Tag: International Criminal Tribunal for the Former Yugoslavia ICTY)

Are International Criminal Tribunals Successful?

Michael Ignatieff, a former Harvard professor and expert on international human rights and a former leader of Canada’s Liberal Party, in a recent issue of The New York Review of Books expressed a gloomy view of the post-World War II development of international criminal tribunals.

The actions of the U.S. and other great powers have contributed to his negativity. He says, “America is exceptional in combining standard great-power realism with extravagant idealism about the country’s redemptive role in creating international order. . . . [The] US has promoted universal legal norms and the institutions to enforce them, while seeking by hook or by crook to exempt American citizens, especially soldiers, from their actual application. From Nuremberg onward, no country has invested more in the development of international jurisdiction for atrocity crimes and no country has worked harder to make sure that the law it seeks for others does not apply to itself.”

This negative assessment is buttressed by the new memoir by David Scheffer (All the Missing Souls: A Personal History of the War Crimes Tribunals). Scheffer, who was one of the leading U.S. diplomats involved in the negotiations that created these tribunals, recounts the U.S. resistance to (i) providing U.S. intelligence information to the ICTY; (ii) seeking to arrest the most egregious defendants for the ICTY; and (III) having U.S. citizens, especially soldiers, being subject to the jurisdiction of the International Criminal Court (ICC).  A review of this book is the nominal subject of this essay by Ignatieff.

Scheffer’s post-mortem on his frustrations as the lead U.S. diplomat at the Rome Conference that produced the Rome Statute for the ICC is especially instructive on why the U.S. voted against that treaty at the conclusion of the conference and more generally on the U.S. process for negotiating and ratifying multilateral treaties.

According to Scheffer, there were four main reasons for the inability of the U.S. to advance its positions at the Rome Conference and its eventual vote against the treaty at the conference’s conclusion. U.S. military officials failed to know and understand other nations’ perspectives on the ICC and to explain to other nations the role of the U.S. military after the end of the Cold War. Nevertheless the U.S. military’s opposition to the ICC dictated the terms of the unsuccessful U.S. negotiating positions at the conference. In addition, the U.S. government was unable to make timely policy decisions on key issues being negotiated for the treaty. Thirdly, there are always distractions and other matters clamoring for the attention of the President and his top advisors; for President Clinton and the Rome Conference it was the Monica Lewinsky scandal. Finally, Republican Senators Jesse Helms of North Carolina and Rod Grams of Minnesota, who were vehemently opposed to the idea of an ICC, attended the Rome Conference to make their views known to other governments.

Scheffer also provides important background information on two developments after the Rome Conference that remind us that there are important issues for a treaty like the Rome Statute after its terms have been adopted. First, he successfully pressed for significant U.S. participation in the drafting of the ICC’s Rules of Procedure and Evidence and the Elements of Crimes that helped to alleviate some of the U.S. concerns regarding due process at the new court. Second, Scheffer also was successful in lobbying for the U.S.’ signing the Rome Statute before the end of 2000 (the last possible date for a state’s signing the treaty), which he did on behalf of the U.S. at the U.N. headquarters in New York City on December 31st (a very wintery Sunday New Year’s Eve Day). He, however, was not pleased with some of the details of President Clinton’s signing statement that said the treaty had “significant flaws” and that he would not be submitting the treaty to the Senate for advice and consent. The latter point, says Scheffer, was unnecessary since the Clinton presidency was almost over and since it usually takes years to prepare a treaty for submission to the Senate.

Ignatieff’s negative assessment of the U.S. split personality on this subject is also supported by the fact that the U.S. has been actively involved in the post-1945 negotiation of treaties that establish or codify international human rights norms, but has not ratified 16 such treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court. Moreover, the U.S. has subjected its ratification of 10 of 16 such treaties to reservations, declarations and understandings that attempt to limit the application of such treaties to the U.S. (David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process at 136-66 (3d ed. 2001).)

We have seen this phenomenon in a prior post‘s examination of the U.S. ratification of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and by another post’s noting that Protocol II to the Geneva Conventions has been languishing in the U.S. Senate for 25 years with no action on presidential requests for advice and consent to U.S. ratification of that treaty. Other posts examined the policies toward the ICC in the Clinton, George W. Bush and Obama Administrations.

According to Ignatieff, the development of mechanisms of international criminal justice “was supposed to rescue the possibility of universal justice from the revenge frenzies, political compromises, and local partialities of national justice.”  This has not been the case, however, in his opinion, because “international justice turns out to be as much the prisoner of international politics as national justice is of national politics. Indeed, given the stakes, international justice may be more partial, that is, more politicized, than national justice.”

Therefore, he wonders if the creation of the international criminal tribunals—Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the ICC —has been worth the effort and costs. From 1993 through 2009, he says, these tribunals collectively cost their donors $3.43 billion, but only 131 convictions were obtained.

In the next breath, however, Ignatieff seems to say that the tribunals have been worth all the trouble. He says that no one now is dying from atrocity crimes in Bosnia, or in Cambodia, Sierra Leone, or Rwanda, which have had special international criminal tribunals.  “Justice—imperfect, partial, expensive—has been done and even been seen to be done. In these places, murderous rages have subsided. Some have reconciled. States have achieved stability. People are moving on. One of the reasons for this may be that in some cases justice was done.”

Although I share Ignatieff’s view of the imperfections of the mechanisms of international criminal justice and of U.S. (and other great powers’) resistance to application of such institutions or norms to themselves, I do not agree with his more pessimistic assessment of the development of international criminal tribunals.

First, he pulls the number of convictions at 131 from a table of results (as of December 31, 2010) in the Scheffer book without mentioning or considering these tribunals’ other results according to that table . Nor does Ignatieff attempt to update the table.

Let me first update that table and then discuss the overall results of these tribunals. My examination on April 1, 2012, of the websites for these tribunals revealed the following results with respect to individuals who have been charged with crimes by said tribunals:

Tribunal Pre-Trail Trial Convicted (includes pending appeals) Withdrawn/Dismissed/Acquitted/

Deceased

 Referred to Nat’l Court At Large TOTAL
ICTY 2 16   81 49 13   0 161
ICTR 1   3   62 14   3   9   92
Special Ct.-Sierra Leone 0   1     8   2   0   1   12
Extra Chambers Cambodia 5   4     1   0   0   0   10
ICC 7   3     1   6   0 11   28
TOTAL 15 27 153 71 16 21 303

According to this table, Ignatieff understates the convictions by 22, but more importantly he ignores the 16 who have been referred to national courts, the 42 who are still in pre-trial or trial proceedings and the 21 who are still fugitives. Thus, there eventually may be additional convictions for the crimes that have been charged. Moreover, these courts are not machines to produce convictions; they are intended to provide due process guarantees to those charged with crimes, and the 71 individuals who have had charges withdrawn or dismissed or who have been acquitted or who have died before their trials could be completed suggest that these courts have been operating fairly.

Second, Ignatieff ignores the fact that the existence and operation of these tribunals have given incentives and programs to various countries to improve their judicial systems so that eventually they can try individuals for the crimes within the jurisdiction of these international courts. Indeed, 16 of the individuals who have been charged with crimes by these tribunals have had their cases transferred to national court systems. As previously noted, the ICC’s Rome Statute has provisions incorporating the principle of complementarity whereby the ICC defers to national prosecutions by competent national judicial systems.

Third, Ignatieff also ignores the fact that these tribunals have been important in developing a more elaborate international law regarding genocide, crimes against humanity and war crimes, and their precedents can be and are being used by other courts and agencies involved in cases or other proceedings regarding international human rights.

Fourth, Ignatieff fails to acknowledge that these tribunals are only one part of a complex, interactive global struggle against impunity for the worst crimes of concern to the international community. Various posts already have discussed many of these pieces to the puzzle, and a prior post summarized this interactive network

Finally, in my opinion, these tribunals have been successful for the foregoing reasons. The peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further developments, I am confident, will occur.

