Abstract
The objective of this thesis is threefold, dealing with the constitutional guarantee of Human Rights (part B), the relation between domestic law and international law (C), and the question as to which is the appropriate institution for coping with peace (D), a term which is to be defined below.
The first main part (B) employs qualitative analysis in the form of a comparative close reading of selected countries constitutions, whereas the heart of the latter two, somehow related subsections (C-D) consists of a normative discussion of such juxtapositions as order versus justice, and truth versus justice.
Now, at the beginning of the 21st century, the affirmation of Human Rights has become a global phenomenon. Today, there is hardly a country that has not enshrined some set of Human Rights provisions in its constitution, barely a state leader who does not at least purport to be an advocate of Human Rights. Human Rights have become the talk of the town . But along with that almost inflationary recognition of Human Rights the importance of dividing declarations of legal provisions from the actual protection provided for the individual within the respective country has been increasingly realized. Thus, the first main part of this essay (B) deals with the constitutional guarantee of Human Rights. How are Human Rights implemented in individual countries constitutions and are they thus sufficiently safeguarded?
Due to the scope of this thesis the focus is on the group of political and civil rights, the most serious abuses of which the future International Criminal Court according to its Statute (Art. 5ff) would have jurisdiction over.
As for the choice of constitutions I confine myself to Western, mainly European countries (apart from one illustrative exception that does not suit the label), the rationale behind this being twofold.
First of all, if the stand of Human Rights even in seemingly well-provided Western countries fails to satisfy sufficient standards (which is my expectation), then argumentum a maiore ad minus it would be no use, at least uneconomical, to scrutinize constitutions that we almost expect to be more hostile to Human Rights. Secondly, the claim that even seemingly well-provided constitutions fail to sufficiently protect Human Rights inherently runs a higher risk of being falsified compared to one that relates this statement to seemingly less well-provided constitutions. Thus, if the contention is successfully sustained there are stronger reasons for inducing the generic thesis that constitutions in general fail to provide sufficient protection with respect to Human Rights.
As the domestic protection of Human Rights in my eyes proves not to be satisfactory, two contingent issues present themselves.
On the one hand, nowadays the majority of all violent conflicts and thus of Human Rights abuses occur within a country, are committed, e.g., by state leaders turning against their own citizens, often disregarding existing constitutional provisions. Thus, the question arises whether there is a justification for international law to encroach on the domestic realm in order to enforce the protection of those rights. Since a satisfying answer seems to rest on the application of rules of international criminal law, some of which challenging old-established doctrines on the sovereignty of states, I face, more specifically, the question: (How) can we justify the implementation of international criminal law? (part C).
On the other hand, apart from being an end in itself, the measures a given state takes with respect to protecting Human Rights are liable to have an effect on the social order within that state which, in turn, affects the prospects for peace. That elusive expression is used in a narrow sense ( absence of violence ), as well as in a broader sense ( peace of mind ) . The way violations of Human Rights are dealt with especially affects peace in the latter connotation, which is a conditio sine qua non for peace-keeping in the sense of what I have called coping with peace . The rationale behind this slightly provocative term is that lasting peace in my eyes depends on peace in the broader sense as the absence of (mental) anguish, and reconciliation between the formerly contending parties: where the end of war leaves festering resentments, the sense of unsettled scores and a deeply felt need for individual or collective revenge behind, the danger of reprisal will always lurk in the dark and render any truce into a frail state of peace.
All states which are in the process of transition from military to democratic rule have to face, at some point, the question of how to deal with Human Rights crimes committed under the previous regime, how to obtain transitional justice.
Basically there are two different approaches towards facing that challenge: employing truth commissions or leaving the task to tribunals and courts of law. Both share the recognition that reconciliation is a necessity for coming to terms with a dreadful past and being able to move on with the future. However, whether the exigency of reconciliation is best accomplished by pursuing truth, or justice, the former generally attributed to truth commissions, the latter to war tribunals and courts of law, and in how far the national or international level is the right arena for that purpose is a the center of the discussion in part D where I ask: Which is the appropriate institution for coping with peace ?
As of now, weighing truth commissions versus courts of law does not yield any unanimous results and it seems that, at the end of the day, what it comes down to is to treat equal things equally, unequal ones differently. Ultimately, we have to take the peculiarities of each case into account and decide accordingly.
However, in the ensuing section (E) I try to envisage modes of enhancing the system of dealing with international crimes as a whole and conclude with that those measures, along with a functioning international criminal court in the long run will enable us to decide upon the initial question.
The International Criminal Court may be the needed institution for coping with peace, and international criminal law the required tool, but it still takes people to employ the means and refine the concept.