Towards justice in the wake of armed conflicts?

The evolution of war crimes tribunals


Jacquie Cassette
Office of the Public Protector, Pretoria

Published in African Security Review Vol 9 No 5/6, 2000


INTRODUCTION

After nearly a decade of brutal and devastating civil war in Sierra Leone, President Kabbah and Revolutionary United Front (RUF) leader, Foday Sankoh, agreed to a controversial peace agreement. Signed in Lomé, Togo on 7 July 1999, the accord granted total amnesty to Foday Sankoh and members of the RUF, promised reintegration of the RUF into the Sierra Leone Armed Forces, assured the RUF of several cabinet seats in the transitional government, left the RUF in control of the diamond mines, and invited Sankoh to participate in UN-sponsored elections.

In exchange for senior government positions for its commanders and a blanket amnesty for atrocities committed during the war, the RUF pledged to disarm, along with pro-government civil defence forces and other paramilitary units. According to the Lomé accord:

There was little that was ‘moral’ about an agreement that legitimised and pardoned some of the worst atrocities of modern history. Although Lomé had the support of President Kabbah and ‘the people’ of Sierra Leone, they had little choice in the face of Western abandonment. Reluctantly, the Sierra Leone government decided that, in the absence of a serious international military deployment, its martyred country needed peace more than justice.2 Western supporters of the deal argued that Lomé is the last chance for peace, that amnesty is the price of this peace, and that it is naive to think that accounting for savagery is possible.

However, after the virtual collapse of the UN peacekeeping mission in May 2000, and in the face of flagrant violations of the Lomé agreement by the RUF, the UN and the Sierra Leone government declared their intention to establish a hybrid international-domestic court to prosecute those allegedly responsible for atrocities. This will be the third ad hoc international criminal court to be created by the UN over the last decade, following the establishment of the war crimes tribunals for the former Yugoslavia (ICTY) in 1993 and Rwanda (ICTR) in 1994. Since the establishment of the latter two tribunals, the consolidation of a system of international criminal justice has gained momentum, and the establishment of a permanent international criminal court is currently under way

Although some 120 countries approved a treaty establishing a permanent international criminal court to deal with war crimes at a 1998 conference in Rome, the United States was among seven nations that voted against it. Since Rome, 114 countries have signed the treaty and 14 have ratified it. A total of 60 ratifications is needed for the treaty to enter into force, expected in about three years.

This article traces the history and development of war crimes tribunals in the context of the development of international criminal law, with the emphasis on the establishment of the ad hoc tribunals for the former Yugoslavia and Rwanda, and in hopeful anticipation of the establishment of a permanent international criminal court.

THE ESTABLISHMENT OF THE NUREMBERG AND TOKYO TRIBUNALS

The history of war crimes tribunals only began after World War II, with the establishment of the Nuremberg and Tokyo tribunals. Although there were attempts by the allied powers after World War I to provide for the prosecution of war crimes committed by the axis powers, no prosecutions by an international tribunal ever took place.

A commission established in 1919 by the victorious powers recommended the prosecution of enemy nationals, even leaders, guilty of offences against "the laws and customs of war or the laws of humanity."3 At the end of the war, both the Treaty of Sèvres (between the allied powers and Turkey) and the Treaty of Versailles (the allied powers and Germany) provided for the prosecution of central power war criminals (ie Turkish and German), including Kaiser Wilhelm II, before international tribunals. Although the idea of prosecutions by an international tribunal gained hold, no such prosecutions actually ever occurred.

Indeed, no international tribunal was established. Kaiser Wilhelm was given sanctuary in the Netherlands, and only a few prosecutions of German war criminals by the German Supreme Court took place. Turkish war criminals were granted amnesty in accordance with the Treaty of Lausanne.4

After World War II, the total defeat of the axis powers created an historic opportunity for the establishment of the first international precedent for the prosecution of war criminals. Shocked by the extent and horrors of the atrocities committed by the Nazis and the Japanese, and empowered by their status as victor nations, the allies5 signed an agreement creating the International Military Tribunal (IMT) for the prosecution of major war criminals of the European axis. This was soon followed in the Far East by the establishment of a tribunal for the prosecution of high-ranking Japanese accused of war crimes.

