The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality

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.

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 2021 edition both updates readers on the important work of long-standing international tribunals and introduces readers to more novel topics in international law. The Yearbook continues to provide expert coverage of the Court of Justice of the European Union and diverse tribunals from the International Court of Justice (ICJ) to criminal tribunals such as the International Criminal Court (ICC) and the International Residual Mechanism for Criminal Tribunals (MICT), to economically based tribunals such as ICSID and the WTO Dispute Resolution panel. This edition contains original research articles on the development and analysis of the concept of global law and the views of the global law theorists such as: a comprehensive analysis of the legal frameworks on Norway, Sweden and Finland in respect of the rights of the Sami people; the philosophical grounds of the human right to environment; the EU's challenge in addressing Member State which reject foundational EU values of the Lisbon Treaty; and how international human rights are present in the law and the practices of international and hybrid criminal courts and tribunals. The Yearbook provides students, scholars, and practitioners alike a valuable combination of expert discussion and direct quotes from the court opinions to which that discussion relates, as well as an annual overview of the process of cross-fertilization between international courts and tribunals.

I. INTRODUCTION: MAKING THE CASE FOR AN INTERNATIONAL PRISON II. THE HISTORICAL APPROACH TO INTERNATIONAL SENTENCING: FROM NUREMBERG TO THE COOPERATING STATES MODEL III. SHORTCOMINGS IN THE STATUS QUO A. The Lack of Cooperating States B. Conditions, Distance, Language, Security and Cultural Distinctions C. Security D. Rehabilitation, Release, and Reintegration IV. OBSTACLES TO CREATING AN INTERNATIONAL PRISON A. The Costs B. Safety and Security Issues C. Creating Uniformity Among Diversity V. CONCLUSION: THE BENEFITS OF AN INTERNATIONAL PRISON OUTWEIGH THE RISKS I. INTRODUCTION: MAKING THE CASE FOR AN INTERNATIONAL PRISON Where do individuals sentenced by an international criminal court go to serve their sentence? The answer is: depends. It depends on which international tribunal convicted the individual, which states have entered a cooperation agreement to enforce sentences with the particular tribunal, and which state the tribunal believes provides the best fit for that particular individual. (1) Because there is currently no international prison or single location to enforce the criminal sentences imposed by international tribunals, (2) where a convict serves their sentence is of constant uncertainty. There have been many advancements in international criminal law within the past three decades, including the development of ad hoc tribunals to try those accused of war crimes or crimes against humanity. (3) The ad hoc tribunals have diminished immunity for some of the world's most heinous crimes, excluding terrorism and human trafficking. (4) Ratification of the Rome Statute, which created the International Criminal Court (ICC), (5) ensures a permanent approach to combating international crimes: individuals accused of war crimes and crimes against humanity will either be prosecuted in a court of law or ostracized and forced to live in hiding. (6) This new era of accountability has resulted in the international prosecutions of high profile defendants and former heads of state. (7) But, there remain critical enforcement shortcomings in the current system. (8) The ICC is literally just a court, a building with judges, lawyers, and staff, with no enforcement mechanisms to secure arrests or effectuate sentences. A mere eight states have entered sentencing enforcement agreements with the ICC, none within the past three years. (9) This deficiency, while not currently posing an impediment to justice, will likely become a problem once the ICC moves beyond a handful of convictions. (10) The Assembly of States Parties to the ICC specifically addressed the lack of cooperating states for sentence enforcement purposes at its Thirteenth Session in December 2014. (11) The Bureau of Assembly of States issued a Report of the Bureau on Cooperation which highlighted the lack of enforcement agreements and the lack of recent commitment by States Parties to accept convicted individuals for enforcement purposes. (12) The Report noted that the ICC has stressed that ad hoc enforcement agreements, though permissible, were not ideal. (13) Now that a permanent institution exists ready to prosecute those who are most deserving of international condemnation and punishment, it is strange that no corresponding permanent facility exists to house those convicted by the ICC. (14) Remarkably, little attention has been given to the important realities of a permanent criminal court--prisoners facing lengthy prison terms. (15) One cannot begin to comprehensively address international crime without addressing the full spectrum of prosecution, from arrest and pre-trial detention to incarceration, particularly when the primary penalty before international criminal tribunals remains imprisonment. (16) We have an international criminal court, but no coexisting international prison. (17) The maintenance of a permanent ICC requires us to assess the viability of a criminal justice system that fails to possess a centrally located, permanent prison capable of housing convicted war criminals and those who committed crimes against humanity. …

