Origins of International Criminal Justice

The difficulties that plagued the ICTY were exacerbated at the ICTR because of its relative isolation and opposition from the Government of Rwanda . Between April and July 1994, between 500,000 and one million people were brutally murdered, with the Tutsi people (and moderate Hutu allies) targeted for extermination by Hutu Power militias and leadership in a carefully-planned genocide . The international community was acutely aware of the situation on the ground as it occurred. Not only did Western nations fail to act but they took affirmative steps to encourage Hutu Power by removing UN peacekeeping forces before the worst of the killing began. Only the overthrow of the murderous regime by Tutsi rebel forces in the summer of 1994 stopped the slaughter, but the fleeing Hutu militias fled to neighboring Zaire (today, the Democratic Republic of the Congo ) where they destabilized the Rwandan state for years (Melvern 2000: 4–5, 227–228; Chrétien 2003: 330–336). On November 8, 1994, the Security Council voted to create the ICTR, though Rwanda objected because the tribunal would not be permitted to sentence perpetrators to death. The ICTR was based in Arusha, Tanzania, with an appeals chamber shared with the ICTY in The Hague . The Rwanda tribunal had primacy over national courts. The tribunal’s statute was based to a large extent on the Yugoslavia tribunal ’s statute, though specific references to armed conflict and war crimes are omitted in view of the internal nature of the conflict. This was the first time that the category of crimes against humanity was separated from war crimes, and the first time that the laws of war were prosecuted in a purely internal conflict (Beigbeder 1999: 174–175; van den Herik 2005: 281). International criminal law was evolving.

The tribunal faced almost insurmountable obstacles from the start, particularly as it was created over the opposition of Rwanda , where it was viewed by the Tutsi rebel government that overthrew the genocidal regime as poor compensation for the international community’s failure to stop the genocide . The first indictments were made in December 1995, and subsequently a Hutu militia leader and a local mayor were transferred to Arusha for trial. Like the ICTY, however, construction of the tribunal was significantly delayed, and the first courtroom was only completed in November 1996. Although the United States provided substantial support, few other countries did. The tribunal also suffered from serious operational deficiencies: poor relations between the prosecutor and the registrar and inexperienced or unqualified staff. Even more serious were errors of strategy and due process by the Office of the Prosecutor , despite the transfer to Arusha of very senior Rwandan leadership, including a former prime minister, former cabinet ministers, a military general, and the propagandist in charge of the “hate radio.” Investigations were difficult, defense counsel was isolated, and verdicts zigzagged between rigorous enforcement of due process rights and cavalier treatment of defendants’ objections. In short, the tribunal lacked a grand strategy (Beigbeder 1999: 178–182; Cruvellier 2010: passim). The ICTR indicted a total of 95 individuals and convicted 59 perpetrators. Though several trials are ongoing, the ICTR expects to complete its work by the end of 2014. The oddly-named United Nations Mechanism for International Criminal Tribunals (also called the Residual Mechanism ) will take over jurisdiction of any outstanding arrest warrants from both the ICTY and ICTR when both tribunals finally close. The Residual Mechanism includes a list of judges to be called upon in the future and provided with a small staff should any suspects still at large be apprehended. The Mechanism will be called upon as needed, and will not be continuing. The Residual Mechanism for the ICTR began operating on July 1, 2012, and the one for ICTY commenced on July 1, 2013. The Residual Mechanism will hear any appeals resulting from the last four cases still ongoing at the ICTY, and the Mechanism retains jurisdiction over three fugitives of the ICTR who are still at large (United Nations Mechanism for International Criminal Tribunals 2014).

Despite doubts about the tribunal’s respect for the due process rights of the defendants, one of the major accomplishments of the Rwanda tribunal was that it helped politically silence all supporters of the regime that had overseen the genocide . While one may doubt that the ICTR subsequently deterred atrocities in eastern Congo and elsewhere in Africa, the prosecutions marginalized the Hutu Power militias and the former genocidal regime, which proved vital to political stability in Rwanda and the region. Like the Nuremberg tribunal before it, the ICTR de-legitimized genocide denialism and the belief that the Tutsis and Hutus were simply engaged in a civil war. The ICTR emphatically contributed to constructing the memory of the Rwandan genocide , which today is recognized in popular culture on par with the African slave trade and South African apartheid as among the most serious mass crimes to disfigure the African continent (Cruvellier 2010: 172). Relatedly, the ICTR’s decisions extensively helped to develop international jurisprudence on the crimes of genocide and crimes against humanity , producing considerable writings on the elements of the offenses, the intent requirements, and the status of the victims , especially with regard to women and gender-based violence. The ICTR was the first international tribunal to recognize that mass rape may constitute an act of genocide. Although the proceedings of the tribunal had their troubles, the ICTR produced a large and impressive body of jurisprudence (van den Herik 2005: 278–284). Prior to the establishment of the Rwandan and Yugoslav tribunals, the testimonies of victims of sexual violence were very rare in international prosecutions. The recognition of mass sexual violence as an international crime helped challenge the gendered foundations of international criminal law, helping to end impunity for these crimes and providing clear precedent for later tribunals (Koomen 2013: 254–255).

