The ICC as a complementary mechanism
The International Criminal Court was created to complement national courts. Its jurisdiction derives from situations where individual states are unable or unwilling to prosecute crimes under the jurisdiction of the Court.
So what about national prosecutions for war crimes, crimes against humanity and genocide?
In general states are committed to the principle that they cannot and will not provide safe haven for those responsible for mass atrocities committed anywhere in the world. Under international law, they are obliged to investigate and prosecute persons responsible for the crime of genocide, crimes against humanity and war crimes. They must therefore ensure to have the necessary legal and institutional framework in place in order to effectively investigate and prosecute suspects, including providing universal jurisdiction over these crimes. Universal jurisdiction is necessary to enable national prosecutions of perpetrators of core international crimes regardless of their nationality.
Numbers
On 23 May 2019 at the 4th EU Day Against Impunity, it was reported that the member states of the Eurojust Genocide Network had a total number of 2943 cases regarding genocide, war crimes and crimes against humanity pending or ongoing. This being the highest number documented since the creation of the network. The yearly new investigations went from 1073 (2016) to 1233 (2017) and to 1430 (2018).
The Universal Jurisdiction Annual Review 2019 stipulates that “In 2018, universal jurisdiction has again demonstrated its potential to curb impunity for international crimes.” and that ”Around the world, the net is tightening around suspects of the gravest crimes.” But the report also warns when it states: “Yet, all practitioners know how hard-won these victories are, and how many other cases have been abandoned due to political, legal, logistical or budgetary hurdles”.
Operation Condor: how justice can prevail
In 1999, empowered by the universal jurisdiction precedent set by the 1998 arrest of the Chilean dictator Augusto Pinochet, victims filed a complaint in Italy against operatives of the so-called Operation Condor. Only on 8 July 2019 a court of appeal in Rome overturned several acquittals and sentenced 24 South Americans originating from 6 countries to life imprisonment for the murders of 18 Italians and 20 Uruguayans. In December 2019 the court published the legal grounds for its verdict.
The convicts participated in the US-backed clandestine transnational network called “Operation Condor”. A network aimed at political repression which was set up by the regimes of Argentina, Bolivia, Chile, Paraguay, and Uruguay, while Brazil, Ecuador and Peru joined later. The illegal scheme was effective from the ‘70’s up to the early 80’s. It coordinated repression and allowed South American countries to hunt down and eliminate political opponents in exile across the region. Victims suffered from illegal arrests, clandestine detention, torture and inhuman treatment, extrajudicial executions, disappearances, sexual violence, and baby theft.
Among the convicts were both high level officials (former Bolivian Interior Ministor, former Peruvian ex-President, former Uruguayan Foreign Minister, former deputy intelligence chief from Chile) and mid-rank officials. Only one convict is actually staying in Italy, while the others have been tried in absentia (several are already serving sentences) in accordance with the legal sagfefuards provided by article 6 and the jurisprudence on its provisions by the European Court of Human Rights. There remains a possibility for cassation.
Read more:
Eurojust Genocide Network – 4th EU Day against impunity: https://bit.ly/2O9H8yB
FIDH/Redress/ECCHR/FIBGAR – Universal Jurisdiction Annual Review: https://bit.ly/3b18EYW
Justiceinfo.net – Operation Condor: https://bit.ly/2RUkLOC
