Discontinued ColumnsInternational
What Rules? And Who Should?The in-depth news coverage of the International Court and its Global Implications
Lee Jun-woo Assisstant Reporter  |  jun1075@gmail.com
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승인 2006.05.01  00:00:00
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DID DEATH creep over him from head to toe, slowly leeching away his life? Was he expecting his untimely death? And yet, instead of his beloved family and trusting friends, his uncaring guards observed his final moments. He was not yet convicted of his hideous crimes against humanity. One normally would not use such malicious comments posthumously, but Slobodan Milosevic, the ex-President of the former Yugoslavia, will never escape from his evil deeds, in spite of the fact that his responsibility and the ultimate truth will now be buried with him.

  Milosevic was thrown into a cell in which he spent his last years. He was on trial and was already imprisoned by the ICTY (International Criminal Tribunal for the former Yugoslavia). What is this court and what right does it have to punish these individuals?

  Improvements in human rights eventually benefit humanity as a whole. Such benefit can be achieved in various social fields, and one of those efforts was crystallized by the ICC (International Criminal Court). The more concerns are raised regarding human rights, the more weight and responsibility will be given to this institution.

What are these so-called international courts?

  Ever since the two atrocious World Wars, stockpiles of documents were signed, countless conventions were held and a myriad of declarations were adopted for a single united aim: the prevention of wars and reconciliation among nations. "Addressing as well as rectifying past injustices is the fundamental step towards reconciliation," says Martin Nersirky (Bureau Chief of Reuters in Seoul). The sum of these efforts resulted in international courts that strive to render justice.

  The ICC is one of the courts that endeavor to redress individuals or war criminals guilty of gravest international crimes. Located in the Hague, the ICC is the first ever permanent treaty-based international court that deals with international criminal cases and promotes the rule of law. "The significance of the ICC lies in that it not only reveals the pain of the victims but also embraces the notion that human rights and related issues are no longer a secondary but a primary concern to the international community," says Nesirky.

  Based on the 1994 Draft Statute for the ICC, the sentiment among global voices to create the ICC was first formed and finalized by the Rome Statute of the International Criminal Court in 1998, which was finally adopted by the UN in 2000. The court itself was established on July 1, 2002. In its preamble, "the most serious crimes of concern of the international community as a whole" must be punished in accordance with international laws and communities. "The ICC itself is not a subservient judicial body of the UN but rather an independent permanent institution, of which legal ability is permitted to accomplish its ultimate aims," says Prof. Kim Dae-soon (Col. of Law).
The ICC complements the national criminal jurisdiction, which consists of eight experts in various social spheres, each of whom are obliged to do the "preparatory ground work to enable the court to start recruiting and commence its basic operations when it formally begins its work" (ICC).

The Past and Present

  The ICC and former or existing tribunals such as the Nuremberg Trials, the International Military Tribunal for the Far East (also known as the Tokyo Trials), the ICTY and the ICTR (International Criminal Tribunal for Rwanda) punish those individuals who commit genocide, crimes against humanity and war crimes.

  The Nuremberg and Tokyo trials, which served the immediate function of punishing leading war criminals by various sentences, were "established by the allied victor powers, so inevitably were criticized as having been victorious in courts," says Kwon O-gon (Judge of ICTY). Both trials, however, highlighted the fact that the international community had initiated its human rights movement after numerous modifications. "The role of such trials is to establish an international norm by which nations will abide," says Prof. Hong Seong-phil (Col. of Law). Though it may not be stipulated in a document, implicit consensus exists among the international community that humanity and human rights are the universal value that is no longer in the hands of each individual state but in the nands of an international body ? and such a notion is well-displayed in international courts.

▲ Photographed by Chai Kyu-min


 "Human rights take precedence over ordinary values in this world. It is not an object of negotiation but of fundamental pursuit." 
- Prof. Kim Oea-soon (Col. of Law)



  According to Judge Kwon, "ICTY is the first international war crimes tribunal established by the UN Security Council, based upon its power to maintain international peace and security. The objectives of the ICTY can be said to be four-fold: (i) to bring to justice persons allegedly responsible for serious violations of international humanitarian law; (ii) to render justice to victims; (iii) to deter further crimes; and (iv) to contribute to the restoration of peace by holding accountable persons responsible for serious violations of international humanitarian law." In addition, by its nature, ICTY is an ad hoc tribunal with limited temporal and geographical jurisdictions, which often hampers the further contributions it can make.

