The International Criminal Tribunal for the Former Yugoslavia - Essay Example

INTERNATIONAL LAW International Law Name Institution Date Q1. The establishment of international courts is a gift of hope to the future generation. In addition, it is an excellent step in the march that is set to achieve rule of law and human rights. However, despite some courts achieving their intended mandate, some have been heavily been criticized in their operations. ICTY The International Criminal Tribunal for the former Yugoslavia (ICTY) was established as a United Nations court that basically dealt with war crimes that took place in 1990’s during the conflicts in the Balkans. Since its establishment in 1994,1 it has significantly and irreversibly transformed the landscape of humanitarian law has provided a platform for the victims to voice the horrors they experienced and witnessed. The main crimes included: genocide2, crimes against humanity3, war crimes4. The court has continued to boast of its positive achievement since it was established. The court has been able to indict head of states, government ministries, prime ministers, army chiefs-of-staff and other parties’ leaders in Yugoslavia. It has been able to show how best to ensure that leaders are held accountable of their action against humanity. The court was able to bring justice to the victims in the former Yugoslavia. It has indicted more than one hundred accused for crimes which were committed in Croatia, Bosnia5. Due to its systematically and consistently development of international humanitarian law, it has inspired the formation of other tribunals and courts such as International Criminal Tribunal for Rwanda, the International Court (ICC) and Special Court for Sierra Leone (SCSL). These courts have also been established to bring leaders who have been involved in humanitarian war. It has gone to that extent of establishing facts that are related to the crimes that were committed in Yugoslavia. In doing so, the court has therefore, created judgment that has contributed to establishing a historical record, preventing attempts that may lead to revisionism and combating denial resulting to a stable basis for future justice initiatives in the area. In Bosnia and Herzegovina, judgments on the crimes in the Prijedor municipality had crucial facts6. However, it has so far been criticized for not bringing two major suspects who are on large to trial. The high profile suspects are said to hiding in Serbia and them remaining as fugitive is a big failure to the tribunal. In addition, the fact that it was created by United Nations whereby the United States and her allies in NATO have significance influence, the court has been described by some accused as one of the tools that the United States and the NATO is using to punish the countries that are against its policies7. Some of the leaders refer to the tribunal as a “false tribunal” which was formed by the so called diktat of UN Security and not by the international treaty. The critics view it as a corrupt legal culture that is an expression of different beliefs that were dominant in 1990’s, whereby the sovereign countries termed as “rogue states” needed to controlled by the supranational, that is, United States8. The court was also seen to be expensive and it was removed from the population of former Yugoslavia. Nuremberg IMT Nuremberg IMT was established by four powers who had won the war which was under the London Agreement as seen in the Charter of the IMT in 1942. It was basically established to try organizers, instigators, accomplices and leaders who participate in the execution or formulation of a plan that is common or conspiracy to commit crimes mainly as individual9. This includes bureaucrats, military commanders, diplomats, and politicians. The court viewed Superior Orders10 and Immunity11 as no defense to liability. The Nuremberg IMT Jurisdiction according to Article 6 was crime against peace which involves planning, initiation and preparation of a war of aggression or violations of agreements, international treaties or assurance; war crimes that includes customs of law or violations of the law; cries against humanity which involves extermination, murder, deportation, enslavement and various inhumane acts that are committed against the any civilian, before or after war. The defendants are assured of a fair trial12. The court was able to achieve in a trial that lasted for ten months whereby three of the defendants in the trial were acquitted, twelve were sentenced to death as seven were imprisoned for ten to life imprisonment. This trial was followed by prosecutions in the British and French zones of occupation and German prosecutions for perpetrators who were lesser. The court enjoys the pride of being the first international court to be set up to both persecute and punish crimes with a dimension that is international, for example; enshrining the basic principle of individual criminal responsibility; creating a symbolic and moral significance, it has also advanced the development ICL. However, it has been criticized for lack of fairness: the defendants in most cases have lacked the tight to appeal while there is imbalance of resources for the parties involved in the trial. Some critics have argued that there is lack of impartiality and prosecution of the allied war crimes. In addition, most of the criminals involved in the Nazi Organization were not caught. ECCC Extraordinary Chambers in the courts of Cambodia (ECCC) is a domestic court that was established in Cambodia in accordance to its law and is supported with international staff. The court has been brought to trial seniors leaders, who according to international laws and Cambodia penal law have violated human rights that were committed from 17 April 1975 to January, 6 1979. Achievements of this court may be evaluated from the trial that was carried out of the crimes that were committed by Khmer Rouge. Most Cambodians had a positive attitude towards the ECCC as they so it as one way of rebuilding trust in Cambodia, aid in promoting national reconciliation and also bring the needed justice to the victims of Rouge regime. Another achievement of the court is that it has a positive mental impact on mental health as it assisted the victims to feel better and less angered. The ECCC has gained a lot in its fairness and neutrality13. The court is criticized of being corrupt during the trials and the lengthy judicial process. 