Punishing violations of fundamental human rights in the international criminal justice system
The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. Ms Darja Škodnik, M.Sc., Member of the International Institute IFIMES, in her article “ Punishing Violations of Fundamental Human Rights in the International Criminal Justice System” explores various cases of the international criminal system and points to the conclusion that universal jurisdiction shall hold the promise of a greater justice. Her article is published in full.
We are undoubtedly living in a world that is inter-related, a world in which justice is truly indivisible. We cannot turn a blind eye to crimes committed, whether in Rwanda, Yugoslavia, Sierra Leone, Cambodia, Iraq or Africa, merely because they are in distant lands. What affects one group of people in one part of the world affects all of us, not only in a humanistic sense but also in a policy, political and economic sense. The administration of criminal justice is an investment in peace, security and justice and an important safeguard against abuses of power, which affect life, liberty, and the physical integrity of individuals. Without this protection and limitation on the potential abusive exercise of power by states, democracy could not exist.
It is a primary effort of the international community to protect fundamental values through a system of international criminal justice. International criminal accountability mechanisms have emerged as a consequence of particularly atrocious events that have occurred in various parts of the world and because of the pressure of world public opinion and certain concerned governments. The doctrine of universal jurisdiction asserts that certain crimes are so heinous that their perpetrators should not escape justice regardless of the location of the crime or the nationality of the perpetrator or victim. Universal jurisdiction holds the promise of a greater justice.
We must not underestimate the reality of causes of armed conflicts such as the competition for resources, human greed and manipulation of religious beliefs. All of these contribute to violations of international humanitarian law. And while contemporary armed conflicts are often described as “low intensity conflicts,” their human cost, in particular among civilians, can be enormous. Irregular forces of different kinds fight today’s armed conflicts. Targeting civilians and spreading fear among them has become common. If nation states fail to devise mechanisms, international criminal jurisdiction is of critical importance. Atrocities must not go unpunished (Türk: 2006).
International protection of human rights has increased in the last century, due in part to the increased recognition that a number of nations share many fundamental legal values and expectations. There are currently international courts capable of adjudicating international crimes such as the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone and the Special Panels for Serious Crimes (in East Timor), Iraqi Special Tribunal etc. In addition, numerous domestic courts are involved in crimes of a transnational nature, including terrorism, drug and human trafficking, hijacking, and money laundering.
International criminal tribunals have, beside the very important role in punishing crimes, also an important role in contributing to the development of international criminal law. It is also significant that these institutions have been shaped by political leaders and diplomats rather than by jurists with expertise in international and comparative criminal law and procedure. Unlike national judicial systems, international ones have grown out of a vacuum and operated essentially in a vacuum. Experiences of those, who worked in these institutions, were brought from national legal systems, which are not easily transferable to international legal institutions mainly because of its doctrinal differences or the logic of the legal systems from which they emanate.
All legal systems aim at discovering the truth in accordance with certain rules. As Dr Cherif M. Bassiouni states, whether or not a person accused of an international crime is or is not found guilty depends on rules of procedure and evidence and not on the generalities of whether such a person should have been tried and for what international crime. The outcome of all international criminal trials will be determined by the evidence, which the prosecution presents and the standards this evidence has to meet and not by whether the accused is an unpopular defendant or whether his policies and politics were good, bad, or indifferent. Evidence is what counts (May and Wierde: 2002).
Bringing perpetrators of the most heinous crimes to justice is the responsibility of civilized people. We must enhance awareness of our responsibility, all the more so because we failed so many times in the past. As UN Secretary General Kofi Anan said, what we must not do is deny or even stay unmoved by what is happening around us. We must remember the victims of the past atrocities whom the world abandoned. Now is the time when we think of the possible victims of today and the future. We look them in the eye and say: "You, at least, we must not fail."
The International Military Tribunal at Nuremberg and the International Military Tribunal for the Far East in Tokyo
Can Holocaust trials that are organized to serve extralegal ends by educating the public, shaping collective memory and protecting historical truth, also maintain their legal integrity? Nuremberg was designed to serve two ends: to render justice for all victims of Nazi aggression, and to educate the world about the unprecedented crimes of the Third Reich. Balancing these two objectives proved problematic for the participants. The tension between the prosecution’s "desire to submit extreme outrages to the rule of law" and the court's "refusal to permit the law to be misshapen by its contact with atrocity" was the central issue in Nuremberg trial (Hilary: 2001).
