Enhancing the Role of International Criminal Tribunals in Post-Conflict Societies

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Enhancing the Role of International Criminal Tribunals in Post-conflict Societies
The end of an armed conflict does not necessarily mean the end of human rights abuses. In many cases, victims continue to suffer from the trauma inflicted upon them, and perpetrators of the abuses may go unpunished. This lack of accountability can create a culture of impunity that undermines the prospects for lasting peace and stability. In response to this challenge, the international community has established several mechanisms to promote accountability for human rights abuses committed during and after armed conflicts, including international criminal tribunals. While international criminal tribunals have played a significant role in prosecuting perpetrators of human rights abuses in post-conflict societies, their selective prosecution and failure to provide effective transitional justice have been criticized.[Eirin Mobekk, Transitional Justice in Post-Conflict Societies–Approaches to Reconciliation, 2005, 15.]
This paper will examine the role of international criminal tribunals in post-conflict societies and the major critique of the processes. The paper will begin with an overview of international criminal law and the nature of post-conflict societies. It will then review the role of international criminal tribunals in post-conflict societies. The paper will examine the critiques of international criminal tribunals and will offer recommendations for improving the effectiveness of these tribunals in post-conflict societies. The paper is significant because it provides insight into the effectiveness of international criminal tribunals in post-conflict societies. This understanding is critical for policymakers, civil society organizations, and scholars who are interested in promoting human rights, justice, and lasting peace in post-conflict societies.
Theoretical Background
International Criminal Law
Public international law is a body of legal principles, rules, and norms that govern the relationships between states, international organizations, and other actors in the international community. It encompasses a wide range of issues, including the use of force, human rights, trade, investment, the environment, and the law of the sea, among others. Public international law is based on the consent of states and operates within a framework of international agreements, conventions, and customary international law. International criminal law is a branch of public international law.[Kenneth Anderson, "The rise of international criminal law: Intended and unintended consequences," European Journal of International Law, vol, 20, no. 2, 2009, p.333.]
While international law mainly deals with the relationship among states, international criminal law deals with the prosecution and punishment of individuals who have committed international crimes. International criminal law is based on the principles of individual criminal responsibility and the idea that certain crimes are so serious that they cannot be dealt with solely by domestic criminal law systems. The concept of individual criminal responsibility means that individuals, rather than states, can be held criminally liable for international crimes they commit. International criminal law is enforced through international criminal tribunals, such as the International Criminal Court (ICC), and ad hoc tribunals, like the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). These tribunals are set up by the international community to investigate and prosecute individuals responsible for international crimes.[Ibid, p. 335.] [Lana Ljuboja, "Justice in an uncooperative world: ICTY and ICTR foreshadow ICC ineffectiveness," Hous. J. Int'l L., vol. 32, 2009, p. 767.]
Notably, international criminal law is considerably a new area in law, and thus has some aspects that are neither universal nor uniform. For instance, some of the elements of the law that were applied in the International Criminal Tribunal for the former Yugoslavia were specific to ICTY and are not in line with the customary international law and vary from the laws that are followed by the International Criminal Court. While there are many categories and interpretations of international law, international criminal law is concerned with crimes that are of universal concern, such as genocide, war crimes, crimes against humanity, and aggression. Thus, ICL does not deal with crimes such as piracy, terrorism, drug trafficking, and others that do not translate into war crimes, genocide, or crimes against humanity.[Ibid., p. 767.] [Ibid., p. 767.]
The basis of jurisdiction for international criminal law is typically established through international agreements, conventions, and customary international law. The jurisdiction of international criminal tribunals is primarily derived from the consent of states to be bound by these legal instruments. In particular, the jurisdiction of the International Criminal Court (ICC) is based on the Rome Statute, which was adopted in 1998 and has been ratified by 123 states. Under the Rome Statute, the ICC has jurisdiction over the most serious international crimes, including genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC can exercise its jurisdiction when the crime is committed on the territory of a state party to the Rome Statute, by a national of a state party, or when the United Nations Security Council refers a case to the ICC.[Ibid., p. 767.]
