Published on September 25th, 2013 | by admin0
International cooperation also extends to the administration of justice. Here consulting editor of SIGNAL, Lt Col (Ret’d) Paul Allen, examines the structure of the various organs of international justice, the background to their establishment and their respective successes and challenges.
Since the end of the Nuremberg and Tokyo Tribunals after World War 2, some leaders believed that they could act against their own citizens with impunity, safe in the knowledge that the Cold War divide rendered accountability unlikely. Few, if any, despotic leaders where ever held accountable for their actions even after their overthrow. In fact the politics of the era at times supported and protected them – Idi Amin Dada1 is one such case in point. That changed with the fall of communism and the normalisation of relationships between East and West. The development of OSCE and Partnership for Peace (PfP) heralded a new era that enabled the international community to at last hold political leaders, security commanders and civilians accountable for serious crimes within and between states.
The break-up of Yugoslavia in 1991 and its rapid decent into internecine conflicts with mass atrocities taking place particularly in Croatia and Bosnia and Herzegovina, caused the United Nations to establish, in 1993, its first war crimes court and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals. Its establishment and subsequent work shows that an individual’s senior position can no longer protect them from prosecution and that those suspected of bearing the greatest responsibility for atrocities, can be called to account.
The International Criminal Tribunal For The Former Yugoslavia
The International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, commonly referred to as The International Criminal Tribunal for the former Yugoslavia (ICTY) was established by United Nations Resolution 827 in May 1993 as a court of law. Located in The Hague the Tribunal’s scope is confined in both time and space to serious crimes committed during the conflicts in the former Yugoslavia from 19912.
It is planned that the Tribunal (Court) will complete it work by 31 December 2014 and its responsibilities will be transferred to the International Residual Mechanism for Criminal Tribunals (see Box Article). ICTY will conduct and complete all outstanding first instance trials and all appeal proceedings of which the notice of appeal is filed before 1 July 2013. Any appeals for which notice is filed after that date will be handled by the Residual Mechanism. To date the ICTY has dealt with 161 individuals.
The ICTY was the first war crimes court created by the UN since World War 2. It is made up of three main branches: the Chambers, the Office of the Prosecutor and the Registry.
The judges constitute one of the Tribunal’s three main branches – The Chambers. This branch is organised into three Trial Chambers and an Appeals Chamber. Each Trial Chambers is composed of three permanent judges and a maximum of six ad litem judges3. Three judges are assigned to hear each case, and at least one judge per case must be a permanent judge. Trial Chamber may be divided into sections of three judges each, composed of both permanent and ad litem judges. Individual sections have the same powers and responsibilities as a Trial Chamber.
The Appeals Chamber acts for both ICTY and the International Criminal Tribunal for Rwanda (ICTR) and consists of seven permanent Judges, five of whom are permanent judges of the ICTY and two of whom are permanent judges of the ICTR. Each appeal is heard and decided by a bench of five judges of the Appeals Chamber.
Office Of The Prosecutor:
The Office of the Prosecutor (OTP) is, along with the Chambers and Registry, one of the Tribunal’s three branches. Its mandate is twofold – to investigate crimes and to prosecute persons responsible for such crimes. The OTP is headed by a Prosecutor, who is appointed by the Security Council for a renewable four-year term. The Prosecutor is independent and does not seek or receive instructions from external agencies such as any government or international organisation, or from either of the Tribunal’s other two organs. UN member-states are under an obligation to cooperate with the OTP’s investigations and prosecutions. Over the years, the focus of the OTP’s work has shifted from investigations to prosecutions.
The Registry, in addition to its Court Management and administrative duties, also assumes responsibilities normally reserved for national systems in the administration of justice. Unlike in national systems, where detention matters are generally overseen by the Ministry of Justice, the UN Detention Unit (UNDU) in The Hague is supervised by the Registry. It also provides a diplomatic function as a contact between the Tribunal and the International Community, addressing a host of issues including cooperation of member states, enforcement of sentences and the relationship with the authorities of the Netherlands, the host country of both the Tribunal and the UNDU.
The International Criminal Tribunal For Rwanda
Meanwhile on another continent around the same time as ICTY was established the stage was been set for what would be the worlds worst genocide since Pol Pot’s dictatorship in Cambodia during the mid 1970s. In an orgy of violence a genocidal mass slaughter of the Tutsis by the Hutus erupted in Rwanda. It is estimated that somewhere between 500,000 and 1 million people, about 20% of the population, died in that 100 days between April and July 1994.