The international military tribunals established after World War II remain the most celebrated international criminal courts in history. Under the Allies’ November 1943 Moscow Declaration, minor Nazi war criminals would be judged and punished in the countries where they committed their crimes, while the major war criminals, whose offenses have no particular geographical localization would be tried and punished by joint decision of the Governments of the Allies. On August 8, 1945, the Allies signed the London Agreement by which they adopted the Charter of the International Military Tribunal. In addition to the Nuremberg Tribunal, several thousand Nazi war criminals were tried before national courts or before tribunals administered by the Allies after the war. In January 1946, the Allies created the International Military Tribunal for the Far East in Tokyo, which, unlike the tribunal at Nuremberg, was established by unilateral proclamation, that of General Douglas MacArthur, Supreme Allied Commander. As in the case of Germany, alongside the Tokyo Tribunal’s work, national tribunals tried thousands of Japanese for war crimes (Ratner and Abrams: 2001).
The trials were prepared on the assumption that an inescapable responsibility rests upon nation states to conduct an inquiry, preferably in association with others, but alone if necessary, into the culpability of those, whom there is probable cause to accuse of atrocities and other crimes. The only course was to determine the innocence or guilt of the accused. The incredible events were established by credible evidence. Nuremberg was about absolute conflict, about reasserting humanity in the face of inhumanity.
Many groups and individuals, for a variety of reasons and motives, have questioned the validity of the court. It was argued that the Tribunals could not be regarded as a court in the true sense because, as its members represent the victorious Allied nations, they must lack that impartiality, which is an essential in judicial procedure. According to this view only a court consisting of neutrals, or, at least, containing some neutral judges, could be considered to be a proper tribunal. As no man can be a judge in his own case, so no allied tribunal can judge a case in which members of the enemy government or forces are on trial. Attractive as this argument may sound in theory, it ignores the fact that it runs counter to the administration of law in every country. A prisoner has the right to demand that his judges be fair but not that they shall be neutral.
The post-War tribunals played a critical role in revealing to the world evidence of the brutal atrocities committed by the Axis powers. Moreover, the Nuremberg and Tokyo Tribunals unquestionably represented major steps in the elaboration and enforcement of international criminal law.
The International Criminal Tribunal for Former Yugoslavia and the International Criminal Tribunal for Rwanda
The Security Council, pursuant to its Chapter VII authority, created both International Criminal Tribunal for Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR). By invoking Chapter VII, the Security Council obliges all UN member states to cooperate with the Tribunal and to honor any lawful requests it makes for assistance under its statute.
The International Criminal Tribunal for Former Yugoslavia authority is to prosecute and try four clusters of offences: grave breaches of the 1949 Geneva Conventions: violations of the laws or customs of war, genocide and crimes against humanity, committed on the territory of the former Yugoslavia since 1991.
The ICTY and national courts have concurrent jurisdiction over serious violations of international humanitarian law committed in the former Yugoslavia. However, the ICTY can claim primacy over national courts and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice. Although judicially independent, the ICTY must rely on international cooperation in order to successfully carry out its mandate. Cooperation by states or international organisations is vital to the collection of evidence as well as to the detention and transfer of accused persons. States also offer indispensable co-operation in the relocation of sensitive witnesses or the enforcement of sentences handed down by the Tribunal.
On November 8, 1995, UN Secretary General Kofi Annan submitted to the Security Council a statute for the International Criminal Tribunal for Rwanda, stating that he was convinced that "the prosecution of persons responsible for serious violations of international humanitarian law would contribute to the process of national reconciliation and to the restoration and maintenance of peace." The Security Council established ICTR (located in Arusha, United Republic of Tanzania) for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and in neighbouring states in 1994. Rwanda's only realistic hope of bringing most of the major instigators of the genocide to justice is through the Tribunal.