International Criminal Justice: Other International Criminal Tribunals

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]

 

East Timor Serious Crimes Panel

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]

 

Sierra Leone Special Court

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

 

ECCC logo

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.

[1] Post: International Criminal Justice: Introduction (April 26, 2011).

[2] Post: International Criminal Court: Introduction (April 28, 2011). Other posts relating to the ICC may be found by going to the “tag cloud” in the upper right portion of the blog and double clicking on “International Criminal Court.”

[3]  See Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011). Other posts relating to the ICTR and the ICTY may be found by going to the “tag cloud” in the upper right portion of the blog and double clicking on “International Criminal Tribunal for Rwanda” and “International Criminal Tribunal for the Former Yugoslavia.” See also David Weissbrodt, Fionnuala D. Ní Aoláin, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process at 519-22, 536-40(4th ed. 2009)(ICTR)[“Weissbrodt”]; id. at 513-19, 533-36, 540-42 (ICTY).

[4]  Weissbrodt at 548-50.

[5]  Id.

[6] [Timor-Leste] Judicial System Monitoring Programme, http://www.jsmp.minihub.org; War Crimes Studies Center, East Timor Special Panels for Serious Crimes Documents, http://socrates.berkeley.edu/~warcrime/ET-special-panels-docs.htm.

[7] Agreement between the U.N. and Government of Sierra Leone on the Establishment of the Special Court for Sierra Leone (Jan. 16, 2002), http://www.sc-sl.org/LinkClick.aspx?fileticket=CLk1rMQtCHg%3d&tabid=176. See also Weissbrodt at 543-47.

[8] Statute of the Special Court for Sierra Leone, http://www.sc-sl.org/LinkClick.aspx?fileticket=uClnd1MJeEw%3d&tabid=176.

[9] The Special Court for Sierra Leone, http://www.sc-sl.org/HOME/tabid/53/Default.aspx.

[10]  Id.; Weissbrodt at 545-46.

[11]  Id.

[12] See n.3 supra.

[13]  ECCC, Introduction to the ECCC, http://www.eccc.gov.kh/en/about-eccc/introduction; Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under cambodian law of crimes committed during the period of democratic kampuchea, http://www.eccc.gov.kh/en/documents/legal/agreement-between-united-nations-and-royal-government-cambodia-concerning-prosecutio.  See also Weissbrodt at 476-81, 547-48. See generally Cambodia Tribunal Monitor, http://www.cambodiatribunal.org (news, information and commentaries on Extraordinary Chambers).

[14] Id.

[15] Cambodian Law on the Establishment of the Extraordinary Chambers, http://www.eccc.gov.kh/sites/default/files/legal-documents/KR_Law_as_amended_27_Oct_2004_Eng.pdf.

[17]  Id.; Giry, Cambodia’s Perfect War Criminal, N.Y. Rev. Books (June 26, 2011); Assoc. Press, Cambodia: Khmer Rouge War Criminal Appeals Sentence, N.Y. Times (March 28, 2011).

[18]  Mydans, Ex-Khmer Rouge Leaders Go on Trial in Cambodia, N.Y. Times (June 26, 2011); Mydans, Khmer Rouge Leader Leaves Court, in Sign of Legal Wrangling to Come, N.Y. Times (June 27, 2011).

[19]  Id.; ECCC, Appeal by the International Co-Prosecutor Against the Rejection of Investigative Requests in Case File 003 (Aug. 19, 2011), http://www.cambodiatribunal.org/blog/2011/08/appeal-international-co-prosecutor-against-rejection-investigative-requests-case-file; ECCC, Press Release by the Co-Investigating Judges Regarding Civil Parties in Case 004 (Aug. 8, 2011), http://www.cambodiatribunal.org/blog/2011/08/press-release-co-investigating-judges-regarding-civil-parties-case-004.

[20]  Assoc. Press, Cambodia Rebuffs U.N. Chief on Khmer Rouge Trials, W.S.J. (Oct. 27, 2010); Miller, KRT judge talks court controversies, Phnom Penh Post (Aug. 18, 2011).

[21]  Special Tribunal for Lebanon, Mandate and Jurisdiction, http://www.stl-tsl.org/section/AbouttheSTL.

[22]  Id.

[23]  Id.

[24]  Special Tribunal for Lebanon, Chambers, http://www.stl-tsl.org/sid/26.

[25]  E.g., Bakri, Tribunal Names 4 in ’05 Killing of Lebanese Leader, N.Y. Times (June 30, 2011); Bakri, Indictment in Hariri Assassination Is Published, N.Y. Times (Aug. 17, 2011); Crane & Del Ponte, Justice for Hariri’s killers requires the world’s support, Wash. Post (Aug. 16, 2011).

[26] Reuters, U.N.’s Lebanon Court to Probe Three Hariri-Linked Attacks, N.Y. Times (Aug. 19, 2011).


International Criminal Justice: Libya, Sudan, Kenya, Rwanda and Serbia Developments

Over the last several weeks there have been important developments regarding the International Criminal Tribunal for Rwanda (ICTR), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Court (ICC).

ICTR.

As we already have seen, the ICTR is winding down to complete its work by July 1, 2012, and one of the ways it is doing so is referring some cases to national judicial systems.[1] On June 26th, the ICTR referred one of its cases to the Rwandan national courts, the first time it had ever done so. It did so because there was evidence that Rwanda had made material changes to its laws and now had the capacity and intention to prosecute such cases in accordance with international standards of fair trial and human rights. The ICTR suggested that the African Commission on Human and Peoples Rights monitor the proceedings and notify the ICTR of any problems for its possible revocation of the referral.[2]

On June 24th the ICTR announced the conviction of six defendants in the Butare case for genocide and related crimes. They received sentences from 25 years to life.[3]

Finally the recently arrested Bernard Munyagishari made his initial appearance before the ICTR and pleaded not guilty to charges of genocide, conspiracy to commit genocide and crimes against humanity (murder and rape) of Tutsi women.[4]

ICTY.

On June 29th the U.N. Security Council unanimously adopted Resolution 1993 to extend the terms of office of the ICTY judges until December 31, 2012. It did so to facilitate the ICTY’s completing the trial of all of its pending prosecutions. The resolution also called for all States, especially the States of the former Yugoslavia, to intensify cooperation with, and assistance to, the ICTY, including the arrest of Goran Hadzic.[5]

On July 4th Ratko Mladic made his initial appearance before the ICTY and refused to enter pleas  because he said he was not represented by lawyers of his choice. After he had repeatedly and loudly interrupted the proceedings, the judges ordered him removed from the courtroom and thereafter entered pleas of not guilty on his behalf. He faces charges of genocide and war crimes.[6]

ICC

There have been significant developments regarding the Libyan, Sudan (Darfur) and Kenyan  investigations and prosecutions by the ICC. Many of these developments involve the ICC’s tense relations with the African Union (AU) as will be seen below.

Libya. As previously reported, the ICC on June 27th authorized the issuance of arrest warrants for Colonel Muammar Gadhafi and two others for crimes against humanity in Libya since February 15, 2011. The ICC Prosecutor has emphasized the importance and difficulty of making the actual arrests of these three individuals.[7]

On July 2nd the execution of these ICC arrest warrants was made even more difficult by a resolution adopted by the AU. It recommended that its 53 member-states “not cooperate in the execution of the arrest warrant” for Colonel Gadhafi.  This warrant, the AU said, “seriously complicates the efforts aimed at finding a negotiated political solution to the crisis in Libya which will also address, in a mutually-reinforcing way, issues relating to impunity and reconciliation.” This decision increases the chances for Gadhafi to avoid ICC prosecution by obtaining refuge in another African country. The AU also requested the U.N. Security Council to exercise its authority under Article 16 of the ICC’s Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Libya for one year.[8]

This AU resolution conflicts with the obligations of the 32 African states that are parties to the ICC’s Rome Statute. Its Article 86 obligates them to “cooperate fully with the Court in its investigation and prosecution of crimes within [its] jurisdiction.”

