Tag: International Criminal Justice

We already have seen that the imposition of criminal sanctions (imprisonment) is one way that we the People of the world seek to enforce international human rights norms.[1]

We also have explored some of the institutions that do this. The International Criminal Court is a permanent body that was created by a separate treaty (the Rome Statute for the ICC) and that encourages and gives precedence to national criminal prosecutions under the principle of complementarity.[2] The U.N. Security Council has created two ad hoc and limited-life courts: the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY).[3]

There also are at least four other special institutions that are authorized to impose such criminal sanctions. They are sometimes called “hybrid tribunals” because they have judges from the concerned country plus international judges.

1. East Timor Serious Crimes Panel

In 1998 the residents of East Timor voted for independence from Indonesia. In response pro-Indonesian militias launched a brutal campaign of property destruction and human rights abuses. Soon thereafter a U.N. military force entered the territory and restored order, and the U.N. set up the U.N. Transitional Administration in East Timor.[4]

 

In 2000 this Administration established a court system that included a Serious Crime Panel, which had jurisdiction over war crimes; crimes against humanity; murder; sexual offenses; and torture. The initial Panel had two international judges and one East Timorese judge. It was located in East Timor. [5]

By the end of May 2005 the Special Panel had completed more than 55 trials. Most involved relatively low-level defendants; 84 were convicted and 3 acquitted. The work of the Special Panel was cut short by a U.N. decision to end its missions to Timor-Leste.[6]

 

 

 

2. The Special Court for Sierra Leone

 

 

The Special Court for Sierra Leone was established pursuant to an agreement, dated January 16, 2002, between the Government of that country and the United Nations and the annexed Statute for the Special Court. It has 10 judges; five appointed by the U.N. and five by the Government of Sierra Leone.[7]

The Special Court has jurisdiction over “persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996, including those leaders who, in committing such crimes, have threatened the establishment of and implementation of the peace process in Sierra Leone.” The Court’s Statute specifies the following crimes as within its jurisdiction: crimes against humanity; violations of common Article 3 of the Geneva Conventions; certain other serious violations of international humanitarian law; and certain crimes under Sierra Leonean law.[8]

 

The Special Court, sitting in Freetown, Sierra Leone, has completed trials and appeals of (a) three former leaders of the Armed Forces Revolutionary Council (AFRC); (b) two members of the Civil Defense Forces (CDF); and (c) three former leaders of the Revolutionary United Front (RUF). Two other individuals who were indicted by the Special Court have died, and their indictments, therefore, were dismissed. Another indictee is at large, and the status of one of the 13 indictees is unknown.[9]

The last of the Special Court’s cases is against former Liberian President Charles Taylor. He was indicted in March 2003 on 17 counts, including war crimes, crimes against humanity, sexual slavery and mutilation. In May 2004, before Taylor was in custody, the Special Court rejected his motion to dismiss the charges on the ground of head-of-state immunity; the court said that it was an international tribunal from which there was no immunity. [10]

In August 2003 Taylor resigned as President of Liberia and went into exile in Nigeria where he remained until March 2006 when Nigeria transferred him to Liberia. In Liberia U.N. military forces arrested him and took him to the Special Court in Freetown, Sierra Leone to stand trial. Soon thereafter because of security concerns the Special Court asked the Netherlands to accept his transfer to The Hague for trial by the Special Court; the Netherlands agreed to do so after the U.K. agreed to provide a prison for Taylor if he were convicted.[11]

The Taylor trial started in June 2007; the defense phase of the case ended in November 2010; and closing arguments were held in March 2011. The decision of the Special Court is pending.[12]

3. Extraordinary Chambers in the Courts of Cambodia

 

In 2001 the Cambodian National Assembly passed a law to create the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea (Extraordinary Chambers or ECCC). This is a court to try serious crimes committed during the Khmer Rouge regime 1975-1979. In June 2003 Cambodia and the U.N. reached an agreement detailing how the U.N. will assist and participate in the Extraordinary Chambers.[13]

The ECCC has 12 judges; seven are selected by Cambodia; the other five, by the U.N. The ECCC has jurisdiction over (a) “the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide;” (b) “crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court;” (c) “grave breaches of the 1949 Geneva Conventions;”and (d) such other crimes as defined in Chapter II of the Cambodian Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001.”[14]  The last category includes homicide, torture, religious persecution, destruction of cultural property during armed conflict and crimes against internationally protected persons.[15]

The ECCC has only four cases on its docket.[16]

