Courts and Tribunals

By Charles Garraway 

“Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

These words are taken from the judgment of the International Military Tribunal at Nuremberg. This was the first attempt in modern times to hold accountable in criminal proceedings before an international tribunal the perpetrators of crimes against international law. An earlier attempt at the end of World War I to establish a Tribunal to try the Kaiser for “a supreme offence against international morality and the sanctity of treaties” had collapsed when the Dutch authorities refused to hand him over for trial. War crimes trials were held before the Supreme Court in Leipzig but these were before domestic courts and were described by one commentator as a “judicial farce.” The record of domestic courts in enforcing international law has not been impressive.

Following Nuremberg, and its sister Tribunal in Tokyo, the newly formed United Nations adopted the “Nuremberg Principles” establishing much of the jurisprudence but the Cold War prevented any further attempts to build on those foundations. Although consideration was given to the formation of an International Criminal Court to sit alongside the International Court of Justice, States were not prepared to give up their sovereign rights to that extent and the proposal was stalled.

It was only in the 1990s after the end of the Cold War that the project gained renewed support. This arose as a result of the atrocities committed during the breakup of the Yugoslav Republic and of the genocide in Rwanda. The United Nations Security Council established ad hoc Tribunals to try those responsible for genocide, crimes against humanity and war crimes. The Statutes of the Tribunals were based strongly on the Nuremberg precedent. In the case of Rwanda, the Statute broke new ground in granting international jurisdiction for the first time over war crimes committed in a non-international armed conflict.

These developments led on to renewed efforts to establish an International Criminal Court. After lengthy negotiations, a Statute was adopted in 1998 and the Court came into effect in 2002 after the Statute had received the necessary number of State ratifications. The Court is treaty based and only has jurisdiction where crimes listed in the Statute are committed either by a national of a State Party or on the territory of a State Party. In addition, the Security Council can refer a situation to the Court under its binding powers, thus granting it jurisdiction. To date (2007), there have been three State referrals, Uganda, Democratic Republic of Congo and Central African Republic, and one referral by the Security Council, Darfur. The Prosecutor has opened investigations into all these except the Central African Republic where at the time of writing he is still carrying out a preliminary analysis.

The crimes listed in the Statute are genocide, crimes against humanity and war crimes with each crime closely defined both in the Statute itself and in a subsidiary document, “Elements of Crimes.” The Court will also have jurisdiction in the future over aggression but subject to a definition being agreed and adopted by the States Parties. There are currently (2007) around 100 States Party to the Statute though there are some important absentees, including the United States, Russia and China. The United States originally signed the Statute but has since withdrawn its signature and has sought bilateral agreements with States to prevent its personnel being handed over to the ICC. It did not, however, oppose the Darfur referral in the Security Council but instead abstained on the vote.

The main difference between the International Criminal Court and the ad hoc Tribunals is in the nature of their jurisdiction. The ad hoc Tribunals were established by the United Nations Security Council under its binding powers and have compulsory jurisdiction with primacy over domestic State courts. The International Criminal Court on the other hand is designed to be “complementary” to domestic State Courts and will only be able to act where a State with jurisdiction is “unable” or “unwilling” to act itself. The onus is therefore placed on national courts to take responsibility. Already, many States Parties to the Statute have introduced national legislation, some for the first time, giving their domestic courts jurisdiction over the crimes listed in the Statute in order to ensure that they can take advantage of the “complementarity” provisions.

Whilst the International Criminal Court may provide a forum for some future conflicts, there remain many which fall outside its scope either because of timing (the International Criminal Court does not have retroactive jurisdiction) or because relevant States were not Parties to the International Criminal Court Statute. The trend in such cases has been towards placing greater responsibility on States themselves rather than establishing new international tribunals. The ad hoc Tribunals have been criticized for being too expensive, too remote (they are located outside the territories with which they deal) and too slow. Inevitably, they can only deal with a small number of major cases and some other forum will be required to deal with the vast majority of alle gations. National authorities in both the former Yugoslavia and in Rwanda have had to wrestle with this problem and take action themselves, either by means of empowering local courts or by some form of extrajudicial process such as the tribal Gacaca proceedings adopted in Rwanda.

In Sierra Leone, by a treaty between the United Nations and the Government of Sierra Leone, a Special Court was established in 2002 to deal with the aftermath of the civil war in that country. This “hybrid” court has both international and Sierra Leonean judges and has jurisdiction not only over international crimes but also some crimes under national law as well.

In Cambodia, lengthy negotiations between the United Nations and the Cambodian authorities have led to the establishment of “Extraordinary Chambers,” established under Cambodian law but with international support and assistance, to “prosecute those most responsible for crimes and serious violations of Cambodian and international law between 17 April 1975 and 6 January 1979” during the Pol Pot regime. However, this Court has been beset by financial and political difficulties and has not yet begun to function fully.

In East Timor Special Panels of Dili District Court were established and in Kosovo, UNMIK created the War and Ethnic Crimes Courts, all to deal with international crimes. Whilst these are national courts, they are staffed by both international and national personnel though operating primarily under domestic law provisions. The Timor Panels in particular have run into difficulties, due partly again to funding difficulties and partly due to the failure of the Panels to obtain jurisdiction over many of the indictees who are now located in Indonesia. The Kosovo Courts will be watched closely by the domestic courts in Croatia, Serbia and Montenegro and Bosnia-Herzegovina as the ad hoc Tribunal in The Hague winds down its work and begins to refer cases back to the national jurisdictions.

Similarly, in Iraq, a Special Tribunal was established during the occupation to try the leaders of the Saddam regime. The new Iraqi Government has now passed its own law, based on that passed by the Occupying Powers, creating “The Iraqi Higher Criminal Court.” This Court has jurisdiction over genocide, crimes against humanity and war crimes as well as certain offences under Iraqi law principally involving the misuse of political power. The Court operates under a procedure that is a mixture of Iraqi and international law but is mainly staffed by Iraqi nationals. Originally the Court was required to appoint international advisers and observers to the various sections of the Court but that has, under the new law, become optional rather than obligatory. Initial indications are that international involvement has been limited, in part because the death sentence, suspended under the occupation, has now been restored. In the early trials, concern has been expressed about political interference both by the United States and by the Iraqi Government itself. Two presiding judges have been replaced during the proceedings. These concerns were particularly acute in respect of the appeals process culminating in the execution of Saddam Hussein and others.

Certainly States coming out of conflict and recovering from repressive regimes will face severe difficulties in coming to terms with the past. Each situation will be different and will require a slightly different solution. The move towards encouraging greater domestic involvement in judicial and other proceedings may assist in restoring the rule of law but international involvement will still be required to a greater or lesser extent to avoid allegations of vengeance or “victors’ justice.” However, the move towards individual accountability for international crimes is based firmly on the foundations laid long ago at Nuremberg where it was recognized that only by such accountability could international law be enforced.

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