Legality in the Modern International and Internationalized Criminal Courts and Tribunals

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.

The Constitutionality of International Courts: The Forgotten Precedent of Slave Trade Tribunals

What difference does international criminal law make to global security, and what contributions has the United Nations made to international criminal law? The establishment through the UN of international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), its role in initiating tribunals in East Timor, Sierra Leone, and Cambodia, and the rapid coming into force of the International Criminal Court represent revolutionary developments in how the world attempts to deal with war and crimes against humanity. While the Nuremberg and Tokyo military tribunals after World War II provided a major shift in the paradigm of legal responsibility for conduct in war from states to individuals, the more recent tribunals symbolize a decisive move away from the perception of “victors’ justice” towards a more universal mechanism for ensuring accountability for atrocities committed during wartime and even peacetime. In doing so, these courts have overcome a number of obstacles that skeptics over the years have argued would prevent the effective operation or even existence of such international courts. Observers of international law and war had long maintained that the diverse legal systems and cultures around the world present an insuperable obstacle to the creation of a permanent international criminal court.

The idea of a permanent international criminal court has been on the international agenda for much of this century. After World War I unsuccessful attempts were made to bring the German Emperor to trial before an international tribunal and, later, to try Turks responsible for the genocide of Armenians before a tribunal to be designated by the Allied Powers. In 1937, following the assassination in 1934 of King Alexander of Yugoslavia by Croatian nationalists in Marseilles, treaties were drafted to outlaw international terrorism and to provide for the trial of terrorists before an international tribunal, but states lost interest in this venture as war approached and no state ratified the treaty for an international criminal court and only one (India) ratified the treaty outlawing international terrorism. The establishment of the Nuremberg and Tokyo international military tribunals to try the principal leaders of the Nazi and Japanese regimes after World War II as a natural culmination of the pre-war debate over an international criminal court and set the scene for renewed attempts to create a permanent international criminal court.

PHILIPPE KIRSCH, Q.C. [*] I INTRODUCTION The creation of a permanent international criminal court has been seen as a desirable objective for a long time. Although the issue was actively considered soon after World War II, historical circumstances, particularly the Cold War, have prevented agreement on its establishment until a conference held in 1999 in Rome. By the time the Rome Conference began, there was wide agreement on the general objectives of such a court. Nevertheless, the Conference was difficult, as it became the theater of a number of conflicts between different legal systems and political interests. The Statute of the Internal Criminal Court (the ICC) that emerged relected an effort to find a balance between those interests, but could not be adopted by consensus because of the opposition of a few states, notably the United States. This essay develops four themes: (1) the objectives behind the establishment of an international criminal court; (2) the Rome Conference and the ICC Statute; (3) the future of the ICC, including signature a nd ratification and the work of the Preparatory Commission; and, finally, (4) the relationship between the ICC and the United States. II THE OBJECTIVES OF AN INTERNATIONAL CRIMINAL COURT The basic objective of the establishment of an international criminal court was to replace a culture of impunity for the commission of very serious crimes, which has existed and still exists to a large extent, with a culture of accountability. The establishment of an international criminal court is in many ways the culmination of a series of international efforts in that direction. Those efforts, however, have often been frustrated for a variety of reasons, and, in any event, have been highly selective. After World War II, the Nuremberg and Tokyo Tribunals raised real expectations about a culture of accountability, but the realities of cold war paralysis quickly settled in. The notion that those violating the most serious laws of humanity must be prosecuted faded, and a culture of impunity re-emerged. This paralysis began to change with the end of the Cold War, not only because the major powers could begin to cooperate on more issues, but also because events in several conflicts, primarily internal, demonstrated tragically that there was a continuing need to take steps to try to put an end to the abominable crimes that continued to be committed. In this short time, the change has been remarkable. Humanitarian considerations are now a normal part of state policies in a number of broader areas, including the maintenance of international peace and security. The ad hoc Tribunals for Former Yugoslavia and Rwanda were established but necessarily limited in scope. The idea of a permanent international criminal court continued to develop, partly as a result of tribunal fatigue, [1] but also, whether we like it or not, because a number of states wanted to remove the Security Council's monopoly on international tribunals, which the states saw as being too selective in distributing justice. The question of the relationship between the international criminal court and the Security Council was settled in principle at the Rome Conference, but some of its aspects are likely to remain the subject of debate for some time to come, notably the role of the Security Council, if any, with respect to the crime of aggression. Despite what was earlier identified as the shared objective--moving from a culture of impunity to a culture of accountability--there remains differences on modalities, and, rightly or wrongly, continuing and often successful attempts to maintain a high degree of selectivity in international justice. Nevertheless, a number of events in the past year alone demonstrate unprecedented and growing momentum for the punishment of past, present, and future crimes. There is an ongoing argument on the deterrent effect, if any, of the action of international tribunals. …

