• ICC: International Criminal Accountability and the ICC • ICC-UGANDA: The Lord's Resistance Army Case • ICC-SUDAN: Darfur, the Security Council, and the ICC • ICTY: Victor’s Justice or the Law? • ICTR: Main Achievements of the ICTR • SIERRA LEONE: Wrong-Sizing International Justice? • CAMBODIA: The Extraordinary Chambers • EAST TIMOR: The Serious Crimes Process in Timor-Leste • BOSNIA: War Crimes Trials Before the Domestic Courts • KOSOVO: Lessons from the Deployment of Int'l Judges • IRAQ: The Former Iraqi Government On Trial • GLOBAL: Universal Jurisdiction in Absentia INTERNATIONAL CRIMINAL COURT International Criminal Accountability and the International Criminal Court Columbia International Affairs Online (Nov. 2004) Political and military leaders have often found themselves able to avoid being held to account for atrocities committed under the guise of nationalistic or religious fervor, with Joseph Stalin, Pol Pot, and Idi Amin being only the more notorious examples. One of the primary objectives of the UN is securing universal respect for human rights and the fundamental freedoms of individuals throughout the world. Linked to this is the fight against impunity, and the struggle for peace and justice in contemporary situations of conflict. It was felt that a permanent international criminal court would aid the UN in the pursuit of these objectives. The ICC has jurisdiction over the most serious crimes under international law--ie., genocide, crimes against humanity, war crimes, and aggression. Furthermore, the ICC is not only concerned with the prosecution and punishment of individuals; it also accords recognition to individual victims. This case study examines the background of the International Criminal Court's development and the nature of the crimes over which it has jurisdiction. It analyzes the technical nature and definitions of these crimes, and some of the problems likely to be encountered by the Court in the future. Continue reading INTERNATIONAL CRIMINAL COURT-UGANDA The Lord's Resistance Army Case: Uganda's Submission of the First State Referral to the International Criminal Court The American Journal of International Law (Apr. 2005) On December 16, 2003, Uganda referred the situation concerning the Lord's Resistance Army (LRA) to the prosecutor of the International Criminal Court (ICC). It was the first time that a state party had invoked Articles 13(a) and 14 of the Rome Statute in order to best the Court with jurisdiction. The LRA referral raises important issues concerning the ICC's jurisdiction. There is little doubt that as a purely legal matter, the LRA atrocities qualify as crimes within the Court's subject-matter jurisdiction. The primary jurisdictional quandaries relate instead, to the scope of the state prerogatives to refer situations to the ICC in light of the principle that the Court is complementary to national criminal jurisdictions. In particular, the LRA referral has raised the question of whether a state with a judicial system that is both willing and able to conduct a prosecution can voluntarily relinquish jurisdiction in favor of the ICC. Another important jurisdictional issue concerns the impact that the ICC may have on peace negotiations to end ongoing atrocities-thus raising the question of whether prosecutions are in the "interest of justice". Continue reading*
INTERNATIONAL CRIMINAL COURT-SUDAN Darfur, the Security Council, and the International Criminal Court International and Comparative Law Quarterly (Jan. 2006) On 31 March 2005 the Security Council made its first referral to the International Criminal Court (the ICC). The Council referred the situation in Darfur to the Prosecutor of the ICC. Given the USA's stated opposition to the ICC, that there was a referral at all could be seen as a triumph for the Court's supporters. However, Security Council Resolution 1593 has a number of problematic features. Its genesis was long and convoluted, and it has been seen by some as a substitute for effective action by the United Nations to end the humanitarian crisis and systematic atrocities being committed in Darfur. Looking at Resolution 1593 in the round, the question must be what its effects are likely to be, both with regard to the ICC and the politics of international criminal justice generally. However, Resolution 1593 can hardly be seen as a decisive victory for the supporters of the ICC. Continue reading* INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA Victor’s Justice or the Law? Judging And Punishing At The International Criminal Tribunal For The Former Yugoslavia Journal of Conflict Resolution (Apr. 2003) The development of fair and impartial criteria for judging those accused of international crimes is one of the most critical issues facing the international community and the International Criminal Tribunal for the Former Yugoslavia (ICTY). Are the resources, experience, and moral force so weighted in favor of the international community that the accused cannot obtain a fair contest? Are international criminal trials legalistic exercises that cloak a victor’s justice, or do such courts premise their decisions on fair criteria? Data on ICTY verdicts and punishment of convicted war criminals show that the ICTY judges follow a "legal" model and that punishment is based primarily on the gravity of the crimes committed and the defendant’s level of responsibility in the political and military chain of command. Political factors largely do not explain verdicts or sentences. Continue reading*
INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA Main Achievements of the ICTR Journal of International Criminal Justice (Aug. 2005) Since trials began in 1997, the International Criminal Tribunal for Rwanda (ICTR) has conducted cases involving 50 accused, involving a prime minister and several ministers, prefects, bourgmestres and other leaders, who would otherwise not have been brought to justice. Judgments have been rendered in respect of 25 accused, with three acquittals. During the first mandate (1995–1999), the Tribunal delivered ground-breaking judgments concerning genocide, such as Akayesu and Kambanda. In the second mandate (1999–2003), the judicial output doubled and included the Media judgment. Halfway into the third mandate (2003–2007), trials involving 25 accused are ongoing. The ICTR is an efficient judicial institution which has conducted fair trials, created important jurisprudence, and made a significant contribution to the development of international criminal justice. Continue reading* SPECIAL COURT FOR SIERRA LEONE Wrong-Sizing International Justice? The Hybrid Tribunal in Sierra Leone Fordham International Law Journal (Feb. 2006) Even as the International Criminal Court undertakes investigations in Uganda and the Democratic Republic of Congo, policymakers and academics continue to debate what the "right" tools to respond to past atrocities are. The ad hoc criminal tribunals for the former Yugoslavia and Rwanda are both being encouraged to complete work by 2008- they have prosecuted relatively few cases over the course of more than a decade, but have contributed significantly to the corpus of international law. International justice may be developing, but it has its limits. Yet, it is also the case that after civil war or internal atrocity, domestic courts are often unable or unwilling to seriously pursue cases. This leaves a potential gap, one that some believe can be filled by a device between the national and the international - hybrid or mixed - tribunal. While these tribunals are said by some to be an example of "right-sizing" international justice, the case of the Special Court for Sierra Leone ("SCSL", "the Court," or "Special Court") suggests that, perhaps, we ought not be so sanguine. Continue reading*
CAMBODIA The Extraordinary Chambers Open Society Justice Initiative (Apr. 2006) The "Extraordinary Chambers" is extraordinary in several respects. Although a number of factors distinguish the EC from its principal hybrid predecessors, three stand out in underscoring the challenges ahead. Perhaps most significantly, the EC is the first hybrid tribunal in which international judges and prosecutors do not constitute a majority. Second, the length of time that has transpired since the crimes at issue-longer than three decades, in some cases-far exceeds that for any comparable proceeding. Third, unlike analogous mechanisms in other countries, the EC is for now the only official venue in Cambodia where claims for truth and justice about Khmer Rouge crimes may be mediated. In light of these obstacles, it perhaps bears emphasis that both the Cambodian government and the international community share responsibility to see that the EC succeeds. Continue reading
EAST TIMOR The Serious Crimes Process in Timor-Leste: In Retrospect International Center for Transitional Justice (Mar. 2006) This paper seeks to analyze the serious crimes process (the Special Panels and the Serious Crimes Unit) the UN established in Timor-Leste to try serious violations of human rights perpetrated in 1999. This mechanism finished its work in May 2005, and this paper provides an overall analysis in its aftermath. The principal difficulty facing the serious crimes process was that the vast majority of major suspects in regard to the 1999 violence are in Indonesia, and the Timorese government has not been able to secure their surrender. This issue has called into question the success of the entire operation and whether it was appropriate to pursue a hybrid court in Timor-Leste. The case of Timor-Leste is instructive in what is required, both in terms of resources and in terms of political will, to deliver an adequate measure of justice in a situation with cross-border culpability. Continue reading