The tension between the Hutu and Tutsi in Rwanda had its origin in European colonialism. Both the German and subsequently the Belgian overlords promoted Tutsi supremacy, considering the Hutu and Tutsi different races. In 1935, Belgium introduced identity cards labelling each individual as Tutsi, Hutu or Twa4 thus reinforcing the division between the groups. The Rwandan Revolution began in November 1959, following the assault of a Hutu politician. Groups of Hutus attacked the Tutsi. It changed the power structure of Rwanda by dissolving the Tutsi led monarchy, and establishing a Hutu-led republic supported by Belgium. Up to 100,000 Tutsi died in this the State’s first ethnic conflict. Many more Tutsi fled to semi-permanent refugee settlements in neighbouring countries. In 1965, in was estimated that up to 130,000 lived in exile in Zaire (DRC), Uganda, Tanzania and Burundi.
These exile communities later gave rise to Tutsi rebel movements, one of which was the Rwandan Patriotic Front (RPF). On Independence in 1962 the majority Hutu had complete political power to the total exclusion of the minority Tutsis. Cycles of violence followed independence, with the exiled Tutsi attacking from neighbouring countries and the Hutu retaliating with large-scale slaughter and repression of the Tutsi. In 1973, Juvénal Habyarimana, the Hutu Army Chief of Staff, took power in a military coup. Pro-Hutu discrimination continued, but with less violence against Tutsi. In 1990, the Rwandan Patriotic Front (RPF) invaded northern Rwanda, starting the Rwandan Civil War which ended with the August 1993 Arusha Accords which opened government positions to both Hutu and Tutsi. The catalyst for the genocide that followed was the assassination of President Habyarimana on 6 April 1994 when his plane was shot down near Kigali Airport. The terror began within a few hours. Over the course of approximately 100 days, between 500,000 and 1,000,000 Tutsi were killed in well-planned attacks on the orders of the interim government. The Tutsi RPF restarted their offensive and by July controlled the country.
United Nations involvement in Rwanda dates from the deployment of the 81 strong United Nations Observer Mission Uganda–Rwanda (UNOMUR) along the Uganda-Rwanda border in June 1993. Following the Arusha Accords the 2,500 strong United Nations Assistance Mission For Rwanda (UNAMIR) was deployed in Oct 1993. “Its mandate included ensuring the security of the capital city of Kigali; monitoring the ceasefire agreement, establishment of demobilisation procedures; monitoring the security situation during the final period of the transitional Government’s mandate leading up to elections; assisting with mine-clearance and assisting in the coordination of humanitarian assistance activities in conjunction with relief operations. It was never envisaged that UNAMIR would be other than a monitoring force and its mandate and strenght reflected this. Even though the speed and extent of the genocide shocked the International Community, reaction was slow with the major powers reluctant to strengthen the already overstretched and weakly mandated UNAMIR. It was not until the 8th of November that the United Nations Security Council approved Resolution 955 establishing the International Criminal Tribunal for Rwanda (ICTR).
The ICTR was established for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994. It also deals with the prosecution of Rwandan citizens responsible for genocide and other violations of international law committed in the territory of neighbouring States during the same period. The model for such a Court was already established in the ICTY and this was followed in the ICTR. The Tribunal consists of three organs: the Chambers and the Appeals Chamber; the Office of the Prosecutor, in charge of investigations and prosecutions; and the Registry, responsible for providing overall judicial and administrative support to the Chambers and the Prosecutor. The Court is based in Arusha, Tanzania.
The Court has dealt with 75 cases and has referred four to national jurisdiction. It has also named nine accused who are still at large. The ICTR began the transfer of its functions to the International Residual Mechanism for Criminal Tribunals during 2012. It has completed all trial activities and all appeal judgements should be concluded by the end of 2014 when all responsibilities will be transferred to the International Residual Mechanism for Criminal Tribunals.
The International Criminal Court
The International Community has long aspired to the creation of a permanent international court, and, in the 20th century, it reached consensus on definitions of genocide, crimes against humanity and war crimes. The Nuremberg and Tokyo trials addressed war crimes, crimes against peace, and crimes against humanity committed during the Second World War.
In the 1990s after the end of the Cold War, tribunals like the International Criminal Tribunals for the former Yugoslavia and for Rwanda were the result of consensus that impunity is unacceptable. However, because they were established to try crimes committed only within a specific time-frame and during a specific conflict, there was general agreement that an independent, permanent criminal court was needed.
The Rome Statute, adopted on 17 July 1998, is the treaty that established the International Criminal Court (ICC) and it is effective from 1 July 2002. Currently 122 states (including Ireland) are States Parties5 to the Statute. A further 31 have signed but not ratified the Statute. Three of these states (Israel, Sudan, and the United States of America) have unsigned the Rome Statute and having indicated that they no longer intend to become states parties have no legal obligations to the Statute.
The ICC is the first permanent, treaty based, independent, International criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the International Community. It is based in The Hague and is funded mainly by the States Parties. It may also receive voluntary contributions from governments, International organisations, individuals, corporations and other entities.
