How to deal with alleged crimes against humanity

As chairman of the International Law Commission report on this subject, the author is well placed to comment on whether those accused of serious crimes against humanity can be prosecuted in their own country, extradited to another or, as an alternative, made to surrender to a competent (if ad hoc) international tribunal that has been commissioned to try the alleged crime. He discusses the rationale behind these alternatives and comments on the relative lack of work of the International Criminal Court, despite repeated allegations of crimes against humanity.

Two issues are raised: the gap between the existence of the obligation and its implementation; and the need to ensure the wider application of the obligation.

International law has customarily separated so-called core crimes and non-core crimes as the filter through which an alleged criminal should be prosecuted or extradited. The author asks whether the core crimes that international law recognises should be expanded. There are, surprisingly, no global or regional conventions that are devoted exclusively to the extradition of alleged perpetrators of crimes against humanity. Building national judicial capacity to help alleviate the burden on the ICC may not be the solution, if state leaders accused of core crime enjoy immunity from prosecution in their own country.

Choices between blanket amnesties, which are unsatisfactory, truth and reconciliation or an agreed process of prosecution are explored.

This is a wide-ranging book, perhaps longer on narrative than analysis. Yet it has real resonance given the ongoing conflict in Syria, and the contrast that the author makes between the actions of states to protect the victims of such conflict (such as refugees) in their own countries, and their alleged lack of action in seeking to bring to justice those who travel to a foreign state to engage in that conflict.

The gloomy conclusion is that the ICC is not functioning as it should and therefore would-be offenders are not deterred. As a result, the world is not a safer place.

Adrian Lower is a district judge (magistrates’ courts)