International Tribunals and the Criminalization of International Violence

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

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.

This chapter provides a thorough overview of the elements that compose the fragmented debate on amnesties, whether in international law, within international criminal law and other levels, vertical and pluri-disciplinary. It focuses on the recognition in international criminal law and more specifically by international tribunals, most notably the International Criminal Court, but also any hybrid institution that might be created in the future to deal with a specific situation. The chapter considers how the institutional framework set up by the United Nations Transitional Administration in East Timor (UNTAET) chose to deal with the question of amnesties. Finally, it concludes defragmentation by considering the impact of pluridisciplinary fragmentation on international criminal tribunals. Keywords:amnesties; international criminal court; international criminal law; international criminal tribunals; UNTAET

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

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

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.

This paper explores the relationship between international war crimes tribunals and reconciliation in post-conflict societies. The aim of the present study was to examine how the role of international war crimes tribunals has changed in the peacebuilding process since the early years after World War II. Due to the evolving nature of international law and the international criminal legal system, international tribunals have become increasingly recognized as an integral component of peacebuilding in post-conflict societies. The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first international tribunal with a mandate to contribute to international peace and security. The ICTY established a new precedent for the role of international tribunals. Not only did it secure accountability for past abuses, it made a significant contribution to the development of the rule of law in the region of the former Yugoslavia. As the first international criminal court since the Nuremberg tribunal and the first UN tribunal of its kind, the ICTY provides an important model for future judicial intervention in the aftermath of conflict. It has shown the extent to which international war crimes tribunals facilitate societal reconciliation is, and will be, understood within the context of the legacies they leave behind. Institutions such as the ICTY will not be judged solely on the merits of the ideals on which they were established, but instead on their concrete successes in the domestic arena and their ability to fortify domestic judicial capacity.

Extracurricular International Criminal Law

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.

The International Court of Justice (ICJ) could insist on its own position and still be seen to pay heed to the competence of the International Criminal Tribunal for the former Yugoslavia (ICTY) to decide questions of international humanitarian law and international criminal law. This chapter sets out to assess to what extent the jurisprudence of the ICJ and the international criminal courts on immunity questions is coherent and to what extent it reflects crossfertilization. It purports to put the jurisprudence on this question in the broader perspective of the relationship between the ICJ and international criminal courts. The chapter describes and analyses the level of cross-referencing, cross-fertilization and coherence between the approach of the ICJ and that of the international criminal courts to the question of immunity for international crimes. It discusses the influence of the Arrest-Warrant case on the post-2002 jurisprudence of international criminal courts. Keywords:ICTY; immunity; International Court of Justice (ICJ); international criminal courts

The Nuremberg tribunal was the expression and the beginning of states' recognition of their duty to prosecute genocide and other gross human rights violations. It was a first step towards fulfillin...

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.

This paper seeks to raise questions about the objectives or goals of international criminal justice, and whether recent trends are inhibiting the ability of investigators and prosecutors to achieve those objectives or goals through the application of carefully considered prosecutorial policies. It first examines the prosecutorial strategies of the two ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), and then follows the recent efforts at limiting prosecutorial direction. The negotiations to establish additional courts and tribunals since 2000 have been overshadowed by pervasive cost-related considerations, which have greatly influenced the types of mechanisms or institutions which have emerged. Keywords: East Timor; ICTR; ICTY; international humanitarian law; international crimes; International Criminal Court (ICC); international law enforcement strategies; Khmer Rouge trials; Kosovo; Sierra Leone

Legality in the Modern International and Internationalized Criminal Courts and Tribunals

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.