The exact impact that the ICTR will have on the application of international humanitarian law and the legal prerogatives of the UN Security Council acting under Chapter VII of the UN Charter will be determined by actual political and judicial experience, by the reactions of states and the ability of the Tribunal to gain custody over and prosecute a significant number of major criminals. Together with ICTY tribunals will influence the way many states view the causes of grave humanitarian crimes and possible strategies for achieving peace and national reconciliation.
The mass murders in Rwanda and the former Yugoslavia did not arise spontaneously. Persons in positions of power who sought to gain personal advantage through violent and hideous means instigated them. Unless these persons are made to account for their crimes against humanity, the reconciliation necessary for the reconstruction of these torn societies may not be possible. If the Tribunals not accomplish their main prosecutorial objectives, their creation will still have a lasting effect on the application of humanitarian law to both international and domestic conflicts. They also will have accomplished the significant task of putting international humanitarian law and human rights squarely on the international agenda.
The Special Court for Sierra Leone and the Iraqi Special Tribunal
Internationalize criminal courts might be viewed as more domestic and less of an external imposition and may help to assist in the long-term capacity building of the domestic judiciary or at least of staff directly involved in its activities. Alternatively, an international body with domestic grafts may be preferable, as it may be viewed as more impartial and as a sign that the international community has taken a genuine interest. It is also important to recognize that hybrid tribunals have limitations. They seldom have the power to command the extradition or surrender of suspects that the ad hoc tribunals do. Proponents of the mixed or hybrid tribunal suggest that hybrid tribunals, which are composed of domestic and international judges and often utilize a combination of domestic and international law, can evade the risk of political manipulation that domestic courts face. Unlike international tribunals, they may be better suited to the needs of countries emerging from conflict. Populations may be disappointed when they find that hybrid tribunals, like their more international counterparts, simply cannot address all the needs of fractured societies. They may do better than international courts at reaching victims and society, but they may not do a great deal more for reconciliation or judicial reconstruction.
The Lomé Peace Agreement of 7 July 1999 officially ended Sierra Leone's eight-year civil war, granted amnesty to the combatants, and provided for the establishment of a Truth and Reconciliation Commission (TRC)2 to facilitate the country's healing process. Following renewed fighting, the government of Sierra Leone and the UN have concluded a bilateral agreement establishing an ad hoc Special Criminal Court for Sierra Leone (SCSL) in 2002 for prosecuting those most responsible for the commission of serious crimes against the international humanitarian law and the laws of Sierra Leone during the civil war. The Special Court is a treaty-based international judicial institution with which all Sierra Leonean institutions must cooperate and with whose orders they must comply. It operates under international law but with a mixture of local and international judges.3
The simultaneous establishment of a TRC and a Special Court in Sierra Leone to redress massive human rights violations during the civil war demands complementary and mutual respect of their distinct but related functions. The Court and the TRC fulfill compatible roles in ensuring accountability. The Special Court, on one hand intends to punish individual perpetrators, namely those who bear the “greatest responsibility,” including the planners and instigators of the terrible violence. The mandate of the TRC, on the other hand, is to investigate the causes, nature, and extent of the violence (Wierde and others: 2002).
The Special Court for Sierra Leone is an institution formally separate from the domestic legal system, an international body with domestic judges, and some elements of domestic criminal law, attached to the international body. Nonetheless, the Special Court, which has jurisdiction over crimes against humanity, war crimes, and various offences under Sierra Leonean national law, as currently empowered, lacks the ability to induce the authorities of third world states to comply with its orders and has limited temporal jurisdiction thereby allowing a number of accused to escape justice. Moreover, the concerns for the financing of the organization are substantially eroding the credibility of the institution, especially as large numbers of potential accused have been languishing in jail for significant periods without being formally charged.
On December 2003, Iraq’s US-appointed Government promulgated the Statute of the Iraqi Special Tribunal (IST) in order to establish the legal framework for the prosecution of high-level members of the Ba’ath regime for genocide, war crimes and crimes against humanity. The Iraqi Special Tribunal was announced by the Iraqi Governing Council appointed by the Coalition Provisional Authority’s Administrator, Paul Bremer on July 13, 2003. A few days later, Saddam Hussein was captured. On one hand, a hybrid tribunal serves a rehabilitative role of reviving the local Iraqi judicial system through involving Iraqi judges. One the other hand, the active participation of international judges provides the crucial perception and legitimizing fabric of a fair and impartial trial.
