New Steps towards International Justice
Very significant news for the international human rights community flourished one month ago, when, on March 14th, the United Nations and the government of Cambodia signed a series of multiple agreements for the creation and establishment of the legal foundations for the Extraordinary Chambers in the Courts of Cambodia (ECCC), a special tribunal that will try Khmer Rouge leaders accused of horrific crimes, including mass killings and genocide.
Under these international agreements, a newly created ad hoc trial court and a Supreme Court within the Cambodian legal system will investigate those most responsible for crimes and serious violations of Cambodian and international law between April 17, 1975 and January 6, 1979.
The international community has witnessed that during the last decade, unprecedented steps have been taken to limit the impunity of atrocious war crimes and crimes against humanity. Since the early 1990´s we are witnessing the creation of new international criminal justice mechanisms which apply universal jurisdiction to hold perpetrators of the most serious crimes that the human race has ever committed.
The Security Council created two ad-hoc international criminal tribunals, the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the International Criminal Tribunal for Rwanda (ICTR) in 1994, to try alleged perpetrators of genocide, war crimes, crimes against humanity, and other serious violations of international humanitarian law that occurred during the outbreak of conflicts in those regions. Both the ICTY and the ICTR have revitalized the international criminal jurisprudence that had not developed since the Nuremberg and Tokyo trials.
Since the creation of both tribunals, hundreds of suspects have been
arrested and tried regardless of their official status, leading to the
first indictment of a sitting head of state (Slobodan Milosevic by the
ICTY), as well as the indictment of the former Prime Minister of
Rwanda, Jean Kambanda, by the ICTR.
In 2002, taking a different
“hybrid” approach and in an attempt to bring justice in Western Africa,
the United Nations signed an agreement with the government of Sierra
Leone to create the Special Court for Sierra Leone (SCSL).
With the newly created ECCC, it will be the fourth adhoc UN backed tribunal created during the past 15 years and a great leap from the international human rights perspective. The three-year budget for the ECCC is about $56.3 million, of which $43 million is to be paid by the UN and $13.3 million by the Government of Cambodia.
History will never forget the atrocities that where committed all through the countryside and cities of Cambodia during the years 1975 to 1978, where an estimated 1.7 million people were killed or died of forced labor, starvation or disease (the death toll represented almost one third of Cambodia’s population).
The regimen leader, “Brother Number One” Pol Pot, died in 1998, but others such as “Brother Number Two” Nuon Chea, former head of state Khieu Samphan and former Foreign Minister Ieng Sary are living as free men.
Almost every single Cambodian family lost relatives under the rule of the “back to the land” Khmer Rouge, who emptied the cities and isolated the entire country.
In the near future, national courts will still be not able to become
uniformly capable to bring justice for global atrocities and
international war crimes. This is particularly true in post-conflict
situations where justice systems have been either partially or
completely destroyed. As a result, international justice today still
remains a crucial last resort that must continue to be fortified
against efforts to undermine it.
The achievements and failures of
the ICTY and ICTR have been assessed and it has helped the creation of
later tribunals such as the SCLS, the East Timor Tribunal, and now the
ECCC. While it may be unrealistic to expect that full-scale ad hoc
international tribunals will be created in the current environment, the
lessons of these tribunals can help initialize other efforts, including
the development of hybrid justice mechanisms.
Hybrid mechanisms (such as the ad hoc Tribunal for East Timor and the ECCC) should not be established simply because they are an inexpensive alternative when an international mechanism would be more appropriate. In addition, we need to evaluate situations in which international mechanisms are rejected notwithstanding serious concerns about national capacity and willingness to pursue justice, as in Sierra Leone and probably in Iraq.
Ad hoc tribunals are a welcome step, but not a permanent solution. I believe that if the international community keeps on creating such tribunals, this will lead to delays, primarily because they are established after the fact. It has been proven to be costly and inefficient to create a new institution for each situation. Likewise there have been problems concerning selective justice.
A permanent institution can overcome these defects. In this sense, the International Criminal Court (ICC) has been propelled by strong support from the world community and many NGO´s. The Rome Statute of the ICC has obtained the necessary 60 ratifications and has entered into force on July 1st, 2002. Currently there are 92 states parties, and the list is slowing growing.
On the other hand, the United Nations has to play a more central and systematic role in post-conflict situations. Although the United Nations has often been pivotal in forging the international response to serious human rights crimes, the “justice gap” in countries such as Sierra Leone, Cambodia, Liberia and the Democratic Republic of Congo underscores the need for more systematic U.N. efforts.
The development of a system of international justice to limit impunity for serious human rights crimes has struck at outmoded notions of national sovereignty and the absolute prerogative of states. It would have been unrealistic to expect that progress would occur in a straight line. To address today’s more difficult environment, recent achievements must be secured and the system must be refined so that perpetrators of the most serious crimes are increasingly held to account.
In an everyday more global and interdependent world, the role that international criminal courts play must gain importance and acceptance. The past decade has given us a variety of examples and forms of these international tribunals, in an attempt to bring to justice to any individual that has committed atrocious crimes against humanity.
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