Ad hoc international criminal tribunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), were established by the UN Security Council and had jurisdiction over crimes committed during the conflicts in the former Yugoslavia and Rwanda, respectively. In addition, customary international law recognizes the principle of universal jurisdiction, which allows states to exercise jurisdiction over certain crimes, such as piracy and torture, regardless of where the crime was committed, the nationality of the perpetrator, or the victims.
The statute of limitations for international criminal law varies depending on the specific crime and the jurisdiction. Some international crimes, such as genocide, war crimes, and crimes against humanity, have no statute of limitations under international law. This means that there is no time limit for prosecuting these crimes, and individuals can be held accountable for them even if the crimes were committed many years ago. Geneva Convention of 1949 as well as the Additional Protocols of 1997 do not impose any time bar for the prosecution of individuals who have committed war crimes. The United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity as promulgated in 1968 covers the prosecutions as well as the sentencing of individuals who have committed war crimes as well as crimes against humanity and is effected retroactively. In addition, article 29 of the Rome Statutes dictates that ICL does not have statutory limitations.[Goran Sluiter, "International criminal proceedings and the protection of human rights," New Eng. L. Rev. vol. 37, 2002, p. 935.]
Nonetheless, the principle of nullum crimen, nulla poena sine lege is particularly relevant in the context of international criminal tribunals. Nullum crimen, nulla poena sine lege is a fundamental principle of international criminal law that means "no crime, no punishment without law". In the context of international criminal law, the principle of nullum crimen, nulla poena sine lege means that individuals cannot be prosecuted for acts that were not considered crimes under international law at the time they were committed and is enshrined in various international instruments, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The ICC only has jurisdiction over crimes that are defined in its statute, and it can only prosecute individuals for those crimes if they were committed after the entry into force of the ICC statute in 2002. This means that the ICC cannot prosecute individuals for crimes that were committed before that date or for crimes that are not specifically defined in its statute.[Mark A. Drumbl, Atrocity, punishment, and international law, Cambridge University Press, 2007, p. 23.] [Ibid, p. 25.]
Another legal principle that guides international criminal law is Ne bis in idem. Ne bis in idem is a principle of international criminal law that means "not twice in the same thing" and prohibits the prosecution or punishment of an individual for the same criminal activity more than once. In the context of international criminal law, the principle of ne bis in idem means that an individual cannot be prosecuted or punished by different courts or tribunals for the same crime. For example, if an individual has been tried and acquitted or convicted by a national court for a particular crime, they cannot be tried again for that same crime by an international criminal tribunal. However, if an individual has committed multiple crimes, they can be prosecuted and punished for each of those crimes, even if some of the crimes are related to the same set of facts. The principle of ne bis in idem is a fundamental safeguard against double jeopardy and is enshrined in various international instruments, including the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The principle is also recognized by various international criminal tribunals, including the International Criminal Court and the International Criminal Tribunal for the Former Yugoslavia.
Challenges in a Post-Conflict Society
Post-conflict society is a term that describes the states that have recently experienced an armed conflict or war and are in the process of transitioning from a state of conflict to a state of peace. The societies are characterized by a range of challenges and issues, including the need for reconstruction and recovery, the healing of social and political divisions, and the establishment of stable and democratic institutions. In such societies, there may be a need to address issues such as reconciliation, transitional justice, and the restoration of the rule of law, all of which are essential for the establishment of a stable and peaceful society. Post-conflict societies can be found in different parts of the world, from Africa to the Balkans to the Middle East, and they often require sustained and coordinated efforts from the international community to help them move towards a more peaceful and prosperous future. Post-conflict societies face many challenges in providing justice to victims of violence.