14The Justice Initiative has done a report15 which examined conduct of two co-investigating as they had allegedly blocked the investigation of the perpetrators of Rouge atrocities. The court and the judges’ conduct faced criticism and their actions were examined against a background of words given by some officials in the Cambodia Government. The statements were meant to prohibit the court from engaging in more prosecutions beyond the Case 002. In addition, those victims who were supposedly under investigation were sidelined while their lawyers were routinely ignored by the court. These criticisms evidently showed violation of basic principles of legal entity and fairness and also were carried out to the contrary of ECCC’s prior jurisprudence16. Despite the judges’ resignation, there were no clarification for the serious allegation of misconduct and incompetence17. Essentially, their conduct was linked to the fact that they were satisfying political end. This most involved Cases 003/004, in which the international judges criticized the court for not providing the victims with sufficient information to enable excellent participation in the investigation. Revelation of tampering with investigation files, modification of orders under appeal and failure to provide documents to the legal representatives were made. The above criticism resulted to lowered confidence and independence of the court. Q2. Why the ICC was established The international Criminal court was established by the Rome Statute which then regarded it as an international institution. This is well stipulated by article 1 of the statute which begins by stating that “An international Criminal Court is hereby established”. The article together with article 4 further defines ICC as a permanent institution and an international legal personality with all the legal capacity to exercise all its purposes and functions. Since its conception in 2002, the ICC has signed in 139 member states and has formed coalitions with many international organizations such as the United States. However, the ICC is not part of the UN as it is independent institutions created by its own treaty and with separate legal capacity. In actual fact, the main financiers of the ICC are all the member states ratified to it and not the UN alone. Its headquarters are based in The Hague, Netherlands18. The main reason for the establishment of the ICC was to respond to past and present atrocities across the universe. This came after many years of endless efforts by the UN to establish a permanent international judicial institution to deal with crimes that are against humanity with regard to governments, cultures and religions19. Unlike the former UN courts; ICTY and ICTR, which dealt with crimes committed during specific conflicts at the specific regions, the ICC is permanent and has the right to investigate and prosecute any individual found guilty of within the ICC jurisdiction. The ICC is committed to ending impunity for atrocity crimes in the international community. Many counties of the world have been victims of continuous cycles of massive assaults towards civilian population such as violent armed conflicts. The ICC was created to bring justice to such victims and to enable the general society to respect the laws and regulations f the land. Another purpose of the court is to incapacitate and isolate leaders who have been found guilty of criminal acts hence disable their participation from active politics. In addition, the court is a watchdog to crimes against humanity and keeps a systematic record of such for future reference. As a result, it has prevented occurrence of future arc crimes20. Jurisdiction of the ICC Jurisdiction of the ICC can only be exercised upon crimes that happened after the July, 1, 2001, the date the court came into full force. Its major jurisdiction was is to investigate and accuse individuals involved in very serious international crimes as detailed in the elements of crime and the ICC Rome statute. Such crimes include genocide-intentional crimes intended to destroy a nation, religious group or race, crime against humanity- commission of multiple crimes such as murder and enslavement and the final element detailed in the statute are the serious war crimes which entail all the acts that violate the acceptable laws of war. Despite having this jurisdiction, the ICC jurisdiction is not universal. It can only be exercised upon the citizens and territory of its member states, that is, those that are ratified by the statute and those that have consented to the jurisdiction of specific crimes. The court only handles “most serious crimes” that concern the whole of the international community. This implies that the court only tackle cases involving deliberately planned massive or multiple atrocities and not minor crimes. The ICC was actually designed as a last resort court, that is, it is consulted after all other options have failed. For instance, a state may utilize the help of the ICC if it lacks a functional judicial system to deal with major crimes. Another scenario where the ICC comes in handy is whereby the government of a state acts in bad faith hence is unwilling to seek justice of the crime. Complementarity of the ICC Article 1 of the Rome Statute regards the ICC as an international and permanent institution that “shall be complementary to national criminal jurisdictions”. As opposed to the former ad hoc tribunals, ICRY and the ICTR, the complementary relationship of the national criminal jurisdictions and the ICC means that the ICC does not have primary or direct jurisdiction to state’s authorities but rather the subsidiary duty to investigate and prosecute domestic crimes that are most serious and concern the international community. Although the statute has not clearly defined the term “complementarity”, several commentators and negotiators of the statute have referred to the term as the entirety of all the values and norms that govern and control the relationship existing between the national jurisdictions and the ICC21. The principle of complementarity is one of the most contentious features of the Rome Statute as many regard it as an instrument that