Escrutinio No. 63

Mauricio Bastien Olvera^[1]

 

As this article is being written, the Security Council is discussing a resolutionthat, among other things, will include a referral of the situation in Libya to the International Criminal Court (ICC) due to crimes against humanity committed by that government. Nevertheless, there have also been serious violations of human rights, as documented at the United Nations Human Rights Council, but not a single international judicial process could begin against its Prime Minister or other Libyan civil servants. Thus, it is evident the need of creating an international judicial mechanism to prosecute human rights offenders.

The international law of human rights does not have an analogous mechanism such as the one implemented for the international criminal law, with the approval of the Rome Statute. The ICC, under the principle of complementarity, prosecutes individual perpetrators of crimes in the context of armed conflict that for whatever reason are not judged by the signatories of the Rome Statute or which cases are referred to by the Security Council.

Although human rights have international or regional mechanisms, including a UN Council or treaty bodies such as the European Court of Human Rights, the Inter-American Court of Human Rights (IACHR) or the African Court on Humanand Peoples' Rights, they have a limited jurisdiction by hearing cases of individuals against States, and if approved, by starting proceedings against a whole State. They do not process individual officials or public servants, whom ultimately are the ones that give the orders to commit serious violations of human rights, which not all the cases are included as crimes in the ICC Statute.

In line with above, there is also the lack of human rights courts in several regions, and not all the countries of regions that already have courts recognize those courts. For example, Asia does not have a court, even though some discussion has arose to create a Southeast Asia regional court on Human Rights since 1993. Also, regarding those countries that do not recognize their regional court, we have the case of Trinidad and Tobago that suspended its participation in the IACHR in 1999.Therefore, with the creation of an International Court of Human Rights, it may be possible to guarantee a world-wide participation, as suggested by the former Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Dr. Manfred Nowak.

The evolution of international human rights law should lead to the creation of an international mechanism, which in addition to sue for States civil liability, those individuals who ordered or carried out serious human rights violations can also be prosecuted. Ultimately, it would be a kind of international court of last resort, applying the principle of complementarity as the ICC.

If the Security Council approves the aforementioned resolution, those who have committed crimes in Libya could be prosecuted by the ICC; nevertheless, there will remain some human rights offenders who will never face an international court. Hopefully, the same efficiency is demonstrated not only against leaders of developing countries, but also against commanders-in-chief of the world military powers. But for these to happen, it is interesting to analyze the actual position of some members of the Security Council. The USA, Russia and China, permanent members with veto power, are not part of the Rome Statute, contrary to Portugal, Brazil, Germany and France who are the ones pushing this idea. And then the African nations of Nigeria, Gabon and South Africa are reluctant due to the fact that the ICC is only dealing with cases of their region and in fact they are lobbying for the next ICC Prosecutor to be African.

Let us also have faith that with the evolution of international law, human rights violations, which are still common place in the world, have in the near future an international court where to be prosecuted together with those individuals responsible for committing them.

 

^[1] Mauricio Bastien Olvera holds a B.A. in International Relations from the National University of Mexico and is currently studying a master in Public International Law at Leiden University in The Netherlands. He has served as Analyst for International Security at the Ministry of Foreign Affairs of Mexico and is currently working as a Researcher on Arms Control for the Olof Palme Centre on Peace, Security and Development. He has been a delegate to international meetings in the UN Headquarters in New York, Panama, Guatemala, Mexico City and The Hague.

gmbastien@gmail.com

Twitter: @Mau_BO