The importance of cleaning up your own backyard
My paternal grandfather, Genevan judge Henri Werner, always insisted on the imperative need for justice to deal, first and foremost, with local matters that concern it. “The money of those who pay taxes,” he said, “should not be spent on business matters that have no connection to the polity".
Transposed to international crimes, it is obvious that the same notion prevails, at least to a large extent. Thus, these crimes must, above all, be judged in the country in which they were committed.
The notion lies at the very heart of the Statute of the International Criminal Court (ICC) with the principles of complementarity. This means that the court will only take up a case if the competent State is “unwilling” or “unable to carry out a proper investigation or prosecution”.
The ICC is, therefore, a court of last resort, and in an ideal world–which does not exist–it would be useless.
Karim Khan would not have recently requested for arrest warrants to be issued for Hamas officials if he thought they could be tried in Palestine. And if the ICC prosecutor had considered, on the basis of the evidence at his disposal, that Israeli institutions had a genuine desire to try their own politicians for the alleged war crimes in Gaza, he would not have requested arrest warrants for two prominent Israeli political figures.
On the other hand, this means that if the ICC prosecutor is convinced that a country has the will and ability to investigate and prosecute international crimes committed by its own troops or on its soil, he will let that country do so, and will not exercise his jurisdiction.
This was the case in Guinea Conakry, where a political rally in Conakry’s main sports arena in 2009 turned into a bloodbath, with hundreds of people killed and women raped by the army. These events were targeted by the ICC, which considered that there was a reasonable basis to believe that these crimes could be qualified as crimes against humanity.
However, given Guinea’s willingness to try these crimes itself, the ICC prosecutor announced in September 2022 the closure of the preliminary examination. And now the verdict is approaching in this historic trial, which has been going on for almost two years, in which eleven defendants, including ex-president Moussa Dadis, face 450 plaintiffs.
Indeed, “coastal” West Africa is setting a magnificent example for the rest of the continent in terms of transitional justice. Sierra Leone concluded an agreement with the United Nations to create the Special Court for Sierra Leone (SCSL), which has led to over ten years of trials between Freetown and The Hague These included the trial of Charles Taylor, the former President of Liberia, who armed Sierra Leonean rebels to seize the country’s diamond resources, becoming the first former head of state to be convicted by an international court since the Nuremberg trials.
Liberia also seems keen to jump on the justice bandwagon. This year, President Boakai announced the creation of an office to establish a tribunal to try war crimes committed during the two civil wars. Similarly, steps are being taken in Gambia to create a body to judge crimes committed under President Jammeh’s regime.
However, the gold medal for the continent that has taken care of its own affairs in the fight against impunity over the last forty years goes to South America, with its remarkable efforts to bring justice to victims. Without being excessive, we can mention:
- The Junta trials in Argentina (1985 and 2010) which led to the conviction of several heads of state.
- The trials in Peru of the leader of the Maoist guerilla group Shining Path and of former president Fujimori (2006 and 2009).
- The trial in Guatemala of General Rios Montt (2013), the first trial of a head of state for genocide in his own country, despite the annulment of the verdict by the Constitutional Court and Mr. Montt’s death during his retrial.
- The Uruguay trials of military leaders (2010), in which two former heads of state were tried for their roles during the military regime.
- The trial in Bolivia (1993) of the former president of the military dictatorship, who was subsequently extradited from Brazil to be imprisoned in his own country.
- The trial in Suriname (2023) of former president Desi Bouterse, who led successively a military dictatorship (1980-1987) and a democratic government (2010 to 2020).
As for another Latin American country torn apart by years of civil war, the ICC prosecutor considered that the transitional justice mechanism launched in Colombia in 2017 was sufficiently innovative to ensure that international crimes under its jurisdiction would not remain unpunished. As in Guinea, he thus closed the preliminary examination.
Venezuela is the continent’s counter-example, as a similar decision has not been made. The government is trying to convince the ICC that national courts are seriously investigating crimes against humanity allegedly committed on its national territory. So far, there have been no results.
Europe, meanwhile, has a mixed record. The continent has been leading the way for many years in judging international crimes committed by foreigners on its soil through universal jurisdiction, which is of the utmost importance. Some countries have also tried their own nationals, such as Germany with the trials of Nazi crimes, but also crimes in the GDR, Greece for acts committed under the so-called “colonels” dictatorship, or France with the trials of Maurice Papon ou Paul Touvier.
However, the record of transitional justice in the countries of Central Eastern Europe, where communist leaders often bought their immunity at the negotiation table in exchange for leaving power, remains virtually non-existent. Similarly, in Spain and Portugal, crimes committed during the period of military dictatorship have gone unpunished.
Furthermore, no European country seems to be concerned by the crimes alleged by the United Nations against migrants, particularly in the context of Europe policy in the Mediterranean, a situation that has been referred to the ICC. And no one on our continent has ever been called to account in court for the pillaging of raw materials or minerals in Africa or elsewhere, which qualifies as an international crime.
However, dealing with your own business before addressing others’ will always be the best possible investment any country can make, both legally and morally.
The article first appeared in French on Le Temps on the 16th of June, 2024.
Photo: Karim Khan, Prosecutor of the International Criminal Court. Wikimedia Commons.
