Transmenu powered by JoomlArt.com - Mambo Joomla Professional Templates Club

Speech delivered by Datuk N. Sivananthan, List Counsel, International Criminal Court,  at the Human Rights Committee's International Justice Day Debate, 15 July 2009

Introduction

The establishment of special international criminal tribunals and special courts by the United Nations (U.N.) is greatly influenced by two ad hoc international military tribunals (IMT), namely the International Military Tribunal for Nuremberg and the International Military Tribunal for the Far East.  These two ad hoc IMTs are also widely known as the Nuremberg trials and the Tokyo trials respectively.  These two ad hoc IMTs were established as a result of the Second World War to try individuals who committed war crimes, crimes against peace and crimes against humanity.  Shortly after the U.N. was founded, the International Law Commission of the U.N. received the mandate to codify the legal principles that emerged during both the Nuremberg and Tokyo trials.  Subsequently, the U.N. established special international criminal tribunals in Rwanda, Yugoslavia and Cambodia and also developed special courts in Sierra Leone and Lebanon to prosecute those responsible for atrocities during times of war and genocide.  Successful convictions of these political and military leaders are meant to bring justice to victims and to deter others from committing such crimes in the future.  These special tribunals and courts gave impetus to the formation of the International Criminal Court (ICC), which was finally established in 2003.  However, these special tribunals and courts have limited jurisdictions and do not threaten the possible prosecution of leaders or nationals of powerful countries like the United States of America, Russia, China etc.

Although the above seems to depict the U.N. commitment to safeguard international peace and justice by establishing the said international tribunals and special courts to punish those who have committed war crimes, but would the end result be that justice is truly served through these international tribunals and special courts?  To answer this, we must examine the purpose and effects of each of the international tribunals and special courts to the international community.

International Military Tribunal for Nuremberg

After the Second World War, the Allied powers, namely the United States of America (U.S.), Britain and the Soviet Union, unanimously agreed with the punishment of the leading Nazis if captured.  British Prime Minister Sir Winston Churchill opined that war criminals must pay for their crimes and that in accordance with the Moscow Document , they should be tried at the places where the crimes were committed.  At the meetings in Tehran (1943), Yalta (1945) and Potsdam (1945), the above three major wartime powers agreed on the format of punishment for those responsible for war-crimes during the Second World War .  France was also awarded a place on the tribunal.  After a series of negotiations between the U.S., Britain, the Soviet Union and France, details of the trial were worked out.  The trials were set to commence on 20 November 1945 in the city of Nuremberg.

The legal basis for the trial was established by the London Charter , issued on 8 August 1945, which restricted the trial to punishment of the major war criminals of the European Axis countries.  Some 200 German war crimes defendants were tried at Nuremberg, and 1,600 others were tried under the traditional channels of military justice.  The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany , political authority for Germany had been transferred to the Allied Control Council , which having sovereign power over Germany could choose to punish violations of international law and the laws of war.  Because the court was limited to violations of the laws of war, it did not have jurisdiction over crimes that took place before the outbreak of war on 3 September 1939.

The unconditional surrender of the Axis powers was unusual and led directly to the formation of the above IMT.  Usually, international wars end conditionally and the treatment of suspected war criminals makes up part of the peace treaty.  In most cases those who are not prisoners of war are tried under their own judicial system if they are suspected of committing war crimes.  In restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law.  The IMT tried and punished personnel only from Axis countries.  As such, there arose accusations claiming victor's justice , since Allied war crimes could not be tried.  It is, however, usual that the armed forces of a civilised country issue their forces with detailed guidance on what is and is not permitted under their military code. These are drafted to include any international treaty obligations and the customary laws of war. 

