Over the past few decades, the international community witnessed unspeakable atrocities committed across the world. As a response, international legal and institutional mechanisms and instruments (International Military bunal for the Far East, ICTY, International Criminal Tri-bunal for Rwanda, International Criminal Court, Special Court for Sierra Leone, Extraordinary Chambers of Cam-bodia, East Timor Special Panels for Serious Crimes, Special Tribunal for Lebanon, Iraqi High Tribunal, and other hybrid courts and internationalized domestic courts and tribunals) were created. These mechanisms are sub-stantially different from national mechanisms in a sense that international mechanisms are based on international law and possess no political constraining and are not based on specific ethnic, national, religious, or other prej-udices concerning litigation parties. The question is how these mechanisms influence the processes of retribution and restoration of consent and accordance of past events in creating a pursuant sense of historical truth in post-conflict and transitional societies. International justice legal and institutional mechanisms can be represented as mediating and reconciliation instruments that are
impar-tial, just, and internationally recognized. But, to be able to create substantive conceptions of past, all “conflicted”
sides need to monitor the processes of these mechanisms, examine their impact, and create space for the deduction of history. This chapter strives to emphasize the issue of the ability and likelihood of mechanisms and instruments founded and mentioned above to officiate for the purpose of creating and adopting conceptions of the past in post-conflict and transitional societies where the conscience of individuals and groups inclines toward vulnerability, frustration, inferiorness, and aggressiveness in accepting national history and national glory.
Key words: crime, past, history, post-conflict society, tribunal, court, international judicial proceedings
In matters of truth and justice, There is no difference between large and small problems, For issues concerning the treatment of people are all the same.
Albert Einstein
Introduction
How do societies emerging from war come to terms with their re-cent violent past? How can people and communities, deeply divided and traumatized, regain trust in fellow citizens and state institutions, achieve a sense of security and economic stability, and rebuild a moral system and a shared future? Apparently, this is a complex and long-term process, which ultimately has to involve all layers and struc-tures of a society. Nevertheless, many experiences in the past decades suggest that truth-seeking mechanisms and public recognition of re-sponsibility, as well as reestablishing justice through various means, are important elements of this process. They, amongst others, assist societies to constructively deal with their violent past, (re)establish accountable and democratic institutions, and achieve reconciliation (Zupan, 2004: 327).
It is true that thorough and utter truth and justice cannot exist in conflicted societies. But, what can be done is to foster convergence towards truth and justice approaches among all parties in the recent conflict. Raising issues of the past and addressing the past in post-conflict societies produces the most oppressing condition between former parties in the conflict. This dialogue becomes an uncommonly difficult mission when there is a lack of trust and confidence between different groups with different ethnic, religious, political, and other backgrounds, and is especially challenging when there is no functional or effective judicial system.
Mechanisms and instruments that can be used in dealing with the past include “the prosecution of war criminals before national and in-ternational courts, reform of state institutions, especially the security sector and the justice system, reparation for victims, lustration, pro-posals for truth commissions, fact-finding and documentation, educa-tion reform, and various healing processes, including trauma, work to strengthen individual capacities to cope with past violence” (Fischer, 2007: 22).
Among scholars, there are distinctive opinions on the most ef-ficient and productive means and resources to deal with the past in a post-conflict society. “These approaches or mechanisms are: a) prosecution of war criminals before both national and international courts; b) reform of state institutions, especially reform of the secu-rity sector and the justice system; c) victim’s reparation; d) lustration;
e) truth commissions; f) fact-finding and documentation; g) formal and non-formal education; and h) various healing processes, some-times applying already existing, community-based reconciliation or reintegration mechanisms” (Zupan, 2004: 327-328). Alberto Costi enumerates four mechanisms used by states in facing the past. Ac-cording to him, the first is criminal prosecutions (whether domestic, international or mixed). The second mechanism is the truth seeking mechanism (truth commissions), the third approach is reparation (of past harms and restoring lost rights), and the fourth mechanism is the reform of institutions which abetted the collapse of the rule of law and the accompanying rise in human rights violations (judicial system, the police force, military) (Costi, 2006: 217). Mechanisms for dealing with the past can be divided into the legal/judicial approach and the non-legal/non-judicial approach. But, since diverse concepts of atroci-ties exist, it could be favorable to analyze those international tribunals that are specifically related to dealing with the past in post-conflict societies. Judicial approaches that deal with the past are applied in different legal scenarios and with different features, but most of them are characterized by being retributive and, in most of the cases, adver-sarial (Vicente, 2003: 10-11). International justice mechanisms and instruments usually refer to problems of justice but also truth, trust, and the adoption of consensual historical facts that are the basis for a mutual dealing with the past. Generally they can be classified as: (1) military tribunals; (2) ad hoc tribunals; (3) special courts created on the basis of agreement; (4) the International Criminal Court and the International Court of Justice; and (5) national courts that maintain procedure against perpetrators in their own national judicial system as well as national courts that maintain procedure in compliance with the
principle of universal jurisdiction. For the purpose of this chapter the first three mechanisms will be discussed.
