International Criminal Courts as Fact (and Truth) Finders in Post-Conflict Societies: Can Disparities with Ordinary International Courts be Avoided?

This chapter considers the accuracy of interpretations and, to some extent, translations in international and hybrid criminal courts settings and looks at the effects of both linguistic and paralinguistic (nonverbal) misinterpretations on the effectiveness of the international criminal process and, in particular, the effects these can have on the quality of trials, procedural fairness, and ultimately defense rights. Specifically, the rights to seek and expect from international criminal courts and tribunals competent and effective language services, as well as the corresponding right to review translated transcripts and relevant documents, are considered here. As this chapter tries to demonstrate, the protection and further development of these specific rights are essential to the requirements of procedural fairness alongside the rights to equality before the law, equality of arms, and the right to a fair trial. Although statutes and rules of international courts and tribunals assert that equal treatment before the law, as recognized in international human rights law, requires that there be no significant disparity in trial and punishment regimes in individual cases, there remain considerable outcome problems in these complex multilingual and multicultural settings. Right to equality before the law and the right to a fair trial are examined here with a particular reference to the International Covenant on Civil and Political Rights 1996 (ICCPR) Article 14. Case law reveals in fact that equal and equitable protection of fundamental procedural pretrial and trial rights remains inconsistent and that the determination of the nature of ICCPR provisions is contradictory. Given the complexity of most international criminal trials, some practical interpretation and translations problems may be readily recognized and anticipated. Nevertheless, the responsibility to fully explore reasons and conditions that lead to potentially procedurally and ethically unjust trial outcomes rests on the judiciary. The responsibility to provide effective remedies in individual cases rests on them too. Importantly, these courts and tribunals are based and legitimized on the basis of their legal foundations and principles deriving from the rule of law, such as independence, transparency, and accountability. In turn, the rule of law increasingly requires that international justice is administered by applying norms that promote and protect elevated, and not just minimum, human rights standards and fundamental values of equality, fairness, and justice. By analyzing statutes and rules of procedure and evidence of international courts and their proceedings as well as studying court transcripts and simultaneous translations in different international criminal law jurisdictions (mainly the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court), the chapter examines whether the review of court transcripts in the second (translated) language could amount to a procedural right in international criminal law.

International criminal tribunals and courts, such as the International Criminal Tribunal for Rwanda (ICTR), are commonly understood within the legal transitional justice scholarship as the primary response to mass human rights violations. Tribunals and courts are expected to address the issue of impunity, but also uncover the truth of what happened and why. The legal scholarship often understands the ICTR as able to produce a collective legal memory of the atrocities through the memories of witnesses. Using the ICTR as a case study, the aim of this conceptually led article is to respond to these discussions by exploring the potential role ICTR archival material can have in extending our understanding of the construction of memory at international criminal courts and tribunals. The article uses insights from discourse studies, specifically based on the work of French philosopher Michel Foucault. It applies these insights to an exploratory analysis of legal documents relating to the selection of witnesses from the ICTR archive and interview transcripts with ICTR personnel from the archive of the University of Washington (UoW). This exploration suggests that the pre-trial stage shape, edit and restrict in significant ways, determining which individuals can be witnesses and what these witnesses can remember.

INTRODUCTION. The practice of modern international criminal courts and tribunals raises serious questions about the proper enforcement of the rights of the accused. Among these rights, the accused's right to compensation is highlighted. Compensation is given to the accused (regardless of the verdict) for violation of his procedural rights and fundamental human rights and compensation to the acquitted person.MATERIALS AND METHODS. The analysis of ensuring the human right to compensation in the event of an unjust sentence is carried out on the basis of international human rights treaties, treaties on the creation of international courts, including appeal to the travaux preparatoires of the Statute of the International Criminal Court (ICC) and the practice of international criminal courts and tribunals, especially the ICC, as well as the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia. The study was conducted using general scientific methods of cognition (in particular, analysis and synthesis), as well as comparative legal, historical legal and formal dogmatic methods. To achieve the corresponding conclusions, various methods of interpretation of the rule of law are used, in particular, grammatical, systematic, teleological, harmonic, etc.RESEARCH RESULTS. In the activities of international criminal courts and tribunals, a violation of the accused’s right to a hearing within a reasonable time is systemic, including due to the absence of any procedural deadlines on the one hand, and the absence of any rules (or their non-application) to restore the rights of the accused and punishment of the party who committed the violation of these rights. This situation poses serious problems of ensuring the rights of specific accused (including justified), but also the development of modern international criminal procedural law and international human rights law.DISCUSSION AND CONCLUSIONS. National legislation and international human rights instruments provide for the right of an acquitted person to compensation. In international criminal courts, this issue, however, is addressed in different ways. The statutes of international criminal courts ad hoc created by the UN Security Council do not mention the right to compensation for an accused or acquitted person. At the same time, the International Criminal Tribunal for Rwanda recognized that the absence of a reference to law in the Statute of the Tribunal does not mean that the persons concerned do not have the corresponding right. At the same time, this recognition did not have practical consequences. The Statute of the International Criminal Court recognizes the right to compensation, however, does so to a limited extent. Thus, in international criminal courts and tribunals, the provision of the human right to compensation (primarily compensation to an acquitted person) is performed at a lower level than that established in international human rights treaties.