Sudan. Pursuant to U.N. Security Council referral, the ICC Prosecutor has been conducting investigations and prosecutions regarding the Sudan (Darfur). One of the prosecutions has been of the Sudanese President Bashir.[9]

The just noted inherent difficulties of enforcing ICC arrest warrants has also been in the news with respect to the recent trip to China by President Bashir.[10] His earlier trips to other African countries (Chad, Kenya and Djibouti) that are ICC States Parties have been defended by the AU as consistent with these countries’ obligations under the AU’s Constitutive Act and Article 98 of the Rome Statute as well as their efforts to promote peace and stability in their regions.[11]

In the meantime, violence continues in Sudan.[12] The AU Summit issued nice-sounding words about the need for a peaceful transition in Sudan. This included a more general request to the U.N. Security Council to defer all ICC investigations and prosecutions regarding Sudan for one year. [13]

Kenya. As previously reported, the ICC Pre-Trial Chamber on March 31, 2010, authorized the Prosecutor to commence an investigation of post-election violence in Kenya in 2007-2008, and on March 8, 2011, that Chamber authorized the issuance of six arrest summonses.[14]

At its recent Summit, the AU stressed the need to pursue all efforts to have the U.N. Security Council use its authority under Article 16 of the Rome Statute to defer or stay the ICC’s investigations and prosecutions regarding Kenya for one year. Such a deferral, the AU stated, would enable an investigation and prosecution by a reformed Kenyan judiciary in accordance with the ICC’s principle of complementarity. [15]

U.N. Security Council.

As we have just seen, all of the current ICC investigations and prosecutions come from Africa, two upon referrals by the U.N. Security Council and all of which potentially are subject to deferral by the Council. Thus, it is not surprising that the AU at its recent Summit meeting re-emphasized its desire for reform of the U.N. Security Council in order “to correct . . . the historical injustice done to the [African] continent, which continues to be unrepresented in the permanent category and under-represented in the non-permanent category of the . . . [Council].”[16]

To this end, the AU reaffirmed its Ezulwini Consensus on proposed U.N. reforms. With respect to the Security Council, this Consensus called for Africa to have two permanent and five non-permanent members on a reformed Council as chosen by the AU.[17]

[1] Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[2] ICTR Press Release, Case of Jean Uwinkindi Referred for Trial to the Republic of Rwanda (June 28, 2011); Reuters, U.N. Court Refers Genocide Case to Rwanda, N.Y. Times (June 28, 2011). Uwinkindi is a former Pentecostal pastor who has been accused of genocide, conspiracy to commit genocide and crimes against humanity (extermination) against the Tutsi people. (Id.)

[3] ICTR Press Release, Butare Judgment Released (June 24, 2011)

[4] ICTR Press Release, Bernard Munyagishari Pleads Not Guilty (June 20, 2011).

[5]  U.N. Security Council Press Release, Terms of 17 Judges with [ICTY] Extended (June 29, 2011); ICTY Press Release, Security Council extends Terms of ICTY Judges and Calls for Increased Cooperation with the Tribunal (June 30, 2011).

[6] Reuters, Mladic to ‘boycott war crimes hearing,’ Guardian (July 4, 2011); Simons & Cowell, Hague Judge Orders Mladic Removed From Courtroom, N.Y. Times (July 4, 2011). See Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011); Post: International Criminal Justice: Mladic Update (June 1, 2011); Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[7]  See Post: The International  Criminal Court: Introduction (April 28, 2011); Post: The International  Criminal Court’s Investigations and Prosecutions (April 28, 2011); Post: The International  Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International  Criminal Court: Investigation of Gang-Rape in Libya (May 17, 2011); Post: The International  Criminal Court: Issuance of Libyan Arrest Warrants and Other Developments (June 27, 2011); Stephen, Muammar Gaddafi war crimes files revealed, Guardian (June 18, 2011); Fahim, Claims of Wartime Rapes Unsettle and Divide Libyans, N.Y. Times (June 19, 2011).

[8]  Associated Press, AU Members Agree to Disregard ICC Gadhafi Warrant, N.Y. Times (July 2, 2011); Associated Press, African Union calls on member states to disregard ICC arrest warrant against Libya’s Gadhafi, Wash. Post (July 2, 2011); Amann, AU v. ICC, yet another round (July 3, 2011), http://intlawgrrls.blogspot.com/2011/07/au-v-icc-yet-another-round.html; AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news. Less than three weeks earlier the AU told the U.N. Security Council that the AU will not hide from its responsibility to help resolve the Libyan conflict. (U.N. Security Council, Press Release: African Union Will Never Hide from Responsibilities in Resolving Libyan Conflict (June 15, 2011).

[9]  See Post: The International  Criminal Court: Introduction (April 28, 2011); Post: The International  Criminal Court’s Investigations and Prosecutions (April 28, 2011).

[10] Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Higgins, Oil interests tie China to Sudan leader Bashir, even as he faces genocide charges, Wash. Post (June 22, 2011); Associated Press, Embattled Sudan president visits chief diplomatic backer, China, Wash. Post (June 29, 2011); Wines, Sudanese Leader Is Welcomed in Visit to China (June 29, 2011); Associated Press, UN: China Should Have Arrested Al-Bashir, N.Y. Times (June 30, 2011) (U.N. High Commissioner for Human Rights).

[11] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news.

[12]  Post: International Criminal Court: ICC Prosecutor Updates U.N. Security Council on Sudan (Darfur) (June 17, 2011); Gettleman, Sudan to Pull Troops From Abyei and Allow Peacekeepers, N.Y. Times (June 20, 2011); Kron, Ethnic Killings by Army Reported in Sudanese Mountains, N.Y. Times (June 20, 2011); Gettleman, As Secesssion Nears, Sudan Steps Up Drive to Stop Rebels, N.Y. Times (June 20, 2011); Bilefsky, U.N. Approves Troop Deployment in Sudan, N.Y. Times (June 27, 2011); Gettleman, Sudan Signs Pact With Opposition Forces, N.Y. Times (June 28, 2011); Reuters, Two Sudans to Create a Buffer Zone, N.Y. Times (June 29, 2011); Kristof, Yet Again in Sudan (June 29, 2011)(Sudanese government conducting vicious campaign of ethnic cleansing, murder and rape in Nuba Mountains); Gettleman, Another Area Girds for Revolt as Sudan Approaches a Split, N.Y. Times (June 30, 2011); Reuters, Sudan President [Bashir] vows to Fight, N.Y. Times (July 1, 2011); Gettleman, Sudanese Struggle to Survive Endless Bombings Aimed to Quell Rebels, N.Y. Times (July 3, 2011); Fagotto, Sudan partition leaves rebel Nuba region feeling betrayed, Guardian (July 3, 2011); Reuters, North and South Sudan Delay Talks Until After Split, N.Y. Times (July 4, 2011); Associated Press, Sudan President to Speak at S. Sudan Independence, N.Y. times (July 4, 2011).

[13] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news.

[14]  Post: The International Criminal Court’s Investigations and Prosecutions (April 28, 2011).

[15] AU Comm’n, Decisions adopted during the 17th African Union Summit (July 4, 2011), http://www.starafrica.com/en/news.

[16]  Id.

[17] Au, Elzwini Consensus  (March 8, 2005).

International Criminal Court: Required and Recommended Qualifications for ICC Judges

We have seen that six of the 18 judges of the International Criminal Court (ICC) will be elected this December by its Assembly of States Parties. The requirements for equitable geographical and gender balance of the Court and for representation of the principal legal systems in the world have been discussed.[1]

Now we examine the more fascinating subject of the required and recommended personal qualifications for these judgeships.