The Soviet Union had wanted the trials to take place in Berlin, but Nuremberg was chosen as the site for the trials for specific reasons.  Firstly, the Palace of Justice at Nuremberg was spacious and largely undamaged and a large prison was also part of the complex.  Secondly, Nuremberg was considered the ceremonial birthplace of the Nazi Party , and hosted annual propaganda rallies . Thus, it was a fitting place to mark the party's symbolic demise.  It was also agreed that France would become the permanent seat of the IMT and that the first trial, of which several were planned, would take place in Nuremberg.

The IMT was opened on 18 October 1945, in the Palace of Justice in Nuremberg. The first session was presided over by the Soviet judge, Nikitchenko. The prosecution entered indictments against 24 major war criminals and six criminal organizations - the leadership of the Nazi party, the Schutzstaffel (SS) and Sicherheitsdienst (SD), the Gestapo , the Sturmabteilung (SA) and the High Command of the German armed forces ( OKW ).  The indictments were for: (i) participation in a common plan or conspiracy for the accomplishment of crime against peace ;  (ii) planning, initiating and waging wars of aggression and other crimes against peace; (iii) war crimes ; and (iv) crimes against humanity .

The death sentences were carried out 16 October 1946 by hanging using the standard drop method instead of long drop.  The bodies were brought to Dachau and burned (the final use of the crematories there) with the ashes then scattered into a river. The French judges suggested the use of a firing squad for the military condemned, as is standard for military courts-martial, but this was opposed by Biddle and the Soviet judges.  They argued that the military officers had violated their military ethos and were not worthy of the firing squad, which was considered to be more dignified.  The prisoners sentenced to incarceration were transferred to Spandau Prison in 1947.  Of the twelve defendants sentenced to death by hanging, two were not hanged: Hermann Göring committed suicide the night before the execution and Martin Bormann was not present when convicted.  The remaining ten defendants sentenced to death were hanged.

The definition of what constitutes a war crime is described by the Nuremberg Principles , a document which was created as a result of the trial.  The medical experiments conducted by German doctors and prosecuted in the so-called Doctors' Trial led to the creation of the Nuremberg Code to control future trials involving human subjects.  The Nuremberg trials had a great influence on the development of international criminal law .  The International Law Commission , acting on the request of the U.N. General Assembly , produced the report of “Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal” in 1950.  The influence of the tribunal can also be seen in the proposals for a permanent international criminal court, and the drafting of international criminal codes, later prepared by the International Law Commission.

On the other hand, part of the criticism was that some treaties were not binding on the Axis powers because they were not signatories.  However, the implication under international law is that if enough countries have signed up to a treaty, and that treaty has been in effect for a reasonable period of time, then it can be interpreted as binding on all nations not just those who signed the original treaty.  Moreover, the IMT itself strongly disputed that the London Charter was ex post facto law, pointing to existing international agreements signed by Germany that made aggressive war and certain wartime actions unlawful, such as the Kellogg-Briand Pact , the Covenant of the League of Nations , and the Hague Conventions . 

Additionally, many commentators felt the Nuremberg Trials represented a step forward in extending fairness to the vanquished by requiring that actual criminal misdeeds be proved before punishment could ensue and these included some of the defendants and their legal team.  Hans Frank, the defendant who had served as the Nazi Governor General of occupied Poland, stated, “I regard this trial as a God-willed court to examine and put an end to the terrible era of suffering under Adolf Hitler.”  With the same theme, but a different emphasis, defendant Albert Speer, Hitler's war production minister, said, “This trial is necessary. There is a shared responsibility for such horrible crimes even in an authoritarian state.”  Dr. Theodore Klefish, a member of the German defense team, wrote that, "It is obvious that the trial and judgment of such proceedings require of the tribunal the utmost impartiality, loyalty and sense of justice. The Nuremberg tribunal has met all these requirements with consideration and dignity.  Nobody dares to doubt that it was guided by the search for truth and justice from the first to the last day of this tremendous trial.”

