International criminal tribunals II. JUSTIN Judicial Studies Institute Masaryk University Katarína Šipulová Brno, 29 September 2021 II. Generation: Ad hoc Tribunals • Nuremberg legacy? • partly •Unique experience of post-war Germany •War tribunal, not judicial tribunal Eichmann case A shift in legitimacy: Traditionally, the territorial state, where crimes happened, is best suited to hold criminal prosecution Why? • Access to evidence, witnesses, security • Problem: post-conflict environment • Collaps of domestic judiciary? NO ICTY • Resolution UN SC 827 • Legitimacy: UN Charter, Head VII • Aim: to prosecute persons bearing the core responsibilities for grave violations of international humanitarian law on the territory of former Yugoslavia FROM 1 January 1991 • i.e. open mandate • Reasonings • international community unsure how to tackle the Balkan conflict • created during the conflict -> The Hague • Prosecution will lead to peace and stability ICTY • Will to repair the damage done by UN inactivity and weak reaction • 80s and 90s spirit, fear of intervention commitments • 1991 cease fire btw Croatia and Serbia – unsuccessful • UN informed about HL violations by at least 20 countries – SC poses embargo on arm trade • Economic sanctions • UNPROFOR in Bosnia nad Croatia • Resolution 764: obligation of countries to comply with requirements of international humanitarian law and Geneva conventions • Resolution 780: Committee of experts • Preliminary report of 1993 demonstrates risk of ethnic cleansing and suggest in international tribunal (x domestic courts) • Bosnia and Croatia wants to use OSCE • Federal YUG against • Resolution 827 - unanimous ICTY • Material jurisdiction • Grave violations of Geneva conventions • Customs and rules of war • Genocide • Crimes against humanity (without relation to war) • But what law?? • Primacy before domestic courts ICTY – criticism (the voice of the victims?) • Legitimacy • UN Charter: presumes establishment by GA, not SC • Reply: Tadić case (1995) • Fairness • Majority of accused: Serbs • Seat: Hague • Language barrier • Lack of cooperation with states on capturing the accused • No police apparatus • Too lengthy trials • Majority of accused: Serbs • Overall low effectiveness • 1999: jurisdiction broadened to cover also conflict in Kosovo • Did it fail the role of deterrence? Tadić case • - Duško Tadic – former politician, member of paramilitary forces supporting the attack on the district of Prijedor • Convicted of CAH, grave breaches of Geneva Conventions, violations of customs of war • 20 years of imprisonment • Arrested by German police in Munich, 1994 • Appeal: • Is ICTY legitimate in its exercise of jurisdiction? (SoP argument) • Can ICTY evaluate its own jurisdiction? • the tribunal, in the international context, must assert its own jurisdiction within the bounds of the council that forms it •It does not have the power to determine the validity of its establishment by the Security Council ICTY - criticism Positive perception of the role and potential of ICTY in respective countries (2001) Serbia 8 % Kosovo 83 % Bosnia 51 % (but, the most trust-worthy among international isntitutions) Montenegro 24 % Croatia 21 % IVKOVIC, Sanja. Justice by the International Criminal Tribunal for the Former Yugoslavia. Stanford Journal of International Law, 37, 2001, pp. 255-346. II. Generation: International criminal tribunal for Rwanda (ICTR) II. Generation: International criminal tribunal for Rwanda (ICTR) • The first ad hoc international tribunal to adjudicate on an internal conflict • Adopted by UN Resolution 955 (1994) • Rwanda is the only country against • Joined office of prosecutor • Arusha • Time jurisdiction: 1994 • Aim to prosecute members of Rwanda freedom front II. Generation: International criminal tribunal for Rwanda (ICTR) • Background • Problematic engagement of international community • X genocide • Hutu v Tutsi conflict • Fear of commitments v public pressure • Expert committee investigation the genocide – confirms the planned genocide and recommends establishment of ICTR • Position of Rwanda’s government • turn after UN expert committee suggesting to extend the ICTY jurisdiction • Ubuntu? • Role of priests in the genocide •Low legitimacy of domestic courts • lack of capacity II. Generation: International criminal tribunal for Rwanda (ICTR) • Rwanda’s government issues • proposal to extend the ICTY