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Volume 39 (2006-2007)

The Statute of the Court is made an integral part of the Charter. Hence all Members of the United Nations will, by the very fact of membership, be parties to the Statute. The conception of the judicial process as one of the methods of bringing about the peaceful settlement of disputes does not exaggerate the part which a court may play.

Experience has shown that judges on the bench, operating within the severe limitations of the judicial process, can deal effectively with certain types of disputes between states. So long as the disputants are willing to live within the law, a court can supply solutions which will bring an end to their controversy. To that extent, it can serve as a bulwark of friendly relations. If situations arise in which states wish to go outside the law, however, other agencies are needed, manned by men who are not restricted by judicial limitations, who are accustomed to gauging currents of public opinion, and who possess sufficient authority to bring about the results which the community interest may require.

However, Iraqi jurists have not had experience in complex criminal trials applying international standards. In the face of very limited United Nations involvement in post-war Iraq, the Security Council, for its part, even shied away from a proposal to establish an expert group comprised of Iraqi and international experts to assess how to best bring justice for Iraq. There is real concern that the projected trials in Baghdad could end up as highly politicized proceedings, undercutting the fairness and legitimacy of the process.

In the last several years, although some states continued to meet their obligation to prosecute the most serious international crimes through their national courts, the application of universal jurisdiction laws also has been scaled back somewhat. While there are a number of pending cases involving mid-level officials before national courts in Europe, there has been no increase in prosecutions of senior officials. In the so-called Yerodia case of February , the International Court of Justice ICJ held that a sitting foreign minister was immune from prosecution in another country's court system regardless of the seriousness of the crimes with which he was charged.

Although the ICJ noted that such officials would not be immune to prosecution before international criminal courts where these courts have jurisdiction, its decision went against recent trends to deny immunity for serious human rights crimes. In , Belgium was forced to revise its universal jurisdiction law in response to intense economic and diplomatic threats by the Bush administration.

This included the Bush administration raising the possibility of moving NATO headquarters elsewhere unless Belgium capitulated to its demands. The Belgian law had a particularly expansive reach: the absence of a jurisdictional "presence" requirement in the law together with a provision allowing private individuals, known as "parties civiles," to file complaints directly with an investigating judge resulted in the indiscriminate filing of a spate of cases against high profile officials from around the world.

This attracted enormous media attention and opposition even though the investigative judge had the power to, and undoubtedly would have, ultimately dismissed patently unfounded complaints. The revised law restricts the reach of universal jurisdiction to cases where either the accused or victim has ties to Belgium, making it similar to or more restrictive than the laws of most countries that recognize universal jurisdiction. The backlash against the developing international justice system, while dismaying, is hardly surprising given the extent to which the significant advances of the past decade have begun to constrain the prerogatives of abusive state officials.

The challenge now is to work effectively in a more difficult international environment while many national courts remain unable and unwilling to prosecute the most serious human rights crimes. The gains engendered by international justice institutions need to be preserved and the international system strengthened until many more national courts assume their front-line role in combating impunity. We see three critical steps: make a sober assessment of the challenges facing international justice today; analyze and draw lessons from experience to date; and take strategic, measured steps forward.

This essay concludes with separate descriptions of each of these steps, including specific recommendations on how to implement them to maximize the effectiveness of existing institutions. The system of international justice has made several singular advances. At the same time, as decribed below, the ad hoc international tribunals have not been as effective or as efficient as envisioned. The achievements of the courts in Kosovo and East Timor have been similarly mixed. Grasping the combination of the inherent institutional limitations and the objective difficulties to international justice is crucial in evaluating the performance of these tribunals and continuing efforts to more fully assure justice for atrocities.

Prosecuting senior officials for serious human rights crimes where there are a large number of victims is a complex and expensive process regardless of whether the cases are tried before national or international courts. These prosecutions tend to involve massive amounts of evidence that must be analyzed and classified by crime scene, type of crime, and alleged perpetrator. Such cases require a sophisticated prosecution strategy. Trials must comply with international human rights standards to ensure their legitimacy and credibility.

Ensuring the fairness of these trials-including their compliance with human rights standards-often results in a slow process. Cases brought before international criminal tribunals or in national courts based on universal jurisdiction are often tried far away from the crime scene and thus are less accessible to victims and those in whose name the crimes were committed. These trials sometimes lack the visibility in the country where the crimes occurred that a local trial would have. The state where the crimes occurred, whose government may include accused war criminals or their confederates, may oppose the prosecutions, resisting cooperation and making it difficult to obtain custody of the defendants or obtain evidence.

