea of this singular object of international criminal law. The reason why I underline the particularism of what this subject is all about is also to tell you that the legal consideration of these crimes is also complex because it completely revolutionizes the traditional conceptions that we have of criminal law, of the right to punish, of the State and of the notion of justice. Indeed, the legal consideration of these serious crimes that have a particular extent is going to create a situation in which we will have to create from scratch new legal mechanisms which completely transcend the State in its sovereignty. As you know, Maya, we associate the right to punish to the sovereignty of each State. Each State has the power to punish the crimes committed on its territory or against its citizens or by its citizens. And yet, international criminal law blows up this territorial conception of the right to punish. It is about sometimes allowing third States or the international community to intervene in the treatment of these particular crimes. I like to say that international criminal law is actually a revolutionary right which allows us to answer the questions "what do we do?" "What can we do?" What do we have to do when the protective State becomes the criminal State? In other words, when the entity which is supposed to protect us as individuals becomes the massive criminal? From a philosophical point of view, it is a breach of the social contract which founds the society. International criminal law answers that. You mentioned the revolutionary aspect of international criminal law. You talked about a reversal. Could you tell us when this reversal took place? Well, in concrete terms, it refers to the emergence of international criminal law. We estimate its official beginning to be in 1945. Why 1945? It is right after World War II. The Nuremberg Tribunal was created after the extent of the Nazis' crimes of which we are all aware. This Tribunal is nothing else than the first ad hoc international criminal jurisdiction. At the time, it is the first military tribunal which is supposed to apply this new international criminal law. This law is elaborated, prepared and written up by the Nuremberg Tribunal. So, international criminal law was created in 1945 and gave its first rulings one year later, in 1946. You have already mentioned the Nuremberg Tribunal. Today, when we are interested in international criminal law, we read and we hear about many different courts, isn't it? International Criminal Court, Criminal Tribunal for the former Yugoslavia, Criminal Tribunal for Rwanda. Could you clarify the relation between these courts? Yes, of course. The relation between these courts is interesting because their creations - to which I shall refer in a moment - illustrate a parallel between the different major stages of the development of international criminal law. I told you that it officially started in 1945. However, it must be said that it started thanks to a very long process which saw many concrete attempts to bring to light a new international criminal law and which faced many failures. The first concrete attempts go back right after World War I, in 1919. These were based on the Paris Peace Conference's work of 1919 and were applied at the famous Nuremberg's law of 1945 This law is elaborated by the winning States which are the United States, Great Britain, France and Russia. We have here the beginning of the first generation of international criminal courts. There are three generations - or categories - of courts. The first category contains Nuremberg and its direct successor, of which we speak a little bit less but which is also important, it is the Tokyo War Crimes Tribunal created in 1946. They are both ad hoc international military criminal courts. This means that they were created to deal with a particular situation with a limited time and with a geographically limited competence. The two other ad hoc international criminal courts are more famous because they are more recent: The international Criminal Tribunal for the former Yugoslavia, created in 1993 and the international Criminal Tribunal for Rwanda, created in 1994. These four courts form the first generation of international courts. In the four mentioned cases, the courts have a limited competence in time and space; they were created to respond to an exceptional situation of emergency - they are therefore ad hoc; and these courts are founded on particular texts. Indeed, the two first courts are founded on an agreement between the winning States. This was criticized. It was said that this was a law for the winners. In the case of the two ICT from 93 and 94, the courts were created based on resolutions of the UN Security Council. The second generation of international criminal courts: The ICC which is the International Criminal Court, was created in 98 and put into effect in 2002. It is the only permanent international criminal court. This court is therefore not ad hoc. Its competence is in principle not limited in either time or in space. But its competence is not retroactive. It means that the International Criminal Court can take up cases related to crimes which have been committed after the 1st of July 2002, in other words, after the Court came into force. From July 2002, the crimes fall within its temporal scope. Before that, the crimes cannot fall within its remit. This is about the International Criminal Court. Its distinctive feature is to be founded on a very classical treaty of international law: the Treaty of Rome. So, you can already see the change of paradigm and of