International Criminal Tribunal for the former Yugoslavia (ICTY)

The International Criminal Tribunal for the former Yugoslavia (ICTY) is a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990's.  Since its establishment in 1993, it has irreversibly changed the landscape of international humanitarian law and provided victims an opportunity to voice the horrors they witnessed and experienced. 

By the end of February 1993, the focus of the conflict ravaging the former Yugoslavia for more than 18 months had shifted from Slovenia to Croatia and then to Bosnia.  Although the conflict was characterized from the very beginning by acute ferocity, it was in Bosnia that the first signs of systematic ethnic cleansing such as deportations, mass executions, mass sexual assaults and rapes, and concentration camps, leaked.  In order to pressure the conflicting parties to comply with their obligations under international humanitarian law, in October 1992, the Security Council asked the U.N. Secretary General to establish a Commission of Experts to report on evidence of grave breaches of international humanitarian law in the former Yugoslavia.  Reports depicting horrendous crimes, in which thousands of civilians were being killed and wounded, tortured and sexually abused in detention camps and hundreds of thousands expelled from their homes, caused outrage across the world, especially among European countries, where memories of Nazi horrors were still alive, compelling their governments to call for the establishment of criminal tribunal similar to the one at Nuremberg.

On 22 nd February 1993, the Security Council decided that an international criminal tribunal should be established and asked the U.N. Secretary General, Butros Butros Ghali, to prepare a report.  Subsequently, the Secretary General presented a report together with the Statute of the future ICTY to the Security Council.  In May 1993, the Tribunal was established by the U.N. in response to mass atrocities that was taking place in Croatia and Bosnia and Herzegovina.  The ICTY was the first war crimes court created by the U.N. and the first international war crimes tribunal since the Nuremberg and Tokyo tribunals.  It was established by the Security Council in accordance with Chapter VII of the U.N. Charter.  The key objective of the ICTY is to try those individuals most responsible for appalling acts such as murder, torture, rape, enslavement, destruction of property and other crimes listed in the Tribunal's Statute .  By bringing perpetrators to trial, the ICTY aims to deter future crimes and render justice to thousands of victims and their families, thus contributing to a lasting peace in the former Yugoslavia.

Situated in The Hague, the Netherlands, the ICTY has charged over 160 persons.  Those indicted by the ICTY include heads of state, prime ministers, army chiefs-of-staff, interior ministers and many other high and mid-level political, military and police leaders from various parties to the Yugoslavia conflicts.  Its indictments address crimes committed from 1991 to 2001 against members of various ethnic groups in Croatia, Bosnia and Herzegovina, Serbia, Kosovo and the Former Yugoslav Republic of Macedonia.  More than 60 individuals have been convicted and currently more than 40 people are in different stages of proceedings before the Tribunal.  While operating at full capacity, the Tribunal is working towards the completion of its mandate. The ICTY aims to achieve this by concentrating on the prosecution and trial of the most senior leaders, while referring a certain number of cases involving intermediate and lower-ranking accused to national courts in the former Yugoslavia. This plan, commonly referred to as the Tribunal's ' completion strategy ', foresees the Tribunal assisting in strengthening the capacity of national courts in the region to handle war crimes cases.  ICTY was established as an ad hoc court and the Security Council endorsed the Tribunal's completion strategy for a staggered and ordered closure.  The latest projections envisage all first instance trials to be complete by 2010 and appeals concluded by the end of 2011.  Since 2003 the court has worked closely with local judiciaries and courts in the former Yugoslavia, working in partnership as part of a continuing effort to see justice served.

In its precedent-setting decisions on genocide, war crimes and crimes against humanity, the ICTY has shown that an individual's senior position can no longer protect them from prosecution.  It has now shown that those suspected of bearing the greatest responsibility for atrocities committed can be called to account, as well as that guilt should be individualised, protecting entire communities from being labelled as “collectively responsible”.  The ICTY has laid the foundations for what is now the accepted norm for conflict resolution and post-conflict development across the globe specifically that leaders suspected of mass crimes will face justice.  The ICTY has proved that efficient and transparent international justice is possible.

