International criminal justice: hopes for combating impunity
It is important to distinguish between international criminal tribunals established by the Security Council under its UN Charter Chapter VII powers, which are subsidiary organs of the Security Council, the International Criminal Court created by the Statute signed in Rome on 17 July 1998 and the hybrid jurisdictions set up by agreement between a given State and the United Nations.
International Criminal Tribunals
The International Criminal Tribunal for the former Yugoslavia (ICTY) was set up by Security Council Resolutions 808 of 22 February 1993 and 827 of 25 May 1993 to judge those individuals deemed responsible for serious violations of international humanitarian law on the territory of the former Yugoslavia after 1 January 1991. The Tribunal sits in The Hague. By mid-2009, 161 persons had been charged, 120 cases were closed (guilty, not guilty or dismissed), 41 cases were pending and 2 accused (Ratko Mladic and Goran Hadžic) were still at large. If the fugitives are arrested, the Tribunal is due to complete its mission in 2012.
The International Criminal Tribunal for Rwanda (ICTR) was set up by Security Council Resolution 955 of 8 November 1994. Its mandate is to judge those individuals deemed responsible for acts of genocide and other serious violations of international humanitarian law on the territory of Rwanda, and those Rwandan citizens deemed responsible for such acts and violations on the territory of neighbouring States, between 1 January and 31 December 1994. The Tribunal sits in Arusha, Tanzania. Up to 4 May 2009, 44 accused in 31 different cases had been finally judged. Action against 24 accused in 10 different cases is pending. Seven detained persons remain to be judged. The Prosecutor continues his efforts to arrest the last thirteen fugitives, who include Félicien Kabuga. This Tribunal is also due to complete its mission in 2012.
International Criminal Court
As the prime permanent international criminal jurisdiction, the International Criminal Court was set up by the Rome treaty signed on 17 July 1998, entering into force on 1 July 2002. Under its Statute, its competence is restricted to the most serious crimes affecting the whole of the international community (genocide, crimes against humanity, war crimes committed after July 1st ,2002, and ultimately the crime of aggression, the definition and Court competence conditions of which were agreed on by the first Review Conference of the Rome Statute, held in Kampala from May 31th to June 11th.
The International Criminal Court is linked to the United Nations system but remains independent from it. Although the Court is meant to become universal, it is only competent for Parties to the Rome Statute or Non Parties that have recognised its jurisdiction. The competence of the Court is established by an international agreement. . However, the Court can be seized for any situation by the Security Council, acting under Chapter VII of the UN Charter (see for example Resolution 1593 (2005) of the UNCS on the situation in Darfur). The 111 Parties are mainly from Europe, Latin America and Africa, whereas very few are from Asia. The United States, China and Russia are not State Parties to the Rome Statute.
The ICC’s jurisdiction is subordinate to the principle of complementarity: the Court only intervenes when competent national jurisdictions refuse or are unable to judge the alleged criminals effectively. It may be referred to by a State Party, the Security Council or the Prosecutor, who at the request of the victims may be authorised by the Pre-Trial Chamber to proceed with an investigation.
The trial of three warlords from the Democratic Republic of Congo (Thomas Lubanga, Germain Katanga and Matthieu Ngudjolo Chui) has been running since 2009. A Congolese leader, Jean-Pierre Bemba, is also accused of acts committed in the Central African Republic: his trial is set to start on July 5th ,2010 The Prosecutor of the Court is also leading inquiries related to genocide accusations in Darfur (in particular, an arrest warrant has been issued for Sudanese President Omar Al Bashir) and situations handed over by Uganda (on exactions committed by the leaders of the Lord’s Resistance Army - LRA - including its chief Joseph Koni) and Kenya (since March 31st 2010, on acts of crime against humanity committed during the national elections which were held between June 2005 and November 2009).
Moreover, the Prosecutor has launched preliminary examinations on alleged crimes committed in Afghanistan, Colombia, Georgia, Ivory Coast and Guinea, as well as Palestine.
Special Court for Sierra Leone:
This tribunal was set up following Security Council Resolution 1315 of 14 August 2000, requesting the UN Secretary-General to create with the Government of Sierra Leone a special court to try those primarily responsible for crimes against humanity, war crimes and crimes under Sierra Leone law committed since 30 December 1996. This jurisdiction was established by an agreement between the United Nations and the Government of Sierra Leone on 16 January 2002 constituting the Statute of the Court. Its members include Sierra Leone magistrates and judges mainly from the English-speaking States of West Africa and the Commonwealth; it applies English common law and its working language is English. It normally sits in Sierra Leone. However, due to security reasons, the trial of Charles Taylor(former president of Liberia yet subject to the Court’s jurisdiction) is currently being held in the premises of the International Criminal Court in The Hague. When this trial is finished, the Court’s mission will be completed.
Extraordinary Chambers in the Courts of Cambodia
(also known as “Khmer Rouge tribunal”): on 6 June 2003, the Royal Government of Cambodia and the United Nations Secretary-General signed an agreement, which came into force on 29 April 2005, for the last Khmer leaders to be judged by a hybrid jurisdiction of international and Cambodian judges, integrated into the Cambodian legal system and applying Cambodian law. The leaders of Democratic Kampuchea will face charges of crimes and serious breaches of Cambodian criminal law, international humanitarian law and international conventions recognised by Cambodia, committed between 17 April 1975 and 6 January 1979 (genocide, crimes against humanity, serious violations of the 1949 Geneva Conventions, including homicide, torture and religious persecution). By 2009, the only trial to have begun is that of a former camp leader known as “Duch”.
Special Tribunal for Lebanon:
In Resolution 1757 of 30 May 2007, the Security Council, acting under Chapter VII of the UN Charter, established the Special Tribunal for Lebanon provided for in agreements between the Lebanese Government and the United Nations on 23 January and 6 February 2007. This jurisdiction will prosecute those responsible for the attack of 14 February 2005 that caused the death of the former Lebanese Prime Minister Rafic Hariri and other terrorist attacks in Lebanon after 1 October 2004. The Tribunal, sitting in The Hague and comprising Lebanese and other national judges, is currently being organised.
Update : July 2010
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