jurisdiction • temporary jurisdiction: 1994 • joint office of Prosecutor and Appeal Court • Seat in Arusha • death penalty • Carla del Ponte’s role: members of RLF (radical Tutsies) II. Generation evaluation • ESTABLISHMENT: alternative options • International treaty • X ongoing Conflict / failed state • GA Resolution • SC Resolution • The widest set of competences (Chapter VII) • Primacy over domestic courts (and their obligation to delegate cases upon ICTR) • Possibility to issue binding ordinances for third countries • Prosecution of top political leaders irrespective of their immunity International Residual Mechanism https://www.irmct.org/en/aboutwww.irmct.org/en/about III. Generation: Negatives • Cooperation between domestic and international elements far from smooth • Cambodia: 3 domestic and 2 international judges • decision-making by 4 votes majority – unrealistic • Independent budgets = little money • Established by international treaty • Weaker mandate • Weaker enforcement III. Generation: Sierra Leone, East Timor, Cambodia • HYBRID COURTS, mix courts, specialized courts, internalized courts • Draw on negative experience of ICTY and ICTR • costs, mistakes in management, negative feedback of domestic governments and population • Attempt to connect international institutions with domestic context • In situ courts • They integrate domestic judges and domestic law • not always possible: existing and functioning domestic judicial structure • Pragmatic step of UN unwilling to spend too much money? • Easier access of witnesses, etc. • Faster reconciliation Extraordinary Chambers for Cambodia • Parallel negotiations for ECCC and Special Court for Sierra Leone • Material jurisdiction • prosecution of the leaders of Khmer Rouge regime • Violations of international law • Serious crimes perpetrated during the Cambodian genocide • Communist party GP Pol Pot • Agrarian socialist society • Emptied cities • Relocation to labor camps in countryside • Mass executions, forced labour, abuse, malnutrition, etc. • Killing fields (pickaxes) • Deaths of 1.5 to 2 mil people from 1975 to 1979 (approx. ¼ of the population) • Strong economic support of Chinese Communist Party • End: invasion of Vietnamese military Extraordinary Chambers for Cambodia • Government aske the UN for assistance with prosecution in 1997 • Domestic volatile situation • Negotiations abandoned in 2002 • Finances, composition, amnesties • 2001, domestic Act on ECCC • GA UN issues resolution 57/228 asking to renew the negotiation while preserving the ECCC, • another resolution issued the very same day, addressing worries of politicised justice • Treaty between UN and Cambodia of 13 May 2003 • Formally independent on both national government and UN • Biggest point of controversy: crimes of genocide v autogenocide (x 1948 convention) • ICTR Akayesu case: genocide must target stable groups, memerbship in which is givern by birth Special Court for Sierra Leone • Posterchild of hybrid courts • Seated in Free Town • Mixed composition • Based on international treaty • Biggest controversy: Lomé agreements of 1999 (signed under UN auspices) • Material jurisdiction • Accountability of members of RUF • HR violations of SL people, detention of peackeepers • AND crimes against implementation of peace process, crimes committed by peacekeepers UNAMSIL • Cimes against humanity, grave violations of A3 of Geneca conventions, other grave violations of humanitarian law • Resolution 1315 of 14 August 2000 • Crimes on Sierra Leone territory committed from 30 November 1996 Special Court for Sierra Leone – sui generis court • Both international and domestic law (two domestic criminal acts: particularly targeting cruelty against children – reflected in A5 of the Statute) • Rape of children • Temporal jurisdiction: 3 years – extended (no final date) • In situ, Process with Charles Taylor – Hague East Timor: Special chambers • 1999 conflict (mass murders, persecutions) • Civil war – legacy of decolonization process started in the first half of 1970s • Indonesia – mass violations of HR (since 1976) • 1990s: East Timor starts negotiations on independence and democratization • Indonesia promises referendum – after 80% votes for independence – armed forces initiate HR repressions • Very wide jurisdiction • Unlimited temporal jurisdiction • Personal jurisdiction not limited to persons carrying grave accountability • Too much ,too messy Limitations of 3rd Generation • No mandate to address immunities of heads of states, or to require cooperation of third countries • x problematic extraditions • SCSL and Charles Taylor – years long negotiation with Nigeria and Ghana • Only thanks to the agreement of SC with conclusion of the international treaty (= Charter UN, as the treaty was concluded by SC, not GA) • East Timor: • Only semi-hybrid • No legitimate government with sovereign authority • Indonesia does not cooperate • Weak legal culture • Budgetary issues How effective were individual tribunals? • ICTR and ICTY • Jurisprudence • Development of important doctrines: genocide, crimes against humanity, individual criminal accountability, fai trial conditions • Inspired SCSL and all 3rd generation • Residual mechanism in Hague: concluded (2011) • Reinteration of history (lot of evidence, recollection, partial reconciliation) • ICTR • USA and UK against investigation of crimes committed by RPF militia (nowadays Rwanda’s government and army) • Prosecuted over 60 actors of genocide, including Bagosora or Bikindi • New crime of rape as a war crime • Torture as CAH How effective were individual tribunals? • ICTR and ICTY • Deterence • Peace? • Balkan: failure of ICTY • 1999 – expansion of jurisdiction to cover conflict in Kosovo (low deterrence potential?) • Very lengthy processes • Difficult to get the accused • Legitimacy • Budget – dependent on UN member states • Low compliance and cooperation of domestic judiciary • Low reconciliation • Only symbolic role? Legitimacy Second generation Third generation A. Mandate Resolution Treaty B. Seat `3rd country In situ C. Independence No Yes D. Cooperation No Yes Legitimacy Second generation Third generation ICTY ICTR SCSL ECCC SPSC A. Mandate Resolution Resolution Treaty Treaty Resolution B. Seat `3rd country 3rd country In situ In situ In situ C. Independence No No Yes Partly Partly D. Cooperation No No Yes Yes No Effectivity of international criminal tribunals • Helfer – Slaughter • Independence • High standards on who is the judge • Presenting the evidence • Binding effect of decisions Posner – Yoo Characteristic Dependent Independent Time During the conflict Unlimited Jurisdiction Statute International law Initiation Victim only Independent party Membership Bilateral Multilateral Commitment After conflict A priori Judges Selection by a state Independent selection Effectivity and promises of mandates: 1. Prosecution of crimes 2. Deterrence 3. National reconciliation Effectivity and promises of mandates: 1. Prosecution of crimes • Focus of majority of legal scholarship • How to evaluate this? Effectivity and promises of mandates: 1. Prosecution of crimes • Focus of majority of legal scholarship • How to evaluate this? • Number of convicted • Number of accused • Number of cases issued per year • Execution/compliance with the rulings (cooperation of domestic courts and governments) • Development of the international criminal law doctrine (II v III Gen) • Individual accountability • X politicization (personal jurisdiction and its limits) • X length of proceedings (II. GEN; SCSL concluded in 2014 – but, only 21 accused) Effectivity and promises of mandates: 3. National reconciliation • Domestic reception, legitimacy of courts • Seat • Language • Transparency • How understandable is the work • How visible is the work Effectivity and promises of mandates: 3. National reconciliation • ICTY Positive perception of the role and potential of ICTY in respective countries (2001) Serbia 8 % Kosovo 83 % Bosnia 51 % (but, the most trust-worthy among international institutions) Montenegro 24 % Croatia 21 % Effectivity and promises of mandates: 3. National reconciliation • SCSL % of respondents (82% were war refugees) I do follow the cases 73 % SCSL is beneficial for Sierra Leone 61 % Willing to stand as a witness if needed 57% Effectivity and promises of mandates: 3. National reconciliation • ECCC Perceptions of ECCC by public ECCC should partake on prosecution of Khmer Rouge regime 86.9% Judges of ECCC are fair 66.7 % ECCC will be neutral 67.1% If the answers above were negative, these are the reasons Weak results of prosecution 29.7 % ECCC is corrupted 22.9% ECCC is politicized (ties to government) 28.2% Too lengthy proceedings 15.1% Thank you for your attention Katarína Šipulová katarina.sipulova@law.muni.cz Masaryk University