The ICTY has contributed to an indisputable historical record, combating denial and helping communities come to terms with their recent history.  Crimes across the region can no longer be denied.  For example, it has been proven beyond reasonable doubt that the mass murder at Srebrenica was genocide. Judges have also ruled that rape was used by members of the Bosnian Serb armed forces as an instrument of terror, and the judges in the Kvočka trial established that a “hellish orgy of persecution” occurred in the Omarska, Keraterm and Trnopolje camps of northwestern Bosnia.  

While the most significant number of cases heard at the Tribunal have dealt with alleged crimes committed by Serbs and Bosnian Serbs, the Tribunal has investigated and brought charges against persons from every ethnic background.  Convictions have been secured against Croats, as well as both Bosnian Muslims and Kosovo Albanians for crimes committed against Serbs and others.  While its judgments demonstrate that all parties in the conflicts committed crimes, the Tribunal regards its fairness and impartiality to be of paramount importance.  It takes no side in the conflict and does not attempt to create any artificial balance between different groups.  Evidence is the basis upon which the Prosecution presents a case. The Judges ensure a fair and open trial, assessing the evidence to determine the guilt or innocence of the accused.

Undoubtedly, the Tribunal's work has had a major impact on the states of the former Yugoslavia. Simply by removing some of the most senior and notorious criminals and holding them accountable the Tribunal has been able to lift the taint of violence, contribute to ending impunity and help pave the way for reconciliation.

International Criminal Tribunal for Rwanda (ICTR)

The Statute of the ICTY eventually left a deep imprint first and foremost on that of the International Criminal Tribunal for Rwanda (ICTR) which was established in a like manner 18 months later, and then on that of the ICC, although several aspects differentiate the latter from the former tribunals.  The structural similarities between the ICTY and the ICTR are numerous, including the fact the ICTY and the ICTR share the same Chief Prosecutor and the same Appeal Chamber.  Based on the similarities of the two institutions, they are often called the twin tribunals, and sets them apart from all other international judicial bodies.

Within a year of the creation of the ICTY, in April 1994, another massive ethnic conflict broke out in central Africa resulting first in the genocidal murder of about half a million members of the Tutsi tribe by members of the Hutu tribe in Rwanda, and then the displacement of hundreds of thousands of Hutus into the territory of neighboring countries.  The decision to establish the Tribunal was made in response to a request by the government of Rwanda. After much indecision, on November 8, 1994, the U.N. Security Council adopted Resolution 955 providing for the establishment of the ICTR , an international criminal tribunal for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed on the territory of Rwanda, and the prosecution of Rwandan citizens responsible for the genocide and other such violations of international law committed on the territory of neighboring States, between 1 January 1994 and 31 December 1994.

The ICTR is governed by its Statute, which is annexed to Security Council Resolution 955.  The Rules of Procedure and Evidence, which the Judges adopted in accordance with Article 14 of the Statute, establish the necessary framework for the functioning of the judicial system.  The Tribunal consists of three organs: the Chambers and the Appeals Chamber; the Office of the Prosecutor, in charge of investigations and prosecutions; and the Registry, responsible for providing overall judicial and administrative support to the Chambers and the Prosecutor.  On 22 nd February 1995, by Resolution 977 , the Security Council decided that the seat of the Tribunal would be located in Arusha, United Republic of Tanzania.

The accused persons in the custody of the Tribunal in Arusha have been arrested and transferred from more than 15 countries amounting to 84 accused persons so far.  Several countries in Africa have increasingly cooperated with the Tribunal in the discharge of its mandate. There appears to have been a progressive realization in these countries that they cannot allow fugitives from international justice in their domain.  The Tribunal prefers, to the extent possible, enforcement of its sentences in Africa, for socio-cultural reasons. This will also have greater deterrent effect in the continent.  By providing jails for the Tribunal's genocide convicts, African countries would be demonstrating a serious commitment to the rule of law.  On 12 th February 1999, the Republic of Mali became the first country to sign an agreement with the ICTR to provide prison facilities for the enforcement of the Tribunal's sentences.  A similar agreement was signed with Benin on 26 August 1999.  Negotiations with other African countries are nearing conclusion.