These tribunals were given the authority by the allied powers to prosecute German and Japanese leaders for "crimes against the peace" (the crime of waging an aggressive war), "crimes against humanity"6 and "war crimes" (of which the existence was debatable in international law at the time). The tribunals were not concerned with prosecuting each and every (low level) enemy national responsible for committing war crimes, but rather only the major roleplayers — people responsible for planning and instigating aggressive war and atrocities committed during the war. Prosecutors and judges from the allied powers staffed the tribunals.

Although they adhered to certain minimum basic principles of justice (for example, the accused were provided with legal representation and were entitled to interpreters), they were subsequently criticised for failing to live up to prevailing standards of criminal justice. For example, rather than being international tribunals, they were really ‘victors’ tribunals’ — examples of a few victorious states getting together and collectively exercising their powers and jurisdiction. There was also no broader international participation in the establishment of these tribunals (although certain other states did express their adherence to the agreement establishing them).

Importantly, the tribunals were restricted to the prosecution of war criminals belonging to or representing the enemy powers for crimes committed by them during the war. They had no authority to prosecute war crimes committed by any members of the allied forces. For these reasons, they were criticised as constituting little more than ‘victors’ justice’. This was particularly the case with the Tokyo tribunal. Many criticised the hypocrisy of prosecuting Japanese leaders for war crimes, when the Americans were guilty of the nuclear bombings of Hiroshima and Nagasaki.

It is a fundamental principle of criminal law that there can be no crime without a law, and no punishment without a law specifically providing for such punishment (nullen crimen sine lege). In 1945, at the time of the establishment of the Nuremberg and Tokyo tribunals, there was very little precedent or law providing for the criminalisation of war crimes or the act of waging aggressive war. The whole concept of ‘crimes against humanity’ was largely unknown.

Though international law at the time had outlawed aggressive war to an extent7 and did attempt to regulate conduct during war,8 none of these treaties doing so made provision for the criminal prosecution and punishment of individuals guilty of breaches. The Nuremberg and Tokyo charters were effectively the first international instruments to do so. Although the Hague conventions and the early Geneva conventions outlawed certain conduct during war, they did not specifically criminalise such conduct or provide for criminal prosecutions and punishment.

Prior to the Nuremberg and Tokyo tribunals there was also very little precedent for the idea of crimes against humanity — crimes which, because of their enormity, are not only crimes against the specific societies where they were perpetrated, but crimes against the whole international community.9 Their inclusion in the Nuremberg and Tokyo charters was therefore an innovation. Many have thus argued that these tribunals were guilty of breaching the nullen crimen sine lege principle.

TOWARDS INDIVIDUAL CRIMINAL RESPONSIBILITY AND UNIVERSAL JURISDICTION

Although much criticised, the Nuremberg and Tokyo tribunals were of fundamental importance to the development of international criminal law. In particular, they played a significant role in entrenching the concept of individual criminal responsibility in international law. For the first time in modern history, people (in particular high-ranking leaders) were held accountable for their actions during war.10 In so doing, these tribunals entrenched the idea that individuals, even leaders of state, could individually be held criminally responsible under international law for their actions. No longer was international law simply concerned with the actions of states, but it was now paying attention to the acts of individuals and was prepared to hold them accountable for their acts. Leaders could no longer hide behind the shield of state sovereignty or responsibility.11

As a result of the Nuremberg and Tokyo precedents, several treaties or laws expressly providing for the prosecution of persons guilty of committing ‘international’ crimes, including war crimes, were adopted in subsequent decades.

The first such treaty was the Genocide Convention of 1948.12 The concept of genocide — the extermination or intended extermination of a whole population (the worst form of crime against humanity) — was a new legal concept conceived in response to Nazi German atrocities. The Convention provides that signatory states have an obligation to punish offenders. Offenders are supposed to be tried either by the state where the crime of genocide was committed, or by an international criminal court established to prosecute genocide. Although a draft statute for an international criminal court was produced in 1951, due to political reasons no such international court was ever established.