Gathering evidence for crimes that occurred hundreds or thousands of miles away makes it more difficult to meet the level of proof required for a conviction and for the accused to develop a comprehensive defense. Another downside to distance includes a lack of familiarity with the cultural and historical context in which the crimes occurred.

The need for translation services also slows the pace of trials and makes them more costly. International criminal tribunals, as global institutions, also face their own unique institutional challenges. Bringing together judges, prosecutors, and other court personnel from different backgrounds and legal cultures creates obstacles to efficient trials. Reconciling the civil and common law traditions to establish and implement rules of procedure and evidence is time-consuming and costly.

The Yugoslav and Rwandan tribunals are illustrative of some of these problems. After approximately seven years of work, the ICTR has completed only fifteen trials. This is due to a variety of factors including an overly ambitious prosecution strategy that pursued too many suspects; poor coordination between investigators and prosecutors; and failure to fill some long vacant posts. The slow pace of trials has resulted in unusually long pre-trial detentions that raise human rights concerns.


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Although significantly more efficient, cases at the ICTY have also progressed slowly, in some part due to indictments overloaded with numerous counts. The cost of the tribunals has been extraordinarily high, reaching U. At the ICTR, there have also been ongoing problems with witness and victim protection. Witnesses and victims have described being treated with a lack of sensitivity due in part to lack of communication with victims and witnesses and inadequate follow-up.

Major indicted war criminals of both tribunals remain at-large due to a failure of cooperation and assistance by the states where they are located and other states with the capacity to arrest them. The national component of the hybrid mechanisms offers the potential advantage that the trials will leave a more lasting legacy in the countries where the crimes occurred.

In theory, the existence of national staff working alongside internationals with expertise in adjudicating complex criminal trials could over time enhance the capacity of national courts. The proximity of the court to the site of the crimes could make the trials more accessible to victims and those in whose name the crimes were committed.

However, the local component of these mechanisms also presents particular challenges. Security risks may be increased, local staff hired to work on these cases may be linked to past abuses, thereby re-traumatizing victims and witnesses, and national staff may be subject to political interference or lack the expertise to ensure that cases are tried fairly and effectively.

The work of the hybrid mechanisms in East Timor and Kosovo up to this point has been far from ideal. Representing "justice on the cheap," they have been seriously under funded by the international community. In both situations, cases have progressed slowly and the administration of justice has suffered from a range of problems including: lack of qualified staff to investigate, prosecute, and adjudicate cases; arbitrary or lengthy pre-trial detention and ineffective defense counsel; lack of effective translation services and support staff; and allegations of political interference or intimidation.

Introduction

As the Special Court for Sierra Leone has yet to begin trials, it is too soon to evaluate its success as an accountability model. However, it appears so far to be operating efficiently. In establishing the Yugoslav and Rwandan tribunals, the international community faced specific challenges that resulted from their sui generis nature. The only models from which they had to work were the Nuremberg and Tokyo tribunals, courts conducted by the victors of World War II, fifty years ago, and in which trials and sentences were quickly carried out. While not absent, fair trial safeguards in these prosecutions would probably not pass muster under today's standards.

Most strikingly, there was no right to appeal. The establishment of the Yugoslav and Rwandan tribunals thus occurred without any pre-existing adequate model and high start-up costs could have been expected. Objective institutional problems have also been aggravated by a tendency to misunderstand the immediate impact of the Nuremberg trials. The short-term effect of Nuremberg has, unfortunately, been inflated over the years.

At the time the trials were conducted, they were enormously controversial among Germans. While illuminating to the international audience, the German people initially dismissed the proceedings as political show trials. The International Military Tribunal IMT that conducted the Nuremberg trials did not significantly enable Germans to come to grips with the horrific crimes that were committed by the Nazi government. This reckoning only occurred decades later when a new generation began to ask questions about individual responsibility during the Third Reich.

At that time, the IMT's record provided an invaluable and incontrovertible reference point of past crimes.

Nevertheless, conventional wisdom about the Nuremberg trials is that they quickly enabled the population of Germany to confront what had happened under the Nazi Party. This idealized view has led to unrealistic expectations for war crimes trials. We need to better calibrate our expectations given the experience of the last half-century. The international community, moreover, is only beginning to reap the benefits of its investment in the Yugoslav and Rwandan tribunals.

It has drawn on the lessons of the two tribunals in establishing the ICC and hybrid mechanisms, and can also be expected to benefit from this experience in structuring future justice mechanisms. National courts are not about to become uniformly capable or willing to bring justice for atrocities in the immediate future. This is particularly true in post-conflict situations where justice systems have been either partially or completely destroyed.