Member States of the U.N. have assisted the ICTR by arresting accused persons, providing prison facilities for the incarceration of persons convicted by the Tribunal, facilitating the transfer of witnesses from their territories and by making voluntary donations of financial and other material assistance.  Members of the Tribunal staff represent more than 80 different nationalities making the Tribunal the most internationally diverse UN duty station outside the UN Headquarters in New York.  Co-operation of States with the ICTR has progressively increased since the Tribunal began its work. With co-operation of various national governments, the accused persons detained in the United Nations Detention Facility in Arusha were arrested in Tanzania, Cameroon, Kenya, Benin, Côte d'Ivoire, Namibia, Togo, Zambia, Burkina Faso, Mali, Democratic Republic of Congo, South Africa, Belgium, Switzerland, the Netherlands and in the United States.  To date, there are 16 convicted persons who are now serving their sentences in Mali and Italy while there are about 28 detainees who are on trial in Arusha excluding 8 who are waiting to be tried by the Tribunal. 

International co-operation with ICTR regarding witnesses has been outstanding.  Many of the witnesses did not have valid legal status or documents in their countries of residence, often countries to which they had fled as refugees. The challenge was to find a way to bring witnesses to Arusha to give testimony at trials and return them to their host countries.  Several countries rose to this challenge, including Belgium, Central African Republic, Congo (Brazzaville), France, The Netherlands, Kenya, Senegal and Zambia.  These countries helped the ICTR to overcome this obstacle through development of special travel documents in co-operation with the Tribunal.

Political, moral and material support by African countries for the ICTR is essential in determining the success of ICTR.  Much depends upon the ultimate success or failure of the ICTR because it is dealing with crimes committed in Africa, with more than 500,000 victims. African countries and Governments should make the point that the lives of these victims are as important as those of victims of mass atrocities everywhere by giving a higher profile to the work of the ICTR.  The Tribunal's work is providing important precedents for the International Criminal Court and various national jurisdictions. It is making a fundamental contribution to international peace and justice in the twenty-first century.  

International Criminal Tribunal for Cambodia

The Khmer Rouge seized power in Cambodia in 1975 and killed more than a million people during four years of terror and misrule.  When the Khmer Rouge were ousted in 1979 by forces from neighboring Vietnam, the U.S. supported the Khmer Rouge exiles and assured their continuing seat in the U.N. The U.S. backing for the Khmer Rouge kept Cambodian politics in a turmoil and prevented the pursuit of justice for the mass killings.

On 12 December 1997, the U.N. General Assembly adopted a resolution entitled “Situation of Human Rights in Cambodia” to provide a mandate to the U.N. group of experts to investigate the possibility of bringing the Khmer Rouge to justice.  The group of experts was established by Secretary-General Kofi Anan with three major goals: firstly, to evaluate the existing evidence and determine the nature of the crimes committed; secondly, to access the feasibility of bringing Khmer Rouge leaders to justice; and thirdly, to explore options for trial before international or domestic courts.   After their investigations, the experts concluded that the crimes committed during the Democratic Kampuchea could be regarded as genocide, crimes against humanity, and war crimes.  This led to five options: (i) a tribunal established under Cambodian law; (ii) a United Nations tribunal; (iii) a Cambodian tribunal under the United Nations administration (through a bilateral agreement between the U.N. and Cambodia); (iv) an international tribunal established by multilateral treaty; and (v) trials in states other than Cambodia.  The U.N. rejected the trial type proposed by the Cambodian government which led the Office of Legal Affairs of the United Nations Secretariat to end negotiations on 8 February 2002.