The Rome Statute sets forth the following necessary personal qualifications:[2]

  • High moral character;
  • Impartiality;
  • Integrity;
  • Possessing the qualifications required by their States for appointment to their highest judicial offices;
  • Excellent knowledge of the Court’s two “working languages” (English and French) and fluency in at least one of these languages;
  • Established competency in either (a) “criminal law and procedure, and the necessary relevant experience, whether as judge, prosecutor, advocate or in similar capacity, in criminal proceedings” (the List A candidates) or (b) “relevant areas of international law such as international humanitarian law and the law of human rights, and extensive experience in a professional legal capacity which is of relevance to the judicial work of the Court” (the List B candidates);[3] and
  • At least some of the judges need to have “legal expertise on specific issues, including, but not limited to, violence against women or children.”[4]
In addition, Human Rights Watch has set forth certain other qualifications it deems important to enable the ICC to fulfill its overall mandate to combat “the most serious crimes of international concern.”[5] These additional qualifications are the following:
  • Substantial experience in criminal trials. This really is an emphasis of the statutory requirement that the List A judges have “experience, whether as judge, prosecutor, advocate or in similar capacity, in criminal proceedings.” Thus, Human Rights Watch suggests that at least five of the six new judges come from the A List candidates.
  • The capacity and willingness to meet the demands of adjudicating cases over a nine-year term. The new judges, it is suggested, must “possess the capacity (including stamina) and motivation to meet the many demands on [ICC] judges . . . over a full nine-year term.” In other words, the ICC judgeships are not sinecures to reward distinguished national judges at the end of their careers.
  • Commitment to ongoing training. The new judges should “value continuing legal education and . . . [be] willing to participate in initiatives [to promote] . . . legal innovation and coordination among all judicial chambers [of the Court] in adjudicating complex questions relating to law and policy.”

Implicit in the recommendations by Human Rights Watch is the need for the ICC continually to find ways to improve its efficiency, i.e., its ability to dispose of cases expeditiously. The same challenge faces the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) in their final months, as was discussed at a recent U.N. Security council meeting.[6] Specific suggested changes for improving ICC efficiency have been put forward by one of the six ICC judges to be replaced in this election, Judge Fulford from the U.K.[7] Another set of such recommendations recently has been advanced by the War Crimes Research Office at American University’s Washington College of Law.[8]

I concur in the Human Rights Watch suggested qualifications, but believe that greater emphasis needs to be placed on the importance of electing new ICC judges with previous international criminal law experience. There are important differences between domestic and international criminal trials, and there is now a group of former judges, prosecutors and advocates who already have had such international experience at the ICC, ICTR, ICTY and other similar tribunals. To use a U.S. baseball analogy, look for major league free agents in addition to finding capable minor leaguers to promote to the big leagues. It is encouraging that all four of the first nominees have such international experience.[9]

The importance of this judicial election also had been recognized by the International Coalition for the International Criminal Court. It has called for the nomination of the most highly-qualified jurists for these positions.[10] In addition, the Coalition has established the Independent Panel on ICC Judicial Elections. This Panel was charged with providing “an independent assessment of whether each judicial candidate fulfills the qualifications established by Article 36 of the Rome Statute.” The five Panel members are all distinguished people with international legal experience.[11]

Just this year the ICC has been asked to shoulder more burdens with the U.N. Security Council’s referral of the current situation in Libya to the ICC.[12] Thus, it is critically important to the world for the ICC to be strengthened in every way, including the election of six fully qualified new judges.

[1]  See Post: The International Criminal Court: Basics of Its Upcoming Judicial Elections (June __, 2011).

[2] Rome Statute, Arts. 36(3), 38(8)(b), 50(2).

[3] List A judges are supposed to be at least nine in number; the List B judges, at least five. (Rome Statute, Art. 36(5).) All six of the retiring judges came from the A List. Of the six to be elected this December at least two must come from the A List while no one has to be from the B List. (See Post: The International Criminal Court: Basics of Its Upcoming Judicial Elections (June 23, 2011).)

[4] The author does not know of any legal issue that has been identified for judicial expertise other than the one specified in this Article of the Statute.

[5] Human Rights Watch, ICC: Recommendations for Nominating and Electing Candidates to Serve as Judges (May 18, 2011), http://www.hrw.org/en/news/2011/05/18/icc-recommendations-nominating-and-electing-candidates-serve-judges; Rome Statute, Art. 1.

[6]  See Post: International Criminal Justice: Winding Down Two Ad Hoc Criminal Tribunals (June 18, 2011).

[7]  Id.

[8]  SaCouto, How to speed up ICC Proceedings (June 21, 2011), http://intlawgrrls.blogspot.com/2011/06; War Crimes Research Office, Expediting Proceedings at the International Criminal Court (June 2011), http://www.wcl.american.edu/warcrimes/icc/documents/.

[9] See Post: The International Criminal Court: Basics of its Upcoming Judicial Election (June 23, 2011).

[10]  International Coalition for the International Criminal Court, Global Coalition Calls on States to Nominate the Most Highly-Qualified Judicial Candidates for the ICC (June 21, 2011), http://www.coalitionfortheicc.org/documents/.

[11] Independent Panel on ICC Judicial Elections, http://iccindependentpanel.org/. The Panelists are (i) The Honorable Hans Corell, former Judge of Appeal and former U.N. Under-Secretary-General for Legal Affairs and Legal Counsel; (ii) The Honorable Justice Richard Goldstone, former Chief Prosecutor for the ICTR and ICTY; (iii) Judge O-Gon Kwon, Vice President of the ICTY and former Presiding Judge at the Daegu High Court; (iv) Dr. Cecilia Medina Quiroga, Co-Director of the Human Rights Centre at the University of Chile and former President of the Inter-American Court of Human Rights; and (v) The Honorable Patricia Wald, former Chief Judge of the United States Court of Appeals for the District of Columbia and former Judge of the ICTY.

[12]  See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court: Three Liban Arrest Warrants Sought (May 16, 2011); Post: The International Criminal Court: Investigation of Gang-Rape in Libya (May 16, 2011).

International Criminal Justice: Winding Down Two Ad-Hoc Criminal Tribunals

We have seen that two of the institutions of international criminal justice are the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). They are both so-called ad hoc tribunals that were created by the U.N. Security Council.[1]

Both were created with the clear expectation that they would not be permanent institutions. Instead, they had set terms of existence that have had to be extended. Those termination dates are now July 1, 2012 (ICTR) and July 1, 2013 (ICTY). To cope with their anticipated unfinished business when they cease to exist, the Security Council created another institution with the awkward title of the International Residual Mechanism for Criminal Tribunals (IRMCT).[2]

On June 6, 2011, the Security Council heard from the ICTR and ICTY on the status of their efforts to complete their work by the above dates. Despite their diligent efforts, both tribunals face difficulties in meeting the deadlines.[3]

One problem is the recent arrests of defendants (Mladic for ICTY and Munyagishari for ICTR) and the resulting preparations for, and conducting, their trials.

Another problem for both tribunals is the departure of professional staff members who understandably are seeking new jobs with ongoing institutions, rather than be left standing on a sinking ship. One solution to this problem that was suggested at the recent Security Council meeting was paying retention bonuses to those who stay until the tribunals are terminated. Good idea, but what is the source of the funds to pay such bonuses? The tribunals are paid for by the Security Council, which always has difficulties in obtaining funds for its budget.

One way to help get their work done by their end dates is to refer as many remaining cases as possible to national courts. Both tribunals are doing so.