As a result, international justice will remain a crucial last resort that must continue to be fortified against efforts to undermine it. While it may be unrealistic to expect that full-scale ad hoc international tribunals will be created in the current environment, the lessons of these tribunals can help inform other efforts, including the development of hybrid justice mechanisms.

Similarly, the record of existing hybrid mechanisms must be evaluated so that the benefits of national participation can be fully realized while better achieving fair and effective trials. The effects of differences between existing hybrid courts, including the extent to which they operate more as national courts, as do the Regulation 64 Panels in Kosovo, or as international courts, as does the Special Court for Sierra Leone, should receive particular scrutiny.

Hybrid mechanisms should not be established simply because they are an inexpensive alternative if an international mechanism would be more appropriate. In addition, we need to evaluate situations in which international mechanisms are rejected notwithstanding serious concerns about national capacity and willingness to pursue justice, as in Indonesia for crimes in East Timor and as is likely to be the case in Iraq. The consequences of failing to address impunity at all, as appears likely in Afghanistan, must also be documented.

The only models from which they had to work were the Nuremberg and Tokyo tribunals, courts conducted by the victors of World War II, fifty years ago, and in which trials and sentences were quickly carried out. While not absent, fair trial safeguards in these prosecutions would probably not pass muster under today's standards.

Religion and International Law

Most strikingly, there was no right to appeal. The establishment of the Yugoslav and Rwandan tribunals thus occurred without any pre-existing adequate model and high start-up costs could have been expected. Objective institutional problems have also been aggravated by a tendency to misunderstand the immediate impact of the Nuremberg trials.

The short-term effect of Nuremberg has, unfortunately, been inflated over the years. At the time the trials were conducted, they were enormously controversial among Germans. While illuminating to the international audience, the German people initially dismissed the proceedings as political show trials. The International Military Tribunal IMT that conducted the Nuremberg trials did not significantly enable Germans to come to grips with the horrific crimes that were committed by the Nazi government. This reckoning only occurred decades later when a new generation began to ask questions about individual responsibility during the Third Reich.

At that time, the IMT's record provided an invaluable and incontrovertible reference point of past crimes. Nevertheless, conventional wisdom about the Nuremberg trials is that they quickly enabled the population of Germany to confront what had happened under the Nazi Party. This idealized view has led to unrealistic expectations for war crimes trials. We need to better calibrate our expectations given the experience of the last half-century. The international community, moreover, is only beginning to reap the benefits of its investment in the Yugoslav and Rwandan tribunals. It has drawn on the lessons of the two tribunals in establishing the ICC and hybrid mechanisms, and can also be expected to benefit from this experience in structuring future justice mechanisms.

National courts are not about to become uniformly capable or willing to bring justice for atrocities in the immediate future. This is particularly true in post-conflict situations where justice systems have been either partially or completely destroyed. As a result, international justice will remain a crucial last resort that must continue to be fortified against efforts to undermine it. While it may be unrealistic to expect that full-scale ad hoc international tribunals will be created in the current environment, the lessons of these tribunals can help inform other efforts, including the development of hybrid justice mechanisms.

Similarly, the record of existing hybrid mechanisms must be evaluated so that the benefits of national participation can be fully realized while better achieving fair and effective trials. The effects of differences between existing hybrid courts, including the extent to which they operate more as national courts, as do the Regulation 64 Panels in Kosovo, or as international courts, as does the Special Court for Sierra Leone, should receive particular scrutiny. Hybrid mechanisms should not be established simply because they are an inexpensive alternative if an international mechanism would be more appropriate.


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In addition, we need to evaluate situations in which international mechanisms are rejected notwithstanding serious concerns about national capacity and willingness to pursue justice, as in Indonesia for crimes in East Timor and as is likely to be the case in Iraq. The consequences of failing to address impunity at all, as appears likely in Afghanistan, must also be documented. Such efforts will help build support for international justice. More countries should be encouraged to adopt and implement universal jurisdiction laws.

This could be accomplished as part of their adoption of ICC implementing legislation. Politicized use of universal jurisdiction against high profile figures, however, will only weaken the credibility of international justice efforts and should be avoided. In general, prosecutors and investigating judges should initiate cases against lower-rank defendants found on their territories. This will allow the jurisprudence and practice to be built from the bottom up.

This could lead over time to the successful application of extra-territorial jurisdiction against more prominent figures. However, where a strong legal basis exists, cases against more prominent figures must also be pursued. The United Nations must play a more central and systematic role in post-conflict situations. Over the last decade, the Security Council, the secretary-general, and the General Assembly have convened several commissions of experts to assess evidence of serious human rights crimes and recommend appropriate mechanisms.