Finally, on 17 th March 2003, the U.N. reached a draft agreement with the Cambodian government for an international criminal tribunal to try former Khmer Rouge leaders.  The agreement came after five years of negotiations and 24 years after the Khmer Rouge were driven from power.  Under the agreement, the panel of judges will include a majority of Cambodians.  Human rights groups argue that the government's ability to impose its will on these judges poses an unacceptable obstacle to justice.  On the other hand, with many likely defendants over the age of 70, time is running out for justice to be served.

The first trial of a senior Khmer Rouge cadre opened on 17 th February 2009, 30 years after the end of the brutal Communist regime that took the lives of as many as one-fourth of Cambodia's population.  The first defendant is Kaing Guek Eav, 66, better known as Duch, the commandant of the Tuol Sleng prison and torture house, which sent at least 14,000 people to their deaths in a killing field.  Four other senior Khmer Rouge officials who were in a position to give those orders are also in custody, but court officials say their trials may not start until next year.  They are Nuon Chea, 82, the movement's chief ideologue; Khieu Samphan, 76, who was head of state; Ieng Sary, 82, the former foreign minister; and his wife, Ieng Thirith, 75, a fellow member of the Khmer Rouge Central Committee.  The Khmer Rouge leader, Pol Pot, died in 1998. 

Many Cambodians fear that some of the defendants may die before they are brought to trial, and the tribunal has been providing them the best medical care Cambodia has to offer.  The vast majority of Cambodians are still searching for answers about the "killing fields" of the Khmer Rouge era. Unlike most other wars or genocides, this was not about a territorial dispute, a religious conflict, a foreign invasion or an imperial struggle. This was Cambodians killing their fellow Cambodians on a massive scale - and the country wants the tribunal to explain it.

Therefore, the establishment of the Khmer Rouge tribunal, which has been under discussion for more than five years, is good news for millions of Cambodians who have long feared that none of their former savage leaders would be prosecuted. It is also an additional indication that justice can eventually be done and that all tyrants and war criminals will one day have to stand trial.  The 30 long years of wait is therefore worth waiting as long as the said war criminals are brought to justice and eventually, be punished for the hideous crimes committed.

Special Court for Sierra Leone

The Special Court for Sierra Leone is an independent judicial body set up to try those who bear greatest responsibility for the war crimes and crimes against humanity committed in Sierra Leone after 30 November 1996 during the Sierra Leone Civil War .  On 12 th June 2000 , Sierra Leone's President Ahmad Tejan Kabbah wrote a letter to U.N. Secretary-General Kofi Annan asking the international community to try those responsible for crimes during the conflict. On 14 August 2000 , the U.N. Security Council adopted Resolution 1315 requesting the Secretary-General to start negotiations with the Sierra Leonean government to create a Special Court.

On 16 January 2002 , the U.N. and Government of Sierra Leone signed an agreement establishing the Court. The contract was awarded to Sierra Construction Systems, the largest construction company in Sierra Leone.  Established by law in January 2002, the trials at the Special Court for Sierra Leone began on 3 rd June 2004 and according to its mandate, were to end by 2006.  It is now due to have completed its operations by December 2009. 

On 7 March 2003 the first indictments were brought.  Thirteen people have been indicted so far for war crimes, crimes against humanity and other violations of international humanitarian law .  However, three indictments were dropped later on because of the deaths of the indictees.  Of the ten remaining indictees, nine are in the custody of the Special Court.  If found guilty, criminals may be sentenced to prison or have their property confiscated.  The Court, as with all other tribunals established by the U.N., does not have the power to impose the death penalty .