One of the main legal challenges faced by post-conflict societies is the lack of proper legal infrastructure to handle cases of mass violence. The judicial system in post-conflict societies is often underdeveloped, corrupt, or has been destroyed during the conflict. This can make it difficult to conduct fair and transparent trials and ensure that perpetrators are held accountable for their actions. In addition, there may be a lack of legal expertise or trained judges and lawyers to handle complex cases of violence.
Social challenges are also a major issue for post-conflict societies seeking justice for victims of violence. One challenge is the trauma that victims have experienced. The aftermath of conflict can leave victims with physical and emotional scars, which may require extensive psychological and social support. This can be a significant challenge in societies where mental health support is not readily available or stigmatized. Additionally, the social divisions that exist within these societies can hinder the pursuit of justice. In Rwanda, for example, the ethnic divide between Hutus and Tutsis has led to the creation of separate justice systems, which can result in different forms of justice being applied to different ethnic groups.
Political challenges are also significant in post-conflict societies. One of the main challenges is political instability and the lack of political will to pursue justice. In many cases, political leaders may be implicated in the conflict, making it difficult to hold them accountable for their actions. This can lead to a lack of trust in the justice system, and victims may feel that their pursuit of justice is futile. Additionally, the international community's involvement in post-conflict justice can be a challenge. The imposition of external justice mechanisms can be seen as interference in a country's internal affairs and can cause resentment among local communities.
The Role of International Criminal Tribunals
International criminal tribunals are judicial bodies that are established by international agreements or organizations to investigate, prosecute, and try individuals accused of committing serious international crimes such as war crimes, crimes against humanity, genocide, and other crimes under international law. These tribunals are designed to provide a forum for bringing perpetrators of these crimes to justice, regardless of where the crimes were committed, and to provide a measure of accountability for these crimes at an international level. International criminal tribunals typically have jurisdiction over individuals, rather than states, and can prosecute individuals from any country. They may be established for specific conflicts or regions or may be permanent institutions. Some examples of international criminal tribunals include the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR).[Damaska, Mirjan Damaska, "What is the point of international criminal justice," Chi.-Kent L. Rev. vol. 83, 2008, p. 329.]
Facilitating Accountability in Post-Conflict Societies
The concept of accountability is a central aspect of international criminal law and is closely linked to human rights abuses. Accountability refers to the principle that those who commit serious international crimes, such as war crimes, crimes against humanity, and genocide, should be held responsible for their actions and face punishment for their crimes. In the context of human rights abuses, accountability is important because it serves as a deterrent to future abuses and helps to promote respect for human rights. When individuals who commit human rights abuses are held accountable for their actions, it sends a strong message that such actions will not be tolerated and can help to prevent similar abuses in the future. Additionally, accountability can provide justice and redress for victims of human rights abuses, and can help to promote reconciliation and healing in societies affected by such abuses.[Ibid, 329.]
International criminal law plays a critical role in ensuring accountability for human rights abuses. International criminal tribunals, such as the International Criminal Court (ICC), are responsible for investigating and prosecuting individuals who have committed serious international crimes. The ICC has jurisdiction over war crimes, crimes against humanity, and genocide, and can prosecute individuals regardless of their nationality or the country where the crimes were committed. In addition to international criminal tribunals, accountability for human rights abuses can also be achieved through national and regional courts. Many countries have enacted domestic legislation that allows them to prosecute individuals for international crimes, and regional human rights courts, such as the Inter-American Court of Human Rights and the European Court of Human Rights, have jurisdiction to hear cases related to human rights abuses.