2. International legal and institutional mechanisms and instruments After nearly fifty years after Nuremberg, international criminal tri-bunals have returned to the world stage with a vengeance. The Secu-rity Council created the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994. Hybrid domestic-international tribunals have been established in Sierra Leone (2000), East Timor (2000), Kosovo (2000), Cambodia (2003), Bosnia-Herzegovina (2005), and Lebanon (2007). Furthermore, the international community’s goal of a permanent tribunal was finally realized in 2002, when the Rome Statute of the International Criminal Court (ICC) entered into force (Costi, 2005: 975).
At the end of the First World War, the Allied powers established a commission which concluded that defeated parties violated rules and laws of war and that high officials should be prosecuted for those vio-lations on the basis of command responsibility. This commission also recommended the establishment of an Allied High Tribunal that was intended to try violations of the laws of war. Even earlier, suggestions and propositions for creating international criminal tribunals existed;
the first that was established was the Nuremberg International Military Tribunal, followed by the Tokyo Tribunal. A very important document for the creation of the Nuremberg International Military Tribunal1 is the 1943 Moscow Declaration, “that was brought during the Second World War after the Moscow Conference (19-30 October 1943), by
1 It should be noted that the Nuremberg International Military Tribunal was actually a set of different tribunals that were operating in different locations. The Nuremberg Trials in this manner were a number of different trials held in the Palace of Justice in Nuremberg, Germany. The first trial was the Trial of the major war criminals that started on 20 November 1945. This was also one of the earliest war crimes trials. The other war crimes trials referred to low-level officers and officials that were tried by different military courts in the US, British, Soviet, and French occupation zones.
which representatives of the states that were fighting against Nazi Ger-many agreed to try war criminals after the war. By the London Agree-ment of 8 August 1945, the four great allied powers determined to set up an International Military Tribunal for trial of war criminals, and as a part of this agreement, the statute of this tribunal was adopted”
(Stojanović, 2008: 159). Each of the Allied Powers (the United States of America, the United Kingdom, the Soviet Union, and France) ap-pointed a judge and a prosecution team.
The Nuremberg International Military Tribunal “af-firmed in ringing and lasting terms that ‘international law imposes duties and liabilities upon individuals as well as upon states’ as ‘crimes against international law are committed by men, not by abstract entities, and only punishing individuals who commit such crimes can the provisions of international law be enforced.’ Included in the relevant category for which individual responsibility was posited were crimes against peace, war crimes,2 and crimes against humanity” (Shaw, 2008: 400).
The International Military Tribunal for the Far East was estab-lished by the Charter of the International Military Tribunal for the Far East, proclaimed by General Douglas McArthur on 19 January 1946 and was foreseen to deal with Japanese war crimes. “This Tribunal was composed of judges from eleven states3 and it essentially reaf-firmed the Nuremberg Tribunal’s legal findings as to, for example, the criminality of aggressive war and the rejection of the absolute defense of superior orders” (Shaw, 2008: 400). There was no significant dif-ference between those two tribunals. The most important issues were
“that persons are individually responsible for international crimes;4
2 The term “war crimes” is related to serious violations of the rules of international customary and treaty law concerning international humanitarian law.