The court began hearing testimony for its first trial on 15 th June 2004.  By January 2008 , 13 people have been indicted, with 9 of them in custody of court. Three have died and one, Johnny Paul Koroma, remains beyond the court's reach.  In October 2007, two former leaders of the Central Defence Forces (CDF), Moinina Fofana and Allieu Kondewa, were sentenced to imprisonment for 19 years and 34 years respectively.  Longer sentences have been given to three former members of the Armed Forces Revolutionary Council (AFRC) found guilty in July 2007.  Brima Bazzy Kamara was sentenced to 45 years in prison, while Alex Taba Brima and Santigie Borber Kanu were both given 50 years.

The trial of Charles Taylor, former President of Liberia, resumed in the Hague on the 7 th January after 6 months' delay following Taylor's decision to fire his legal team.  The trial is expected to last 18 months.  Taylor was indicted on 7 th March 2003 on 17 counts of war crimes and crimes against humanity.  He was eventually taken into custody on 29 March 2006.  Concerns over security, were the case to be conducted in Sierra Leone, have prompted its transferral to the Hague.  The indictment was amended to 11 counts in March 2006, including charges of terrorism, unlawful killings, sexual and physical violence and the enlisting of child soldiers.  Mr Taylor has pleaded not guilty on all charges.  The trial of Sam Hinga Norman, former Minister for Internal Affairs, on 8 charges of war crimes and crimes against humanity, was suspended after Mr Norman died in February 2007 of natural causes.

On 25 th February 2009, the Special Court for Sierra Leone convicted 3 top Sierra Leone rebel leaders of crimes against humanity which is considered the closest thing to justice in the West African nation of amputees, orphans and widows.  Revolutionary United Front leader Issa Sesay and one of his battlefield commanders, Morris Kallon were found guilty on 16 of 18 counts including mutilation, terrorism, rape, forced marriage, sexual slavery and the enlistment of child soldiers.  Another commander, Augustine Gbao, was found guilty on 14 of the 18 counts.

Sesay, Kallon and Gbao are the last 3 rebel leaders to be convicted while 5 other masterminds of the conflict have also been convicted earlier.  The establishment of the Special Court for Sierra Leone by the U.N. to try these rebel leaders brought a cry of relief to about half a million people who were victims of killings, systematic mutilation and other atrocities committed by the rebels during Sierra Leone 11-year-civil war, which ended in 2002.  The success of the Special Court for Sierra Leone is best summarized from the statement given by the Special Court's chief prosecutor, Stephen Rapp who said that, “The greatest significance of this is that it recognises that the people of Sierra Leone were victims of these horrendous crimes and it holds individuals accountable.  Beyond that we are also sending a message to this country, across the region and across the world that these crimes will not be tolerated.”

Special Tribunal for Lebanon

The Special Tribunal for Lebanon was created on 30 th May 2007 by resolution 1757 of the U.N. Security Council that mandated the Secretary General for taking all the necessary measures for the establishment of the Special Tribunal.   On 13 December 2005, Lebanese Prime Minister, Fouad Siniora, asked to Secretary-General Kofi Annan for the creation of a tribunal with an international character to try those charged with the terrorist attacks perpetrated in Lebanon since 1 st October 2004, and especially the massive car bombing perpetrated in Beirut on 14 th February 2005 which killed twenty-one people, including the former Prime Minister Rafik Hariri.

Once the nature and the scope of the international assistance needed by the Lebanese government identified, the U.N. Security Council unanimously passed a resolution, on 29 th march 2006, creating an International Tribunal. It requested Secretary-General Kofi Annan to negotiate an agreement with the Lebanese Government aimed at establishing a tribunal of an international character based on the highest international standards of criminal justice .   On 15 November 2006, Kofi Annan presented his report on the establishment of an international tribunal to try the suspected killers of the former Lebanese Prime Minister Rafik Hariri to the Security Council.   On 21 November 2006, the Security Council approved the agreement reached by the UN Secretary General with the Lebanese Government on the Tribunal's form and structure and gave its go-ahead to its setting up.  On 6 th February 2007, the U.N. and Lebanon signed an agreement establishing a Special Tribunal.