The Genocide Convention was followed by the Geneva conventions of 1949. These conventions categorise certain serious war crimes as grave breaches, and place an obligation on states parties to criminalise and provide for the prosecution of such grave breaches. States parties have an obligation, in terms of these conventions, to prosecute and punish grave breaches committed not only by their own nationals, but also those committed by the nationals of any other state party. They were thus the first treaties to invoke what is known as ‘universal jurisdiction’ or international jurisdiction — jurisdiction in terms of which all states have the authority to prosecute certain crimes, regardless of whether they were committed on their own territory or by their own nationals.13

Following the charters and judgements of the Nuremberg and Tokyo tribunals, crimes against humanity became well and truly entrenched in international law. In accordance with the judgements of these tribunals (and later international law instruments), crimes against humanity are now commonly accepted as giving rise to universal or international jurisdiction. For example, in 1973, building on the concept of crimes against humanity, the Apartheid Convention was adopted,14 in terms of which parties to the convention undertake to provide for the prosecution of persons responsible for apartheid (which is labelled a crime against humanity).15 The convention made provision for prosecution either by a signatory state in its own domestic courts, or by an international penal tribunal.

Finally, the Geneva protocols were adopted in 1977. They extend protection to victims of non-international armed conflicts, and provide for universal jurisdiction over grave breaches committed in internal armed conflicts.

Thus, by 1977, the notion of international crimes over which any state has jurisdiction and the authority to prosecute, either in its own domestic courts, or under the auspices of an international tribunal, was clearly established. While the concept of international criminal law and the authority of states to prosecute war crimes had undergone substantial development since the end of World War II, there were still very few actual prosecutions.

A few states, including Israel, Canada, Germany, the United Kingdom and Australia, adopted municipal legislation, which empowers their courts to prosecute and punish war crimes, even if committed outside of their territory. A few prosecutions have taken place as a consequence of this legislation. Perhaps the most famous and controversial post-World War II national prosecution of a war criminal in terms of such legislation, was the Eichmann trial.16 Eichmann, who had been the administrator in charge of the extermination of hundreds of thousands of Jews in Europe, was charged and convicted in the 1960s by the Israeli government for genocide, war crimes, and crimes against humanity committed during World War II.

Meanwhile, attempts to establish an international criminal court, which had begun in 1951, were suspended, largely as a result of the Cold War. States were unwilling to relinquish jealously guarded state sovereignty to an international court. Although an international framework of laws for criminalising war crimes was being shaped, there was no mechanism to enforce them. In its absence, in the decades following World War II, the world witnessed countless horrific wars and atrocities — in Vietnam, Cambodia, Angola, Mozambique and El Salvador, among many others. Such wars and atrocities continued to happen, despite the fact that the international community, through the adoption of the UN Charter, had committed itself to rid the world of the scourge of war.

It took the end of the Cold War and the power of the international media to galvanise the international community into further action.

INTERNATIONAL CRIMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA

In 1993, after widespread international media coverage of the atrocities committed in the war in the former Yugoslavia, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY).17 Soon, in the aftermath of the 1994 genocide in Rwanda, the International Criminal Tribunal for Rwanda (ICTR) was also established by the Security Council.18 These tribunals differ from the Nuremberg and Tokyo tribunals in a number of important respects.

They were not instituted by individual states through an international treaty or charter. Instead, they were established by the UN Security Council in accordance with binding Security Council resolutions. They were thus established by means of a collective decision of an international organisation. In this sense, they constitute the first real ‘international criminal tribunals’ ever.

Perhaps more importantly, they were established by the Security Council in accordance with its binding Chapter VII powers as a peace enforcement mechanism.19 While the Nuremberg and Tokyo tribunals were established in response to a moral imperative of ‘never again’, in the case of the ICTY and ICTR, their establishment was first and foremost part of a peacekeeping strategy. While there was obviously also a strong moral incentive in the case of these tribunals (the need to seek justice and/or retribution), justice was not pursued as an end in itself, but the perceived relationship between the promotion of peace and justice was rather pursued.20

At the time when the ICTY was established, the war was still raging in the former Yugoslavia. It was hoped by those who promoted the establishment of the ICTY that by bringing to justice war criminals responsible for perpetrating the policies of ethnic cleansing which characterised the war, the continuing violence in the former Yugoslavia would be diffused — enabling the negotiation of peace. In the context of Rwanda, it was hoped that the prosecution of those responsible for planning and implementing the 1994 genocide would help to prevent the outbreak of future cycles of violence.21 As long as the perpetrators of the genocide remained free and unpunished, a climate of fear, hatred and the desire for revenge would continue, ultimately resulting in further violence as people took the law into their own hands.

