Authored
by: Teresa M. Dettloff
While far
from perfect, the international legal system, as it continues to develop, has
brought many war criminals to justice for committing war crimes, crimes against
humanity, and grave breaches of the Geneva Convention (grave breaches of the
Geneva Convention are often not charged currently in lieu of charges of crimes
against humanity and war crimes). International Criminal Tribunals are the
organs responsible for disseminating international legal jurisprudence.
Criminal law (or ICL
in the international context) is the practical application of International
Humanitarian Law (IHL) in that it gives IHL a backbone; criminal tribunals
impose real, criminal consequences for violations of IHL.
Despite the
argument that international criminal tribunals lack the enforcement
capabilities to prosecute war criminals successfully, the International Criminal
Tribunal for the Former Yugoslavia (ICTY) has had pronounced success in
bringing war criminals to justice. As of July 2011, there were no
fugitives from the ICTY, meaning that all 161
individuals indicted under the ICTY have been accounted for, whether they
have stood trial, are awaiting trial, or were pronounced deceased. The ICTY
alone has sentenced 83 individuals for war crimes and crimes against
humanity, and 14 additional individuals are serving out their sentences in
domestic jurisdictions. The International Criminal Tribunal for Rwanda (ICTR) has indicted 93
individuals total, sentencing 61, acquitting 10, and referring 10 to national
jurisdictions to stand trial. Three individuals died before or while standing
trial, two indictments were withdrawn before trial, and three individuals are
fugitives.
The most
frequent critique of international criminal tribunals, and the United Nations
(UN) as a whole, is the lack of enforcement mechanisms to ensure compliance.[1]
This fact is true; the UN does not have a police force to enforce it’s own
rules, but instead, relies on Member States to deploy their own resources to
act in accordance with UN mandates. Under traditional realist doctrine, every
country acts in their own interest, avoiding responsibility and collective
cooperation. However, the UN, and international criminal tribunals, have
flourished in spite of the enforcement gap.[2]
In a
perfect world, international criminal tribunals would not be necessary because
domestic legal systems would have the infrastructure to prosecute world leaders
for grievous misconduct. Unfortunately, many post-conflict countries lack the
legal infrastructure to prosecute these types of cases, leading to a necessity
for international tribunals.
The legacy
of international criminal tribunals is Joint Criminal
Enterprise liability—JCE I, II, and III. JCE liability, developed at the ICTY
and now used by the International Criminal Court (ICC), is a mode of liability
used to hold accountable individuals who never got their hands dirty committing
crimes, but facilitated war crimes and crimes against humanity and were members
of wide-scale conspiracies involving crimes such as genocide, forcible transfer
and deportation, and the like. This type of liability is not as damaged by the
enforcement gap as it may appear to be. UN criminal tribunals prosecute
well-known and high profile individuals that were ranked as prominent military
members or held positions of political power. As often is the case with the
conflicts that UN tribunals prosecute, they have been resolved in one way or
another, and often the individuals being prosecuted no longer hold positions of
power. Local governments are far more willing to comply than it may initially
seem.
Even though
international subpoenas are not backed up by law enforcement, domestic
institutions are holding people accountable, and helping to bring in many of
the war criminals responsible for atrocities all over the world. The purpose of
international criminal tribunals is not to try individual soldiers for
misconduct—it is to hold accountable military and political leaders who are
responsible for some of the world’s most heinous crimes, while never actually
firing a weapon. Despite the lack of tangible enforcement mechanisms, countries
around the world are stepping up. In that sense, ICL is just what IHL needs.
[1] For a comprehensive study on critiques of international
organizations, see Michael Barnett
& Martha Finnemore, Rules for the
World: International Organizations in Global Politics (Cornell
University Press: 2004).
[2] For more on the enforcement gap, see Margaret P. Karns & Karen A. Mingst,
International Organizations: The Politics
and Processes of Global Governance (Lynne Rienner Publishers: 2010).
No comments:
Post a Comment