deters the jurisdiction of the ICC from that of national jurisdiction of member states. Complementarity principle however, has in the past been declared as the cornerstone and the key aspect of the ICC which has enhanced functioning and structuring of the ICC. According to this principle, the court should be very attentive right from the early stages of the case and preferably before commencement of investigations by the prosecutor. Article 17 of the Statute introduces the substantive rules that govern the principle of complementarity. According to the statute the principle of complementarity is not a jurisdiction of the court but is rather concerned with the admissibility of a case. Similar to other international judicial institutional, the ICC statute views the terms jurisdiction and admissibility as two distinct aspects but very closely related. Jurisdiction of a case cannot be fully exercised if the case is not admissible and therefore, the principle of complementarity does not affect the jurisdiction of the court but instead it regulates when the court may execute or regulate this jurisdiction. The function of article 17 therefore is to act as a barrier to exercise of jurisdiction by the court22 . The core function underlying this principle is sovereignty of both the member states and third parties involved. The general international laws allow states to exercise their criminal jurisdictions over acts committed within their jurisdiction. The right to exercise of criminal jurisdiction is by itself part of sovereignty. The preamble not only gives the right of every state to exercise criminal jurisdiction, but also refers to it as a duty that should be exercised by every state in order to protect the international community. The purpose of complementarity therefore is to ensure that this duty is adequately followed states by either prosecuting the perpetrators of the alleged crimes or availing necessary information to the ICC prosecutor for relevant action. The principle of complementarity is one of the instruments designed to bring to an end all forms of impunity and inhibits recurrence of similar crimes in future. Moreover, the regime of complementarity ensures effectiveness of the international criminal law enforcement system by encouraging exercise of jurisdiction by member states. Additionally, the principle creates a balance between the state sovereignty and interests of the international community23. In situations where an individual state is unwilling to prosecute, article 17 provides options for the court to step in and make the case admissible. Thus, the principle of complementarily comes in handy in such a case by empowering the court with the right to intervene in the case where the state is hesitant in prosecution and where the accused might suffer from violation of human rights in the process of prosecution. In conclusion, the principle of complementarity is a fundamental tool that has been used by the ICC to effectively establish a decentralized prosecution system of international crimes. Q3. In International criminal of the offences of war crimes, genocide and crime against human each need a requirement that they need to be committed pursuant to an organization or State policy or plan. Recent case of International criminal law has to some extent tended to focus person mental elements of offenders and does not put into consideration the relevance for State plan or policy. The fact that it has been posited that a person deviant, can commit crime against humanity or commit genocides while acting alone, has led to the distortion of the requirement. It is argued that crimes against international law are always committed by men and not by any abstract entities. It is then obvious that only this individual who are known to commit these crimes are punishable according to the provisions of international law24. These commonly phrased sentences do express an important idea but of course has contributed to various misconceptions about the very nature of the international crimes. The Nuremberg IMT court did make the statement to answer the query on the charges that were directed to the Nazi leaders. The verdict was that the Nazi leaders were not responsible for the war crimes as they were acting at the best interest of the German State. However, in recent times, case laws have continued to down play the essential role of the State policy in the international crimes. For instance, the first genocide prosecution that came to judgment in the International Criminal Tribunal for the former Yugoslavia, the Trial Chamber down played the important role of the State Policy as they claimed that the State policy or plan was not a basic element in the crime of genocide. The Trial Chamber went on to hold to that the fact the offense were committed not by the involvement of the State but by an individual acting alone25. The Appeals Chamber of ICTY, years later, also reached the same conclusion in crime against humanity. The requirement of a State plan or policy as an element of genocide, war crime and crime against humanity, may be a concern in the development of law as it will the make the prosecution of the non-State actors rather difficult. It has been noted with great concern that some few cases in the international tribunal, whereby an entrepreneurial villains who have taken advantage of the conflict and exploited the situation so that they can advance their perverse individual agendas. Basically, most prosecutions have certainly involved various offenders who have acted on behalf of the State and usually in accordance with a State plan or on behalf of a specific organization policy that its attempts were State-like to seize political power and control a territory. Indeed, a commission of inquiry that was mandated by the U.N, in 2005, to look into the situation in Darfur, whether genocide was being committed, did answer the question whether the acts of genocide were evidence in Darfur26. They investigated this not by only examining the accused individuals but by coming into a conclusion that the government of Sudan has not yet pursued the policy of genocide27. The Rome Statute of the ICC 28together with the Elements of Crimes29 that does complements the interpretation of ICC, suggest for a State plan that is enhanced by somewhat comparison