The first case was against Kaing Guek Eav (alias Duch), the former Chairman of the Khmer Rouge Security Center in Phnom Penh. After eight months of trial, the Trial Chamber in July 2010 found him guilty of two charges. First was crimes against humanity (persecution on political grounds) (subsuming the crimes against human extermination [encompassing murder], enslavement, imprisonment, torture [including one instance of rape], and other inhumane acts). Second was grave breaches of the Geneva Conventions of 1949, namely: – willful killing, – torture and inhumane treatment, – willfully causing great suffering or serious injury to body or health,                 – willfully depriving a prisoner of war or civilian of the rights of fair and regular trial, and -unlawful confinement of a civilian.[17]

The Trial Chamber sentenced Duch to 30 years of imprisonment (after reducing the initial sentence of 35 years). The judgment has been appealed to the Supreme Court of the ECCC.

The second case before the ECCC is against four defendants on charges of crimes against humanity; grave breaches of the Geneva Conventions of 1949; genocide; homicide; torture; and religious persecution. The trial commenced in late June 2011. Almost immediately one of the defendants left the courtroom and is participating by video.[18]

In September 2009, the Prosecutors requested the investigating judges to initiate an investigation of five additional suspected persons. This request was divided into what is known as Case files 003 and 004.

• In April 2011 Case 003 the investigating judges rejected the request; an appeal has been filed from this denial.

• Case 004, however, is still open. In August 2011 the investigating judges issued an unusual press release saying that they had not notified the public of the crime sites in this case because there were “serious doubts whether the suspects are ‘most responsible’ according to the jurisdictional requirement” and that If the Court had no jurisdiction, it would be inappropriate to identify these sites. However, since there was an increasing amount of speculative and wrong information being published, the investigating judges identified 30 sites in different regions of the country that were involved in this case.[19]

The Cambodian government has opposed the opening of cases 3 and 4, and the ECCC’s rejection of Case 3 and anticipated rejection of Case 4 have generated a lot of controversy.[20]

4.  Special Tribunal for Lebanon

 

In December 2005, the Government of the Republic of Lebanon requested the U.N. to establish a tribunal of an international character to try all those allegedly responsible for the February 2005 attack in Beirut resulting in the death of former Lebanese Prime Minister Rafiq Hariri and in the death or injury of other persons. Pursuant to Security Council resolution 1664 (2006), the U.N. and the Lebanese Republic negotiated an agreement on the establishment of the Special Tribunal for Lebanon. Pursuant to that agreement, another Security Council resolution (No. 1757(2007)) and the Statute of the Special Tribunal, the Special Tribunal entered into force in June 2007.[21]

For considerations of justice and fairness, as well as security and administrative efficiency, the seat of the Special Tribunal is located at The Hague (Netherlands).[22]

The mandate of the Special Tribunal for Lebanon is to prosecute persons responsible for the attack of 14 February 2005 attack resulting in the death of former Prime Minister Rafiq Hariri and in the death or injury of other persons. The Tribunal’s jurisdiction could be extended beyond that attack if the Tribunal finds that other attacks in Lebanon between October 2004 and December 12, 2005, are connected in accordance with the principles of criminal justice and are of a nature and gravity similar to the attack of 14 February 2005.[23]

The Special Tribunal has 9 judges all appointed by the U.N. Secretary-General; three are Lebanese; the other six are from other countries. They are divided into Pre-Trial, Trial and Appeals Chambers.[24]

On June 30, 2011, the Special Tribunal indicted four men, all members of Hezbollah, for the assassination of Hariri. Hezbollah has contended that the Tribunal is a sham and manipulated by the U.S. and Israel. Now the challenge is to serve the warrants and arrest the four defendants.[25]

On August 19, 2011, the Tribunal announced that it would investigate three other attacks that, it said, were related to the attack that killed Hariri. They were an unsuccessful assassination attempt on a former Lebanese telecom minister (Hamadeh) in 2004; the attack and wounding of a former deputy prime minister and defense minister (al-Murr) in 2005; and the killing of a former Communist Party chief and critic of Syria (Hawi) in 2005.[26]

Conclusion

These four special tribunals along with the ICTR and ICTY demonstrate that the U.N. has reacted creatively to situations where nation states need assistance in holding accountable perpetrators of the worst crimes of concern to the international community.

In three instances (East Timor, Sierra Leone and Cambodia) the special tribunals were placed in the country where the crimes occurred, and their proceedings were conducted in the languages of those countries. This helps to bring immediacy to the trials for the affected communities.

When security is a problem for such trials in the affected countries (Rwanda, the former Yugoslavia and Lebanon), on the other hand, the tribunals have been placed in a respected international center for such institutions (The Hague). The same was true for a specific trial (Charles Taylor) by the Special Court for Sierra Leone.