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Since the last decade of the twentieth century the number of international and transnational judges has burgeoned. There are now in excess of 100 international courts and tribunals, with thousands of international judges who sit on them. They come from all corners of the globe and bring with them the experience of many systems of justice.
It is appropriate at the outset to pay warm tribute to Whitney Harris who played a key role in establishing the initiative on a Convention for Crimes Against Humanity. Whitney was one of the leading prosecutors at Nuremberg and worked closely with U.S. Chief Prosecutor Justice Robert Jackson. It was my distinct privilege to have met Whitney in Nuremberg and hear him deliver the opening address in 1995 at a seminar to mark the fiftieth anniversary of the Nuremberg Trials against the major Nazi leaders. His voice resonated in the very courtroom where that trial was held, as the immortal words of Justice Robert Jackson took on a new and urgent meaning.
The Whitney R. Harris World Law Institute at Washington University in St. Louis functions as a center for instruction and research in international and comparative law. It is the home of the project. Those of us involved with the project rejoiced in having the support and advice of Whitney and we are sad that he passed away before the completion of the project. We console ourselves with the knowledge of how much a Convention on Crimes Against Humanity meant to him and how much satisfaction he received from it.
I believe it is important for governments and international institutions, including the World Bank, to encourage research into social and economic rights in developing countries, and I welcome this excellent work on the topic. The enforcement of these rights represents a new and controversial area of judicial intervention. Social and economic rights fall into that category of rights, often referred to as second-generation rights, that also includes cultural and developmental rights. They are distinguished from first-generation rights, which consist of political and civil rights such as equality and the freedom of speech and of assembly.
Second-generation rights were recognized in the 1948 Universal Declaration of Human Rights and given effect in the International Covenant on Economic, Social, and Cultural Rights, which became effective in 1976. However, until comparatively recently, these rights were not taken seriously and were subordinated to civil and political rights. Few states took steps to entrench such rights constitutionally or to adopt legislation or administrative provisions to make such rights enforceable.
A common objection to giving courts jurisdiction over second-generation rights is that judges are ill equipped to adjudicate on the manner in which the legislative and executive branches of government determine how the national budget should be allocated. In countries like the United States of America, there is an additional objection – traditionally only negative rights are enforceable and the courts are regarded as not having jurisdiction to adjudicate positive rights.
This article uses the recent judgment of the ICJ in Bosnia v. Serbia to highlight the potential problems that arise when international courts have to adjudicate on overlapping situations. It describes the dispute between the ICJ and the ICTY on the appropriate legal standard for the attribution of state responsibility, and finds that the ICJ's approach in this case suggests that those keen to minimize the fragmentation of international law between adjudicative bodies should not overlook the need for consistency within those bodies. With regard to fact finding, this article raises serious concerns about the manner in which the ICJ relied on the ICTY's work. The decision of the ICJ not to demand crucial documents from Serbia is discussed and criticized. Based on its approach to fact finding in this case, doubts are raised as to whether the ICJ will ever hold a state responsible for genocide outside the parameters of the prior criminal convictions of individual perpetrators.
Transitional justice has become a feature of the past three decades. It is a consequence of the significant number of nations that have struggled to make the transition from war to peace or from oppression and discrimination to forms of democratic government. The challenge facing such societies is the manner in which they should treat past serious human rights violations. The perpetrators seek blanket amnesties and the victims seek prosecution of the former leaders.
It is tempting in that context to forget the past in favor of building a new and better future. It is the line of least resistance. It is also a recipe for future disaster. Where past human rights violations are ignored and the victims forgotten, there is a cancer in such a society that remains dormant and available for use or abuse by some or other future despotic, nationalistic leader. Examples are there for the choosing – the Balkans, Rwanda, the Middle East.
More enlightened leaders have sought a third way between national amnesia and criminal prosecutions – the establishment of a truth commission. In chapter 1 of this work there is an excellent and concise history of truth commissions and an explanation of their relationship to courts and other forms of official and nonofficial truth-seeking mechanisms.
One of the challenges facing a truth commission is the fairness of its proceedings. It is all too easy to allow it to be used as a political platform to castigate the former regime.
The powers accorded the prosecutor by the Rome Statute have been the subject of much recent debate. Critics contend that the ex officio powers for triggering jurisdiction allow for abuse. This however ignores the rigorous requirements of the Statute for the appointment of the Prosecutor. Moreover the limited danger posed is far outweighed by the need to provide for an independent, credible Prosecutor. The Prosecutor's power to forego investigation and prosecution where this serves the interests of justice has also been widely critiqued for inadequately accommodating amnesties in democratic transitions. It is argued that amnesties which adhere to internationally accepted guidelines are consistent with the interests of justice and that the prosecutor may therefore defer to domestically enacted amnesty processes.