Professor Jiri Toman: International criminal courts at issue, a deviation from Humanitarian Law?

Phnom Penh (Cambodia), 06/03/2009. Jiri Toman, Professor of Law at Santa Clara University, recently invitedby the UNESCO for a four day-teaching in legal training.
©Vandy Rattana

Ka-set

By Stéphanie Gée
10-03-2009

Jiri Toman, a distinguished Professor of Law, has two passports – a Czech and a Swiss one –, part of his heart in Vienna, and has been enjoying the position of professor at the American University of Santa Clara, California, for nearly 11 years, without resigning himself to retiring, even though he is now very much into his 70th year. The former Czech political refugee led his career in Geneva at the Henry Dunant Institute which he later became the director of. Jiri Toman knows everything about Henry Dunant, a Swiss who initiated International Humanitarian Law. The jurist was invited last week in Phnom Penh by the UNESCO to run a course with staff at the Cambodian Ministry of Culture. In this interview with Ka-set, he goes back over the history of International Humanitarian Law and how, according to him, it has strayed away from its original basis.

Ka-set : Do you think it is necessary to go back to the origins of International Humanitarian Law ?
Pr Jiri Toman : Yes, I do notice a clear mismatch between the origins and the period which started in the 1990s where we see the evolution of international justice, for political reasons. What happened in ex-Yugoslavia or in Rwanda justified the creation [by the United Nations Security Council] of international criminal courts. They were the first international judicial bodies to be set up to prosecute war criminals in 1993 and 1994 since Nuremberg and Tokyo in 1945. In my opinion, we have forgotten the origins of all that, and they are to be sought in the history of the evolution of International Humanitarian Law, which used to be called the “Law of War”. Over the centuries, there have always been people who took an interest in the protection of other people who were the victims of conflicts, and that concern was also present in Customary Law. It truly developed with the codification of Humanitarian Law.

K7 : And this is when Henry Dunant, who is behind the creation of the International Committee of the Red Cross, steps in?
JT : Henry Dunant was a devout Protestant and a profound philanthropist. The businessman from Geneva used to run the Société des Moulins in Mons-Djémila, Algeria, and needed an authorisation from the French administration to exploit a waterfall. Weary of the slowness of bureaucracy, he decided to get directly in touch with Emperor Napoleon III. He went to meet him in Solferino, Italy, where the French and the Italians were fighting against the Austrian invader. That was back in 1859. As he got there after the battle, he discovered the pitiful sight of wounded and dying soldiers who had to be finished off because they could not be treated on site. Horrified, he called up women living in the locality to help these wounded or sick soldiers. Upon his return to Geneva, shocked and convinced that something had to be done, he wrote A Memory of Solferino, which he self-published in 1862, particularly to spread the idea that relief agencies should be created to provide care for the wounded and sick in time of war, and that European governments should formulate international principles to be the basis of these relief agencies. And his call was heard, indeed. In Geneva, he was in touch with a jurist, two doctors and an army general. The group of “the Five”, as people called them, met in 1863 as part of what was to become, after several name changes, the “International Committee of the Red Cross” (ICRC), which still exists today. In Geneva, at an International Conference for the protection of those wounded during the war, they convinced governments to reflect upon the drafting of an International Convention. The following year, in 1864, the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field was adopted and marked the official birth of contemporary International Humanitarian Law.

We owe Dunant a lot because he is the one who travelled throughout Europe to persuade monarchs and leaders to take part in the Conference. It was his own initiative, but that was forgotten later on after he went bankrupt and was expelled from the group of the “Five”. His part was eventually acknowledged when he received the first Nobel Peace Prize in 1901.

K7 : Those Conventions improved and didn’t stop growing in number from then on...
JT : Indeed. The first Geneva Convention was revised and developed in 1906, and then again in 1929. A convention on the treatment of prisoners of war was added under the influence of the First World War, and under the impulsion of the International Committee of the Red Cross which dealt with those questions and always wanted to go further. But afterwards, it was all about how to persuade governments! In 1934, the ICRC called a diplomatic conference to adopt a Geneva Convention in 1940 but it was too late since World War II had already started. It was only in 1949 that it was held and four Geneva Conventions were adopted and signed at once by some fifty states: one dealt with the wounded and sick in Armed Forces - it was more developed than the previous one - one was about the wounded and shipwrecked members of armed forces, another was about the treatment of prisoners of war and the fourth one about the protection of civilian persons in time of war. The four Conventions are now the basis of Humanitarian Law, also called the “Law of Geneva”.