The establishment of the so-called “hybrid” or “mixed” tribunals in Sierra Leone, Cambodia, Lebanon, East Timor, Bosnia, and Kosovo reflected the dissatisfaction of the international community with the Yugoslavia and Rwanda tribunals. The hybrid model was intended to shorten the duration of judicial proceedings while respecting due process, ensure the greater involvement of and impact on local societies, and provide greater financial efficiency (Tortora 2013: 93–94). “Citizens of the affected country should feel some participatory connection to the trials if those trials are to further the oft-declared goals of international criminal justice—promoting reconciliation, developing a culture of accountability, and creating respect for judicial institutions in a post-conflict society” (Raub 2009: 1021). There was precedent for this: a hybrid tribunal was established in the Netherlands in 1999 for the perpetrators of the bombing of Pan Am Flight 103 over Lockerbie , Scotland, on December 21, 1988. As part of an agreement with Libya to retrieve the two suspects involved in the bombing, a criminal trial was held in The Hague before Scottish judges and under Scottish law (Stewart 2014: 158–159). If the experiments in Yugoslavia and Rwanda proved anything, they proved that international criminal tribunals are expensive. Those two tribunals alone staffed more than 2000 employees and had a combined annual budget exceeding $250 million. For this reason, the mixed tribunals for Sierra Leone and Cambodia, for instance, were financed on the basis of voluntary contributions—a method that hardly seems desirable or reliable for a permanent court, but one that avoided the dramatic budget battles of the Rwandan and Yugoslav tribunals (Arsanjani and Reisman 2005: 402).

The Special Court for Sierra Leone was the first of these experiments, envisioning the substantial involvement of judges, prosecutors, and staff from the country where the crimes took place. In addition, the Special Court’s personal jurisdiction was limited only to those who bore the greatest responsibility for the crimes. The Special Court was born out of a June 2000 request by the president of Sierra Leone to the United Nations for assistance in prosecuting the leaders of the Revolutionary United Front, a rebel group notorious for using drug-addicted child soldiers to terrorize civilians in order to control the country’s diamond resources. Despite an attempted amnesty, the rebels continued fighting and took 500 UN peacekeepers as hostages. In March 2002, the parliament of Sierra Leone ratified the proposal establishing the court, and a year later, the prosecutor issued indictments for 13 individuals, including former President Charles Taylor of Liberia and the leaders of the three main armed factions (Rodman 2013: 64–65; Tortora 2013: 96–97). However, the transfer of Charles Taylor to The Hague to stand trial for security reasons substantially increased the Special Court’s operational costs (Ralston and Finnin 2008: 59). The Special Court completed proceedings against 21 individuals, of whom 16 were convicted (including Taylor), two were acquitted, and three died before the conclusion of the trials. One persistent question before the Special Court that profoundly influenced later international criminal law was whether international crimes could be pardoned or amnestied. Although the Lomé Accord included a complete and unconditional amnesty to all combatants for crimes occurring after 1991, international crimes were excluded. The Lomé Accord also initiated the creation of a truth and reconciliation commission before which former combatants could testify in the presence of victims as an alternative to a criminal proceeding, though this commission’s jurisdiction overlapped and occasionally conflicted with the Special Court (Tejan-Cole 2003: 158). Here too there were lessons for a future International Criminal Court.

Other “hybrid” tribunals followed. In 2003, the ICTY endorsed the creation of a domestic court to provide assistance in trying perpetrators from the Bosnian war. The State Court of Bosnia and Herzegovina was created as part of the ICTY’s “completion strategy” as the ICTY sought to wind down its work; the State Court, a special organ of the Bosnian judiciary, had jurisdiction over war crimes and other violations of international criminal law. Although the State Court faced its own funding difficulties and a shortage of skilled staff, the State Court’s proceedings were more expeditious than those of the ICTY (Burke-White 2008