Abstract

Nazreen Shaik

International law on the 'humanitarian intervention' in Kosova

ŒNever againı was the communal vow after World War II; the world must never see another Holocaust. Yet 50 years later, war in Bosnia, genocide in Rwanda, and the death of Pol Pot before he was tried for his crimes, all demonstrate that the global community has failed to uphold its promise. The Lockerbie incident, the life and crimes of Manuel Noriega, wars in the Persian Gulf and narco-terrorism in the Americas all involve crimes with international dimensions, and all conceivably could involve international adjudication.

Fifty years have passed since the Nuremberg and Tokyo trials established that the world community can hold individuals accountable for committing crimes against humanity. But those crimes have continued to be committed. National judicial systems are often compromised, if not completely by the crimes in question. In some cases there is no court willing to bring such perpetrators to justice.

There have been five international investigative commissions, four ad hoc international tribunals, and three internationally mandated prosecutions since 1919. The worldıs main recourse is to impose sanctions, embargoes, or very rarely, collective military force in response to the most serious atrocities committed against humanity. These measures often hurt innocent civilians more than the offending individuals. Only by holding individuals accountable for violations of international law will the global community be able to deal with the perpetrators of the most serious crimes of concern to the international community. This is crucial to aid both present victims and future criminals.

International human rights instruments have sought the same guarantees in the recent decades. Instruments such as the Universal Declaration of Human Rights was adopted with the vision of realizing the protection of dignity and respect and integrity of each person by national governments and the broader community of nations. It is this powerful commitment by states to take responsibility for the protection of rights of individuals everywhere that seemed a fitting gesture of these states to realize this vision through the establishment of an international criminal court.

Indeed, the most fundamental human rights are no longer the exclusive domain of the internal affairs of any state. All states have made international commitments in this regard, and they have thereby renounced the possibility to consider human rights as an internal affair.

On July 17, 1998, following five weeks of deliberations amongst representatives from 159 states, the Rome Statute was adopted by the UN Conference on the Establishment of an International Criminal Court. The Treaty is an important step towards institutionalizing the rule of law internationally and breaking the cycle of impunity that too often benefits those who commit the worst atrocities. It establishes an international legal order to bring to justice those who commit the most heinous crimes, crimes against humanity, war crimes and genocide.

Such an international Court needs to operate efficiently, effectively and appropriately within a global system that also requires constant vigilance to protect international peace and security. The Statute reflects a compromise in order to get the largest number of states to accept it. In the end, 120 states voted in favor, 21 abstained and 7 voted against it. Currently the Statute has 94 signatories and 7 ratifiers.

It is clear that both the UN General Assembly and the SC consider the massive violations of human rights and its impact on the preservation of world peace to be necessary and sufficient grounds for ordering humanitarian intervention. This was reflected in the establishment of the ad hoc Tribunals such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda. There is thus a compelling interest in human rights pursuant to the maintenance of international peace and order.

In many instances of human rights abuses which rise to the level of international crimes, the perpetrators usually persons in positions of power or in control of the states in question which allow them a vast measure of protection and thus impunity within their national jurisdictions. An immediate example is that of the atrocities committed in Chile by General Augusto Pinochet. Effectively this situation inhibits the ability of such national tribunals to prosecute these crimes. To do so would create a vicious cycle of violence and revenge prosecutions.

The acceptance of universally binding standards of human rights as laid down in the Universal Declaration of Human Rights and the International Covenants of Human Rights is essential in todayıs shrinking world. Respect for fundamental human rights should not remain an ideal to be achieved but a requisite foundation for every human society.

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