Accountability is of great importance for post-conflict societies as it plays a critical role in promoting justice, reconciliation, and the rule of law. In the aftermath of a conflict, societies often face significant challenges, including addressing past human rights abuses and promoting sustainable peace and development. Accountability can help address these challenges in several ways. First, accountability ensures that individuals who have committed serious crimes, such as war crimes, crimes against humanity, and genocide, are held responsible for their actions and face punishment for their crimes. When the responsible parties are brought to justice, the action plays a role in restoring the affected communities' trust in the justice system. Second, accountability is essential in fostering reconciliation. By holding the perpetrators of human abuse accountable for their actions, the pursuit of accountability promotes social healing and encourages the members of the affected society to forgive each other. Third, accountability can help to strengthen the rule of law in post-conflict societies by promoting respect for human rights and the law. This can help to build trust in government institutions and promote stability and development.[Robert D. Sloane, "The expressive capacity of international punishment: The limits of the national law analogy and the potential of international criminal law," Globalization of Criminal Justice, Routledge, 2017, p. 330.] [Ibid, 337.] [Ibid, 340]
Impartial Forum for Dealing with Perpetrators
Notably, International criminal tribunals provide a fair and impartial forum for the prosecution of individuals responsible for human rights abuses. This is particularly important in post-conflict societies where the domestic justice system may be compromised or biased. By conducting fair trials, international criminal tribunals can help to restore public confidence in the justice system and promote the rule of law. To ensure fairness, these tribunals have developed several mechanisms that facilitate fair trials. First, international criminal tribunals operate based on a presumption of innocence. International criminal tribunals presume that an accused person is innocent until proven guilty beyond a reasonable doubt. This means that the prosecution has the burden of proving the accused person's guilt and that the accused person does not have to prove their innocence. Second, the ICT provides the accused with the right to a defense. In its various cases, International criminal tribunals guarantee that accused persons have the right to a defense. Therein, the right to a defense means that the accused person has access to legal representation of their choice, can be able to access evidence, and is given an ample opportunity to cross-examine witnesses during the trial. Third, the ICT ensures fairness for the participants by providing translations and interpretations. The tribunals provide translations and interpretation services to ensure that accused persons and witnesses who do not speak the language used in the court can understand and participate in the trial. In such a way, the international criminal tribunals ensure that the parties in the trial cannot complain that they were excluded during the process.
Fourth, the ICTs make significant efforts to ensure that justice is delivered by impartial judges. The judges who are given various roles in international criminal tribunals are obligated to observe impartiality and independence when delivering judgment. Notably, judges are chosen from different countries to ensure that they do not have a personal or national interest in the outcome of the trial. The impartiality of the ICT judges is essential to the success of ICT in post-conflict societies in the sense that the victims of large-scale human rights abuses can only experience healing when they feel that an impartial judge reviewed the available evidence and made an impartial judgment on how they should be compensated or how the perpetrator should be punished. Fifth, the ICTs place a huge emphasis on achieving transparency during the trial process. Throughout the trial process, the court allows the public to attend trials, access court documents, and follow the proceedings. Thus, the interested parties in post-conflict societies can follow the court trial and judge the process.
Sixth, the fairness of the court also stems from its ability to protect witnesses. International criminal tribunals take measures to protect witnesses, such as providing anonymity or witness protection programs, to ensure that they can testify without fear of retaliation. The protection of witnesses makes sure that the court provides a platform for every victim of human rights abuses to seek justice and reparation for the various atrocities they faced without the fear of retaliation. Notably, the court further enhances its fairness by making sure that the accused have access to appeals. To this end, accused persons can challenge the verdict or sentence if they believe that their rights were violated during the trial. The approach means that a person who is prosecuted in an ICT is likely to undergo an unfair case process as they will get the opportunity to appeal if they feel that the case did not proceed legally.
ICTs as a Source of Historical Records
International criminal tribunals create a historical record of what happened during a conflict. This record can be used to establish the truth about the crimes committed, document the experiences of victims and witnesses, and provide a basis for accountability, reparations, and reconciliation. This is particularly important in post-conflict societies where the truth about the past may be contested or suppressed. The historical record created by international criminal tribunals is important for several reasons. Notably, the trial process as undertaken by the ICTs has the goal of establishing the truth. International criminal tribunals have established a process and mechanism that seek to generate an objective and authoritative record of the events and atrocities that occurred during conflicts. The record can help establish the truth about what happened, which is an important step toward achieving justice and reconciliation in post-conflict societies. By providing citizens with access to the truth about human rights abuse, ICT provides the first step to healing and reconciliation.