The Iraqi tribunal, however, can prosecute only Iraqi nationals and residents. The statute of the Governing Council does permit, if it deems necessary, the appointment of non-Iraqi judicial officers. The court is required to have international advisers and monitors, but they will advise and monitor, not judge. In view of the foreseeable shortcomings of the tribunal, a ‘rule of law’ and transparency compliant tribunal must be created.
Saddam Hussein appeared in court on July 1, 2004 and pleaded innocent to numerous crimes, including the invasion of Kuwait. On October 19, 2005, he was on trial for the 1982 massacre of 148 people in Dujail after a failed assassination attempt against the then-Iraqi president. The Iraqi government executed Hussein as punishment for his role in the 1982 Dujail massacre on December 30. Saddam is the first leader from an Arab and Middle Eastern country to be executed4. We can only presume that would have been better for Iraqi unity, if the trial had been held in the international court. There would have been no death sentence, and Saddam Hussein would not be seen as a martyr in some quarters. However, with the strong feelings on both sides of this issue in Iraq, a trial outside of Iraq would also not be accepted. This is a no win situation for everyone involved.
The principle of universal jurisdiction is based on the notion that certain crimes are so harmful to international interests that states are entitled and even obliged to bring proceedings against the perpetrator, regardless of the location of the crime or the nationality of the perpetrator or victim. It is an important principle that those who commit war crimes or systematically violate human rights should be held accountable. But the consolidation of law, domestic peace, and representative government in a nation struggling to come to terms with a brutal past has a claim as well.
National laws should ensure that the national courts can prosecute anyone suspected or accused of the crimes whatever their official capacity at the time of the alleged crime or anytime thereafter. There is also no immunity for war crimes, crimes against peace, and crimes against humanity. They stand outside the limited immunity offered to a former head of State and cannot be regarded as a function of a head of State.
The International Criminal Court
The International Criminal Court (ICC) continues as the first comprehensive criminalization of acts of violence committed during internal and external wars sufficiently abhorrent to warrant international regulation. It is the result of a process, which has sharpened the boundaries of international humanitarian law.
The Rome Statute establishing the ICC came into force on July 2002 (Den Hague), heralding a global commitment to hold dictators and other perpetrators of gross violations accountable for their crimes. The ICC is a treaty-based organisation governed by the countries that have ratified or acceded to its’ treaty, the Rome Statute. Yet the ICC’s reach is limited. Under its statutes, it cannot bring a prosecution unless the accused’s country of origin is “genuinely unable or unwilling” to do so. Sudan, for example, insists that it is perfectly capable and willing to try those responsible for Darfur atrocities and refuses to co-operate with the court. The ICC may not prosecute crimes committed before its inception in 2002, and it has jurisdiction only over nationals of countries, which have ratified its statutes. The exception to this rule is if the Security Council refers the matter to the ICC, as in the case of Sudan, a non-member. The ICC is further hampered by the refusal of many of the world’s worst human-rights violators to sign up to it. Zimbabwe, Cuba, Uzbekistan, North Korea, Syria, Belarus and Saudi Arabia are all non-members. The United States, China and Russia, all three veto-wielding permanent members of the Security Council, are not the signatories of the Rome Statute.
The ICC continues as the first comprehensive criminalization of acts of violence committed during internal and external wars sufficiently abhorrent to warrant international regulation. The Rome Statute’s moral, political and legal meaning, as well as the “world peace, security and well-being,” is the result of a process, which has sharpened the boundaries of international humanitarian law. In addition to the very important role in punishing crime, the Tribunals have an important role in contributing to the development of international criminal law.