These inherent administrative difficulties that are associated with ending the ad hoc tribunals are one set of reasons for the establishment of the permanent International Criminal Court. Since it is a permanent body, it will not experience these problems.[4] In addition, unlike the ad hoc tribunals, the ICC, once established, is able to take on current problems like Libya.[5]

All three of these institutions, however, share the difficult challenge of trying to shorten the time required for trials. Given the nature of the crimes within the jurisdiction of these bodies, this is not easy. For example, the ICC has jurisdiction over defined “war crimes,” which require proof of certain acts when “committed as part of a plan or policy or as part of a large-scale commission of such crimes.” Such proof is not simple.[6]

Thus, the recent Security Council meeting included discussion of the need for the ICTR and ICTY to have greater judicial efficiency while still providing due process to the defendants. The tribunals’  representatives  talked about the recent introduction of electronic filing, amendments to their rules of procedure and evidence and improved case management techniques, limiting amendments to the grounds for appeal, organization of judgment drafting and prioritization of work. There were no details of these efforts provided at the Security Council meeting, but although they sound good, they seem an inadequate response to me. More promising were suggestions on this subject from one of the ICC judges:

  • Have court-appointed experts present reports regarding context, background, general circumstances of alleged offenses and peripheral facts.
  • Use depositions for less central areas of evidence.
  • Increase use of video links to hear some witnesses.
  • Require parties for each witness to identify areas of undisputed and of disputed testimony.
  • Amend the Rome Statute to allow a single judge to hear some parts of trial instead of the three judges now required for all aspects of a trial.
  • Examine whether the ICC is efficiently operating and using its funds.
  • Develop expedited procedures for interlocutory appeals.[7]

Another problem was presented by the ICTR. It continues to face difficulties in relocating acquitted defendants and convicted individuals who have served their sentences.

The Security Council meeting was attended by a representative of the government of Rwanda, which is not a member of the Council. He raised a separate issue. He said of utmost concern to his government was the “scourge of genocide denial by some in the academic and legal professions, including ICTY defense lawyers, [who] are leading an international campaign to misrepresent, misinterpret and openly deny that, in 1994, there was a genocide perpetrated against the Tutsi in Rwanda. . . . Such attempts  . . . are . . . not only morally reprehensible, but also a violation of the ethics and rules of professional conduct for attorneys. . . . The Government of Rwanda will . . . continue to ensure that, without prejudice or favor, any individual who engages in revisionism or denial of [this] . . . genocide . . . be brought to justice in accordance with the Rwandan Constitution and other legal instruments.”

This Rwandan statement is not an idle threat. In 2010 Rwandan authorities arrested and jailed for nearly three weeks a defense lawyer before the ICTR, Peter Erlinder of Minnesota, for allegedly denying that genocide had happened.[8] Such threats and charges, I submit, are infringements of a defendant’s right to counsel and of the lawyer’s duty zealously to represent his client. The Minnesota State Bar Association stood up for Erlinder with a resolution that urged the Rwandan government “to drop all charges against him based on actions taken in the course of his professional representation of his clients in Rwanda and the exercise of his internationally recognized rights to freedom of expression, belief, association and assembly, and . . . to allow him to continue his legal representation and the exercise of his rights to freedom of expression, belief, association and assembly without further intimidation, hindrance, harassment or improper influence.”[9]

Despite all of these administrative problems, the French Ambassador to the U.N. at the recent Council meeting reminded us all that the recent arrests of Mladic and the Rwandan fugitive and the continued efforts to find and prosecute those charged with these grave crimes send “an important message.” For “all of those who today still try to come to power–or stay in power–by ordering and planning attacks against civilians, to all those who, when faced with an international criminal justice arrest warrant . . ., think that they can count on weariness or inaction on the part of the [Security] Council [or the international criminal tribunals], [t]hey are mistaken.”

[1] See: Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011); Post: International Criminal Justice: Mladic Update (June 1, 2011).

[2]  See Post: International Criminal Justice: The Residual Mechanism for Criminal Tribunals (May 28, 2011).

[3]  U.N. Security Council, 6545th Meeting (June 6, 2011); U.N. Security Council, Press Release: Arrests of Long-Sought Fugitives Commended in Security Council, But Challenges to Completing Work in War Crimes Tribunals Dominate Briefings by Officials (June 6, 2011).

[4]  See Post: International Criminal Court: Introduction (April 28, 2011); Post: International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[5]  See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011).

[6]  Rome Statute for ICC, Art. 8(1).

[7]  ICC Judge Adrian Fulford, The Reflections of a Trial Judge (Dec. 16, 2010).

[8]  Kron & Gettleman, American Lawyer for Opposition Figure Is Arrested, N.Y. Times (May 28, 2010); Ward, Hearing could end Erlinder’s “holding pattern” in Rwanda, StarTrib. (June 6, 2010); Herb, Erlinder is sent to prison after Rwanda denies bail, StarTrib. (June 7, 2010); Diaz, Erlinder essay on Rwanda has defense nervous, StarTrib. (June 11, 2011); Herb & Diaz, Erlinder acknowledges suicide attempt in jail, StarTrib. (June 15, 2010); Herb & Diaz, Rwanda frees Peter Erlinder on bail, StarTrib. (June 17, 2010); Diaz & Herb, Nightmare over, Erlinder’s home, StarTrib. (June 22, 2010); Kron, U.S. Lawyer Is Barred from Rwanda Tribunal Work, N.Y. Times (April 22, 2011).

[9] Minn. State Bar Ass’n, General Assembly Resolution (June 25, 2010).  Professor Erlinder has written an account of his arrest and jailing which, he says, was due to his having used discovery proceedings to uncover original documents in U.N. and U.S. Government archives that confirm that the victors in the four-year Rwandan war have told the story of the violence that occurred during that war; he also criticizes the record of the ICTR as one-sided prosecution. (Erlinder, The UN Security Council Ad Hoc Rwanda Tribunal: International Justice or Juridically-Constructed “Victor’s Impunity”?, 4 DePaul J. Soc. Justice 131 (2010).) Erlinder also has created the Rwanda Documents Project to collect and make available primary source materials from international and national agencies, governments, and courts that relate to the political and social history of Rwanda from 1990 to the present. (Rwanda documents project, http://www.rwandadocumentsproject.net/gsdl/cgi-bin/library.)

International Criminal Justice: Mladic Update

On May31st Ratko Mladic arrived at The Hague and immediately was locked up in the Dutch prison used by the International Criminal Tribunal for the former Yugoslavia (ICTY).[1]

In the five days since his arrest and ordered extradition on May 26th,[2] Mladic appealed the Serbian court’s order of extradition to The Hague. The appeal asserted that he is physically and mentally unfit for trial. On May 31st the appeal was rejected.[3]

The following is a summary of the ICTY charges facing Mladic:

  • Genocide and complicity in genocide: for leading Bosnian Serb forces who massacred 8,000 Muslim men and boys in Srebrenica in 1995 and ethnically cleansed towns and villages in Bosnia of non-Serbs throughout the 1992-95 Bosnian war.
  • Crimes against humanity by persecution on the basis of religion: for killing, torturing, raping, deporting and illegally imprisoning Muslims and Croats.
  • War crimes by extermination, murder and cruel treatment: for widespread killing of non-Serb civilians in towns and villages targeted by Bosnian Serb forces and for the deadly campaign of sniping and shelling of civilians during the 44-month siege of the Bosnian capital, Sarajevo.
  • War crimes by taking hostages: for taking hostage United Nations military observers and peacekeepers. [4]

Through his son Mladic has denied that he ordered the massacre at Srebrenica.[5]

Now attention is being paid to how Mladic was able for so long to avoid arrest and whether those who aided his evasion of legal process are liable for crimes.[6]

Mladic still has supporters in Serbia, and on May 29th around 10,000 of them rallied in Belgrade to protest the arrest and threatened extradition of Mladic to the ICTY at The Hague. The crowd also demanded the resignation of the Serbian president, Boris Tadic, whom they called a traitor to Serbia for his willingness to hand over alleged war criminals to the tribunal.[7]

The ICTY has jurisdiction over perpetrators of atrocities committed during the Balkan wars of the 1990s, including grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity. It has indicted 161 ethnic Serbs, Croats and Muslims, the majority of whom are Serbs. The following summarizes the status of these 161 cases:[8]

Concluded cases: Convicted & sentenced   64
Acquitted   13
Referred to national court   13
Withdrawn/deceased   36
SUBTOTAL 126
Pending Cases: Appeal after trial   16
At trial   14
Pre-trial     4
At large     1
SUBTOTAL   35
TOTAL   161

[1] Simons, Mladic Arrives in the Hague, N.Y. Times (May 31, 2011), http://www.nytimes.com/2011/06/01/world/europe/01serbia.html?ref=world&pagewanted=print.

