9.2 International criminal tribunals and courts
4 min read•august 16, 2024
International criminal tribunals and courts play a crucial role in prosecuting serious international crimes. They operate under the principle of , stepping in when national courts can't or won't act. These bodies aim to end impunity, promote accountability, and foster post-conflict reconciliation.
There are two main types: ad hoc tribunals for specific conflicts and permanent courts like the ICC. While they've successfully prosecuted high-profile perpetrators and developed international criminal law, they face challenges like lengthy proceedings, limited reach, and accusations of bias.
Jurisdiction of International Courts
Purpose and Scope
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- Prosecute individuals for serious international crimes (, , war crimes, aggression)
- Operate under principle of complementarity intervenes when national courts are unwilling or unable to prosecute
- Jurisdiction limited by temporal, territorial, and subject matter constraints defined in founding statutes
- Aim to end impunity for international crimes, promote accountability, and contribute to post-conflict reconciliation
- Often have primacy over national courts for cases within their jurisdiction allows requesting case transfers from domestic legal systems
- Develop and clarify international criminal law through jurisprudence and legal interpretations
Legal Framework and Authority
- Established by international treaties or UN Security Council resolutions
- Derive authority from state consent or Chapter VII powers of UN Security Council
- Apply international criminal law, humanitarian law, and human rights law
- Operate independently from national legal systems but may cooperate with them
- Can issue binding orders to states for cooperation (arrest warrants, evidence collection)
- May have jurisdiction over both state and non-state actors depending on the specific court or tribunal
Ad Hoc vs Permanent Tribunals
Characteristics of Ad Hoc Tribunals
- Temporary judicial bodies created for specific situations or conflicts
- Examples include (ICTY) and (ICTR)
- Limited temporal and geographical jurisdiction focus on crimes within specific time frame and region
- Typically UN-funded with defined operational lifespan
- Created in response to particular crises or conflicts (Balkan Wars, )
- Often have more focused mandates tailored to the specific conflict they address
- May have simplified procedures to expedite cases related to a single conflict
Features of Permanent International Courts
- Ongoing jurisdiction over specified crimes not limited to a single conflict
- (ICC) primary example established by in 1998, operational since 2002
- Prospective jurisdiction can address crimes committed in any member state or referred by UN Security Council
- Funded by member states and voluntary contributions provides more stable long-term financing
- Broader mandate covers multiple situations and conflicts simultaneously
- Develop consistent jurisprudence over time enhances legal certainty
- Can adapt to emerging forms of international crimes and evolving legal standards
Effectiveness of International Justice
Measurable Impacts
- Successful prosecutions of high-profile perpetrators (, )
- Deterrence effect on potential future crimes difficult to quantify but theoretically supported
- Contributions to peace and reconciliation processes (truth-telling, historical record)
- Development of comprehensive body of international criminal law jurisprudence
- Improvement in victims' rights and reparations mechanisms (Trust Fund for Victims at ICC)
- Capacity building in national legal systems promotes principle of complementarity
- Increased global awareness of international crimes and accountability
Criticisms and Limitations
- Length and cost of proceedings often criticized as inefficient (Lubanga case at ICC took 6 years)
- Challenges in achieving deterrence particularly in ongoing conflicts
- Potential to hinder peace negotiations by removing amnesty as a bargaining tool
- Limited reach due to non-cooperation of some states (Sudan's refusal to hand over al-Bashir)
- Accusations of bias or selective justice (focus on African situations at ICC)
- Difficulty in securing arrests and enforcing sentences relies heavily on state cooperation
- Limited resources constrain ability to investigate and prosecute all potential cases
Challenges for International Tribunals
Operational and Logistical Hurdles
- State cooperation crucial for executing arrest warrants and enforcing judgments
- Resource constraints in funding and personnel limit investigative and prosecutorial capacity
- Cultural and linguistic barriers complicate investigations and trial proceedings
- Balancing rights of the accused with need for expeditious proceedings (right to a speedy trial vs. complex cases)
- Ensuring victim participation and protection while maintaining fair trial standards
- Collecting and preserving evidence in conflict zones or uncooperative states
- Managing large-scale trials with multiple defendants and extensive evidence (Milošević trial had over 1,000 witnesses)
Political and Ethical Dilemmas
- Political nature of some cases leads to accusations of bias or selective justice
- Tension between peace and justice objectives particularly in ongoing conflicts
- Balancing retributive justice with and reconciliation goals
- Addressing crimes committed by powerful states or their allies faces political obstacles
- Navigating conflicting national interests in international prosecutions
- Dealing with amnesties or immunities granted by national governments
- Addressing criticisms of "victor's justice" in post-conflict situations
Key Terms to Review (20)
Carla Del Ponte: Carla Del Ponte is a prominent Swiss lawyer and former prosecutor known for her role in international criminal law, particularly as the Chief Prosecutor for the International Criminal Tribunal for the former Yugoslavia (ICTY). She played a crucial role in prosecuting war crimes and crimes against humanity during the Yugoslav Wars, becoming a significant figure in the development of international justice mechanisms.
Charles Taylor: Charles Taylor is a former president of Liberia who was charged with war crimes and crimes against humanity for his role in the civil wars in Sierra Leone and Liberia during the 1990s. His trial marked a significant moment in international criminal law, showcasing how political leaders can be held accountable for their actions in conflicts that have devastating impacts on civilian populations.
Complementarity: Complementarity is a legal principle that establishes the relationship between national and international jurisdictions, allowing international courts to prosecute serious crimes only when national courts are unwilling or unable to do so. This principle is crucial in ensuring that the responsibility for prosecuting such crimes primarily rests with individual states, thereby respecting their sovereignty while providing a mechanism for international intervention when necessary.