MADELINE MORRIS [*] I INTRODUCTION The Rome Treaty for an International Criminal Court (ICC) [1] provides for the establishment of an international court with jurisdiction over genocide, war crimes, and crimes against humanity. [2] Those crimes often are committed by or with the approval of governments. It is unlikely that a government sponsoring genocide, war crimes, or crimes against humanity would consent to the prosecution of its national for his or her participation. Therein lies the problem with an international criminal court that may exercise jurisdiction only if the defendant's state of nationality consents. The very states that are most likely to be implicated in serious international crimes are the least likely to grant jurisdiction over their nationals to an international court. The ICC Treaty avoids the dismal prospect of an international criminal court that cannot obtain jurisdiction over international criminals. The treaty provides that the ICC may exercise jurisdiction even over nationals of states that are not parties to the Treaty and have not otherwise consented to the court's jurisdiction. Article 12 provides that, in addition to jurisdiction based on Security Council action under Chapter VII of the United Nations Charter and jurisdiction based on consent by the defendant's state of nationality, the ICC will have jurisdiction to prosecute the national of any state when crimes within the court's subject-matter jurisdiction are committed on the territory of a state that is a party to the treaty or that consents to ICC jurisdiction for that case. That territorial basis would empower the court to exercise jurisdiction even in cases where the defendant's state of nationality is not a party to the treaty and does not consent to the exercise of jurisdiction. [3] The United States has objected to the ICC Treaty on the ground that, by purporting to confer upon the court jurisdiction over the nationals of non-consenting non-party states, the treaty would bind non-parties in contravention of the law of treaties. [4] This objection has given rise to a heated controversy that has focused on the particulars of the international law of treaties and of jurisdiction. On close inspection, however, we can detect a more basic issue struggling to make its way to the surface. The fundamental issue concerns the nature of the ICC as an international institution. The jurisdictional structure of the ICC is based on a view of the ICC as a criminal court, tout court. In this view, the job of the ICC is to adjudicate the guilt or innocence of individuals accused of recognized international crimes. With this model in mind, it makes sense to give the court meaningful powers of compulsory jurisdiction, lest perpetrators of serious international crimes should escape justice. From this perspective one might reason that, if the court's subject-matter jurisdiction is limited to established international crimes and the process of the court is fair, then no state-whether party or non-party-should have legitimate objections to the court's exercise of jurisdiction over its nationals. The deficiency of this approach is that it reflects only one of the two types of cases that the ICC will be called upon to decide. In addition to the cases that are concerned solely with individual culpability, there will be ICC cases that focus on the lawfulness of official acts of states. Even while individuals, and not states, will be named in ICC indictments, there will be cases in which those individuals are indicted for official acts taken pursuant to state policy and under state authority. These official-act cases may well include cases in which an official state act is characterized as criminal by the ICC prosecutor (acting, very possibly, on a referral from an aggrieved state), while the state whose national is being prosecuted maintains that the act was lawful. One can readily imagine ICC cases in which the act forming the basis for the indictment was a military intervention, deployment of a particular weapon, recourse to a certain method of warfare, or other official conduct that the responsible s tate maintains was lawful. …