3 The United States, the United Kingdom, the Soviet Union, Australia, Canada, China, France, India, the Netherlands, New Zealand, and the Philippines.
4 The term “international crime” relates to an internationally wrongful act which occurs when
aggressive war is a crime against peace; a head of state and other se-nior officials can be personally responsible for crimes even if they did not actually carry them out; and the plea of superior orders is not a defense. These principles are now part of customary international law even though their precise scope is still not clear” (Aust, 2005: 274).5 Since the end of the 1990s, the international community has increas-ingly relied on hybrid or mixed tribunals to prosecute international crimes in the aftermath of armed conflict. Hybrid tribunals rely on na-tional laws, judges and prosecutors, contributing to the capacity-build-ing of the local judiciary and the legal system, while also includcapacity-build-ing international standards, personnel, resources, experience and technical knowledge, conferring legitimacy upon them. At the same time, hy-brid tribunals pose real problems in their attempt to incorporate differ-ent types of law, differdiffer-ent levels of expertise, and differdiffer-ent models of management and funding. The emergence of hybrid tribunals in East Timor, Kosovo, Sierra Leone, and Cambodia, in addition to recent moves in Bosnia-Herzegovina and Burundi, are indicative that hybrid tribunals will be central to the development of international criminal law in the coming decades (Costi, 2006: 213).
The Yugoslav experience and the Rwanda massa-cres of 1994 led to the establishment of two specific war crimes tribunals by the use of authority of the UN Secu-rity Council to adopt decisions binding upon all member states of the organization under Chapter VII of the Char-ter, rather than by an international conference as was to be the case with the International Criminal Court. This method was used in order both to enable the tribunal in question to come into operation as quickly as possible and to ensure that the parties most closely associated with
a state breaches an international obligation that is vital for the protection of basic interests of the international community that its breach was recognized as a crime by that community as a whole constitutes an international crime. All other internationally wrongful acts relate to the term “international delicts.”
5 See also Ball, 1999.
the subject of the alleged war crimes should be bound in a manner not dependent upon their consent (as would be necessary in the case of a court established by interna-tional agreement) (Shaw, 2008: 403).
The first international tribunal giving effect of the Article VI,6 the ICTY, was established in May 1993, with a mandate that was severely restricted in both time and space. Following the genocide in Rwanda in 1994, a second, similar body was created (Schabas, 2000: 368).
Acting under Chapter VII of the Charter of the United Nations, the Security Council established the ICTY7 with Resolutions 808 (1993) and 827 (1993).8
6 Refers to Article IV of the UN Convention on the Prevention and Punishment of the Crime of Genocide, adopted 1948 and ratified 1951. “One of the first conventions drafted after the war to protect minority rights was the Convention on the Prevention and Punishment of the Crime of Genocide, adopted in 1948. Of particular significance was article 2 of the convention, which extended protection to either a minority or majority national, ethnic, racial and religious group” (Ishay, 2004: 242). Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) stipulated that the enjoyment of rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, religion, political or other opinion, national or social origin, association with national minority, property, birth, or other status”
(Ishay, 2004: 242). Similar wording can be found in the International Covenant on Civil and Political Rights (Article 27) and the Helsinki Accords (1975; § 4 of Principle 7) (Ishay, 1997: 432).
7 About this, see Moriss and Scharf, 1995; Schabas, 2005; Ball, 1999; Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia Since 1991, UN Doc. S/25704, Annex, reprinted in 32 I.L.M. 1159, 1192 (1993), adopted pursuant to S.C.
Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., at 1-2, UN Doc. S/RES/827 (1993), reprinted in 32 LL.M. 1203 (1993), the Statute has been subsequently amended, see Security Council resolutions 1166 (1998), 1329 (2000), 1411 (2002), 1431 (2002), 1481 (2003), 1597 (2005) and 1660 (2006), as well as the Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, (A/57/379-S/2002/985 2002).