These two international criminal tribunals were therefore largely established to promote peacemaking and peacebuilding: peacemaking in the context of the former Yugoslavia, in that the establishment of the ICTY was an attempt to bring or restore peace; and peacebuilding in the context of Rwanda, in that the establishment of the ICTR was an attempt to consolidate and build upon a fragile peace (achieved after the victory by the Tutsi Rwandan Patriotic Front).

Like the Nuremberg and Tokyo tribunals, both the ICTY and the ICTR only have limited jurisdiction to prosecute very specific crimes. The ICTY has jurisdiction over all "serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991" — including genocide, crimes against humanity and war crimes. The ICTR has jurisdiction over "serious violations of international humanitarian law committed in the territory of Rwanda between 1 January 1994 and 31 December 1994" — including genocide, crimes against humanity and war crimes. For this reason, both these UN war crimes tribunals are known as ad hoc tribunals. They do not have generalised powers to prosecute all war crimes in any situation or context. Because they were established by the Security Council as measures to establish and maintain peace, they can be dissolved by the Security Council at any stage when it determines that they are no longer necessary for the maintenance of peace in their respective regions. They therefore have limited powers and a limited lifespan.

The ad hoc nature of the tribunals has exposed them to severe criticism. Many have questioned why the international community saw fit to go to the expense and trouble of prosecuting violations committed in these contexts, but not in many other instances of gross violations of humanitarian law. Such selective enforcement of international law and justice is unfair both to surviving victims and to perpetrators.

While these criticisms are valid, it would be hard to deny that the establishment of special tribunals to deal with specific atrocities committed in these two contexts was better than the international community once again ignoring widespread atrocities. Perhaps more important than any direct impact on the territories and people for which they have been established, is the impetus that they have provided to the consolidation of an international system of criminal justice.

Initially, both tribunals (the Rwanda tribunal, in particular) struggled to establish themselves. They were hampered by a lack of resources, infrastructure and state co-operation. This severely impacted upon their effectiveness.

Although both tribunals began to issue indictments reasonably quickly, it took a long time before they were able to get custody over a sizeable number of those accused.22 The situation has improved with both tribunals having a number of accused in custody, including several high-level accused. Several convictions have also been made.23 They are therefore both fully functional judicial institutions.

However, especially in the case of the ICTY, those accused at the highest level, including Milosevic, Karadic and Mladic, remain at large. Due to the complex nature of the crimes involved and the conscientious adherence to the rights of the accused to a fair trial, the trial proceedings take a very long time. This means that the number of completed trials and convictions secured per year is very small. For these reasons, the tribunals continue to be labelled by some as ineffective. As long as high-level accused remain free and continue to exercise power, real and lasting peace in the former Yugoslavia is likely to remain elusive.

These problems are beyond the control of the tribunals. It is not up to the tribunals to secure the arrest of high-level accused. They do not have the mechanism or powers to secure arrests themselves. Rather, it is up to individual states and assisting forces to do so. Both tribunals also only have two or three courtrooms and therefore cannot hold more than a handful of trials at a time. It is therefore inappropriate and unfair to blame the tribunals for these shortcomings. Ultimately, it is a question of resources and political will.

On a positive note, major increases in the budgets of both tribunals over the past few years illustrate an increasing commitment to their work by the international community. The recent downfall of Milosevic is also greatly encouraging. Many feel that it is a matter of time before he will appear before the ICTY to face the charges against him.

It is therefore fair to say that, notwithstanding their shortcomings, much has been achieved by these ad hoc tribunals. While some may debate their contribution to peace,24 there is no doubt that they have established the beginnings of a proper international criminal justice enforcement system. Not only has substantive and procedural international criminal law been significantly advanced and developed by them, but they have proved that international criminal prosecutions are viable and practical. Since their establishment, it has become increasingly difficult for people accused of gross human rights violations to escape with impunity. Recent events around the proposed establishment of a special court for Sierra Leone illustrate this. It is also ultimately because of the work of the ad hoc tribunals that the creation of a permanent international criminal court has become a greater reality.

A PERMANENT INTERNATIONAL CRIMINAL COURT

In July 1998, the Rome Statute of the International Criminal Court was adopted. After decades of debate over the issue, this statute finally makes provision for the establishment of a permanent international criminal court. The court, however, will only come into being after 60 states have ratified the statute. By October 2000, 21 states have already done so.

