17 Role of ICC, ICTY, ICTR

Ms. Amit Jyoti Sandhu

Introduction

The system of maintaining and improving the consistency, simplicity, and efficiency of protecting human values based on international human rights a tremendous role is played by the International Court of Justice (ICJ) which we discussed in the previous module, and other International Courts like the International Criminal Court (ICC) and international criminal tribunals like the International Criminal Tribunal for the former Yugoslavia (ICTY), The International Criminal Tribunal for Rwanda (ICTR) and other International Quasi-Judicial Bodies.

After the World War I the idea of the establishment of a permanent international criminal court had emerged but for various reasons none of the tribunal contemplated at that time could be formed. After the Second World War, two ad hoc international military tribunals: the International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East, were established to try individuals who committed war crimes, crimes against peace and crimes against humanity. A prominent contribution of these tribunals was that they shook the foundation of State Sovereignty as a shield against crimes in international law. The Nuremberg Tribunal observed: ìCrimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

International Law Commission, established by the United Nations, made efforts to codify the legal principles that emerged during the Nuremberg and Tokyo trials, but progress on this initiative was blocked during the Cold War years. With the end of the Cold war towards the later part of the 20th century the ICTY and the ICTR were established with limited criminal jurisdiction to try cases of violations of human rights norms. However, owing to their ad hoc nature the quest for a permanent international criminal court continued. This ultimately led to the adoption of the Rome Statute of the International Criminal Court in July 1998.

Thus, presently ICJ is not the only international forum to address the concerns of international human rights violations but there are plurality of international criminal tribunals, quasi-judicial bodies, hybrid courts and treaty monitoring bodies that equally contribute towards the development and protection of human rights law. A primary distinguishing feature of the alternatives to ICJ is that in these forums either individuals can bring claims before them, or because they have jurisdiction to prosecute individuals for violations of human rights norms. It has been expressly acknowledged in Article 33 of the UN Charter that the peaceful settlement of disputes can be and should be sought through different ways which fall broadly into three categories: political; quasi-judicial; and judicial. Additionally, Article 95 of the Charter states in rather an unambiguous language that ëNothing in the present Charter shall prevent Members of the United Nations from entrusting the solution of their differences to other tribunals by virtue of agreements already in existence or which may be concluded in the future.

Our discussion in this module shall focus on the role of ICC, ICTY and ICTR in the development of international human rights law.

Learning Outcomes

• Students will be familiarized with ICTY, ICTR and the jurisprudence developed thereof.
• Students will develop a sense of reason by understanding how certain rules have existed in the ICTY and ICTR regime.

The International Criminal Court

In the 1990s after the end of the Cold War, tribunals like the International Criminal Tribunal for the former Yugoslavia and for Rwanda were established as the result of a consensus that impunity is unacceptable. However, because they were ad hoc tribunals, established to try crimes committed only within a specific time-frame and during a specific conflict, there was general agreement that an independent, permanent criminal court was needed. The purpose was to have a judicial body that could prosecute serious crimes against humanity no matter who committed them and be able to try the perpetrators of gross violations of humanitarian law, such as those committed during international or internal military conflicts.

The International Criminal Court is governed by the Rome Statute of the International Criminal Court in 1998. The Rome Statute was adopted by 120 states on July 17, 1998. This adoption led to the legal basis for establishing the permanent International Criminal Court. However, the Statute entered into force on July 1, 2002 when it was ratified by 60 countries. It only started its work in 2003. At present, the Rome Statute has been joined by 123 countries. It is the Rome Statute that governs the jurisdiction and functioning of the ICC.

The ICC is the first permanent treaty-based international criminal court established to help end impunity for the perpetrators of the most serious crimes of concern to the international community like genocide, crimes against humanity and war crimes. Its seat is at The Hague in the Netherlands. It is an independent international organization and is not part of the United Nations Organization like ICTY and ICTR and therefore UN members are not ispo facto members of the ICC. The primary source of the ICC funds is the State parties but it also receives voluntary contributions from governments, international organizations, individuals, corporations and other entities.

The Court is composed of four organs: the Presidency, the judicial Divisions, the Office of the Prosecutor and the Registry.

• Presidency: It consists of three judges and is responsible for the overall administration of the Court, except the Office of the Prosecutor.
• Judicial Divisions: It consists of eighteen judges who are responsible for conducting the court proceedings at various stages. On the basis of the stages, it is organized into the Pre-Trial Division, the Trial Division and the Appeals Division. Judges are subject to staggered election systems, with elections every three years and they generally cannot be re-elected.
• Office of the Prosecutor: It is responsible for receiving referrals and any substantiated information on crimes within the jurisdiction of the Court, for examining them and for conducting investigations and prosecutions before the Court.
• Registry: It is responsible for the non-judicial aspects of the administration and servicing of the Court.

