Before dealing with the specificity of the Syria situation, helpful to spend few words on the origins of ICL, which, as you all know, was born as a reaction to the atrocities of the I and then II WW. What makes a crime an international crime? A Core crime under the jurisdiction of international criminal tribunal? The attack on the fundamental values of the international community lends a crime its international dimension and makes it a crime under international law (involving individual criminal responsibility). Thus, its link to the interests of the international community, and in the first place the maintenance of peace and security, overcomes the dimension of the state sovereignty and lends ICL its specific legitimacy (a broad concept of peace, that expands to the internal situation of a country). On this basis the IMT of Nuremberg was set up; it is in Nuremberg that it was for the first time affirmed that “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” Thus the principle of individual criminal responsibility in international law, overcoming the traditional obstacle that only States are subjects, and thus can be tasked with duties, rights and responsibility in International law. Also the individual becomes a subject of international law: “The very essence of the Charter (of Nuremberg) is that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State moves outside its competence under international law.” On this same basis the ad hoc Tribunals and then the ICC were created. As the ICC preamble solemnly declares the goals of ICL: A vision of the XX century, brought by the unbearable atrocities of the two big wars of that century, has now found its tool. Cassese: “The investigation and prosecution of individuals serves a variety of purposes, from retribution to deterrence to establishment of the truth. The international criminal justice process has been understood to provide a foundation for future peace by breaking down assumptions of collective guilt, creating a basis for reconciliation and preventing calls for revenge”. However, still many obstacles and limits of international criminal justice. One of the main criticism against international justice would be one sided; Nuremberg and Tokyo have been portrayed by some as justice of the winners against the losers, or as prof. Guenther said yesterday, as show trials. Moreover that its intervention arrives too late, when the conflict is already over, and sometimes perpetrators are held to account many years after the facts (Cambodia). Indeed the Syrian case shows the difficulties in resorting to international criminal law when a conflict is ongoing. Some years ago I edited a volume with the title “Is there a Court for Gaza?” where we defined the Palestine situation as a “test bench” for international justice in the sense that the absence of appropriate responses was undermining the legitimacy of the Now the same question can be asked with regard to Syria: “Is there a Court for Syria?”. More broadly the question is what role is international criminal law, if any, playing in the conflict? It is clear in fact that the parties to the conflict do not feel in any way bound to respect international law and are keeping disregarding even the most basic rules and principles of IHL and human rights law. In this sense it would be easy to conclude that ICL is unable to exercise any form of deterrence and thus meaningless. However, I would argue that the main problem is not the law in itself, but the lack of implementation of it. My point is that the vision, the dream, that is behind the creation of an International criminal court and in general of the international criminal justice system is a noble one, and still a valid project today. It is the political component, what Bassiouni calls the real-politik, that suffocates the project and undermines its legitimacy.
International criminal justice as a tool for ending impunity in Syria / C. Meloni. ((Intervento presentato al convegno The Arab Spring and Syrian Crisis International and Regional Dimensions tenutosi a Merano nel 2017.
|Titolo:||International criminal justice as a tool for ending impunity in Syria|
MELONI, CHANTAL (Corresponding)
|Data di pubblicazione:||30-giu-2017|
|Parole Chiave:||Siria; crimini d guerra|
|Settore Scientifico Disciplinare:||Settore IUS/17 - Diritto Penale|
Settore IUS/13 - Diritto Internazionale
|Enti collegati al convegno:||ACADEMY OF GERMAN-ITALIAN STUDIES; Alexander Von Humboldt Stiftung|
|Citazione:||International criminal justice as a tool for ending impunity in Syria / C. Meloni. ((Intervento presentato al convegno The Arab Spring and Syrian Crisis International and Regional Dimensions tenutosi a Merano nel 2017.|
|Appare nelle tipologie:||14 - Intervento a convegno non pubblicato|