If and when it comes into force, the International Criminal Court will be a permanent international institution, which will have powers to prosecute individuals for genocide, crimes against humanity and war crimes. This court will effectively have jurisdiction to prosecute war crimes committed in states or by nationals of states signatory to the statute. It will thus not be limited to a particular situation or territory, although the extent of its jurisdiction will obviously depend upon the number of states which become party to the statute.25

Proceedings by the court will be triggered in one of three ways — referral by a state party, referral by the UN Security Council,26 or through the initiation of an investigation by the prosecutor upon information received from a variety of sources.

Whereas the ad hoc tribunals exercise primacy over relevant domestic prosecutions in any state,27 the court will only be entitled to exercise jurisdiction where the relevant national state is either unwilling to or unable to prosecute. It is therefore not intended to replace national judicial processes, but rather to complement them.

In accordance with the statute, all states parties will have an obligation to co-operate with the court, including to arrest indicted persons. This is similar to the obligations that all states have in terms of the ICTY and ICTR. However, the difference is that this obligation is not imposed by the Security Council, but is simply a treaty obligation. Any duty to co-operate and arrest is also not imposed in terms of the UN Charter. It is limited to states parties and is not in itself enforceable by the Security Council.28

As with the ICTY and ICTR, because there is no permanent international police force, the enforcement of the orders of the permanent criminal court will largely depend upon individual state co-operation. The effectiveness of the court will therefore once again depend upon political will.

PROPOSED ESTABLISHMENT OF A SPECIAL COURT FOR SIERRA LEONE

The government of Sierra Leone recently requested the Security Council to establish an international tribunal to prosecute individuals responsible for committing atrocities in the country’s brutal civil war, which broke out in 1991 and continues despite the Lomé Peace Accord of July 1999.29 This request was in the hope that such prosecutions will help to break the ongoing cycle of violence and promote reconciliation in Sierra Leone.30

Consequent to this request, an agreement has been concluded between the UN and the government of Sierra Leone, which provides for the establishment of a special court for Sierra Leone — to be based in the country.

Unlike the ad hoc tribunals, this special court will not be established by virtue of a Chapter VII Security Council resolution, but will rather be a treaty-based institution. It will therefore not be able to issue binding orders to third- party states, and will not be able to assert primacy over any prosecutions taking place in other national states. Such powers, however, are unlikely to be necessary because most of the perpetrators are in custody in Sierra Leone.31

The proposed special court is to be a mixed court. Its staff, including judges and prosecuting staff, will comprise both international and national candidates. It will have jurisdiction not only over international crimes, including crimes against humanity and war crimes, but also over certain domestic crimes. It will therefore constitute a unique hybrid institution tailored to the specific context of Sierra Leone.

Importantly, the amnesty granted to participants in the civil war by the Lomé accord has not stood in the way of potential international law prosecutions. According to the UN, which attached a disclaimer to the article in the accord that grants amnesty,32 this amnesty is at best only applicable to domestic prosecutions and does not grant immunity from prosecution for international crimes by an international judicial institution.

Although the establishment of yet another ad hoc institution potentially suggests a lack of commitment to the implementation of the Rome statute for the creation of the permanent international criminal court, it should be remembered that once established, the court will not have retrospective jurisdiction. It would therefore not have jurisdiction over crimes committed in the Sierra Leone war prior to its establishment.

CONCLUSION

Developments in international law subsequent to World War II have clearly established the concept of international criminal jurisdiction — whereby certain crimes are recognised as being international crimes, giving rise to international individual criminal responsibility. All states are authorised and arguably obliged in certain circumstances to provide for the prosecution of such crimes — either by their own domestic courts, or through the establishment and participation in international criminal tribunals.

This international criminal jurisdiction has resulted in the establishment of the two ad hoc tribunals for the former Yugoslavia and Rwanda, and has finally crystallised into the potential establishment of a permanent international criminal court, which will have wide-ranging powers to indict and prosecute international war criminals.

As the precedents of the tribunals for the former Yugoslavia and Rwanda show, the effectiveness of an international criminal court depends upon state co-operation, both at the investigation stage and in effecting arrests. The growing momentum of these ad hoc tribunals, however, suggests an increasing commitment among the international community to implement international justice. The recent proposals for the establishment of a special court for Sierra Leone support this observation, and augur well for the prospect of a permanent international criminal court indeed becoming a reality.