8 Shaw states that in “Security Council resolutions 764 (1992), 771 (1992) and 820 (1993) grave concern was expressed with regard to breaches of international humanitarian law and the responsibilities of the parties were reaffirmed. In particular, individual responsibility for the commission of grave breaches of the 1949 Conventions was emphasized. Under resolution 780 (1992), the Security Council established an impartial Commission of Experts to examine and analyze information concerning evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed on the ter-ritory of the former Yugoslavia. The Commission produced a report in early 1993 in which it concluded that grave breaches and other violations of international humanitarian law had been committed in the territory of the former Yugoslavia, including willful killing, ‘ethnic
Located at The Hague, in the Netherlands, it has criminal ju-risdiction over individuals accused of committing in the former Yugoslavia since 1 January 1991 grave breaches of the Geneva Conventions 1949, war crimes, genocide, or crimes against hu-manity, and has ruled that it has jurisdiction over crimes com-mitted during an internal conflict and listed in common Article 3 of the Geneva Conventions (Aust, 2005: 274).
The ICTY aims towards the prosecution and trial of relevant (high-ranked) officials while those lower ranked are routed and concentrated to national courts. A similar court, the International Criminal Tribunal for Rwanda (ICTR),9 was established in 1994.
Following events in Rwanda during 1994 and the mass slaughter that took place, the Security Council decided in reso-lution 955 (1994) to establish an ICTR, with the power to pros-ecute persons responsible for serious violations of international humanitarian law. The Statute of this Tribunal was annexed to the body of the Security Council resolution and bears many similarities to the Statute of the Yugoslav Tribunal (Shaw, 2008:
407).
Located in Arusha, Tanzania, and with premises in Kigali, Rwanda, it has criminal jurisdiction over
geno-cleansing’, mass killings, torture, rape, pillage and destruction of civilian property, the de-struction of cultural and religious property, and arbitrary arrests” (Shaw, 2008: 403).
9 See also Moriss and Scharf, 1998; Schabas, 2005; Ball, 1999; Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January 1994 and 31 December 1994, adopt-ed pursuant to SC Res. 955, UN SCOR., 49th Sess., 3453rd mtg., UN Doc. S/RES/955, Annex (1994), reprinted in 33 I.L.M. 1598, 1602 (1994); Seventh Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January and 31 December 1994 (A/57/163-S/2002/733, 2002).
cide, crimes against humanity, and serious violations of common Article 3 to the Geneva Conventions, and of Additional Protocol 1977 on non-international armed conflicts, committed in 1994 by individuals in Rwanda and by Rwandan citizens in neighboring states. Its pow-ers, composition and procedure are otherwise closely modeled on those of the ICTY (Aust, 2005: 276).
As in the case with ICTY, the ICTR also has concurrent jurisdic-tion with najurisdic-tional courts10 and has adopted Rule 11 bis of the Rules of Procedure that permits admission and transfer of cases to national courts.11
The Special Court for Sierra Leone12 “was established, following a particularly violent civil war, by virtue of an agreement between the UN and Sierra Leone dated 16 January, 2002, pursuant to Security Council resolution 1315 (2000), in order to prosecute persons bear-ing ‘the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996’ on the basis of individual criminal responsibility” (Shaw, 2008: 418). Even it was established by a treaty between Sierra Leone and the UN “although that does not make it a UN body. The Court, located in Freetown, Sierra Leone, began trials in 2004” (Aust, 2005: 276). It is also worth noting that the Special Court for Sierra Leone operated simultaneously alongside a truth and reconciliation commission. The Court has jurisdiction13 over
10 At any stage during procedure, both Tribunals can make a formal requirement toward na-tional courts to adjourn their competences.
11 This has been introduced by Security Council resolutions 1503 (2003) and 1534 (2004).
12 Agreement contained in S/2002/246; the Statute of the Special Court contained in S/2002/246; see Security Council resolution 1436 (2002) affirming ‘strong support’ for the Court.
13 Shaw introduces Article 8 of the Statute which provides that the Special Court and the na-tional courts of Sierra Leone have concurrent jurisdiction, but that the Special Court has pri-macy over the national courts and that at any stage of the procedure it may formally request a national court to defer to its competence (Shaw, 2008: 420). One notable innovation of the Court is its personal jurisdiction over juvenile offenders who, at the time of the alleged com-mission of the crime, were aged 15 to 18. See Article 7 of the Statute of the Special Court,