The ICC is a court of last resort. It will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. Therefore, its jurisdiction is complementary to the national courts. In addition, the ICC only tries those accused of the gravest crimes. ICC can be approached by the victims of crimes and their families to express their views and concerns and to claim reparation for the wrongs suffered. In the conduct of its proceedings, ICC follows the highest standards of fairness and due process.

Article 12 of the Rome Statues provides that the jurisdiction of the court extends to the parties to the Statute but a non-state party can accept the jurisdiction by lodging a declaration to this effect. According to Article 13, the court may exercise jurisdiction with respect to crimes falling in its jurisdiction in three ways:

• When the matter is referred to the Prosecutor by a state party to the statute under Article 14;
• When the matter is referred to the Prosecutor by the Security Council acting under Chapter VII of the UN Charter.
• When the Prosecutor himself initiates an investigation in respect of such crimes.

According to Article 5 of the Rome Statute, the overall jurisdiction of the Court is limited to the most serious crimes. It has jurisdiction with respect to the four types of crimes i.e.

• The crime of genocide;
• Crimes against humanity;
• War crimes;
• The crime of aggression.

According to Article 22 of the Rome Statute the principle of Nullum crimen sine lege is applicable which serves to safeguard a stateís sovereignty, because the Court only has jurisdiction over crimes insofar as they have been included in the Statute by the negotiating states. Under Article 22, 23 and 24 the Rome Statute provides for various rights of the accused aiming at ensuring a fair trial and the non-retroactivity of the temporal jurisdiction of the court.

According to Article 21 of the Rome Statute, a hierarchy of the laws which shall apply in matters before the ICC has been provided:

• Statute, Elements of Crimes and its Rules of Procedure and evidence;
• Where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;
• General principles of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of the States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and standards.

The court may apply the principles and rules of law as interpreted in its previous decisions. It has been stated in Article 21 that the application and interpretation of the applicable laws have to be consistent with internationally recognized human rights and there shouldnít be any diverse distinction on the grounds of gender, age, race, color, language, religion, or belief, political or other opinion, national, ethnic, or social origin, wealth, birth or other status.

Until now, 22 cases in 9 situations have been brought before the ICC. As of now, four States Parties to the Rome Statute  Uganda, the Democratic Republic of the Congo, the Central African Republic and Mali ñ have referred situations occurring on their territories to the Court. In addition, the Security Council has referred the situation in Darfur, Sudan, and the situation in Libya  both non-States Parties. After a thorough analysis of available information, the Prosecutor has opened and is conducting investigations in all of the above-mentioned situations.

A direct relationship has been established between the ICC and the ICJ under Article 119(2) of the ICC Statute which states:

Any other dispute between two or more States Parties relating to the interpretation or application of this Statute which is not settled through negotiations within three months of their commencement shall be referred to the Assembly of States Parties. The Assembly may itself seek to settle the dispute or may make recommendations on further means of settlement of the dispute, including referral to the International Court of Justice in conformity with the Statute of that Court.

If States fail to enforce their judgments they can rely on the potential measures that can be taken by the SC acting under Chapter VII of the Charter for supporting their judicial activity and the enforcement of their judgments.

The International Criminal Tribunal for the former Yugoslavia

The Security Council decided to establish ICTY due to circumstances of grave injustice in the former Yugoslavia since 1991. There were ravaging effects in the former Yugoslavia, Slovenia to Croatia and then to Bosnia where some instances of ethnic cleansing, which included deportations, mass executions, mass sexual assaults and rapes, and concentration camps, were being reported. At this point, the Security Council asked the UN Secretary General to establish a Commission of Experts to report on evidence of grave breaches of international humanitarian law in the former Yugoslavia. By its resolution number 808, the Security Council on 22 February 1993 decided that an international criminal tribunal should be established and asked the UN Secretary General to prepare a report. The Secretary General, Ghali, reported within 60 days with the Statute for the formation of the ICTY.

The International Criminal Tribunal for the former Yugoslavia was established on 25 May 1993 by the resolution number 827 of the Security Council. This resolution had to be passed by the Security Council as there were numerous complaints of serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. The ICTY was the first war crimes court created by the UN and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals. It was established by the Security Council in accordance with Chapter VII of the UN Charter.

According to Article 2, 3, 4 and 5 on the subject-matter jurisdiction and Article 9 (1) on jurisdiction ratione temporis, the ICTY has jurisdiction over grave breaches of the Genocide Conventions of 1949, violations of the laws or customs of war, genocide and crimes against humanity committed in the territory of the former Yugoslavia since 1 January 1991. The ICTY has a special detention unit located at the Hague.

The mission of the ICTY is fourfold:

• to bring to justice persons allegedly responsible for serious violations of international humanitarian law;
• to render justice to the victims;
• to deter further crimes;
• to contribute to the restoration of peace by promoting reconciliation in the former Yugoslavia

The case law of the ICTY is quite vast and covers many issues of international human rights and humanitarian law. Until now the ICTY has charged over 160 persons including heads of state, prime ministers, army chiefs-of-staff, interior ministers and many other high- and mid-level political, military and police leaders from various parties to the Yugoslav conflicts.