with the ad hoc Tribunals case law. Equally, with the increasing concern on “gravity” as a practical test to create a clear distinction of cases that deserve the attention of international courts, a State policy may prove to be a useful tool to determine whether genocide, crime against humanity or war crime have occurred. The State policy element does become decisive when the vital doctrine of combined criminal enterprise is applied to the big cases. The combined or joint criminal enterprise is a basic expression that is used in international criminal law to explain common purpose complicity as it is well known to the national criminal justice systems. Of great interest is the fact that the requirement of a State policy or Organization plan for specific international crimes, that is, war crimes, crime against humanity and genocides will form a platform of reconciliation perspectives on State responsibility with those of individual criminal responsibility. Various courts have taken different dimension on this requirement of the international criminal law. For instance the ICTY on its charging on genocide and crime against humanity that was committed in Herzegovina and Bosnia (1992-1995). One of the outstanding trials was that of the Serb racist, Goran Jelisic, who was the main executioner at Luka. He was charged with genocide and crimes against humanity. The judge presiding the case examined the evidence and concluded that the prosecution had no evidence of any existence of organized policy or plan of an organization or a State. It was therefore, as the court put it, that it was a theoretical possibility that Jelisic could have acted as an individual in committing the crime. The position that the Trial Chamber took on appeal was that the existence of a policy or a plan is not a legal tool of the crime30. The ICTY Appeal Chamber has continued to extend this approach on State or policy issue as not a basic in crimes that extend from genocide to war crimes and crimes against humanity31. In actual fact, it has referred its stand to the ruing made on Jelisic case. In general, the ICTY’s conclusion on the sensitive issue of a State policy or plan with respect to genocide, war crimes and crimes against humanity is superficial. The summary reached that a State policy is not a basic required element- seems to be a resulted -oriented decision that is political rather than results from analysis of the history as well as ignoring the development that have been made by the International Law Commission. The determination of ICTY that no State plan is required has been more significantly been observed in the case of genocide than in crime against humanity for instance, the Kunarac case. The crime was committed to women who subjected to severe conditions. The crimes were committed by an organized group that was not necessary attributed to State policy or plan. Increasing this concept of crimes against humanity by doing away with any requirement of a State policy was of a considerable legal significance32. Good evidence that proves the importance of State pan is vital in determination of crimes appears in the Report that was given by Commission of Inquiry on Darfur. It tried to explain the answer put across whether genocide was evident in Darfur. The Commission did not challenge the ICTY and did not also exclude the possibility that an individual could be involved in the genocidal acts33. In practice, it basically attempted to gather evidence of a policy or plan by the Sudanese State. The Commission looked at the genocide from a perspective that included the State responsibility in its scope. The Darfur Commission was looking for specific intent of the State of Sudan. However, individual have specific intent and not States. States have policy. The word specific intent actually is used to describe the specific inquiry but the real subject in this case, is the State Policy. The Darfur Commission pursued their search not on individuals but on the State policy or plan. A vital legal difficulty in this case concerns the relationship between the individual criminal and State responsibility liability. The Commission appears to create a fiction that a State may have a specific intent. Taking the State policy as the initial point and then attempting individual guiltiness is good. Taking this approach, a State policy is first determined whether it exists, if the answer obtained is positive, individual intent then is raised. This will bring an advantage in terms of judicial policy and coherence when the importance of State policy or plan is seen as an element of genocide. This also applies to crimes against humanity and war crimes. In a recent judgment, the Supreme Court of Canada had affirmed that State plan or policy was a basic element in crimes against humanity. In conclusion, the requirement of the policy as argued has a capacity to articulate the relationship between the individual and State responsibility liability. The existence of the State policy is the best criteria in distinguishing crimes committed by individuals and belong to national justice systems and the international crimes with their principles and special rules. Analysis of State policy will also bring into light the mens rea debate with respect to war crimes, crimes against humanity and genocide. . The concern that a State policy or plan will result to impunity gap is misplaced. The non –State actors may find themselves challenged by national justice systems. The basic requirements in prosecutions are not a definition of international crimes, but are a strengthening of the international judicial cooperation ways so as to make the offenders opt for ordinary crimes. A State policy, therefore, clarifies the basic reality of the special form of any criminality and does facilitate its distinction. REFERENCES An International Commission of Jurists Report on International Principles on the Independence and Accountability of Judges, Lawyers and Prosecutors – A Practitioner‘s Guide,” Geneva, 2004, http://www.mafhoum.com/press7/230S24.pdf. Article 1 ICTY Statute Article 16 of Nuremberg IMT Article 3 ICTY Statute Article 4 ICTY Statute Article 5 ICTY Statute Article 6 of Nuremberg IMT Article 7 of Nuremberg IMT Article 8 of Nuremberg IMT Benzing, M. 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