International criminal tribunals and courts, such as the International Criminal Tribunal for Rwanda (ICTR), are commonly understood within the legal transitional justice scholarship as the primary response to mass human rights violations. Tribunals and courts are expected to address the issue of impunity, but also uncover the truth of what happened and why. The legal scholarship often understands the ICTR as able to produce a collective legal memory of the atrocities through the memories of witnesses. Using the ICTR as a case study, the aim of this conceptually led article is to respond to these discussions by exploring the potential role ICTR archival material can have in extending our understanding of the construction of memory at international criminal courts and tribunals. The article uses insights from discourse studies, specifically based on the work of French philosopher Michel Foucault. It applies these insights to an exploratory analysis of legal documents relating to the selection of witnesses from the ICTR archive and interview transcripts with ICTR personnel from the archive of the University of Washington (UoW). This exploration suggests that the pre-trial stage shape, edit and restrict in significant ways, determining which individuals can be witnesses and what these witnesses can remember.

While the end of the Cold War may have contributed to the atmospheric conditions facilitating these developments, the changed attitude to international criminal justice owed much to evolution within the human rights movement. By the 1980s, a rights-based approach began to emerge that took the standpoint of victims of atrocities. There are now three ad hoc tribunals (International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and Special Court for Sierra Leone (SCSL)) whose jurisdiction is limited geographically and temporally. The three existing ad hoc international criminal tribunals and the International Criminal Court have many common features. The international criminal tribunals have quickly established themselves as an important component of the international legal landscape. Their contribution to promotion of the rule of law in post-conflict societies is considered to be very significant. Keywords: international criminal court; international criminal tribunal for Rwanda (ICTR); international criminal tribunal for the former Yugoslavia (ICTY); international criminal tribunals; rights-based approach; special court for Sierra Leone (SCSL)

This chapter demonstrates that in the field of international criminal law decisions of international courts and tribunals have recurrently been challenged before national courts. Since most international criminal courts and tribunals are either organs of international organizations, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR), or enjoy the status of an international organization (International Criminal Court), putting their judgments into question amounts to challenging the acts of an international organization. It is against the backdrop of the obligation of States to cooperate with these international tribunals that national courts have often been called upon to address such challenges, mostly in the context of the transfer of a suspect. In these cases, they have faced a dilemma arising out of the need to secure the independent and efficacious functioning of the international tribunal while simultaneously safeguarding domestic fundamental rights.

Journal Article On the Principle of Complementarity in the Rome Statute of the International Criminal Court Get access Lijun Yang Lijun Yang Search for other works by this author on: Oxford Academic Google Scholar Chinese Journal of International Law, Volume 4, Issue 1, JUNE 2005, Pages 121–132, https://doi.org/10.1093/chinesejil/jmi014 Published: 01 January 2005

The author traces the evolution of the concept of guilty pleas in international criminal law as developed by the jurisprudence of the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia. These international tribunals, alongside their sister hybrid criminal courts, not only irreversibly changed the landscape of international law but played a pioneering role in establishing a credible international criminal justice system, by producing the main body of jurisprudence on guilty pleas in the context of wide-spread international crimes. As a foundation member of the Office of The Prosecutor, in one of two ad hoc international criminal tribunals established since the end of the Second World War, the author was not only privy to many of the challenges encountered by international prosecutors but was also uniquely placed to discuss the plea-bargaining processes adopted by these international criminal courts. Having led the negotiations in three of nine guilty pleas obtained by prosecutors at the International Criminal Tribunal for Rwanda, the author examines the development and practice of guilty plea negotiations in the context of large-scale international crimes. Well apart from the cost, duration, scale and complexity of prosecuting international crimes, the author concludes that the divergence in legal cultures of various actors in the transitional justice system contributed to the complexity of negotiating guilty pleas before international criminal courts. Nevertheless, the surrounding political circumstances made it imperative for various stakeholders operating therein to embrace the concept of guilty plea negotiations to avoid lengthy and expensive international trials.

