Wednesday, September 28, 2016

The Case for International Criminal Tribunals


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 Three individuals died before or while standing trial, two indictments were withdrawn before trial, and three individuals are fugitives.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).

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