TRANSNATIONAL JUSTICE: INTERNATIONALLY-EVOLVING CONCERNS of HUMAN RIGHTS POST-1945
By: Gerald F. Witherspoon, Sr. 20141221
In 1945, the international community finally confronted the need to bring to trial conspirators and perpetrators of “…a whole series of crimes against peace and humanity” (Sands 2003, 2). This so-called “experiment” came to be known as the Nuremberg Military Tribunal whereby German leaders were tried for war crimes. That there had not before existed a legal provision for prosecuting military and civilian leaders who engineered war and atrocity is disheartening, to say the least, but a future precedent was set in motion. For the first time, there was a clear international consensus in regard to the need to officially outlaw the levels of aggression demonstrated by the Axis Powers and a realization that it was not practical or possible without an established set of rules and a fundamental agreement regarding human rights (Sands 2003).
In the broadest sense, the international community’s concern with human rights evolved from this point, because it was no longer okay to allow a lack of political will to prevent the construction of legal provisions presumably capable of preventing human atrocities. The nature of such political will was considered nefarious by the horn-mad Robert Ley, Adolph Hitler, and Heinrich Himmler (labeled war criminals), all of whom preferred suicide against standing trial before those they considered to be hypocrites (Sands 2003). However egregious the trial itself may have been, as Justice Robert H. Jackson eloquently pointed out, the crimes which they committed had been ‘regarded as criminal since the time of Cain’ (2003, 22). Still further, as Phillip Sands puts forth in From Nuremberg to The Hague: The Future of International Criminal Justice, “The trial did not fabricate the reality of the Third Reich and the death of as many as seven million men, women and children murdered or allowed to die by the apparatus of state repression, or the deaths of many millions more, Germans among them, from the waging of continental war” (2003, 29).
From this experiment in 1945 flowed the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG-1948), Geneva Conventions and their Protocols of (1949/1977), European Convention on Human Rights (ECHR-1950), International Criminal Tribunal for the former Yugoslavia (ICTY-1993), International Criminal Tribunal for Rwanda (ICTR-1994), and the International Criminal Court (ICC-2000) (Sands 2003).
Each of these evolutionary developments were/are significant because they paved the way for precedents that became international norms. Most simply put, it was no longer abnormal to consider the perpetration of such war crimes and others as non-prosecutable and equally normal to expect the international community to no longer turn a blind eye to human rights violations. Additionally, with newly constructed legal provisions and an international court system before which cases could be brought, there appeared to be some level of a commitment to international peace.
These new constructions created an environment of vested interest whereby aggressively violent leaders could no longer hide behind impunity and provided a platform for perceiving threats to one as a threat to all. From there, a forum of accountability for not only state actions, but individual actions “…involving criminal responsibility” culminated (Sands 2003, 33). The ICC further clarified the vagueness of crimes tried in Nuremberg to include crimes against humanity, extended the prosecutorial jurisdiction, removed the need for a connection to armed conflict, and ensured “individuals” could be tried and prosecuted (Sands 2003, 33).
The clarifications of international crimes and the extension of foreign jurisdiction led to the idea of “transnational justice”. That is, individuals could no longer hide their criminal acts behind states or entities which could not be tried in court, and states could no longer allow or refuse to bring to justice individuals within their jurisdictions who commit violations of human rights. Transnational justice requires a legal domain where justice can be served at the national level, but includes the capacity to extend across national borders throughout the international community. One of the more comforting implications of transnational justice lies in that not only do perpetrators of crimes find themselves within cross-border reach, those who “…finance, facilitate, encourage, support, and assist…” and are guilty of “…aiding, abetting, and harboring…” do too (Sands 2003, 51). That is not to say such a pursuit of transnational justice comes easy. For example, the accomplice and the perpetrator may reside in two separate states and the act may be criminal in the accomplice’s state, but not in the perpetrator’s state (Sands 2003). Nevertheless, as Sands pointed out, “Not only do states have obligations to their nationals under international law, but governments also have duties towards people in other countries” (Sands 2003, 60).
Finally, the idea of transnational justice does not constitute an entire shattering away of national sovereignty or national jurisdiction as the concept of “complementarity” gives priority of international crimes to national courts (Sands 2003). It is only when a state with jurisdiction is unable or unwilling to prosecute crimes that cases advance to the new Court (Sands 2003). In summary, the international community’s concern with human rights evolved toward a heightened sense of responsibility, accountability, and cooperation amongst the international community of states and produced a sense amongst human rights violators that impunity no longer offered them entitlement to commit such crimes. These concerns were codified through internationalized legal provisions which enhanced the prospects of peace between and amongst states and exhibited a nature that was inherently transnational.