NOTES 

This is an edited version of a paper presented by the author during Exercise Pegasus, South African Army College, 6 September 2000. It is published in support of the Training for Peace in Southern Africa project, sponsored by the government of Norway and executed by the ISS in partnership with the Norwegian Institute for International Affairs (NUPI). 

  1. 1Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, Lomé, 7 July 1999, Article XXXIV.
  2. D Rieff, In Sierra Leone, the UN had no peace to keep, Wall Street Journal, 8 May 2000.
  3. B B Ferencz, From Nurenburg to Rome — Towards an International Criminal Court, Policy Paper 8, The Development and Peace Foundation, May 1998. Morris & Scharf, An insider’s guide to the International Criminal Tribunal for the Former Yugoslavia, Transnational Publishers, 1995, pp 1-2.
  • The United States, the United Kingdom, France and the Union of Socialist Soviet Republics.
  • Crimes characterised by the intensity of suffering that they cause and their widespread and/or systematic nature.
  • The Covenant of the League of Nations imposed limitations on resort to war. It did not provide, however, for the individual criminal responsibility of leaders guilty of planning and carrying out acts of aggressive war; the 1928 Kellogg Briand Pact was the first comprehensive ban on war, and bound signatory states to renounce war as an instrument of national policy in their relations with other states.
  • Since early times, the way in which states conduct war has been regulated. The most significant modern law (20th century) of war is contained in the various Hague and Geneva conventions.
  • This is because they threaten the very foundations of a civilised world community and are contrary to basic humanity.
  • After the Nuremberg trials, many trials of lower level accused were also conducted by the allies in their individual zones of control, all of which consolidated the law of Nuremberg.
  • Traditionally, international law was concerned with the conduct of states and was designed to regulate the relationship between states. In other words, states were the subjects of international law, the entities that had rights and responsibilities under international law, not individuals. Much of state conduct was beyond the preserve of international law, due to the well entrenched concept of state sovereignty. State leaders could hide behind the veil of state sovereignty, which protected them from being held responsible for their actions in carrying out their duties as heads/representatives of state regardless of the nature and purpose of those actions. The Nuremberg and Tokyo tribunals thus played an important role in breaking down this traditional conception of international law.
  • Convention on the Prevention and Punishment of the Crime of Genocide, adopted on 9 December 1948, 78 UNTS 277.
  • Until the advent of universal jurisdiction, the most accepted bases for exercising criminal jurisdiction under international law were the territoriality and nationality principles. It was considered acceptable for states to exercise their criminal jurisdiction only if the relevant crime had been committed on their territory, or if either the accused or victims were their nationals.
  • International Convention on the Suppression and Punishment of the Crime of ‘Apartheid’, adopted on 30 November 1973, UN Doc.A/9030 (1974).
  • Apartheid is defined as certain stipulated inhuman acts committed for the purpose of establishing and maintaining domination by one racial group over another and systematically oppressing them.
  • Attorney-General of the Government of Israel v. Eichmann, 36 I. L R. 5 (1961)
  • Security Council Resolution 827, 25 May 1993.
  • Security Council Resolution 955, 8 November 1994.
  • In terms of Article 42 of the Charter.
  • This is emphasised by the Secretary-General in his Report to the Security Council in accordance with Security Council Resolution 808 (1993). The report states the following, "the Security Council [has] expressed … its grave alarm at continuing reports of widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia, including reports of mass killings and the continuation of the practice of ‘ethnic cleansing.’ The Council determined that this situation constituted a threat to international peace and security, and stated that it was determined to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them. The Security Council stated its conviction that in the particular circumstances of the former Yugoslavia the establishment of an international tribunal would enable this aim to be achieved and would contribute to the restoration and maintenance of peace." Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) S/25704.
  • The genocide in Rwanda in 1994 will never be properly understood as long as it is viewed as an isolated outbreak of violence. Instead, it was the culmination of a number of cycles of ethnic and/or political violence occurring within Rwanda since the advent of independence. Perpetrators of these previous cycles were never brought to book by an independent, even-handed judicial system. The collective history of these previous cycles of violence fuelled the hatred and fear giving rise to the 1994 genocide.