Crimes against humanity: Crimes against humanity refer to certain acts that are deliberately committed as part of a widespread or systematic attack directed against any civilian population, including murder, enslavement, torture, and other inhumane acts. These crimes are recognized under international law and hold individuals accountable regardless of their position in a government or military structure. They represent serious violations that shock the conscience of humanity and necessitate international intervention and prosecution.
Due Process: Due process is a legal principle that ensures fair treatment through the judicial system, protecting individuals from arbitrary denial of life, liberty, or property. It serves as a fundamental safeguard against abuse of power, requiring that laws and legal proceedings be conducted fairly and with adequate notice, allowing individuals the opportunity to defend themselves.
European Union: The European Union (EU) is a political and economic union of 27 European countries that aims to ensure free movement of people, goods, services, and capital within its internal market. The EU operates through a system of supranational institutions and intergovernmental negotiated decisions among member states, promoting cooperation in various areas including justice, security, and international relations.
Geneva Conventions: The Geneva Conventions are a series of international treaties that establish standards for humanitarian treatment in war. They focus on the protection of individuals who are not participating in hostilities, including civilians, medical personnel, and prisoners of war, and are essential in the context of international criminal law and accountability for war crimes.
Genocide: Genocide is the deliberate and systematic extermination of a particular group of people, often defined by their ethnicity, nationality, race, or religion. It encompasses acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group. This crime against humanity has been recognized and addressed in various international legal frameworks, highlighting the responsibility of the global community to prevent and punish such atrocities.
International Criminal Court: The International Criminal Court (ICC) is a permanent tribunal established to prosecute individuals for international crimes such as genocide, war crimes, and crimes against humanity. It plays a crucial role in enforcing international law and promoting accountability, bridging the gap between national justice systems and the need for global justice.
International Criminal Tribunal for Rwanda: The International Criminal Tribunal for Rwanda (ICTR) was established by the United Nations in 1994 to prosecute individuals responsible for the genocide and other serious violations of international humanitarian law committed in Rwanda during the 1994 genocide. This tribunal marked a significant step in the development of international criminal law, as it sought to deliver justice for the atrocities and promote accountability at a global level.
International Criminal Tribunal for the Former Yugoslavia: The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by the United Nations in 1993 to prosecute serious crimes committed during the Yugoslav Wars in the 1990s. It aimed to hold accountable individuals responsible for war crimes, genocide, and crimes against humanity, serving as a landmark in the development of international criminal law and justice.
Luis Moreno Ocampo: Luis Moreno Ocampo is an Argentine lawyer and former prosecutor of the International Criminal Court (ICC), known for his role in addressing war crimes, genocide, and crimes against humanity. His leadership at the ICC from its establishment in 2003 until 2012 marked significant developments in international criminal law, particularly in prosecuting high-profile cases involving state leaders and armed conflict.
Nuremberg Trials: The Nuremberg Trials were a series of military tribunals held after World War II to prosecute prominent leaders of Nazi Germany for war crimes, crimes against humanity, and genocide. These trials marked a significant moment in international law, establishing precedents for how individuals could be held accountable for their actions during wartime, influencing the development of future international criminal tribunals and courts.
Restorative Justice: Restorative justice is an approach to criminal justice that focuses on repairing the harm caused by criminal behavior through inclusive processes that engage all stakeholders. This method emphasizes accountability, healing for victims, and reconciliation between victims and offenders, rather than solely punishing the offender. It seeks to involve the community in addressing the consequences of crime and encourages offenders to take responsibility for their actions.
Right to a fair trial: The right to a fair trial is a fundamental legal principle that ensures individuals receive a just and impartial hearing in legal proceedings. This concept is essential for upholding justice, as it guarantees that defendants have the opportunity to present their case, access legal representation, and receive a verdict from an unbiased tribunal. It connects deeply with international standards and human rights, highlighting the importance of transparency and due process in both national and international legal frameworks.
Rome Statute: The Rome Statute is a multilateral treaty that established the International Criminal Court (ICC) in 2002, providing a framework for prosecuting individuals for serious crimes such as genocide, war crimes, and crimes against humanity. This landmark agreement represents a significant step in international law by creating a permanent institution to hold perpetrators of these grave offenses accountable, reinforcing the principle of individual criminal responsibility on a global scale.
Rwandan Genocide: The Rwandan Genocide was a catastrophic event that occurred in 1994, during which an estimated 800,000 Tutsi and moderate Hutu were brutally murdered over a span of 100 days. This horrific act of mass violence was characterized by extreme brutality, targeting specific ethnic groups within Rwanda and fueled by deep-seated ethnic tensions. The genocide raised significant international awareness regarding the need for effective mechanisms to prevent such atrocities and led to the establishment of international criminal tribunals to bring justice to the victims.
Slobodan Milošević: Slobodan Milošević was a Serbian politician and the President of Serbia and later the Federal Republic of Yugoslavia, known for his role during the Yugoslav Wars in the 1990s. His leadership is often associated with ethnic nationalism and war crimes, leading to his indictment by the International Criminal Tribunal for the former Yugoslavia (ICTY) for crimes against humanity and genocide.
Transitional justice: Transitional justice refers to a set of measures employed by societies to address past human rights violations and foster reconciliation following periods of conflict or authoritarian rule. These measures often include trials, truth commissions, reparations, and institutional reforms aimed at promoting accountability, restoring victims' dignity, and ensuring non-recurrence of violence. Transitional justice is closely linked to the concepts of human rights, criminal justice reform, and the functioning of international courts.
United Nations: The United Nations (UN) is an international organization founded in 1945, aimed at promoting peace, security, and cooperation among countries. It plays a crucial role in addressing global issues such as human rights, humanitarian aid, and international law, making it a key player in criminal justice reform and the establishment of international criminal tribunals.