chapter  6
19 Pages

The prosecute or expel dilemma in far- away lands: alternative universal justice for victims of international crimes

ByFANNIE LAFONTAINE

The justification for the creation of international criminal institutions such as the International Criminal Court (ICC) is the traditional failure of states where a serious international crime has occurred, or of which the perpetrator is a national, to undertake investigations and prosecutions in respect of such crimes. International criminal courts are the incarnation of the international community’s conviction that “the most serious crimes of concern to the international community as a whole must not go unpunished” as they “threaten the peace, security and well-being of the world” and “deeply shock the conscience of humanity” (Rome Statute 1998: 3). The same rationale explains the development of the principle of universal jurisdiction. This legal doctrine provides that any state can exercise its criminal jurisdiction over the most serious international crimes even though, at the time of commission, the crime had no territorial or national link with the state in question. Universal jurisdiction is indeed based on the notion that some crimes – including genocide, crimes against humanity, war crimes, enforced disappearances and torture – are of such exceptional gravity that they affect the international community’s fundamental interests as a whole. Every member of the international community therefore has a right – or an obligation, as we shall see – to ensure that these crimes do not go unpunished. Universal jurisdiction may well be, “together with the exercise of international criminal courts and tribunals”, the “only alternative to the impunity resulting from insistence on jurisdiction by the territorial or national state” (Cassese 2006: 559). Criminal justice for certain grave violations of international law is much founded on the idea of repression – of individual accountability for the commission of such violations. However, this initial focus on the perpetrator in the global “fight against impunity” gradually gave more space to victims, as this book amply discusses. The ICC and other international or internationalized courts now entitle victims to participate in their own right in the proceedings and the courts may also award reparation to them.2 The ICC system as regards victims, including the Trust Fund for Victims,

reflects the growing international consensus that justice for victims of the gravest human rights crimes cannot be achieved without their participation

in the judiciary process; and without their direct involvement in defining and implementing the most appropriate means of reparation and rehabilitation. Therefore, the Rome Statute established a unique system in which the elements of retributive and restorative justice aim to be reconciled.