The jurisdiction of the ICC is not chronologically or geographically limited but does not have jurisdiction over crimes committed before the Rome Statute become effective. The ICC, as a permanent Court, is an independent international organisation, which investigates and brings to justice individuals who commit the most serious crimes of international concern as genocide, war crimes and crimes against humanity. The ICC is meant to complement national legal structures, and will act only when the national systems are either unwilling or genuinely unable to proceed. The cases before the ICC may be referred by the United Nations Security Council under the Chapter VII of the UN Charter regardless of where or by whom the crime or crimes in question were committed; a situation may be referred to the Prosecutor by a country that has ratified the Rome Statute, or the Prosecutor may initiate an investigation on the basis of information received but, may only pursue it with the approval of the Pre-Trial Chamber of the Court.
The preamble of the ICC Rome Statute has moral, political and legal meanings: “World peace, security and well-being”, the values of the UN Charter. This is valuable for the welfare of the world as whole. As a result, some definitions of war crimes in the Statute where expanded. The Court has jurisdiction limited on the biggest criminal activities of the international community. In accordance with the Rome Statute, the Court has jurisdiction over the crime of genocide, crimes against humanity, war crimes and crimes of aggression.
Universal jurisdiction holds out the promise of greater justice, but the jurisprudence of universal jurisdiction is disparate and disjointed. In the wake of mass atrocities and of oppressive rule, national judicial systems have often been unable or unwilling to prosecute serious crimes under international law. International legal obligations call upon states to adopt legislation to enable the exercise of universal jurisdiction and to include provisions for universal jurisdiction in all future treaties.
Global public opinion is way ahead of the position of governments. It reflects an instinct of justice that ordinary people believe in. Anyone who feels that we have been victimized by a crime seeks justice as a human being. Certainly, in a society that has been raked by civil strife and by war where terrible crimes have been committed, people call for justice. We are speaking of massive killings of civilians, of systematic rape, of destruction of private property, of looting, of torture. We are speaking of the types of crimes, which no one who has any sense of humanity will want to see benefit from impunity.
Despite the millions of acts of genocide, crimes against humanity, war crimes, cases of torture, extra judicial executions and 'disappearances' committed since the end of the Second World War, only a handful of individuals have been brought to justice by national courts in the territories or jurisdictions where they occurred. Suspects should be brought to justice in the states where they are found, extradited to a state able and willing to do so in a fair trial without the death penalty or other cruel, inhuman or degrading treatment or punishment, or surrendered to an international criminal court.
International law is our common heritage from the nineteenth and twentieth centuries. International criminal law evolves through the process that led the United Nations from Nuremberg and Tokyo, through the ICTY, the ICTR, to the Special Court for Sierra Leone, Iraqi Special Tribunal and finally to the International Criminal Court based on previous experiences.
Nearly 80% of the government delegations at the Rome Diplomatic Conference on the International Criminal Court supported the proposal of the Republic of Korea to give the ICC the same universal jurisdiction that all states have under international law. However, as a result of a political compromise designed to encourage certain states to ratify the Rome Statute or at least not to oppose it, the Statute does not include such jurisdiction. The exercise of universal jurisdiction is one small but very important part of a much broader effort to end impunity at the national and international levels for such crimes. At the national level, states continue to have the primary responsibility for bringing to justice those responsible for crimes under international law.
The ICC promises to be a test for the further development of humanitarian law, international criminal law, and human rights law in the early years of the new century. Although it is not free of potentially crippling compromises, it takes a great step forward in the recognition of what constitutes an "international crime," and that its standards of accountability, procedure and punishment are much more clearly defined than ever before in any international legal regime. International criminal justice can strive to do better, particularly as it deepens in confidence and maturity. With no doubt in our minds we can deliberate that international tribunals will also punish the crimes as well as contribute to the evolution of international criminal law recognized by civilized nations.
As Robert H. Jackson, Prosecutor at the Nuremberg Trials warned in his opening statement, "The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored, because it cannot survive their being repeated."