After almost a four-month deadlock period during which no agreement was found within the Lebanon's parliamentary forces to vote the agreement signed on 6 th February 2007 between Lebanon and the U.N., western countries decided to impose the creation of the Tribunal which had been in discussion for a year and a half.  Thus, on 30 May 2007, the U.N. Security Council, acting under Chapter VII of the Charter, adopted Resolution 1757 authorizing the creation of the Special Tribunal for Lebanon, by a vote of 10 in favour to none against, with 5 abstentions, including China and Russia. This legally binding resolution provided for the automatic entry into force on 10 th June 2007 of the Convention signed the year before between the U.N. and Lebanon and creating this Special Tribunal.  Indeed, after a four month political crisis and the international community's willingness to remedy to this instability climate in Lebanon, the Security Council overrode the opposition of a large part of the Lebanon community and thus imposed the establishment of the Special Tribunal.  For reasons of security, administrative efficiency and fairness, the tribunal has its seat outside Lebanon, in Leidschendam in The Netherlands . The tribunal is planned to start on 1 March 2009.

Although the Tribunal was scheduled to only start on 1 st March 2009, this special tribunal to try the suspected assassins of former Lebanese Prime Minister Rafik Hariri would represent the first time an international court focused on a crime committed against a specific individual.  In the absence of a probe into the humanitarian catastrophe that resulted from the 2006 Israel-Lebanon conflict, many already argued that U.N. efforts to set up the court suggest that “some deaths are more politically important than others.” The criticisms of this “manipulation of international justice” mirror similar concerns by some Lebanese politicians, who fear the U.S. and other foreign powers could use the tribunal to further their Middle East agendas.

The particular powers of the Tribunal raise a serious preliminary question. Under the terms of its draft statutes it will focus primarily on the Hariri assassination, referred to as a "terrorist act".  It can also prosecute other killings committed between 1 October 2004 and 12 December 2005, and even later crimes, if the Lebanese government and the Security Council agree.  At least until now, the killings came under the jurisdiction of the Lebanese courts. The U.N. Resolution 1595 originally qualified the attacks as acts of terrorism. Then Resolution 1636 added that chapter VII of the U.N. charter applied to the Hariri assassination.  Yet the laws of Lebanon still apply and its courts are still competent to judge these crimes.  International conventions on acts of terrorism require states to condemn and prosecute such crimes, this being the preserve of national jurisdictions enforcing national law.  Until Resolution 1664 the bomb attacks did not count as crimes that needed to be tried by an international tribunal.

The Special Tribunal for Lebanon would be the first international jurisdiction established exclusively to prosecute less serious crimes that are only international because the Security Council decided they should be so.  It would be the only international court with the task of enforcing national law, with the addition of provisions excluding capital punishment.  This measure emphasises the importance the U.N. attaches to prosecuting the murder of leading Lebanese figures.  It is unlikely that this episode will enhance the image of the U.N. or of international justice.

Conclusion

To briefly summarize the above, the idea of setting up an international criminal tribunal first emerged after the Second World War by the winning states against the Nazis.  However, this idea was adopted by the United Nations and subsequently, more international criminal tribunals were set up by the United Nations to ensure that war criminals in the particular states, would be held accountable for their actions.  These international criminal tribunals has also laid the foundations for what is now the accepted norm for conflict resolution and post-conflict development across the globe specifically that leaders suspected of mass crimes will face justice.  Although the establishment of the Special Tribunal for Lebanon is highly questionable as explained above, nevertheless it must be noted that the rest of the international criminal tribunals and special courts have proved that efficient and transparent international justice is therefore possible through the involvement of the United Nations.  All these efforts have culminated in the setting up of the International Criminal Court whose effectiveness remains to be seen not least due to the fact that many superpowers have yet to ratify the Rome Statute.

Datuk N. Sivananthan

List Counsel

International Criminal Court

15 July 2009

Comments (0)

Subscribe to this comment's feed