In my view the notion of prioritizing economic, political, social, or cultural rights when pursuing transnational justice is a dichotomous notion at best, considering the protections of all said rights are included within the provisions of the United Nations Declaration of Human Rights (UNDHR). Further, I postulate that insecurity is antithetical to justice and, therefore, an authentic notion of transnational justice would demand the procurement of all seven dimensions of human security.
To assume otherwise, would be no different than believing that it would be “just” for an offending state to grant impunity to war criminals who only committed some human rights violations against the citizens of their own or those of a foreign state. Any such endeavor to carve out a list of rights that could justifiably be denied to any member of the international community would be counterproductive to the pursuit of transnational justice. That is, the UNDHR is explicit about the equal protection afforded to “all” in regard to “all” associated rights.
Direct references to the UNDHR was not permitted for this paper’s objective, but nevertheless, it is expedient to note that all rights contained therein are inclusively relevant to any discussion of economic, political, social, or cultural rights. Therefore, the reader is strongly encouraged to thoroughly analyze the UNDHR and its bearings on the pursuit of transnational justice. Additional benefits would be realized by assessing and integrating the concept of human security and the dimensions it entails.
Accordingly, any individual or state that attempts to differentiate amongst the relevance of the associated rights has essentially and arrogantly exalted themselves above the interests of the international community and will have exposed themselves as adhering to self-seeking motives. Such a state or non-state actor guilty of such aspirations cannot be viewed as working toward the betterment of world peace. Therefore, they would more justly be regarded as a legitimate threat to international security. Further, it is these same self-seeking motives that have historically led both state and non-state actors to engage in a wide range of criminal activities that have fostered human rights violations.
The overarching point of discussion, then, becomes the convergence of all who are involved in the process of transnational justice and all who are affected by such processes (e.g., international judges, defendants, and those whose rights have been violated). Overarching, because a discussion about economic, political, social, or cultural rights without addressing who is violating them or whose have been violated would effectively ignore the question of justice.
Drawing on the experience of the Nuremberg trials one can find a precedent on considering a plethora of rights when pursuing transnational justice. Further, those involved in the Nuremberg trials went to great extents to ensure the war criminals were treated within the constructs of a “fair trial.” As Chenivese and Piranio quoted Schabas (2006) as stating, “Prosecutors and judges involved in a trial lacking the fundamental guarantees of fairness could be held responsible for crimes against humanity” (2011, 404).
So then, transnational justice not only crosses the territorial lines of states, but extends the justice beyond those who have been violated to those who have committed violations. I highlight this truism to argue that if any rights are entitled to a violator, then all rights should be taken into consideration when framing justice for those who have been violated. Again, all rights of all parties involved in the pursuit of transnational justice must be honored in order for justice to occur genuinely.
To no surprise, different states do contain different populations that prioritize certain rights over others, but these priorities change over time with preferences conditioned by experience. Therefore, the point argued above should not be taken lightly as the tendency to prioritize certain rights should be viewed as a negative progression that retorts the evidentiary increments of progress to pre-Nuremberg times. Positive progression or a true step forward in the pursuit of transnational justice would be to continue seeking international standards and build upon the consensus-producing constructs such as “human rights” that allow advances toward international peace.
The very descriptiveness of rights (namely, economic, political, social, and cultural) speaks to the type of pre-1945 forces that placed the international community of states within a world of anarchy. Still further, the success potential of the ICC is yet determinable on the willingness of state actors to cooperate with one another, and their assent is ultimately contingent on converging interests. Thus, eliminating divisiveness or anarchy is of the highest order but requires the mature understanding that some rights are not fully realizable without the protection of others. In an article entitled, What Price Justice?, Pascal Chenivese and Christopher Piranio stated,
Deeply engrained in the public consciousness of peoples at least rhetorically, if not emotively, are certain protections that consist in judicial fairness. And a growing understanding among diverse peoples is the general notion that our commitment to justice is most evident in the treatment we afford those who mistreat us (2011, 403).
I have argued that these certain protections should be all inclusive of those contained within the UNDHR. Progress demands clarity. All those involved in the justice process should expect the rights of all to be protected and recognize that subtraction or over-prioritization of certain rights will only serve as an impediment to transnational justice.
Chenivesse, Pascal, and Christopher J Piranio. 2011. “What price justice? On the evolving notion of a ‘right to fair trial’ from Nuremberg to The Hague.” Cambridge Review of International Affairs 24, no. 3 (September): 403-423. International Security & Counter Terrorism Reference Center, EBSCOhost (accessed June 18, 2013).
Sands, Philippe. From Nuremberg to The Hague: The Future of International Criminal Justice. Cambridge: Cambridge University Press, 2003. eBook Collection (EBSCOhost), EBSCOhost(accessed December 9, 2014).