BOSNIA-HERZEGOVINA War Crimes Trials Before the Domestic Courts of Bosnia and Herzegovina: Progress and Obstacles Organization for Security and Co-operation in Europe (Mar. 2005) With the establishment of the War Crimes Chamber of the State Court of Bosnia and Herzegovina (BiH) in January 2005, it is imperative to draw attention to the efforts of the BiH authorities in relation to war crimes cases proceeding before the cantonal and district courts. Despite widespread criticism of the domestic authorities' handling of war crimes cases, this Report highlights how some courts and prosecutors, particularly in the FBiH, have made conscientious efforts to bring those responsible for war crimes to justice. However, almost a decade after the end of the conflict, the steps taken by the authorities to investigate and bring to justice those responsible for atrocities committed during the war and to compensate the victims or their families remain insufficient. This Report analyses the numerous obstacles to effective prosecution, including the political indifference of biased or uncommitted authorities, the fear of judges and prosecutors for their personal security, difficulties with locating and securing the attendance of witnesses and defendant, as well as adequate commitments, structures and procedures for trans-border co-operation. Continue reading
KOSOVO Lessons from the Deployment of International Judges and Prosecutors in Kosovo International Center for Transitional Justice (Apr. 2006) This case study seeks to provide basic information and policy analysis on the deployment of international judges and prosecutors in Kosovo, a program that was established under the UN Mission in Kosovo (UNMIK) in 1999. In Kosovo, hybrid courts were established when international capacity was injected into the domestic legal system. The creation of the various aspects of the Kosovo system of international judges (IJs) and international prosecutors (IPs) must be understood as a series of reactive developments to the needs and political reality of the immediate post-conflict situation, as opposed to any planned or strategic transitional justice initiative to deal with past crimes. The system has made halting steps forward, although its contributions have been limited by continuing security concerns, concerns regarding independence, ad hoc planning, and poor implementation including the absence of any concrete plans for hand-over. Continue reading
IRAQI SPECIAL TRIBUNAL The Former Iraqi Government On Trial Human Rights Watch (Oct. 2005) The Supreme Iraqi Criminal Tribunal (SICT) (formerly known as the Iraqi Special Tribunal or IST) will be applying a mixture of international law and domestic criminal law within a very recently reconstituted national legal system. This has important positive aspects: locating international criminal trials within the affected country is one way of making international justice mechanisms more responsive to the needs and interests of victims and the affected society. However, it also carries dangers: localization cannot come at the expense of fundamental fair trial rights or the consistent application of international criminal law. Human Rights Watch has long called for the prosecution of senior figures in the former government, including Saddam Hussein, and has been instrumental in documenting some of the worst atrocities committed under his regime. It therefore welcomes efforts to investigate and prosecute former Iraqi leaders. This briefing describes how the SICT will work. It also identifies deficiencies in the SICT which, if not addressed, could jeopardize fair trial rights and undercut the legitimacy of the proceedings. Continue reading
GLOBAL Universal Jurisdiction in Absentia Fordham International Law Journal (Jan. 2005) While some form of universal jurisdiction exists for war crimes, genocide, and crimes against humanity, the exact parameters of the doctrine are ill-defined. This Article addresses the question of whether international law requires, or should require, the presence of the offender in a forum State for universal jurisdiction to be exercised. Recently, three notable situations have given rise to a discussion of universal jurisdiction in absentia: the International Court of Justice's ("ICJ") decision in Case Concerning the Arrest Warrant of 11 April 2000 which discusses Belgium's arrest warrant for Congolese Foreign Minister Abdulaye Yerodia Ndombasi; the Belgian Court of Appeals and Supreme Court cases regarding criminal proceedings private individuals brought against Israeli Prime Minister Ariel Sharon; and, finally, the recently promulgated Princeton Principles on Universal Jurisdiction. Unfortunately, none of these instances shed much light upon the issue of whether universal jurisdiction in absentia should be applied. The purpose of this Article is to provide some clarification of universal jurisdiction in absentia. Continue reading*
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