perspective. The second generation really symbolizes a tribunal based on the consent of States. We are not talking anymore about an international criminal law which is imposed to the States. This international criminal law is conventionally chosen. Finally, let us talk about the third generation of international criminal courts. You mentioned earlier the Special Court for Sierra Leone. There is also the Special Court for Iraq, and the one for Lebanon, The Extraordinary Chamber for Cambodia, for Bosnia, and so on. These international criminal courts, just like the ones from the first court, are limited in their competences and have been created to deal with a singular phenomenon in a particular State. But the particularity of these courts is that they are mixed. They are called "mixed" or "hybrid" international criminal courts because they contain mixed judges and a mixed applicable law. This means that there is a mixture of international criminal law and of the concerned State's domestic criminal law. What is the link between these numerous courts ? All these courts are independent from one another. I think it is essential to remember this. They work independently from one another. Nevertheless, we can observe a form of dialogue. I like to talk about dialogue between the judges because the judges of a particular court can refer to their colleagues' jurisprudence. So, there is a kind of informal interaction between the judges. However, statutorily and structurally speaking, and as far as their job is concerned, each of these courts is independent from the others. You mentioned the dialogue between the judges. We also talk today about the dialogues between areas of law. International criminal law is often seen as a precursor of Human Rights. Could you comment on this? How did international criminal law give an impetus to Human Rights? Yes, it is a nice image. I really like the impetus' image. As I told you, the emergence of international criminal law was complicated. A new conception emerged since the first attempts to create this law in the twentieth century, and more precisely right after World War I, before Nuremberg in 45. The international actors were wondering: How to create a new law? How to develop an international court able to judge crimes of such magnitude, especially in wartime? How to pursue heads of State? This is a new conception. Within the scope of these reflections and of these works, such as within the scope of the Paris Peace Conference of 1919 which I mentioned earlier, the actors noticed that every time they tried to think this new international criminal law out, they were actually dealing with crimes which had the distinctive feature of being serious violations of the Human person's rights. In the archives of the time, references to laws of humanity exist. They are actually defined as massive violations of the laws of humanity. These laws became little by little Human Rights. So, at the beginning of the twentieth century, at the heart of the discussion around the creation of an international criminal law, while the field of international human rights law did not exist yet, the questions related to human rights' protection had already associated with the questions related to the repression of international crimes. There is something else that I would like to mention: I think of what is going on after 1919, in the twenties. The League of Nations was created in 1919. It is the precursor of the UN. Even in the context of the creation of the League of Nations, the interrogations remain on how to create a new international criminal law. We did not manage to do it. It was complicated because it seemed to endanger the sovereignty of States. In this context, major doctrinal works were also created on Human Rights and on the question of how to reconcile the three following things: the repression of the most serious crimes, the safeguarding of Human Rights, and peace. Here, we can already observe the very strong ties between international criminal law and Human Rights but also between these two subjects with international humanitarian law. So, there is also a strong dialogue here. It looks like a triangle. Yes, indeed. I think that we can talk about a triangle. The twenties is also a period when we worked on the notions of aggression and peace in the context of war. I also would like to highlight an interesting phenomenon which appears after Nuremberg. From Nuremberg on, in 45, until the nineties when the two following international criminal courts were created, there is a gap in terms of international criminal law. Nothing seems to happen for almost 50 years. Nevertheless, there is a major development of tools in terms of Human Rights' protection: the Genocide Convention in 1948, the Universal Declaration of Human Rights in 1948, the European Convention on Human Rights in 1950, the International Covenants in 1966, the American Convention on Human Rights in 1969, the African Charter on Human and People's Rights in 1981. So, while international criminal law was a little bit stuck for 50 years, texts on the protection of Human Rights were flourishing. We might talk about that later but it is interesting to note a sort of return of Human Rights to international criminal law in the nineties. In other words, international criminal law was behind the first works on Human Rights. However, once that Human Rights had been developed between 1945 and the nineties, they also started to influence international criminal law. This illustrates very well the dialogue between them. It is not a monologue but there is a reciprocity, isn't