[2] See Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011).

[3] Carvajal, Mladic Appeals Extradition on Health Ground, N.Y. Times (May 31, 2011), http://www.nytimes.com/2011/05/31/world/europe/31serbia.html?ref=world; Carvajal, Mladic Extradition Appeal Rejected, N.Y. Times (May 31, 2011), http://www.nytimes.com/2011/06/01/world/europe/01serbia.html?hp.

[4] Associated Press, A Summary of War Crimes Charges Against Mladic, N.Y. Times (May 31, 2011), http://www.nytimes.com/aponline/2011/05/31/world/europe/AP-EU-Mladic-The-Charges-Glance.html?hp; ICTY, Case Information Sheet: Ratko Mladic,  http://www.icty.org/x/cases/mladic/cis/en/cis_mladic_en.pdf.

[5] Beaumont & Meikle, Ratko Mladic denies ordering Srebrenica massacre, says his son, Guardian (May 30, 2011), http://www.guardian.co.uk/world/2011/may/29/ratko-mladic-denies-ordering-srebrenica-massacre.

[6] Carvajal & Erlanger, Serb Fugitve Slowly Starved of Friends and Cash, N.Y. Times (May 29, 2011),   http://www.nytimes.com/2011/05/30/world/europe/30mladic.html?ref=world.

[7] Erlanger, Demonstrators Rally Against Mladic Extradition, N.Y. Times (May 29, 2011), http://www.nytimes.com/2011/05/30/world/europe/30serbia.html?ref=world.

[8] ICTY, Key Figures, http://www.icty.org/sections/TheCases/KeyFigures;  Associated Press, An Overview of the Yugoslav War Crimes Court, N.Y. Times (May 31, 2011), http://www.nytimes.com/aponline/2011/05/31/world/europe/AP-EU-Mladic-Tribunal-Glance.html?ref=world. See also Post: International Criminal Justice: Introduction (April 26, 2011); Post: International Criminal Justice: The International Residual Mechanism for Criminal Tribunals (May 28, 2011).
.

International Criminal Justice: The International Residual Mechanism for Criminal Tribunals (IRMCT)

As previously mentioned, the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) were created by the U.N. Security Council with limited lives for limited purposes.[1]

In December 2010 the Security Council dealt with the problems associated with the limited lives of these two tribunals by creating The International Residual Mechanism for Criminal Tribunals (IRMCT). The Mechanism will have two branches for the just mentioned two tribunals after their closure. The branch for the ICTR will commence operations on July 1, 2012; the one for the ICTY, July 1, 2013.[2]

The IRMCT’s two branches will prosecute and try those individuals who had been indicted, but not tried, by the ICTR and ICTY. For those “who are among the most senior leaders suspected of being most responsible for the crimes . . . considering the gravity of the crimes charged and the level of responsibility of the accused,” the authority of the IRMCT is unlimited. For lesser officials, it has a similar authority, but only “after it has exhausted all reasonable efforts to refer the case” to an appropriate national court.

The IRMCT also will have an appeals chamber to handle appeals from any trials that it conducts as well as trials conducted by the ICTR and ICTY, but that did have appeals lodged or completed when the two tribunals closed.

It is anticipated that the just-captured Ratko Mladic will be tried by the ICTY.[3]

[1] See Post: International Criminal Justice: Introduction (April 26, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011).

[2] ICTY, Security Council Adopts Resolution on the International Residual Mechanism for Criminal Tribunals (IRMCT), (Dec. 29, 2010), http://www.icty.org/sid/10573; THE HAGUE TRIBUNAL AND ITS ‘RESIDUES’, sensetribunal (Jan. 18, 2011), http://www.sense-agency.com/icty.29.html?news_id=12418; Roberts, Security Council Votes to Establish ICTR Residual Mechanism, Human Rights Brief (Feb. 10, 2011), http://hrbrief.org/2011/02/security-council-votes-to-establish-ictr-residual-mechanism/; Van Schaack, Security Council Residual Mechanism, IntLawGrrls (May  2011), http://intlawgrrls.blogspot.com/2011/05/security-council-residual-mechanism.html

[3]  Post: International Criminal Justice: Mladic To Face Charges at ICTY (May 27, 2011).

International Criminal Justice: Mladic To Face Charges at ICTY

On May 26, Ratko Mladic was arrested in Serbia and will be extradited to The Hague in the Netherlands. He is the former Bosnian Serb general held responsible for the massacre of some 8,000 Muslim men and boys at Srebrenica in 1995. At The Hague he will face charges of genocide, crimes against humanity and war crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY).[1]

[1] Reuters,Ratko Mladic to Face Tribunal on Genocide Charges, N.Y. Times (May 26, 2011); Bilefsky & Carvajal, Serbia Says Jailed Mladic Will Face War Crimes Trial, N.Y. Times (May 26, 2011); Rhode & Burns, Executions Were Mladic’s Signature, and Downfall, N.Y. Times (May 26, 2011); ICTY, Statement of the Office of the Prosecutor on the Arrest of Ratko Mladic, (May  26, 2011) http://www.icty.org/sid/10670 (contains link to full text of indictment of Mladic); Editorial, End of the Line, N.Y. Times (May 26, 2011); Carvajal, Serbian Court Backs Transfer of Mladic to Hague, N.Y. Times (May 27, 2011); Carvajal, Left Ill by Fugitive Life, Mladic Hopes to Avoid Hague, N.Y. Times (May 27, 2011).


 

The International Criminal Court and the Obama Administration

Barack Obama

The Obama Administration has adopted what it calls “an integrated approach to international criminal justice,” including the International Criminal Court. There are at least six points to this approach, the first three of which are specifically addressed to the ICC.[1]

First, the U.S. will not be seeking U.S. Senate consent to U.S. ratification of the Rome Statute. In January 2010, U.S. Ambassador at Large for War Crimes, Stephen Rapp, publicly stated that no U.S. president was likely to present the Rome Statute to the U.S. Senate for ratification in the “foreseeable future.” Rapp cited fears that U.S. officials would be unfairly prosecuted and the U.S.’s strong national court system as reasons it would be difficult to overcome opposition to ratification. He did not mention the virtual political impossibility in this Congress to obtaining the two-thirds (67) vote in the Senate that would be necessary for ratification.[2] In addition, in March 2011, the U.S. told the U.N. Human Rights Council at the conclusion of its Universal Periodic Review of the U.S. that the U.S. did not accept the recommendations by a number of States that the U.S. ratify the Rome Statute.[3]

Second, the U.S. Administration will not be seeking statutory changes to U.S. statutes and practices that are hostile to the ICC. This conclusion emerges by implication from the absence of any such proposed legislation and from the same political calculus just mentioned. The Obama Administration, therefore, is living with the laws on the books bolstered by a January 2010 legal opinion from the Justice Department’s Office of Legal Counsel that U.S. diplomatic or “informational” support for particular ICC investigations or prosecutions would not violate U.S. law. Other hand-me-downs of past U.S. actions hostile to the ICC are the U.S.’ 102 Bilateral Immunity Agreements or “BIA”s, whereby the other countries agreed not to turn over U.S. nationals to the ICC. The last of these was concluded in 2007. There is no indication that the U.S. will seek to rescind these agreements or to negotiate new ones.[4]

Third, the U.S. instead has been pursuing a policy of positive engagement with the ICC in various ways. Indeed, the U.S. National Security Strategy of May 2010 stated that as a matter of moral and strategic imperative the U.S. was “engaging with State Parties to the Rome Statute on issues of concern and [is] supporting the ICC’s prosecution of those cases that advance U.S. interests and values, consistent with the requirements of U.S. law.”[5]

Foremost for positive engagement is the U.S. participation as an observer at meetings of the ICC’s governing body, the Assembly of States Parties. The U.S. did so in November 2009,[6] March 2010,[7] June 2010[8] and December 2010[9] and has announced its intention to do so at the next meeting in December 2011.