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 paper analyses the extent to which international and „mixed‟ or „hybrid‟ criminal courts, in particular the International Criminal Court (ICC), have focused on crimes against children and dealt with children as victims, witnesses and potential offenders. While the earlier international courts -notably the International Military Tribunals of Nuremberg and Tokyo and the United Nations Tribunals for the former Yugoslavia and for Rwanda- referred mainly to crimes against children as part of other atrocities against civilians or against certain ethnic or religious groups, crimes against children are now receiving more focused attention. The paper underlines the major role played recently by international courts, notably the Special Court for Sierra Leone, followed by the ICC, in criminalizing as war crimes the conscription or enlistment of children and their use to participate actively in hostilities. The Special Court was the first to hand down convictions for these crimes. The first cases before the ICC also concern the unlawful recruitment of children or their use in hostilities, bringing these crimes to the fore. The paper emphasizes that despite the significant contributions of international courts to the understanding of how children are being victimized, much more remains to be done to fully document the extent of extreme violence they suffer. The current focus on the recruitment and use of child soldiers should not detract from other child victims and from the need to pursue accountability for other international crimes against children. Time and again, children are killed, tortured, enslaved or raped and are victims of genocide, crimes against humanity and other international crimes falling within the mandate of international courts. Yet the extent to which international and mixed tribunals have recognized and litigated these crimes remains limited. While international courts cannot prosecute each of these crimes, they can and should contribute to identifying the systematic, widespread or endemic patterns of criminality affecting children, whether or not it takes place during conflicts. Regarding children suspected of having participated in crimes, the paper establishes that none has been tried for international crimes by international courts. These courts have not prosecuted children because they are deemed not to be among those bearing the greatest responsibility for the worst crimes. International jurisdictions address the commission of crimes against rather than by children. This paper posits that children who have participated in international crimes should be considered primarily as victims, especially when the circumstances surrounding these crimes are inherently coercive. Yet some forms of acknowledgement, in a protective environment, may in certain circumstances be in the interest of these children and facilitate their rehabilitation and reintegration. Deconstructing the circumstances that led to children‟s involvement in international crimes may enable them, their victims, their families and their communities to better understand the causes, nature and consequences of what happened and how, thus diminishing the stigma attached to the children concerned. After presenting the relevant procedural provisions applicable before international courts, in particular the ICC, when interacting with child victims or witnesses, or with adults testifying about crimes they have experienced as children, the paper offers recommendations concerning specific areas where international practice could be improved. The paper concludes that it is important for children to emerge as a recognized category of victims, because the process acknowledges and empowers them. It is essential to break away from an adult-centric understanding of international crimes and acknowledge that, in numerous contexts, victims and witnesses of international crimes are children, and as children, they have specific rights and specific needs.

After prefatory terminological and conceptual clarifications, the chapter examines the basis for, and the international legal significance of, the formal juridical distinction between international and municipal (or ‘national’ or ‘domestic’) criminal courts, as well as the differences among international criminal courts when it comes to the legal underpinnings of their establishment and empowerment. It highlights how, for the purposes of international law, relatively little turns on the technical distinction between an international and a municipal criminal court and how of far greater international legal significance are the differing legal bases on which international criminal courts can be established and empowered. The chapter also suggests that what is more important in practical terms than the distinction between an international and a municipal criminal court are the differences as to jurisdiction ratione materiae, applicable law, rules of procedure and evidence, composition of the bench and its method of appointment, and so on, among international criminal courts and municipal criminal courts respectively.