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  • Print publication year: 2019
  • Online publication date: April 2019

When the End Lacks the Means: National Prosecutions of International Crimes and Canada's Paper Tiger Approach

from PART II - OF PEACE AND JUSTICE

Summary

INTRODUCTION

“ I postulate, essentially, that as we now stand, we should expect a continued growth in the reach of national courts for international crimes committed outside their territory, above and beyond any activities that the ICC may undertake in its own right in the foreseeable future.” Louise Arbour's 2003 prediction, or “speculation” as she put it, at the moment that the International Criminal Court (ICC) was just coming into existence, has proven to be quite accurate.

Numbers are difficult to ascertain, but scholars and organizations count that a few dozen countries have been involved in the prosecution of genocide, war crimes and crimes against humanity in the last decades, resulting in hundreds of convictions. Courts of states where crimes occurred are very busy: for instance, the ad hoc international tribunals – the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – have transferred some accused persons to Serbia, Bosnia and Herzegovina and Rwanda, and national courts there have already tried thousands of perpetrators. Latin American countries have now prosecuted hundreds of suspects of international crimes associated with the brutal dictatorships of the 1970s. Numerous suspects have also been prosecuted on the basis of universal jurisdiction in a growing number of states and more than ever on different continents: Argentina, Austria, Belgium, Canada, Denmark, Finland, France, Germany, the Netherlands, Norway, Senegal, South Africa, Spain, Sweden, Switzerland, the United Kingdom and others.

Universal jurisdiction can be defined as: “The assertion by one state of its jurisdiction over crimes allegedly committed in the territory of another state by nationals of another state against nationals of another state where the crime alleged poses no direct threat to the vital interests of the state asserting jurisdiction.” The number of cases based on universal jurisdiction has increased steadily: close followers have documented that in 2017, specialized war crimes units within states have publicly investigated, prosecuted or brought to justice 126 suspects of international crimes, with 13 convictions. Hundreds of other cases are being investigated confidentially. niversal jurisdiction – despite innumerable writings that had announced its fall– also features quite highly on international and regional political and judicial agendas.

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