K7 : Geneva is one of the birthplaces of that Law, thanks to Dunant – is The Hague another one?
JT : Yes, indeed, another Law was developing in parallel, since the end of the 19th century- it was more related to war operations and aimed at regulating the choice and use of armament. Besides, Dunant had prepared a project on the treatment of prisoners of war and the Russian government, who heard about it, took it on with the will to expand it. Russians then organised a diplomatic Conference in Brussels, in 1874. Conference members failed to adopt a Convention and they repeated the initiative in 1899 by organising a Peace Conference. It was not held in Russia as it was at that time dealing with the emergence of anarchical movements which could potentially lead terrorist actions against such a meeting. Europe was finally chosen. First of all, the choice was the city of Copenhagen, but the project had to be dismissed following the death of the Queen of Denmark. Finally, it was agreed that the conference would be held in The Hague, a town in the Netherlands which was to become the headquarters of the International Court of Justice (ICJ) in 1946, and then, the headquarters of the International Criminal Tribunal for Ex-Yugoslavia (ICTY) in 1993 and of the International Criminal Court (ICC) in 2002.

The 1899 Conference was supposed to tackle the issue of disarmament, but was not a great success. However, a few Conventions were adopted there: the Convention on the Pacific Settlement of International Disputes, the Convention on Laws and Customs of War on Land, regulating the behaviour of fighters, an adaptation to Maritime Warfare of Principles of the 1864 Geneva Convention, etc. Those Conventions were then to be taken up in 1907 at a Peace Conference in The Hague and are still valid today: they notably include a Convention on the Opening of Hostilities and oblige every state to issue a declaration of war before attacking another state, and a Convention on the Limitation of the Employment of Force for the Recovery of Contract Debts. […] All in all, about ten Conventions were signed!

The 1949 Geneva Conventions and the 1907 Hague Conventions were then regularly revised and now constitute the basis of International Humanitarian Law. It is good to remind one that there was a very positive evolution of international law and to stress that today, people only talk about international criminal courts! Nothing is said any more about what existed before then…

K7 : Why isn’t it good that International law now simply focuses on tribunals?
JT : Because sanction has taken over Humanitarian L aw. But in fact, it only represents a small part of punishment for the failure to comply with what is written down in the international Conventions.
And above all, victims should prevail, in my opinion. They should be given some sort of compensation, moral and material reparation. Cutting someone’s head off does not help them. Sanction is just an element of discouragement for the future, in order to prevent large-scale tragedies like those from happening again. Sanctions might come first because it is a reflex of some animal instinct to see someone being punished...?

In my view, we should first concentrate on International Humanitarian Law, revive the base of it and avoid limiting ourselves to condemnation. These ideas must be spread, taught, and we must work on the prevention of mass murder and crime against humanity. But I think that equilibrium will necessarily come back.

K7 : How did we get to such a situation?
JT : This is the result of failure with the First World War. The only courts we got were tribunals set up by the Germans themselves. Out of 800 people accused of war crimes and due to be tried, some forty people only were judged and, on top of that, they only got very light jail sentences. In the [1919] Treaty of Versailles, they tried to punish Wilhelm II, who was related to the Dutch Royal family. But Holland refused to give him up to an international jurisdiction... In fact, the authors of the Treaty of Versailles dreamed of witnessing the birth of an ad hoc international court which would judge German war criminals. It was an absolute failure. This is why, at their meetings during the Second World War, the Allies agreed on one principle: those who commit war crimes leave themselves exposed to sanctions, and this is finally what happened with the two big Tribunals – Nuremberg and Tokyo – to judge war criminals of the Axis.

Then, the context of the Cold War did not help and international courts could not be set up. Concepts were different on both sides of the wall. Soviets wanted to condemn Americans for the Vietnam and the Korean Wars. Therefore, from their point of view, only one side was guilty. But surely, violations were committed on both sides, but the victorious side focused on the condemnation of the losing side, without looking at violations committed on their own side! There’s a tight equilibrium to watch there...

When the Cold War ended in 1989, several initiatives appeared. For instance, the United Nations launched what we call Inquiry Committees. All this movement comes from the Americans, who were then very progressive in that “Clintonian” era and developed theories related to the punishment of war crimes. Then, the Rome Statute establishing a permanent and independent International Criminal Court was approved in 1998 at an inter-governmental Conference. Four years later, the ICC became operational to judge genocides, crimes against humanity and war crimes.

K7 : What was the interest of the United States in promoting international tribunals?
JT : I think there was a certain idealism lying above those initiatives, the idealism of seeing culprits being condemned...

K7 : What are the limits of these International Penal Courts?
JT : We can indeed wonder about the question of efficiency within the International Criminal Court (ICC), which is currently floundering. The Court recently issued an arrest warrant against the president of Sudan [Omar Al Bashir]. Will it be successful? Just look at the reaction of that president who evicted NGOs from his country. Who will suffer from that? A significant part of the population! The situation is terrible. That is why I ask myself: was it such a good idea to create a Criminal Court which is really international? To which extent would the creation of international courts be more important than the creation of regional ones, which would be in better touch with the population? Regionalising international justice and, in the case of Africa, attaching that jurisdiction to the African Union, would prevent an African man to be condemned by people from another continent. And this is exactly the argument of the Sudanese president, who deems as colonialism the decisions taken against him by the ICC! It would be the same thing for Latin America or Asia.