§ Hilary, Earl (2001): Wilfred Laurier University special report on The Memory of Judgment: Making Law and History in the Trials of the Holocaust, by Lawrence Douglas (New Haven: Yale University Press, 2001), at xiii to 318. Date of inquiry: 20 January 2006. http://0-muse.jhu.edu.library.uor.edu/demo/holocaust_and_genocide_studies/v017/17.1earl.html
§ ICC, ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT. Text of the Rome Statute circulated as document A/CONF.183/9 of 17 July 1998 and corrected by procès-verbaux of 10 November 1998, 12 July 1999, 30 November 1999, 8 May 2000, 17 January 2001 and 16 January 2002. The Statute entered into force on 1 July 2002. Produced by the Public Information and Documentation Section of the ICC, Maanweg 174, 2516 AB The Hague, The Netherlands. http://www.icc-cpi.int. Date of inquiry: 15 January 2005.
§ ICC, REGULATIONS OF THE INTERNATIONAL CRIMINAL COURT. Adopted by the judges of the Court on 26 May 2004 Fifth Plenary Session, The Hague, 17- 28 May 2004. Official documents of the International Criminal Court. ICC-BD/01-01-04. Produced by the Public Information and Documentation Section of the ICC, Maanweg 174, 2516 AB The Hague, The Netherlands. http://www.icc-cpi.int. Date of inquiry: 15 January 2005.
§ ICC, RULES OF PROCEDURE AND EVIDENCE OF THE INTERNATIONAL CRIMINAL COURT. Adopted by the Assembly of States Parties First session, New York, 3-10 September 2002. Official Records. ICC-ASP/1/3. Produced by the Public Information and Documentation Section of the ICC, Maanweg 174, 2516 AB The Hague, The Netherlands. http://www.icc-cpi.int. Date of inquiry: 15 January 2005.
§ ICC, THE INTERNATIONAL CRIMINAL COURT. http://www.icc-cpi.int/ataglance/whatistheicc/history.html. Date of inquiry: 15 January 2005.
§ ICTR, UNITED NATIONS GENERAL INFORMATION ABOUT INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA. http://www.ictr.org/ENGLISH/geninfo/. Date of inquiry: 17 January 2005.
§ ICTR, RULES OF PROCEDURE AND EVIDENCE OF INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA, Adopted on 29 June 1995; Last amended on 21 May 2005. http://www.ictr.org/ENGLISH/rules/ . Date of inquiry: 13 June 2005.
§ ICTR, STATUTE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA. Statute 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 1994 and 31 December 1994. Adopted by Security Council resolution 955 (1994) of 8 November 1994. http://www.ictr.org/ENGLISH/basicdocs/Statute.html or http://www.ohchr.org/english/law/itr.htm. Date of inquiry: 1 February 2005.
§ ICTY, RULES OF PROCEDURE AND EVIDENCE OF INTERNATIONAL CRIMINAL TRIBUNAL FOR YUGOSLAVIA /Statute of ICTY. IT/32/Rev. 34. Last Amendment to the Rules Procedure and Evidence, http://www.un.org/icty/legaldoc/index.htm. Date of inquiry: 11 March 2005.
§ ICTY, STATUTE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA. 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. Not an official document. This compilation is based on original United Nations resolutions. Public Information Service. Date: April 2004. http://www.un.org/icty/basic/statut/stat2000.htm Date of inquiry: 17 January 2005.
§ IMTN, CHARTER OF THE NUREMBERG INTERNATIONAL MILITARY TRIBUNAL, Adopted 8 August 1945. Nazi Conspiracy and Aggression, United States Printing Office. Washington, 1946. Vol I, pp. 4-12. This document has been published on 24. May 2002 by the Equipo Nizkor and Derechos Human Rights. Date of inquiry: 10. January 2006.
§ IMTN, RULES OF PROCEDURE AND EVIDENCE OF THE INTERNATIONAL MILITARY TRIBUNAL IN NUREMBERG. Adopted 29 October 1945. Date of inquiry: 11. January 2006.
§ IST, RULES OF PROCEDURE AND EVIDENCE IRAQI SPECIAL TRIBUNAL, No 4006 Ramadan 14, 1426 Hijri 47th year October 18, 2005. http://www.cfr.org/publication/9048/iraqi_special_tribunal_rules_of_procedure_and_evidence.html or http://www.iraq-ist.org/en/laws/rules.htm Date of inquiry: 3 February 2006
§ IST, STATUTE OF THE IRAQI SPECIAL TRIBUNAL, The Coalition Provisional Authority, December 2003. http://www.cpa-iraq.org/human_rights/Statute.htm Date of inquiry: 8 February 2006.
