La Cour internationale de justice et la problématique des droits de l'homme

SECTION II: A POSITION CLAIRE AS FOR THE CREATION OF THE INTERNATIONAL PENAL JURISDICTIONS

The International Court of Justice in its role of « juice dicere » as regards humans right, largely contributed to the creation and today to the operation of the international penal jurisdictions. In connection with international penal jurisdictions, we hear, the first two international penal courts create by the Security Council of the United Nations, and the international penal Court. This is why for determining our reflection well, we will examine initially the contribution of the CIJ to the creation of these jurisdictions (paragraphe1), before then seeing the operation of the international penal jurisdictions in the light of the decisions returned by the CIJ (paragraphe2).

Paragraph 1 : The contribution to the operation of the international penal jurisdictions

We will consider in this paragraph, the action of the International Court of Justice in competence rationae materae of the international penal jurisdictions, but we will take only the example of the crime of genocide.

Indeed, article 6 of the Convention of December 9, 1948 on the prevention and the repression of the crime of genocide had laid down the introduction of an international criminal court which, actually, was born only fifty years later, at the time of the Conference of Rome of June- July 1998. During this period, only the establishment of two ad hoc penal tribunals intervened, because of the disinterest of the States. However cruel crimes running up against the conscience human and threatening « peace, safety and the good being of the world », according to the preamble to the statute of Rome of the international penal Court, did not disappear, far is necessary oneself some! The range of these various stages of the international criminal law can be evaluated in the light of the jurisprudence of the CIJ relating to Convention on the genocide.

In the business relating to the application of Convention for the prevention and the repression of the crime of genocide, the CIJ had found a unique opportunity to reinforce its role as a principal legal body of the United Nations^133(*). The Court will bring a precision on the practices of genocide by affirming that « the essential characteristic of the genocide is (the intentional destruction of a group national, ethnic, racial or religious and not the disappearance of a State as a subject of international law or the fact of modifying its constitution or its territory ; that, consequently, (it) cannot admit, for purposes of this demand for indication of academies measurements, that the partition and dismemberment or the annexation of a Sovereign state, or its absorption by another State, could in oneself constitute an act of genocide (...) »^134(*). It recalls that it had raised in the ordinance of April that the crime of genocide « upset the human conscience, inflicts great losses with humanity... and is against morals like with the spirit and purposes of the United Nations »^135(*). Lastly, it will recognize in its stop of July 1996 the existence of one « genocide of State »^136(*).

In 1993 and 1994, the Security Council decided establishment of two ad hoc penal tribunals. The atrocities made on the territory of old Yugoslavia were condemned firmly in several Council Resolutions of safety and by many humane international organizations. The creation of the TPIY in 1993 by resolution 808 and the adoption of its statute by resolution 827 follow upon a French initiative. Its legal activity proves to be complementary to that of the CIJ in ex-Yugoslavia, although their respective jurisprudences can cause « first cracks with the unit of the right »^137(*). On the same model as the TPIY, the Security Council A creates in 1994 the TPIR by adopting resolution 955, after the recognition of massacres and the commission of a genocide in Rwanda. By their mode of creation, their competence and their operation, the courts are registered despite everything clearly in the same logic of repression of the international crimes in their action with the service of peace.

Paragraph 2 : Contrarieties of judgments : case of the Tadic business

The International Court of Justice strongly influenced in a positive way as we saw higher, creation and the operation of the international penal jurisdictions, the international penal courts on several occasions mentioned decision returned by the CIJ. However, that did not prevent that one observes sometimes some contradictions of interpretation of the international standard, it would be thus interesting here to study a specific case of divergence of interpretation between the CIJ and the TPI. The case of the Tadic business appears suitable to us compared to the matter of our study. Thus, we will consider initially the position of the problem (A), before analyzing the effects of contrarieties of judgments (B).

A- The position of the problem

It is advisable to recall first of all that the Tadic business is the first judgment given by the room of first authority of the international penal Court for the ex Yugoslavia on May 7, 1997. In this business how much emblematic by the history, the principles and the judgment which characterize it, we will consider here the principal problem of right which is that of the several liability for the violation for the rules for the humane international law. The jurisprudence of the first room practically had been aligned on that of the CIJ (Nicaragua C. the United States), in the species, the United States was shown to support to maintain and to encourage the forces countered to rebel against the government of Nicaragua by making massive violations of the humans right. In this business, the Court estimates that the United States had not exerted on countered in all their activities an authority such as one can consider countered them like acting as their name, it adds that to engage the responsibility the responsibility for the United States, it was to be established in theory that they had the effective control of the military and paramilitary operations during which the violations in question would have occurred.

But the room of call of the TPIY reversed this report in its stop of call on the bottom of 15 July 1999 and called into question the applicability of « criterion of Nicaragua control ». According to the room of call, it is advisable to distinguish according to whether it is a question to allot in a State the acts of isolated individuals, Nicaragua jurisprudence being then applicable or to allot to him the activities of organized individuals in way such as they can be qualified bodies de facto of this State. In this last case, the applicable criterion that of an overall control of the organic apparatus in question, criterion filled for the Serb ones of Bosnia, is controlled by the Yugoslav Federal Republic^138(*).

* ¹³³ S. MALJEAN-DUBOIS,  «  The business relating to the application of Convention for the prevention of the crime of genocide  », stop of July 11, Exceptions preliminary, Directory france Dr. int. 1996, p. 357  ; See also H. RUIZ-FABRI and J-M. SOREL, «  Chronicle of jurisprudence of the CIJ  » (1996), J.D.I. 1998, p. 837.

* ¹³⁴ CIJ, Application of Convention for the prevention and the repression of the crime of genocide (Bosnia Herzégovine C. Yugoslavia), ordinance of April 8, 1993 on a demand for indication of academies measurements, Rec., 1993, § 42.

* ¹³⁵ Ibidem.

* ¹³⁶ H. RUIZ FABRI and J-M. SOREL, «  Chronicle of jurisprudence of the CIJ  » (1996), JDI, 1998, p. 858.

* ¹³⁷ T. CHRISTAKIS,  «  Relations between the CIJ and the TPIY  : First cracks with the unit of the right  ?  », The United Nations observer, n° 1- 1996, p. 45.

* ¹³⁸ Frederic DOPAGNE, «  The responsibility for the State because of the private individuals  : causes of charge revisited by the articles on the responsibility for the State for internationally illicit fact  », RBDI, 2001-2 pp. 493-525.