In addition to observing the debates and discussion at these meetings, the U.S. has made positive contributions. The U.S. experience in foreign assistance judicial capacity-building and rule-of-law programs, Ambassador Rapp has said, could help the ICC in its “positive complementarity” efforts, i.e., its efforts to improve national judicial systems. Similarly the U.S. experience in helping victims and reconciling peace and justice demands has been offered to assist the ICC.[10] At the June 2010 Review Conference the U.S. made a written pledge to “renew its commitment to support projects to improve judicial systems around the world.” Such improvements would enable national courts to adjudicate national prosecutions of war crimes, crimes against humanity and genocide and thereby make ICC involvement unnecessary. The U.S. also pledged at the Review Conference to “reaffirm President Obama’s recognition . . . that we must renew our commitments and strengthen our capabilities to protect and assist civilians caught in the [Lord Resistance Army’s] wake [in Uganda], to receive those that surrender, and to support efforts to bring the LRA leadership to justice.”[11]

The June 2010 meeting was the important Review Conference that adopted an amendment to the Rome Statute with respect to the crime of aggression; this will be discussed in a future post. Immediately after the Review Conference Ambassador Rapp and State Department Legal Advisor Koh said that U.S. participation at the Review Conference “worked to protect our interest, to improve the outcome, and to bring us renewed international goodwill.” All of this reflected U.S. (a) “support for policies of accountability, international criminal justice, and ending impunity,” (b) the U.S. “policy of principled engagement with existing international institutions” and (c) ensuring that lawful uses of military force are not criminalized.[12]

At the December 2010 meeting, Ambassador Rapp emphasized three ways for the world community to help the important work of the ICC. First was protecting witnesses in cases before the ICC and in other venues from physical harm and death and from bribery attempts. Second was enforcing the ICC arrest warrants and bringing those charged to the Court to face prosecution. Third was improving national judicial systems all over the world. In this regard the U.S. endorsed the recent discussion in the Democratic Republic of the Congo about creating a “mixed chamber” of Congolese and foreign judges in its national judiciary with jurisdiction over genocide, crimes against humanity and war crimes.[13]

The U.S. also is meeting with the ICC’s Prosecutor and other officials to find ways the U.S. can support current prosecutions (consistent with U.S. laws). [14]

As another means of positive engagement with the ICC,  the U.S. has continued to support the March 2005 U.N. Security Council referral of the Sudan (Darfur) situation to the ICC, and the U.S. has refused to support any effort to exercise the Council’s authority to suspend any ICC investigations or prosecutions of Sudanese officials for a 12-month period. In January 2009, Susan Rice, the U.S. Ambassador to the U.N., stated that the U.S. supports “the ICC investigation and the prosecution of war crimes in Sudan, and we see no reason for an Article 16 deferral” by the Council. Following the ICC’s issuance of an arrest warrant for Omar al-Bashir, President of Sudan, in March 2009, Ambassador Rice reiterated U.S. support for the Court on Darfur and the requirement of Sudan to cooperate with the ICC. [15]

More recently, the U.S. supported the use of the ICC with respect to Libya. The previously discussed U.N. Security Council Resolution 1970 that referred the Libyan situation to the ICC Prosecutor was prepared by the U.S. and 10 other Council members.[16] During the Council’s discussion of the resolution, U.S. Ambassador Susan Rice stated, “For the first time ever, the Security Council has unanimously referred an egregious human rights situation to the [ICC].”[17]

Three days after the Security Council resolution on Libya, the U.S. Senate unanimously approved a resolution deploring the situation in Libya and Colonel Gadhafi. This resolution also stated that the Senate “welcomes the unanimous vote of the United Nations Security Council on resolution 1970 referring the situation in Libya to the [ICC] . . . .”[18]

Another means of the U.S.’ positive engagement with the ICC is U.S. public diplomacy supporting the Court–publicly support the arrest and prosecution of those accused by the ICC’s Prosecutor and publicly criticizing those who seek to thwart such arrests. In any event, the U.S. has ceased its hostility and harsh rhetoric against the Court.[19]

Fourth, the U.S. will continue to offer financial support and advice to strengthen other national court systems, particularly in the Democratic Republic of Congo. As previously mentioned, this policy is part of the U.S. positive engagement with the ICC, but it is also part of the broader approach to international criminal justice.[20]

Fifth, the U.S. will continue to support the final work of the ad hoc criminal tribunals for Rwanda and the former Yugoslavia that were established by the U.N. Security Council with limited time periods of existence. The U.S. will do so by providing funding, by supporting their work diplomatically and politically and by providing evidence and concrete support to the prosecutors and defendants. In particular, the U.S. will work in the Security Council “to create a residual mechanism for the ad hoc tribunals that will safeguard their legacy and ensure against impunity for fugitives still at large” after those tribunals cease to exist.[21]

Ambassador Rapp also has noted that the era of the U.N.’s establishing ad hoc and short-lived tribunals like the International Criminal Tribunal for Rwanda to address specific problems was over. Only the ICC would be in business for future problems. Therefore, the U.S. needed to be positively engaged with the ICC.[22]

Sixth, the U.S. has said that it must work with countries that exercise universal jurisdiction (like Spain) when there is some relation between the country and the crime. Exactly what that means is not clear. Ambassador Rapp publicly has endorsed the principle of universal jurisdiction as another way to hold human rights violators accountable. On the other hand, as will be discussed in a future post, Spain has at least two pending criminal cases against high-level U.S. officials under Spain’s statute implementing this jurisdictional principle.[23]

In conclusion, we have seen that there is substance to the claim that the Obama Administration has developed “an integrated approach to international criminal justice.” Although I personally believe the U.S. should become a full-fledged member of the ICC, I recognize the current political impossibility of that happening and believe that the U.S. is doing everything that it can to support the important work of the ICC and other courts that are tackling, in the words of Article 1 of the Rome Statute, the “most serious crimes of international concern.”

[1] Koh, The Challenges and Future of International Justice (Oct. 27, 2010), http://www.state.gov/s/l/releases/remarks/150497.htm; U.S. White House, National Security Strategy at 48 (May 2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf. See Post: The International Criminal Court: Introduction (April 28, 2011)(overview of structure and operation of ICC).

[2] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

[3] On January 4, 2011, the Human Rights Council’s Working Group on the Universal Periodic Review of the U.S. issued its final report on the UPR of the U.S. It set forth all the recommendations of the States without endorsement by the Working Group as a whole. This report again included the specific recommendations for the U.S. to ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America ¶¶ 92.1, 92.2, 92.16, 92.25, 92.28, 92.36 (Jan. 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/100/69/PDF/G1110069.pdf?OpenElement.) On March 8, 2011, the U.S. submitted its response to this final report. Among other things, the U.S. specifically rejected the recommendations that the U.S. ratify the Rome Statute. (U.N. Human Rights Council, Report of the Working Group on the Universal Periodic Review–United States of America: Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review ¶¶  29, 30  (March 8, 2011), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G11/116/28/PDF/G1111628.pdf?OpenElement.) Nevertheless, the Council adopted the Working Group report in March 2011. (U.N. Human Rights Council, HR Council Media: Human Rights Council concludes sixteenth session (March 25, 2011).)

[4] AMICC, The Obama’s Administration’s Evolving Policy Toward the International Criminal Court  (March 4, 2011), http://www.amicc.org/docs/ObamaPolicy.pdf; Congressional Research Service, International Criminal Court Cases in Africa: Status and Policy Issues (March 7, 2011), http://fpc.state.gov/documents/organization/158489.pdf. See Post: The International Criminal Court and the G. W. Bush Administration (May 12, 2011).

[5] U.S. White House, National Security Strategy at 48 (May 2010), http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf.

[6] AMICC, Report on the Eighth Session of the Assembly of States Parties, The Hague, November 2009 http://www.amicc.org/docs/ASP8.pdf; Stephen J. Rapp, Speech to Assembly of States Parties (Nov. 19, 2009), http://www.icc-cpi.int/iccdocs/asp_docs/ASP8/Statements/ICC-ASP-ASP8-GenDeba-USA-ENG.pdf.