  • In the case of the former Yugoslavia, this was because (before the Dayton agreement in 1995) there was still a war raging in the former Yugoslavia. Most indicted persons were under the control of their own respective forces who were obviously not prepared to hand over their leaders/supporters to the ICTY. The detention and arrest of suspects were largely up to parties to the conflict, who were not going to and still remain reluctant to hand over war criminals. There was no international military force authorised to arrest and detain suspects or indicted persons (UNPROFOR’S mandate was essentially limited to the provision of humanitarian assistance, and effectively did not have enforcement powers to arrest suspects).
  • However, with the conclusion of the Dayton Peace Accord in 1995, things changed. The Dayton agreement, which was signed not only by the parties to the conflict (ie the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia) but also by the European Union, France, the Federal Republic of Germany, the Russian Federation, the United Kingdom and the United States, created a comprehensive framework for the restoration and implementation of peace in Bosnia-Herzegovina. It also made provision for the deployment of an international force (IFOR, later SFOR) to implement the agreement. A day after the Dayton agreement was accepted, the UN Security Council, under its Chapter VII powers, authorised the establishment and deployment of an international military force in Bosnia to implement the agreement. This resolution empowered the military force to take all necessary measures to effect the implementation of and ensure compliance with the agreement, including arresting accused war criminals indicted by the ICTY. Initially, IFOR and SFOR were reluctant to make arrests for fear of military reprisals. In the last two years or so, however, the number of arrests effected by SFOR has increased.
  • As of June 2000, the ICTY had indicted (officially charged) 67 people, including Slobodan Milosevic, the president of the Federal Republic of Yugoslavia — the main instigator of the wars in the former Yugoslavia — Radovan Karadic, the leader of the Republika Srpska, and Radko Mladic, the leader of the Bosnian Serb Army. Several high-level Bosnian Croat military commanders/political leaders have also been indicted. Out of the 67 indicted, 37 are in the Tribunal’s custody. So far, 15 accused have been convicted.
  • In a very real sense, the work of the ICTY has contributed to the peace process in the former Yugoslavia. It was because of the fact that he had been indicted by the Tribunal that Karadic was banned from representing the Bosnian Serbs at the Dayton negotiations. After the accord was signed, a Bosnian government representative commented that the Bosnian government could not in all credibility have sat around a negotiation table with Karadic at the time. Had Karadic participated, it is thus highly unlikely that a peace agreement would have been reached.
  • In accordance with the Statute, the Court will only be able to exercise jurisdiction if the state where the crimes were committed or the state of nationality of the accused has ratified the treaty or accepts the jurisdiction of the court over the crime.
  • In terms of its binding Chapter VII powers. In such a case it matters not whether or not the ‘situation’ referred to occurs in the territory of a state party to the statute or not — the referral and exercise of jurisdiction will be binding by virtue of the fact of a binding Security Council resolution (much like in the case of the ad hoc tribunals).
  • In practice, the tribunals will request that the national state terminates its proceedings and hands the matter over to the tribunal.
  • However, as mentioned above, the Statute makes provision for the referral of a matter to the court by the Security Council through a Chapter VII resolution. In this instance, the Security Council could potentially use its Chapter VII powers to compel co-operation.

    It also always remains open to the Security Council to determine that any situation which has been referred to the court constitutes a threat to international peace and security, and to issue Chapter VII resolutions binding on all states to comply with the orders of the court. Potentially, an international military/peacekeeping force could be established to implement a peace agreement involving a situation where persons have been indicted by the permanent international criminal court. Depending upon the terms of such an agreement, and whether or not there has been Security Council authorisation, such forces could be authorised to or have a duty to arrest indicted war criminals.
  • M Scharf, The Special Court for Sierra Leone, ASIL Insight, October 2000, <www.asil.org/ insights.htm>. Soon after the Lomé agreement, the rebel leader Foday Sankoh and his supporters resumed attacks against the government’s forces, allegedly committing widespread atrocities against the civilian population. Sankoh was recently captured and is in government custody.
  • The link between peace and justice was again emphasised by the Security Council in Resolution 1315 of 2000 which calls upon the Secretary-General to negotiate an agreement with the Sierra Leone government to establish a special court: "Recognising that, in the particular circumstances of Sierra Leone, a credible system of justice and accountability for the very serious crimes committed there would end impunity and would contribute to the process of national reconciliation and to the restoration and maintenance of peace ..."
  • Scharf, op cit.
  • See the Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, S/2000/915, section 5.

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