This chapter illustrates that independent from whether international tribunals will manage to catch the hearts of the population of wartorn countries, they will certainly have a major impact on peace-building at the institutional level. Both national and international justice can be crucial in the re-establishment and reconstruction of a state. The chapter focuses on international justice. It first looks at the differences characterising the creation and aims of the International Military Tribunal of Nuremberg (IMT) and the International Military Tribunal for the Far East (IMTFE) in the aftermath of World War II. It then examines the role played by the International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC) in the implementation and enforcement of international law, thereby contributing to peace-building. Finally, it considers the special case of the Special Iraqi Tribunal and the Special Court for Sierra Leone. Keywords: ICTY; IMTFE; international criminal court (ICC); international criminal tribunal for Rwanda (ICTR); international justice; international military tribunal of Nuremberg (IMT); international tribunals; peace-building; Special Court for Sierra Leone; Special Iraqi Tribunal

The Inflated Invocation of Inherent Jurisdiction and Powers by International and Internationalized Criminal Courts and Tribunals: Between Gap Filling and the Erosion of Core Values

The International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the pending International Criminal Court (ICC), have or will have competence to exercise their jurisdiction over individuals responsible for having committed crimes enumerated in the Statutes of the courts. From the viewpoint of the application of international law, this means that these Statutes can be applied directly to individuals without any intermediate provisions of domestic law. A person who commits crimes within the jurisdiction of the international criminal courts must account for those acts irrespective of whether the domestic law of his country or locus delicti so stipulates. Nor is it relevant to ask if the Statutes of these courts have domestic effect or are domestically enforceable whether by way of automatic incorporation or the adoption of implementing legislation.

This chapter compares international criminal tribunals and courts with the so-called mixed or internationalized tribunals and courts, and examines the reasons underlying the establishment of these particular mixed or internationalized courts. It also considers the main practical and legal problems that these courts are facing, focusing on the experiences of Kosovo, East Timor, Cambodia, and Sierra Leone, along with areas where new internationalized courts could or might be established in the near future. A general outlook for international criminal justice is also presented. The chapter argues that there is no single response to the multifarious aspects of international criminality, and that mixed or internationalized criminal courts and tribunals may prove to be one of the most effective societal and institutional devices currently available to international lawmakers.

Extracurricular International Criminal Law

Drawing on the experience of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone, the Khmer Rouge Tribunal and the International Criminal Court (ICC), this chapter attempts to identify key elements that determine the degree to which international criminal adjudication bodies can effectively break the cycle of impunity and promote human rights in post-conflict situations. It is argued that unless international criminal courts and tribunals meet some key elements, their potential contribution to human rights promotion and protection is likely to remain unfulfilled. The key elements are: establishing a genuine connection with the people, promptness in delivering justice, and striking a balance between peace and justice. Keywords: human rights; ICTY; international criminal adjudication bodies; International Criminal Court (ICC); International Criminal Tribunal for Rwanda (ICTR); Khmer Rouge Tribunal; post-conflict situations; Special Court for Sierra Leone

In this chapter, we examine the Rule 11bis jurisprudence of the International Criminal Tribunal for Rwanda (ICTR). Under that caselaw, which spurred significant legal reforms in Rwanda, the judges fleshed out the requirements that national criminal justice systems must meet in order to prosecute serious international crimes where they enjoy concurrent jurisdiction with an international tribunal that enjoyed primacy. Though rooted in fundamentally different assumptions, we suggest that there is convergence between the primacy principle of the ad-hoc tribunals, under which national jurisdictions may at any stage of their criminal procedures be formally requested to defer to the competence of the international court, and the principle of complementarity at the International Criminal Court (ICC) which essentially reverses the top down relational model in favour of a bottom approach. With the shift to complementarity, which governs at the permanent ICC, the international court is not entitled to step in to a domestic jurisdiction to investigate or prosecute the core atrocity crimes unless the State is inactive, unwilling and or unable to prosecute. We argue that a creative approach to the interpretation and application of the complementarity principle offers the ICC an opportunity to learn from the ICTR's rich Rule 11 bis experience. By taking a nuanced approach that articulates the minimum standards that domestic jurisdictions of situation countries must fulfill for cases to be rendered inadmissible at the permanent court in The Hague, the ICC could help bring up the standards in domestic courts and to also potentially stimulate deep legal reforms at the national level.