So the aim of this first week of the course is to familiarize a little with the three areas of humanities law that is international law, human rights, international humanitarian law and international criminal law. And the question we would like to address in this week is are human rights better protected by criminal law? So there is no doubt that investigations, prosecutions, trial against those who are responsible for committing human rights violations are necessary to protect human rights, pro,vided that the states that investigate, prosecute, try and eventually convict and sentence those people are, you know, responsible towards their constituency, are accountable towards not only the national constituency, but also the international community.
So the state’s accountability is the first concept you can retain from this week. State accountability means that the state have to respond according to the human rights framework they have committed themselves to for any violations of these standards committed by their agents and by any other person under their jurisdiction. By adopting a human rights convention, states have committed themselves to be exposed to the scrutiny, not only of their peers, the other states, not only to the scrutiny and the criticisms of the international civil society, but also to the monitoring and perhaps, the adjudication of international bodies, including courts. When violence erupts among states or within a state, the legal framework that has to be implemented is international humanitarian law.
Many rules of international humanitarian law mirror the provision of human rights as they protect the life and dignity of all individuals and the right to life of those who are not supposed to be affected by an armed conflict that are civilians. Severe infringement of International Humanitarian Law amounts to war crime. Any state is theoretically entitled to punish perpetrators of these crimes. War crimes are maybe the most important or relevant category of international crimes.
Some other crimes have been added: severe violation of life and dignity of individuals in a situation of widespread and systematic lethal violence, but do not necessarily amount to an armed conflict amount to crimes against humanity. When a population is targeted based on race, nationality, religion ,or ethnicity, these amount to the crime of genocide, and then the crime of aggression. So individual liability is the second key concept of this first week. State officers, political leaders, members of not governmental military groups, members of organization, has–that commit severe violation should not go unpunished and states should be always able and willing to prosecute and sentence them.
Yes, states, however, do not always comply with their duty to prosecute or extradite for prosecution, those responsible for these heinous crimes, international crimes. Therefore, the international community has set up along the years, some ad hoc international criminal courts, like after the Second World War or after the Cold War in the 90s, sponsored by the U.N. Security Council or established by a group of states like the ICC International Criminal Court in 1998. So the third concept to retain in this week is that of International Criminal Justice.
There is an apparatus, quite complex, of international courts, basically the International Criminal Court established in 1998 in The Hague that have actually prosecuted a certain number of perpetrators during the 90s, the ad hoc tribunals in the, for former Yugoslavia, Rwanda, and then in 2000 within the framework of the ICC. An effective international criminal law framework reinforces human rights law and vice versa. But is not be neglect–it cannot be neglected that there are some risks if we consider the conflation between human rights, humanitarian law, and international criminal liability of individuals. While International Humanitarian Law and Human Rights Law can be seen as mutually supportive and complementary because they protect life and dignity of individuals, they have–they base on different philosophies.
International Humanitarian Law is based on sovereignty of states. While Human Rights Law is centered on the agency of individuals. While the former limits a scope to protect some categories of individuals and to ensure their survival in the context of armed conflict, human rights law aims to protect and empower individuals, their human rights, and fundamental freedoms. Some risks are inherently related to the penal shift in the human rights agenda. From a focus on expanding rights and freedoms and strengthen welfare institutions, now the emphasis, it seems to be more concentrated on surveillance and repression.
So more concretely, international criminal law and international criminal tribunals are vulnerable to political manipulation by influential defendants, that use the trials as a stage for their propaganda and to spread their message. Failures to conduct effective investigation and prosecution, raising at the same time unrealistic expectation for just punishment and change, may disrupt the overall human rights discourse and discourage victims from relying on the rule of law. This may be even more disturbing if the failure to prosecute perpetrators and to provide redress for the victims is perceived as caused by the strict application of some human rights law provisions. For example, provision on fair trial or right to defense, privacy rules, or prohibition for inhumane treatment, etc.
Skepticism towards international criminal justice can also provoke the rejection of international law as a tool to curb organized violence and armed conflict. The launch of international prosecution, for example, is often the result of complex and opaque negotiation and procedures, where the interests of the most affected people and the dignity of individual societies is not the crucial point of the negotiation, but is just one term of the equation. So the other key concept for this first week is the potential conflict, potential conflicting agenda between human rights, humanitarian law, and international criminal law actors. Yes. So therefore, in this week, we just set the stage for some in-depth analysis that we will conduct in the next weeks.
We don’t come to any conclusions. We just want to raise questions and also problems, okay? And we will come back to these issues, at the end of this course, and try to, sort of articulate a comprehensive response.