[7] AMICC, Report on the Resumed Eighth Session of the Assembly of States Parties, New York, March 2010 (March 31, 2010), http://www.amicc.org/docs/ASP8r.pdf; U.S. Dep’t of State, Statement by Stephen J. Rapp . . . at the Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/138999.htm; U.S. Dep’t of State, Statement by Harold Honju Koh . . . at the . . . Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/139000.htm.

[8] AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org.

[9]  U.S. Mission to the U.N., Statement of the U.S.A. by Ambassador Stephen Rapp  to the Assembly of States Parties, (Dec. 7, 2010), http://www.amicc.org/docs/ASP_Rapp_Statement_12072010.pdf;  AMICC, Report on the Ninth Session of the Assembly of States Parties, December 2010, http://www.amicc.org/docs/ASP9.pdf.

[10] AMICC, Report on the Resumed Eighth Session of the Assembly of States Parties, New York, March 2010 (March 31, 2010), http://www.amicc.org/docs/ASP8r.pdf; U.S. Dep’t of State, Statement by Stephen J. Rapp . . . at the Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/138999.htm; U.S. Dep’t of State, Statement by Harold Honju Koh . . . at the . . . Session of the Assembly of States Parties of the [ICC], (March 23, 2010), http://usun.state.gov/briefing/statements/2010/139000.htm.

[11] AMICC, Report on the Review Conference of the International Criminal Court (June 25, 2010), http://www2.icc-cpi.int/Menus/ICC/Home; http://www.amicc.org. The U.S. pledge about the LRA was prompted by the enactment of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009. (Wikisource, Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act of 2009, http://en.wikisource.org/wiki/ Lord’s_Resistance_Army_Disarmament_and_Northern_Uganda_Recovery_Act_of_2009; U.S. White House, Statement by the President on the Signing of the Lord’s ResistanceArmy Disarmament and Northern Uganda Recovery Act of 2009 (May 24, 2010), http://www.whitehouse.gov/the-press-office/statement-president-signing-

Lords-resistance-army-disarmament-and-northern-uganda-r.

[12] U.S. Dep’t of State, U.S. Engagement with The International Criminal Court and The Outcome of The Recently Concluded Review Conference (June 15, 2010), http://www.state.gov/s/wci/us_releases/remarks/143178.htm.

[13] Id. The ICC currently is investigating and prosecuting cases from the DRC. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[14]  Id.

[15]    E.g., Statement by President Obama on the Promulgation of Kenya’s New Constitution (Aug. 27,2010), http://www.whitehouse.gov/the-press-office/2010/08/27/statement-president-obama-promulgation-kenyas-new-constitution(“I am disappointed that Kenya hosted Sudanese President Omar al-Bashir in defiance of International Criminal Court arrest warrants for war crimes, crimes against humanity, and genocide. The Government of Kenya has committed itself to full cooperation with the ICC, and we consider it important that Kenya honor its commitments to the ICC and to international justice, along with all nations that share those responsibilities”); U.N. Security Council, Press Release: Briefing Security Council on Sudan, United Nations, African Union Officials Tout Unified Strategy, Linking Peace in Darfur to Southern Sudan Referendum (June 14, 2010),  (U.S. Ambassador Rice told Security Council that there was a need “to bring to justice all those responsible for crimes in Darfur, calling on Sudan to cooperate with the [ICC] and expressing deep concern at the Court’s Pretrial Chamber judges recent decision to refer the issue of Sudan’s non-cooperation to the Council”).

[16] U.N. Security Council  6491st meeting (Feb. 26, 2011). Other Council members (Bosnia & Herzogiva, Colombia, France, Germany, Libya and the U.K.) specifically commended the reference to the ICC. The other four Council members who did not join in drafting the resolution were Brazil, China, India and the Russian Federation. In the meeting, the Indian representative noted that “only” 114 of the 192 U.N. Members were parties to the Rome Statute and that five of the 15 Council members, including three permanent members (China, Russia and U.S.), were not such parties. He went on to emphasize the importance of Article 6 of the resolution’s exempting from ICC jurisdiction nationals of States like India that were not parties to the Rome Statute and its preamble’s stating that the Statute’s Article 16 allowed the Council to postpone any investigation or prosecution for 12 months. (Id.) The Brazilian representative was serving as President of the Council and, therefore, may not have participated in drafting the resolution, but she noted that Brazil was a “long-standing supporter of the integrity and universality of the Rome Statute” and expressed Brazil’s “strong reservation” about Article 6’s exemption of nationals of non-States Parties. (Id.) This suggests that the inclusion of Article 6 was the price of obtaining “yes” votes for the resolution from India, China and the Russian Federation. See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011).

[17] U.N. Security Council  6491st meeting (Feb. 26, 2011).

[18]  ___Cong. Record S1068-69 (March 1, 2011) (S. Res. 85).

[19] Koh, The Challenges and Future of International Justice (Oct. 27, 2010), http://www.state.gov/s/l/releases/remarks/150497.htm.

[20] ICC, Review Conference of the Rome Statute: Pledges (July 15, 2010), http://www2.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-9-ENG-FRA-SPA.pdf.

[21] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

[22] Id. With the existence of the ICC, there is no need to create future ad hoc tribunals. This fact also avoids the administrative problems ad hoc tribunals face when they near the end of their lives and professional and other staff leave to pursue other opportunities with greater future prospects. (See Amann, Prosecutorial Parlance (9/12/10), http://intlawgrrls.blogspot.com (comments by officials of ICTY and ICTR).)

[23] Belczyk, US war crimes ambassador says US unlikely to join ICC in ‘forseeable future,’ Jurist (Jan. 28, 2010), http://jurist.law.pitt.edu/paperchase/2010/01/us-war-crimes-ambassador-says-us.php.

International Criminal Justice: Introduction

Since the end of World War II, we the peoples of the world, acting through our nation-state governments, have codified or created numerous international human rights norms. This started with 1945’s Charter of the United Nations and 1948’s Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. Other multilateral human rights treaties have followed, including the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[1]

Given the world’s nation-state sovereignty basis, we the peoples of the world have grappled with the very real problem of how to enforce such norms in order to punish violators, to deter future violations, to provide redress to victims and survivors, and to investigate and promulgate the “truth” about past violations. The response has been the creation of various mechanisms, none of which is perfect: state reporting to U.N. Charter and treaty bodies for review, comment and recommendations; complaints by states and individuals to such bodies for recommended solutions; international investigations of specific countries or problems; civil litigation for money damages against violators in domestic courts and international courts like the Inter-American Court of Human Rights; and truth commissions.[2]

Another response has been seeking to subject violators to criminal sanctions (imprisonment) in national courts under the international law principle of universal jurisdiction whereby a nation’s courts have legitimate criminal jurisdiction over genocide, crimes against humanity and war crimes no matter where in the world such crimes were committed. Criminal sanctions have also been imposed by international criminal tribunals like the Nuremberg and Tokyo War Crimes Tribunals at the end of World War II and more recently by so called ad hoc tribunals created by the U.N. Security Council (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)). Even more recently the International Criminal Court (ICC) has been created.[3] Collectively these mechanisms often are referred to as international criminal justice.

In future posts we will examine a Spanish court’s use of the universal jurisdiction principle to commence criminal investigations. In other posts we will analyze the International Criminal Court and its relations with the United States.

[1]  David Weissbrodt, Fionnuala Ní Aoláin, Joan Fitzpatrick, and Frank Newman, International Human Rights: Law, Policy and Process, ch. 1 (4th ed. 2009) [“Weissbrodt”].

[2]  Id. , chs. 4-6, 9, 11, 12, 14, 15, 16.

[3]  Id. at 11, 483-586. The text of the Rome Statute, which will be referenced throughout this article, is available at:  http://www.icc-cpi.int/NR/rdonlyres/EA9AEFF7-5752-4F84-BE94-0A655EB30E16/0/Rome_Statute_English.pdf.