Secretariat should create a permanent post or entity charged with analyzing the work of such commissions, identifying successes and failures, and advising future commissions. Creation of such commissions should become a regular part of the Security Council's response to post-conflict situations.

The International Court of Justice (ICJ) | NVVN

The ICC will only realize its potential with the concerted assistance of states, intergovernmental organizations, and NGOs. States parties need to strengthen and defend the integrity of the ICC statute. They should find ways to diffuse attacks on the court by the Bush administration, and continue to provide additional financial and diplomatic support for the court.

States parties must also adopt strong legislation implementing the provisions of the Rome Statute into national law. There likely will be intense scrutiny of the ICC's performance in the first cases it adjudicates. It will be difficult work to do well and there will be shortcomings. However, the ICC should make every effort to conduct the most fair, impartial, effective, and efficient trials possible so that the court gains legitimacy and credibility.

Even if the ICC achieves its full potential, it realistically will not be able to address all situations in which national courts are unwilling or unable to prosecute perpetrators. Among other factors, there are temporal and other jurisdictional limitations on what cases the ICC can hear. The ICC's jurisdiction is also restricted to cases in which the state where the crimes occurred is a party to the Rome Statute, the state of the nationality of the accused is a party to the Rome Statute, or the Security Council refers the situation.

Even where these requirements are satisfied, the ICC will be able to prosecute only a small percentage of the highest-level alleged perpetrators. Cases of mid-level perpetrators and cases where there are numerous perpetrators bearing significant responsibility, as in many post-conflict situations, are unlikely to be fully addressed by the ICC. In light of the constraints on the ICC and other international justice mechanisms, efforts to strengthen weak but politically willing national courts are all the more important. The ICC's operations must leverage the complementarity provisions of the Rome Statute to create a synergy between its work and prosecutions for serious human rights crimes by national courts.

The ICC should strive to focus international attention on situations where serious human rights crimes have occurred, both where it is pursuing cases and not pursuing cases.

1 Introduction

Where it is pursuing cases, such attention could help garner support to enhance the capacity of national courts to prosecute mid-level and lower-level perpetrators effectively and in accordance with fair trial standards. Where it is unable to pursue cases involving serious crimes due to jurisdictional limitations or some other obstacle, such attention could help garner support to enhance the capacity of national courts to prosecute the highest-level perpetrators.

This will maximize the ICC's catalytic effect on international support for fair and effective prosecutions at the national level. Hybrid mechanisms, universal jurisdiction, and other solutions will be essential to filling justice gaps where the ICC and national courts are unable to address serious crimes. The international community should apply the lessons learned from existing hybrid mechanisms to develop new models that are able to bring justice more fairly, effectively, and efficiently. Universal jurisdiction should be applied where appropriate.

Given the emphasis the Security Council has placed on a completion strategy for these tribunals to cease operations by , states and intergovernmental organizations should work assiduously to arrest key suspects and prosecute them. The tribunals should continue to amend their rules and improve courtroom management to increase efficiency and effectiveness. Some cases are likely to be referred back to the national courts of the former Yugoslavia and Rwanda as part of the completion strategy.

The lessons of the tribunals should be used to increase the capacity of the national courts to adjudicate these cases fairly and effectively by conditioning referral on national courts' compliance with international fair trial and human rights standards. The development of a system of international justice to limit impunity for serious human rights crimes has struck at outmoded notions of national sovereignty and the absolute prerogative of states.

It would have been unrealistic to expect that progress would occur in a straight line. To address today's more difficult environment, recent achievements must be secured and the system must be refined so that perpetrators of the most serious crimes are increasingly held to account. Skip to main content. Help us continue to fight human rights abuses. Please give now to support our work.

A Developing System of International Justice Soon after the end of the Cold War, with the horrors in the former Yugoslavia and Rwanda and the stark failures of national court systems freshly in mind, the United Nations, a number of governments, and many citizens groups and international nongovernmental organizations NGOs worked to create international criminal courts. A Changing Landscape By , steps to enhance international justice began to encounter broadening political opposition.

A Way Forward The backlash against the developing international justice system, while dismaying, is hardly surprising given the extent to which the significant advances of the past decade have begun to constrain the prerogatives of abusive state officials. Assessing the Challenges Facing International Justice Today The system of international justice has made several singular advances. Learning from Experience National courts are not about to become uniformly capable or willing to bring justice for atrocities in the immediate future.

Conclusion The development of a system of international justice to limit impunity for serious human rights crimes has struck at outmoded notions of national sovereignty and the absolute prerogative of states. Your tax deductible gift can help stop human rights violations and save lives around the world. September 20, News Release. September 11, Commentary. September 17, July 24, Most Viewed August 7, News Release.