ICTY) And Rwanda Research Articles

Criminal Responsibility for Omissions in ICTY and ICTR Jurisprudence

The present article analyses the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) jurisprudence on omission liability – as a perpetrator or accomplice – for crimes actively committed by others. After explaining how the Tribunals have applied the concept in relation to specific modes of liability, an in-depth assessment of the case law is undertaken with respect to relevant duties to act, the material ability to behave in accordance with such duties, the link between a failure to do so and the commission of crimes, as well as the requisite mens rea. The intellectual foundations of this form of liability remain, to a large extent, unexplored and unexplained in the jurisprudence, which sometimes even appears to treat omissions and actions as equivalent. The article addresses the potentially far-reaching implications of the Tribunals’ findings for the future and explores some of the questions yet unanswered.

International Crimes Tribunal Bangladesh (ICTB) and Violations of Right to Fair Trial: A Comparative Study

Right to fair trial is recognized internationally as a fundamental human right and countries are bound to respect it. Therefore the war crime tribunals of former Yugoslavia (ICTY) and Rwanda (ICTR) were fully accepted the fair trial right and with the mandate of United Nations, incorporated it in their statutes as a guarantee against the unlawful actions. While the domestic war crime tribunal of Bangladesh (ICTB) follows its own special procedures and rules which is lacking the fair trial guarantees to ensure a free and fair trial. In terms of rights ensuring fair trial guarantees, procedure, statutes and working, there are huge differences found between the ICTB and the other two internationally recognized tribunals (ICTY & ICTR). The ICTY and ICTR appear more transparent and fair than the ICTB. The ICTB has repeatedly deviated from the recognized judicial norms and principal of fair trial. Moreover, non-compliance with the ICCPR, violations of the domestic laws of the country and the revealed Skype scandal makes the tribunal (ICTB) illegal.

How Politics Shapes the Contributions of Justice: Lessons from the ICTY and the ICTR

The International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) established a number of precedents in international criminal law, as detailed by Darryl Robinson and Gillian MacNeil.1 They also set the template for the International Criminal Court (ICC) and other tribunals as to how politics can both empower and constrain international prosecution and determine its potential contribution to peace.The lesson of the ICTY is that international criminal law can assist peace processes in an ongoing way if powerful states and international institutions complement it with coercive political strategies to weaken regimes or militias led by criminal spoilers to the point where their cooperation is not needed tonegotiate and maintain a peace settlement.The lesson of the ICTR is that the impact of international criminal law on consolidating peace is dependent upon the political agenda of the state on whose territory the crimes oc-curred and whose cooperation is needed for effective prosecution.Therefore, the contribution of prosecution to peace depends on whether the law is embedded in national and international political com-mitments that go beyond compliance with formal legal obligations and over which a tribunal has limited influence.

Special Editorial

In his opening address at the Rome Statute Review Conference in Kampala in May 2010, the Secretary-General spoke of the birth of an ‘age of accountability’.1 He suggested that this age began with the International Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) and he referred to the International Criminal Court (ICC) as the ‘keystone of our growing system of global justice’. I would like to take stock today of this idea of an age of accountability, five years after the Secretary-General gave his landmark speech. In doing so, I hope to respond to the following questions: what is this ‘Age of Accountability’ and why does the Secretary-General believe it is so important? I will then look to the future by asking ‘Where do we go from here?’ So, what, then, is this ‘Age of Accountability?’ Accountability is commonly defined in terms of an obligation to accept responsibility or to account for one’s actions.2 The existence of an obligation necessarily entails the existence of a corresponding right. When it comes to the commission of crimes, accountability is linked to three essential rights: the right to truth, the right to justice and the right to an effective remedy.3

Residual matters of ad hoc courts and tribunals: the SCSL experience

Since 2007, the Office of the Registrar of the Special Court for Sierra Leone (SCSL) has been specifically tasked with identifying and addressing those continuing legal, judicial and administrative functions which do not cease on completion of judicial activities as well as the identifying the most appropriate mechanism that will be tasked with responsibility for those functions. This article highlights the process of: (1) identifying SCSL’s residual issues, including the prosecution of SCSL indictees at large; review of convictions/acquittals; defence and legal aid issues; and enforcement and supervision of sentences; (2) preparing the architecture of the residual mechanism and distinguishing between ongoing and ad hoc functions. While the ad hoc international tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) are distinct from the SCSL because SCSL was established by treaty, the issues, and challenges, the SCSL faces in relation to the administrative and political factors in determining how to ensure it remains best placed to comply with its continuing legal and administrative obligations are sufficiently similar.