Further, ICTs’ trial process documents the experiences of the victims and witnesses of a given human rights abuse. International criminal tribunals provide a platform for victims and witnesses to share their experiences and provide testimony about the atrocities they witnessed or experienced. This testimony is recorded and becomes part of the historical record, ensuring that the experiences of victims and witnesses are not forgotten. In so doing, the suffering of the victims of human rights abuse is acknowledged and the harm that was imparted upon them is recognized. Notably, the documentation of the victims’ experiences validates their suffering and provides a sense of closure. In addition, the documentation empowers the survivors. By remembering the experiences of victims and giving them a voice, we can empower survivors to become agents of change in their communities and beyond. This can include advocating for human rights protections, supporting other survivors, and promoting accountability for human rights abuses.
The historical records as preserved by the ICTs provide evidence for accountability and reparations. That is, historical records created by international criminal tribunals can be used as evidence in other legal proceedings, including trials of lower-level perpetrators and civil litigation seeking reparations for victims. Once the individual perpetrators of human rights abuses have been convicted by the ICTs, other victims of human rights abuses have a legal basis upon which they can use to seek justice and reparations in other legal platforms.
Further, the historical records of ICTs trials play a key role in educating the public. The historical record created by international criminal tribunals can be used to educate the public about the atrocities that occurred during conflicts. This education can help prevent future atrocities by increasing awareness of the consequences of war and the importance of protecting human rights. By remembering the experiences of victims, we can learn from their experiences and take steps to prevent future human rights abuses. This can include improving human rights protections, promoting accountability for human rights abuses, and raising awareness of the impact of human rights violations on individuals and communities. To this end, the historical records of ICT trials serve as a basis for educational programs that can be used to establish a normative legal order in a post-conflict country.
Further, the existence of historical records of a significant event of human rights abuse prevents revisionism: The historical record created by international criminal tribunals can help prevent denial of the atrocities that occurred during conflicts. This is particularly important in post-conflict societies where the truth about the past may be contested or suppressed. The historical records developed during an ICT trial make sure that the experiences of the victims of human rights abuse are not forgotten by society.
ICT Process as a Global Commitment to Dealing with Human Right Abuses
International criminal tribunals serve as a means for the international community to demonstrate its commitment to justice and accountability in the aftermath of conflict. These tribunals are established to investigate and prosecute individuals for international crimes such as war crimes, crimes against humanity, and genocide. The statutes, charters, and other international bodies that support such trials play a critical role in ensuring the legitimacy and effectiveness of these tribunals.
One such international body is the International Criminal Court (ICC), which was established by the Rome Statute in 1998. The Rome Statute is the treaty that established the International Criminal Court (ICC) in 2002. The ICC is the first permanent international criminal tribunal with jurisdiction over the most serious international crimes, such as genocide, crimes against humanity, and war crimes. The Rome Statute outlines the legal framework for the ICC and sets out the jurisdiction, procedures, and penalties for international crimes. The ICC has jurisdiction over individuals for the most serious international crimes, regardless of their nationality or where the crimes were committed. The ICC is supported by a network of state parties that have ratified the Rome Statute, as well as by the United Nations and other international organizations. The involvement of the ICC in post-conflict societies expresses the attitude of the international community towards human rights abuses that are committed by the individuals with power in such a society.
In addition to the ICC, there have been a few ad hoc international criminal tribunals established to investigate and prosecute individuals for international crimes committed during specific conflicts. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) was established in 1993 to investigate and prosecute individuals for crimes committed during the Balkan wars of the 1990s. The ICTY was supported by the United Nations Security Council and was mandated to investigate and prosecute individuals responsible for war crimes, crimes against humanity, and genocide. Similarly, the...