We need justice, not amnesia or revenge

From a lecture to the London School of Economics given by Antonio Cassese, the professor of international law at the University of Florence

In the world today we are witnessing gross violations of human rights, coupled with a deep crisis in the international means of effectively reacting to them. Enforcement by the UN Security Council and other UN bodies is in deep trouble, and states hesitate to take unilateral peaceful sanctions against the offenders, unless they are motivated by some ulterior motive such as self-interest.

In the world today we are witnessing gross violations of human rights, coupled with a deep crisis in the international means of effectively reacting to them. Enforcement by the UN Security Council and other UN bodies is in deep trouble, and states hesitate to take unilateral peaceful sanctions against the offenders, unless they are motivated by some ulterior motive such as self-interest.

This legal vacuum is being filled by resorting to a number of fall-back mechanisms and devices. Yet the most effective sanction is the prosecution and punishment by national and international courts of those accused of perpetrating gross violations.

The Security Council has been unable to keep up with the staggering increase in violence. No one can contest its inability to react promptly and effectively to, and to put a stop to, massacres that amount to serious threats to, or breaches of, the peace in Somalia, the former Yugoslavia including Kosovo, Sierra Leone, Ethiopia and Eritrea, Indonesia, the Middle East, and so on.

So why do states refrain from taking countermeasures against gross violations of international law, such as massacres, ethnic violence, torture, large-scale breaches of human rights, and so on? The reason is simple: states tend to resort to countermeasures when their own interests are at stake. In contrast, they incline to turn a deaf ear to breaches of international obligations protecting basic values, such as the obligations not to threaten or breach the peace, not to engage in genocide, not to torture, not to discriminate racially, and so on.

Prosecution and punishment are better than reprisals or countermeasures, because they constitute a civilised response to crimes, whereas reprisals are barbarous. Prosecutions target the culprits, and not innocent persons, who are often the victims of reprisals. Neither do they lend themselves to abuse, as reprisals do. Justice is better than revenge, which has an altogether different foundation: an implacable logic of hatred and retaliation.

Justice is also better than forgetting. Forgetting beguiles future dictators or authoritarian leaders into relying on impunity. Hitler is reported to have said, when debating whether to proceed with his genocidal policies against the Jews: "Who, after all, speaks today of the annihilation of the Armenians?" Furthermore, the memory of massacres and other atrocities is never really buried along with the victims. It always lingers and, if nothing is done to remedy the injustice, festers.

The idea behind universal criminal jurisdiction over gross violations is that one of the best means of putting a stop to, or at least significantly limiting, gross violations of human rights lies in bringing to trial those responsible for such violations. Human rights have by now become a bonum commune humanitatis, a core of values of great significance for the whole of humankind. It is only logical and consistent to grant the courts of all states the power - and also the duty - to prosecute, to bring to trial and to punish persons alleged to be responsible for unbearable breaches of those values. By so doing, courts would eventually act as "organs of the world community". In other words, they would operate not on behalf of their own authorities, but in the name and on behalf of the whole international community. The holding of international trials signals the will of the international community to break with the past, by punishing those who have deviated from acceptable standards of human behaviour.

Let us hope that national as well as international courts will step up their enforcement action in the area of gross violation of human rights, thus gradually prompting states eventually to make use of the wealth of legal means and instrumentalities that they have available, but which they tend to neglect out of a myopic pursuit of short-term self-interests.