At the beginning of the Twentieth century, the winning powers of World War First charged a “Allied Commission” with the study of the institution of an International Court of Criminal Justice, in order to punish the crimes against the “Law of Humanity”; the project, though, failed, beaten by superior diplomatic necessities.
The Court of Nuremberg for Nazi crimes, though militar and not civil, is the first significative experience of a supranational court, constituted by the winning powers of World War Second. A similar court was established for the same purposes in Tokyo.
The demand for a criminal, supranational court became a priority with the definition of genocide adopted by the United Nations in 1948; the project was though suspended for the resistance of some single States and because of the advance of the Cold War. Only in the 90s this need came to the fore, in the context of the emotion caused by Rwandan genocide and the Balkans ethnic cleanliness.
As a first step, UN established in 1993 an International Criminal Court for ex-Jugoslavia, settled in Hague, to prosecute the responsible for the ethnic cleanliness; in 1994 the International Criminal Court for Rwanda was created in Arusha. At the same time, the gradual process of pacification in South Africa, at the end of apartheid, led to the creation of a Commission for Truth and Reconciliation, similar to a proper Court aimed to investigate and judge upon the violations of human rights in that society. In 1998 UN established the International Criminal Court in Hague, focused on crimes against humanity. The Statute was signed in Rome in July 17th; it became law in 2002, after reaching the condition of 120 bonds, despite significative exceptions such as United States, Turkey, China, Japan and Israel. Signatory states quitclaimed the jurisdiction of crimes related to the Court, in order to give UN a further effective instrument to resolving peacefully international strains and guarantee a fair punishment of responsible.
Governments frequently did not express any political will to process the authors of crimes against humanity; this contributed to creating a culture of impunity surrounding the most terrible crimes related to the slaughters of their subjects and citizens. The institution of a supranational organism ensure these crimes no to be left unpunished, in the interest of the whole international community, after the traumatic event of WW II. As the State can be considered as the result of an agreement between citizens and institutions, in which citizens renounce to a part of their freedom to reach a suitable level of civil cohabitation, a supranational reality is created because of the single states aspiration to a stable equilibrium, in exchange for a part of their power. To prosecute the responsible of crimes against humanity can be considered a valid contribution to the retention of peace in international institutions democracy.
Furthermore, these crimes are usually committed in authoritarian contexts, where the ones who detain the power have no interest in prosecuting the responsible, as a democratic discussion on political and social dynamics is totally missing. In other contexts, the “social contract” between state and citizens was missing, as the authorities did not pursue the common good, but acted against a part of the population. In these cases, there is no government legitimacy justifying the call not to intervene, and the presence of a supranational organism forces to measure with a wider assembly, interested in subjecting repressive and anti-democratic conducts to sanctions. Only when a society finds in itself the force to face its wounds, by examining in a democratic discussion the responsibilities and the dynamics that caused the violence, with the consequent sanction of the guilty, the need of an international court can seem redundant - as in the South Africa case. This happens very rarely.
Some questions need to be solved:
- the risk of delegating justice, with an abdication of politics towards states responsible of crimes against humanity;
- the possibility of a predominant influence of more powerful states in the judges’ decisions;
- the lack of an articulated legislation and a clear jurisprudence upon Court competence crimes, that could be taken as a model for younger and less organized states in the human rights defense.
An international penal code, generally accepted, is difficult to draft and arises the problem of the relation between justice and legality: is it possibile to establish a UN commission, able to testify the conformity of the single states codes and constitutions to the fundamental laws of freedom and justice considered in the Universal Declaration of Human Rights? What kind of criterions should that organism adopt, in front of the composition of some of those commissions, in which anti-democratic states could prevail?