Complete Justice: Residual Functions and Potential Residual Mechanisms of the ICTY, ICTR and SCSL

The international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), as well as the Special Court for Sierra Leone (SCSL) are due to close in the next few years. Technically, their complete closure in the immediate future is impossible, as there are a number of so-called residual issues that will need to be addressed for many years to come. These include the supervision of prison sentences, determinations on pardons and commutations, the potential review of earlier convictions, the continued protection and support of victims and witnesses, determinations on referrals and deferrals with regard to national proceedings, and the arranging of residual trials of at-large indictees caught after the courts’ closure. These ongoing obligations or residual functions – most of which involve judicial, registry, prosecutorial and defence activities – must be addressed by some form of residual mechanism or mechanisms. Options include extending the lifespan of the courts, establishing a joint residual court or transferring functions to another court. Comprehensive solutions are required and the international community will have to make a decision soon. At stake are fundamental human rights issues, the integrity, legitimacy and strengthening of the evolving international criminal justice system, and the legacy of the ICTY, ICTR and SCSL.

The Oddity that is the Hariri Tribunal

This article analyzes the nascent Special Tribunal for Lebanon, recently established by the UN Security Council to try those responsible for the assassination of the former Lebanese Prime Minister, Mr. Rafik Hariri. This Tribunal is deserving of scrutiny not simply because it is new, but also because it is rather unique among its siblings, the other international criminal courts and tribunals, in several respects. First, the circumstances of the Hariri Tribunal's creation are, to put it mildly, somewhat out of the ordinary. It has been established to try the perpetrators of a single murder (and certain related crimes), while all other international criminal tribunals were created to try perpetrators of mass atrocities. Furthermore, even though the Tribunal was originally meant to be an 'internationalized', hybrid criminal court, akin to the Special Court for Sierra Leone (SCSL) or the Extraordinary Chambers in the Courts of Cambodia (ECCC), it was in fact created by the Security Council by a resolution passed under Chapter VII of the UN Charter, due to the inability of the Lebanese government to ratify the treaty establishing the Tribunal for internal political reasons. Probably acting out of a desire to maintain appearances, however, the Council decided to promulgate into force that same unratified treaty by its resolution, instead of opting for a somewhat clearer solution of a UN court as the Council's subsidiary organ, as it did in the cases of the tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). In Section 2, this article tries to ascertain how the Council's decision fits within the framework of the UN Charter, and analyzes the issue of the Tribunal's legality, which will undoubtedly be raised by defence counsel in a future case. The second distinctively odd thing about the Hariri Tribunal is the untidy assortment of substantive and procedural law that it will be applying. First of all, even though the Report on the creation of the Tribunal by the UN Secretary-General, prepared by the UN Legal Counsel, entertained the possibility that the assassination of Mr. Hariri satisfied the customary requirements for a crime against humanity, making it therefore a crime against international law, the final Statute of the Tribunal as adopted by the Council does not make that qualification. Consequently, the Tribunal is the first international criminal court which will try persons who are accused solely of violating domestic, not international criminal law. Indeed, Article 2 of the Tribunal's Statute prescribes that the source of substantive criminal law that the Tribunal will be applying is the Lebanese Criminal Code. In another odd development, however, Article 3 of the Statute applies to these crimes forms of individual criminal responsibility which are almost uniquely international in character, such as common purpose liability (joint criminal enterprise) and superior (command) responsibility. In Section 3, this paper attempts to establish whether this poses any nullum crimen sine lege problems for the Tribunal's operation. The Tribunal, moreover, introduces some significant features of civil law systems, most notably trials in absentia, for the first time in international judicial practice. These are also addressed in Section 3, while Section 4 provides some concluding remarks. Note: Paper presented at the annual AHRI/COST conference held in Belgrade in September 2007. A revised version of section 3 of this paper is forthcoming in a symposium edition of the Journal of International Criminal Justice (Vol. 5, 2007, published by Oxford University Press).