§ May, Richard and Wierde Marieke (2002): International Criminal Evidence. Transnational Publishers, Inc. ISBN 1-57105-144-9.
§ Ratner, R.Steven, Abrams S. Jason (2001): Accountability for Human Rights Atrocities in International Law. Beyond the Nuremberg Legacy. Oxford University Press, Second Edition, June 1, 2001. ISBN 0198298714, at 188-90.
§ SCSL, RULES OF PROCEDURE AND EVIDENC OF THE SPECIAL COURT FOR SIERRA LEONE, Last amended on 29 May 2004, http://www.sc-sl.org/scsl-procedure.html, Date of inquiry: 8 February 2006.
§ SCSL, STATUTE OF THE SPECIAL COURT FOR SIERRA LEONE, http://www.sc-sl.org/scsl-statute.html Date of inquiry: 8 February 2006.
§ Türk, prof. Danilo, Ph.D., International Decision Making and International Humanitarian Law, Lecture at ICRC Conference “Current challenges in International Humanitarian Law, Faculty of Law, 14 November 2006, Ljubljana.
§ Wierda, Marieke, Hayner Priscilla and Paul van Zyl (2002): Exploring the Relationship between the Special Court and the Truth and Reconciliation Commission of Sierra Leone, The International Center for Transitional Justice, New York, 24 June 2002. This paper is a revised version of a paper presented to the UN Expert Group on the Relationship between the TRC and the Special Court in New York on 20 - 21 Dec. 2001. Priscilla Hayner and Paul van Zyl are Program Directors at ICTJ and Marieke Wierda is a Senior Associate.
Ljubljana, Januar 15, 2007
International Institute for Middle-East and Balkan Studies (IFIMES) - Ljubljana
Zijad Becirovic, M.Sc.
1 Ms Darja Škodnik is an Adviser to the Chief of Staff of the Slovene Armed Forces. The views, expressed in this article, are solely of her own and do not represent those of her employer.
2 The main purpose of the TRC is (1) to investigate the ‘causes, nature and extent’ of gross human rights violations and abuses, and to determine whether such violations ‘were the result of deliberate planning, policy or authorization by any government, group or individual, and the role of both internal and external factors in the conflict’ and (2) to restore the human dignity of victims by providing both victims and perpetrators with the opportunity to give an account of human rights violations committed during the armed conflict.
3 Most third-world civil conflicts, especially, are marked by atrocities. But the wanton cruelty of Sierra Leone’s 11-year bloodshed was particularly barbaric. Charles Taylor, Liberia’s ex-president was indicted by Sierra Leone’s court, but managed to flee into exile in Nigeria. In March 2006 Mr Taylor was handed over to Liberia from Nigeria. The International Criminal Court in The Hague agreed to lend its ventures to the Sierra Leonean Special Court. In June 2006 Liberia's ex-Dictator Charles Taylor was flown out of Sierra Leone to stand trial at the International Criminal Court in The Hague, accused of war crimes in Sierra Leone and Liberia.
4 In the late 1990s the case of Chilean dictator Augusto Pinochet signaled changing international norms. It is best known case where states have exercised universal jurisdiction. Gen Pinochet was accused of dozens of human rights abuses as well as fraud, but poor health meant he never faced trial. He also took power in a 1973 coup against the democratically elected Marxist government of Salvador Allende. More than 3,000 people were killed or "disappeared" in his 17-year rule. The violence of the uprising and the oppression that followed shook the world. Also the prosecution of former Serbian President Slobodan Milosevic in the International Criminal Tribunal for the former Yugoslavia (ICTY) is an opportunity to reflect upon how far the prosecution of war criminals has come in the past five and a half decades. As for Milosevic and the ICTY, after dozens of indictments, many of which have already come to trial, the ICTY reached a milestone by securing the presence of the former Serb leader although he escaped trail by dying in his cell.