The International Criminal Tribunal for Rwanda

In April 1994, a massive ethnic conflict broke out in central Africa resulting first in the genocidal murder of about half a million members of the Tutsi tribe by members of the Hutu tribe in Rwanda, and then the displacement of hundreds of thousands of Hutus into the territory of neighbouring countries.

After 18 months of the establishment of the ICTY, upon receiving request of the government on the territory of which crimes were taking place, the International Criminal Tribunal for Rwanda (ICTR) was established on 8 November 1994 by resolution number 955 of the Security Council due to serious violations of humanitarian law had been committed in Rwanda. To promote international peace and security in Rwanda, the Security Council established ICTR to prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994. This is one primary difference between the ICTY and ICTR where the former has a start but no end date. The ICTR is located in Arusha, Tanzania. Both ICTY and ICTR share the Appeal Chamber which is based at the Hague. Comparatively, ICTR is said to have made a greater contribution towards securing international peace and justice as it has obtained custody of several high-level government and military officials suspected of planning and inciting the Rwandan genocide. Since it opened in 1995, the ICTR has indicted 93 individuals whom it considered responsible for serious violations of international humanitarian law committed in Rwanda in 1994. The ICTR is the first ever international tribunal to deliver verdicts in relation to genocide, and the first to interpret the definition of genocide set forth in the 1948 Geneva Conventions and the first ever tribunal to hold members of the media responsible for broadcasts intended to inflame the public to commit acts of genocide. The ICTR delivered its last trial judgement on 20 December 2012. Now the work is only pending before Appeals Chamber. The ICTR will formally close with the return of the Appeals Chamber’s judgement in its last appeal.

ICC versus ICTY and ICTR

ICTY and ICTR are called ad hoc tribunals and they have a closer relationship with the Security Council, as compared to the ICC. They have a wide range of powers owing to the fact that they were established by the Security Council acting under Chapter VII of the UN Charter. According to Article 29 of the UN Charter, ICTY and ITCR are subsidiary organs of the Security Council. As such they are dependent on the UN in administrative and financial matters, although as judicial institutions, they are independent of any one State or group of States, including their parent body, the Security Council. The ICTY and its sister tribunal, the ICTR, have been endowed with primary jurisdiction, in contrast to the jurisdiction of ICC. Under Article 29 of the ICTY Statute, UN member States have a legal obligation to render co-operation and judicial assistance to ICTY as determined by the SC under Articles 48 and 49 of Chapter VII of the Charter.

Hybrid Courts

The beginning of the 21st century witnessed the birth of the third generation of international criminal bodies which are referred to as the hybrid criminal bodies. Currently, the four bodies referred to as hybrid courts are:

• Crimes Panels of the District Court of Dili, East Timor;
• Regulation 64î Panels in the Courts of Kosovo;
• Court for Sierra Leone; and
• Extraordinary Chambers in the Courts of Cambodia.

Each of these courts is composed of independent judges, working on the basis of predetermined rules of procedure, and rendering binding decisions. To fulfil their objectives they need to rely on international cooperation and judicial assistance by states and international organizations. Despite having a commonality of objectives when compared to the tribunals discussed above, these hybrid courts are different to the extent that they are part of the judiciary of a given country, while in others, they have been grafted onto the local judicial system. But in all cases their nature is mixed, incorporating at the same time international and national features which is why they are referred to as hybrid courts.

Conclusion

We learnt in this module that ICTY, ICTR and ICC have played a significant role in the development and interpretation of treaty provisions in the realm of international human rights law. The ICC, being the first permanent international criminal court continues to discharge its obligations as stated in the Rome Statute of the International Criminal Court in 1998. For the ad hoc tribunals – ICTY and ICTR, the former continues to adjudge the remaining trials of the first instance and any appeal proceedings that had been initiated prior to 1 July 2013 Any appeal proceedings initiated since 1 July 2013 have been under the jurisdiction of a successor body, the Mechanism for International Criminal Tribunals. ICTR formally closed its working in December 2015. Throughout its period of working, ICTR tried and convicted several prominent figures, including former Prime Minister Jean Kambanda; the former army chief of staff, General Augustin Bizimungu; and the former Defense Ministry chief of staff, Colonel Théoneste Bagosora. The ICTR also established important jurisprudence in international criminal law and served as a precedent for the creation of the ICC.

Reference

1. Punishment For Violations of International Criminal Law: An Analysis of Sentencing at the ICTY and ICTR, Indian International & Comparative Law Review 12 Ind. Int’l Andrew N. Keller
2. The Failings of Ad Hoc International Tribunals, Journal of International Criminal Justice 2 J. Int’l Crim. J, Ralph Zacklin
3. International intervention, justice and national reconciliation: the role of the ICTY and ICTR in Bosnia and Rwanda, Journal of Human Rights, Michael Humphrey