The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression. Under the Statute, the ICC can automatically exercise jurisdiction over the four core international crimes committed on the territory of a State Party or by a national of a State Party only in situations where states are unable or unwilling to do so themselves. The Court States Parties must co-operate with the Court, including surrendering suspects when requested to do so by the Court. ICC may also have jurisdiction over crimes if its jurisdiction is authorised by the United Nations Security Council.
The Court is organised similarly to the ICTY and the ICTR.
The Judicial Divisions consist of the 18 judges and is organised into three chambers – the Pre-Trial Chamber, the Trial Chamber and the Appeals Chamber. Judges are elected to the Court by the Assembly of States Parties and may serve a nine-year term. They are not generally eligible for re-election. The Presidency – consisting of a President and two Vice Presidents – is elected from judges of the Court by their fellow judges. They may serve for a maximum of two, three-year terms.
Office Of The Prosecutor:
The Office of the Prosecutor is responsible for conducting investigations and prosecutions. The Rome Statute provides that the Office of the Prosecutor shall act independently and may open an investigation under the following three instances:
• A situation is referred by a State Party.
• A situation is referred by the United Nations Security Council, acting to address a threat to international peace and security;
• The Pre-Trial Chamber authorises an investigation on the basis of information received from other sources, such as individuals or non-governmental organisations.
The Registry, similar to the ICTY and the ICTR, is responsible for the non-judicial aspects of the administration and servicing of the Court.
To date 18 cases in 8 situations have been brought before the ICC. Four States Parties – Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali – have referred situations occurring on their territories to the Court. The United Nations Security Council has referred the situation in Darfur, Sudan, and the situation in Libya – both non-States Parties. The Pre-Trial Chamber authorised an investigation into the situations of Kenya and in Côte d’Ivoire.
The INTERNATIONAL RESIDUAL Mechanism for Criminal Tribunals
The Mechanism for International Criminal Tribunals (the MICT) was established by United Nations Security Council Resolution 1966, on 22 December 2010 to carry out a number of essential functions of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) after the completion of their respective mandates.
The establishment of the Mechanism is a key step of the completion strategies of the two Tribunals. It is a new small, temporary and efficient body, tasked with continuing the “jurisdiction, rights and obligations and essential functions” (UNSC Resolution 1966) of the ICTR and the ICTY; and maintaining the legacy of both institutions.
The MICT comprises two branches. One branch covers functions inherited from the ICTR and is located in Arusha, Tanzania. It commenced functioning on 1 July 2012. The other branch will be located in The Hague and will take on functions derived from the ICTY on 1 July 2013. During the initial period of the Mechanism’s work, there will be a certain amount of overlap with the ICTR and the ICTY as these institutions complete outstanding work on any trial or appeal proceedings which are pending.
While UNSCR 1966 mandates that the Mechanism will continue to operate until it decides otherwise, it provides for a review of work progress in 2016 and every two years thereafter. The MICT will perform a number of essential functions currently carried out by the ICTR and the ICTY. While securing the arrest, transfer and prosecution of remaining fugitives still wanted for trial by the ICTR will be a top priority, other functions include:
• Appeals Proceeding
• Proceedings for review of Final Judgement
• Protection of victims and witnesses
• Supervision of enforcement of sentences.
The consensus within the International Community which has evolved since the ending of the Cold War is beginning to enforce accountability on an individual level for serious crimes committed during conflicts. What stared in Nuremberg and Tokyo at the end of the Second World War is again progressing after almost half a century lost in the politics of the Cold War. While Nuremberg and Tokyo dealt only with the vanquished and ICTY and ICTR were established to try crimes committed only within a specific time-frame and during a specific conflict the ICC, while not yet totally inclusive, is a huge advance towards a world in which impunity is unacceptable and where perpetrators of genocide, crimes against humanity, war crimes and the crime of aggression will be held accountable for their actions.
Sources: http://www.icc-ipi.int. http://www.icty.org. http://www.unictr.org.
1. Idi Amin Dada (1925 – 16 August 2003) was President of Uganda, from 1971 to 1979. The number of people killed as a result of his regime is estimated at around 500,000. The Uganda–Tanzania War led to the demise of his eight-year regime. He fled to Saudi Arabia where he lived out his days until his death in 2003.
2. Article 8, Statute of the Tribunal: ‘The territorial jurisdiction of the International Tribunal shall extend to the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters. The temporal jurisdiction of the International Tribunal shall extend to a period beginning on 1 January 1991’.
3. Ad litem judges are appointed by the UN Secretary-General at the request of the President of the Tribunal to sit on one or more specific trials. Article 12(1) of the Tribunal’s Statute allows the appointment of a maximum of 12 ad litem judges.
4. Twa are a pygmy people, generally assumed to be the oldest surviving population of the Great Lakes region
5. States Parties are those Sovereign States that have ratified or acceded to the Rome Statute