it? Yes, absolutely. There is an interaction. There is also a common purpose which is, as you said, to protect the most fundamental rights of the human person. Nevertheless, they are still considered two distinct areas of the law, aren't they? On one hand, there is international criminal law, and on the other hand there are Human Rights. Could you explain to us the differences and the similarities between them? I know it is a vast question. Yes, it is a vast question but it makes me smile because it reminds me of an image that I really like and which is used by two of my colleagues. I think I am going to borrow this image from them in order to answer your question. I am thinking about William Chabasse and Paul Tavernier. They have both written about the relationship between international criminal law and Human Rights and they use this image of false friends and of Siamese twins. They say that these two subjects are twin subjects, a little bit like Siamese twins. They have a common origin, they have a family link, however they have completely different perspectives. Furthermore, just like brothers and sisters, they have to live together even though they are different. I like this image. Concretely, what does it mean? The common point, as you said it earlier, is clearly to protect the human person. The protection of human dignity takes up a lot of space. These subjects aim for the respect and the conservation of human dignity. What about the differences between these Siamese twins? It is a complex question so I am going to try to synthesize by highlighting two or three points that illustrate the structural differences between these two areas of law. Let us first start with international criminal law. What is its function? It puts people face to face. Indeed, it puts the international criminal responsibility of the accused at stake. Most of the time, the accused is a representative of a State: either a head of State or a State official. International criminal law provides the penal sanction of the accused. This is really important. It means that the law imposes duties and obligations on the accused. In other words, international criminal law is entirely focused on the accused. On the other hand, international human rights law puts face to face an individual and a State, not two individuals. The individual is a victim of the State which would have abused his or her rights. The international responsibility of the State is at sake. You can see that the perspective is totally different. Besides, we can say that international human rights law aims at protecting individuals since it gives them rights rather than imposing sanctions on them. Finally, in order to draw a parallel with what we talked about earlier: International human rights law is focused on the victims and not on the accused. So, the underlying state of mind of these two similar subjects is quite different. You demonstrated the different perspectives. On the one hand, the focus is on the person who has duties derived from international law. On the other hand, the focus is on the person who enjoys rights thanks to international law. Can these different perspectives generate conflicts or interferences between the two fields of law? This is a good question. In absolute terms, it does not necessarily generate conflicts, Maya. "Conflict" is a strong word. But it is true that in the specific context of international criminal justice, the interaction between the two subjects can throw off sparks. Some will call it a conflict. As far as I am concerned, I prefer to say that there are transposability problems of Human Rights within international criminal law. Let me explain. Why do I talk about transposability problems? Because in the nineties, within the scope of the work of the two ICT for the former Yugoslavia and for Rwanda, international criminal judges systematically resort to international human rights law in order to enrich or sometimes to clarify and develop the international criminal law rules that they are supposed to apply because it is defined in the statute of the courts. So, there is a kind of importation of Human Rights into the work of the international criminal judges. Some of my colleagues have highlighted the phenomenon of "cross fertilization" . Cross fertilization with respect to problematic and maybe conflicting interactions. Why? Because Human Rights are used in an opposite spirit to their own creation. Originally, Human Rights were created in order to restrict the repression of the individual. But then they are used here in the field of international criminal law as a legitimization of repression. Therefore, there is what Robert Rauth, for example, calls a reversal of Human Rights. Instead of being used as a shield, they are used as a sword. Human Rights are strongly mobilized in the fight against impunity for international crimes. It is very rich but it criminalizes Human Rights. We say that they become specialist in criminal law. I believe you realise the hiatus. Suddenly, Human Rights are criminalized: they are used to justify repression. I use an expression to talk about this phenomenon: The Human Rights Turn. This turn occurs in the nineties and it refers to the Human Rights criminalization phenomenon. Transpositions followed therefrom. I think that these transpositions are interesting because they invite us to think about the limits of each fields of law. It also makes us think about the way we could better legally supervise the dialogue between the judges. Thank you so much for this very interesting and complete talk. Thank you Maya. Thank you for the invitation.