  The influences that international courts inflict are by no means comparable to those of the past, In other words, it is hard to determine the precedence for various reasons. However, the efforts put forth to bring justice and promote human rights are still noteworthy.

The obstacles

  As already mentioned, the international courts do not possess the definite legal power to rule over individual nations. The PCIJ (Permanent Court of International Justice), preliminary stage of the ICC and the ICC, was established by the League of Nations at the outbreak of World War I. The weakness of the PCIJ was that not only did it lack a forceful measure but also it failed to acquire global consensus. Yet, the PCIJ itself contributed to the underlying factors of today's courts; the international courts encumber international obligations, which cannot be sufficiently adjudicated by domestic institutions.

  Such a fundamental notion seemed to be crystallized by the ICC and the ICJ, and yet obstacles still exist hampering the promotion of human rights and rendering justice. The most immediate problem is the lack of support from individual nations. For instance, when the ICJ was first established, the U.S. approved of its existence but simultaneously asserted responsibility over matters essentially within the domestic jurisdiction of the U.S. as determined by the U.S. In general, international courts or tribunals can activate their jurisdictions when individual nations grant such rights to them under specific terms.

▲ Photographed by Kim Hye-ji

"Redressing past injustice, becomes an essential step towards peace and reconciliation."
- Martin Nesirky (Reuters Bureau Chief in Seoul)



The world today

  "As I strongly urge, the utmost challenging factor for the international courts is the resistance of nations by protecting the national sovereignty along with the national jurisdiction," says Prof. Hong. Problems have existed since the inception of such institutions, as clearly demonstrated by the stance of the U.S. However, according to Nesirky, "In a world where human rights as universal values prevail over lesser values, every nation is responsible and eligible to become a part of the process in order to promote and further strengthen the ties among nations. Moreover it is undeniable that such institutions as the international courts must be encouraged to continue their works."

  The factors and determinants of the international courts are especially essential to solving their weaknesses. The nature of such factors greatly changes in accordance with the vicissitudes of the world, yet their dynamics and the correlations have not changed. Some may work as complementary but others may function in opposition. "Among numerous factors are the political will or determination, rigorous and active cooperation of the nation, and NGO (Non-Governmental Organizations) and individuals advocating human rights, which play a pivotal role in redesigning the function and power of the international courts," says Prof. Hong.

  "I personally believe that the idea of national sovereignty should become a rational concept when dealing with security matters," stresses Prof. Kim. "In other words, we are living in a world where security cannot be stated without mentioning human rights issues. Like the old-heroes, who can no longer expect the same reactions from the public, human rights issues should be fortified with strong support from individual states."

For and By Koreans

  "Due to our rather ignorant and egocentric society, Korea shows little interest in human rights issues," asserts Prof. Kim. "Along the border of South Korea sits North Korea, which is notorious for its violation of human rights. The apathetic stance of South Koreans will eventually degrade themselves into a level of the third-world on human rights issues."

  It is undeniable that human rights take precedence over other ordinary values. A nation might become a great power but will not be complete if it fails to clearly discern and decide its priorities which are not subject to comprise. "We are living in a world where national effort no longer results in individual improvement, but rather vice-versa, and that is a universal truth," proclaims Prof. Kim. It is not an option but an obligation for not only nations but also individuals to join this global trend; Korea should never overlook such obligations. 


  A special interview with Kwon O-gon, judge of ICTY 


 1. What are the implications of the recent death of Slobodan Milosevic?

  On-going investigations are striving to clarify the reality. Yet it is indeed unfortunate and regrettable that we could not render a verdict in the first case in legal history pertaining to the head of state and his individual criminal responsibility for violating international humanitarian law.

2. What made you join the ICTY?

  There is not a single reason that propelled me to become a judge at the ICTY. However, one of the many reasons was my desire to take on the challenge of being part of an "international judiciary."

  3. What personal pleasure did you acquire while serving the ICTY?

  I sincerely did enjoy holding discussions with judges from different nations and legal systems. I am continually fascinated by their perspectives on the various legal issues and their method of approach to resolving them; I never cease to learn from them.

  4. Any future plans for now?

  My immediate plan for now is to prepare and look forward to the commencement of a trial concerning one of many important cases before the Tribunal which are currently at the pre-trial state. On a longer term, I hope to be able to share my experiences at the ICTY with other Korean jurists and perhaps even make humble contributions to the development of the Korean judiciary.

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