Genocidal Archives: The African Context—Genocide in Rwanda

When looking at international criminal justice archival theory and practice, it is difficult to find many examples. There are the two current ad-hoc international criminal tribunals dealing with the former Yugoslavia (ICTY) and Rwanda (ICTR) in The Hague, Netherlands and Arusha, Tanzania, respectively. Prior to 1993 one has to go back to the late 1940's and the Nuremberg and Tokyo War Crimes Trials. This article asks whether there is such a thing as international criminal justice archival theory and details several of the unique aspects of record-keeping practice in an international organisation that deals with genocide and other crimes against humanity. Much valuable and innovative work has been carried out by the staff of the records and archives unit of ICTR since 1998 and the continuation of these approaches will be vital to future similar organisations. In light of current developments to deal with the former Iraqi regime in a hybrid internatioinal and/or domestic Iraqi court, valuable lessons can be learnt from the experience of the ICTY and the ICTR.

Beyond Victor's Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda

For human rights advocates, the notion of “victor's justice” has become increasingly distasteful in the decades since Nuremberg. At first glance, the victor's justice problem that plagued the Nuremberg and Tokyo tribunals appears to have been transcended by the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) given their mandate to prosecute all serious violations of international humanitarian law. But the tribunals' lack of police powers give states wide latitude to withhold the vital assistance the tribunals need to investigate atrocities and bring suspects to trial. The aim of this article is to evaluate the tribunals' approach to the victor's justice question and assess the extent to which they have held the victorious protagonists in the Balkan and Rwandan conflicts accountable for atrocities committed during wartime. The article imparts two main lessons about the difficulties that international tribunals confront when attempting to prosecute war crimes suspects from the winning side of an armed conflict. First, tactics by states targeted by a tribunal can significantly limit a tribunal's ability to realize justice in a fair and even-handed manner. Second, tactics by powerful international actors in relation to a targeted state can significantly constrain or expand the space in which a targeted state can act to undermine a tribunal. In certain situations, the tribunals may increase the prospects of state cooperation by crafting effective strategies to subject the state's behavior to international scrutiny and condemnation.

Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court

The rapid ratification of the Rome Statute of the International Criminal Court (ICC) and the orderly election of its judges and prosecutor belie the radical nature of the new institution. The Court has jurisdiction over genocide, aggression, crimes against humanity, and war crimes—crimes of the utmost seriousness often committed by governments themselves, or with their tacit approval. The ICC has the formal authority to adjudge the actions of high state officials as criminal and to send them to jail, no matter how lofty the accused’s position or undisputed the legality of those acts under domestic law. While the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) also possess this authority, those institutions operate directly under the control of the United Nations Security Council and within narrow territorial limits. The ICC, by contrast, is largely independent of the Council and vests the power to investigate and prosecute the politically sensitive crimes within its broad territorial sweep in a single individual, its independent prosecutor.

Constructing a Hierarchy of Crimes in International Criminal Law Sentencing

This Article looks at sentencing in international criminal law. Based primarily on the statutes and decisions of the current International Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) (collectively, the Tribunals), the Article focuses on one critical aspect of sentencing-how judges should assess the harm caused by the perpetration of international crimes. The Tribunals' judges have great discretion in imposing sentences. All crimes within their jurisdiction may be punished with terms ranging from one day to life imprisonment. There are few precedents for the Tribunals' work, and this structure has resulted in a lack of uniformity in sentencing decisions, both in sentence length and in methodology. This article proposes a framework for evaluating the harm associated with the different kinds of crimes within the jurisdiction of the Tribunals. The crimes within the jurisdiction of these Tribunals have two sets of elements: the chapeau, which confers international jurisdiction over the offense, and the enumerated acts, which resemble domestic crimes. The ICTY currently considers only the harm associated with the enumerated act when imposing an appropriate sentence. This Article argues that it is critical that the Tribunals should consider the chapeau elements in their harm determinations for two reasons. First, these international elements encode important information about the secondary harms caused by the offenses. Second, they reflect the norms underlying the internationalization of the crime and reinforce the distinction between international and domestic offenses. This approach yields two results important for international criminal law. It provides a relatively rule-like sentencing methodology that will increase the consistency and ultimately the legitimacy of international criminal law. Furthermore, by examining the differences between international and domestic crimes, it illuminates the purpose of international criminalization and advances a meaningful distinction between the two enforcement regimes.

The Doctrine of Command Responsibility: Current Problems

This article follows on an earlier study of the topic of command responsibility. When that previous analysis was made, the jurisprudence of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) in this area was nascent. A number of issues have since been considered and decided upon by the two Tribunals in several judgements, which have already attracted some scholarly attention. It is proposed to examine herein the doctrine of command responsibility in the light of the evolving case law of the Tribunals and other evidence of practice outside these judicial fora. The aim is to discover whether customary law has progressed or developed, and what questions recent practice has raised.