The Legitimacy of the International Criminal Tribunal in Yugoslavia and Rwanda - Essay Example

Cons and pros of ICTY & ICTR There is a growing number of theorists who now accept the idea that there exists a “concept of legitimacy” that is crucial on political, legal and ethical research in world affairs. The scholars have continuously challenged this view and argue that legitimacy in global affairs has continuously vanished and states are part of a larger global state that cannot declare utmost legitimacy to political and legal boundaries. Legitimacy is a field that presents difficult issues and problems in both research and practice due to the vagueness in which the term is defined with, and the use of this idea without clear boundaries of what state and legal legitimacy entails in international relations. This brings about the tension between world political theorists concerning the advocates of international legitimacy notion. There are arguments that before international community get into a defined political boundary, that has to be clear offer from the international community and the benefits to be achieved in such intervention has to be gauged to allow the exercise to proceed. Idea of legitimacy has been defined in terms such as enhanced order; stability, effectiveness and these are the factors that define a legitimate system of power derived from obligations that the political system has upon its subordinates, and the legitimacy that the subordinates impose on that a political system (Rudolph, 680). Several studies have been done on the issue of international community intervention legitimacy in both Rwanda and Yugoslavia tribunals with different scholars pulling the idea of legitimacy and the suitability of such tribunals in different dimensions. Below is a review of some of these studies that reflect on the suitability such international intervention as argued by different scholars. The study by Barria and Ropper on “how effective are international criminal tribunals? An analysis of the ICTY and the ICTR”, Ropper and Barria argue that the mandate of these tribunals were very narrow and in sometimes these tribunals might not meet the time allocated due to the strictness in the limitation of time factor and the number of crimes that were to be investigated by such tribunals. For example, Barria and Ropper (350), elaborate that the mandate of ICTR was much narrow as compared to the mandate of ICTR in terms of time that was allocated being 1 year, and the number of crimes that the tribunal was allowed to investigate. Barria and Ropper have a view that due to such restrictions in such tribunals it becomes extremely difficult for these tribunals to be effective in meeting their objectives, and the number of people apprehended by such tribunals is seriously lower than expected. Gauging by the seriousness of the atrocities committed in both cases, the low number of apprehension diminishes the deterrent effect of the tribunals (Barria and Ropper, abstract). Considering the ICTY, it was established under the Security Council through resolution 827 that states the mandate of the ICTY as “sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of former Yugoslavia between 1 Jan and 1991and a date that was to be determined by the Security Council upon the Restoration of peace” (Barria and Roper, 354). Article 7(1) of the resolution that established ICTY explains that “a person who instigated, planned, ordered, committed or otherwise aided and abetted in the planning, preparation of execution of a crime shall be individually responsible for the crime” (Barria and Roper, 354). The problem with this resolution was that it was not clear on the level of participation of these persons in these crimes since the resolution does not specify such an extent. The tribunal was also not allowed to give penalties that included death penalties to those found guilty. These were some of the shortcomings that seriously affect eh effectiveness of such a tribunal in meeting its objectives. Likewise ICTR was formed under Resolution 955 in 1994 and was required to have competencies on issues that ranged from crimes against humanity, genocide and violation of Article III in the Geneva Convention (Barria and Roper, 354). ICTR was however granted only 1 year to investigate crimes that were committed in Rwanda between 1 January and 31 December 1994. Any crime outside this period though related to the above crimes was out o the mandate of this tribunal, the trial chamber of ICTR were not also specified. While Rwandese legal system permits death sentences related to that above crimes, ICTR rejected this approach and only limited the mandate to life imprisonment. The tribunal means that those who were responsible could not face the death penalty as the Rwandan legal system requires. This was viewed as a loss of effectiveness in the Rwandan tribunal. Chayes and Chayes in a study “On compliance,” argue that whenever states enter into an international agreements, they are bound to comply by those standards to the best extend possible. According to Chayes and Chayes (176) though the general level of treaty compliance cannot be measured empirically, there has to be a background assumption of prosperity to comply rather than realist assumption to the effect that states violate treaties whenever it is in their interests to act to that effect. Chaye and Chayes further argue that there is no need for strict compliance to treaties, but an acceptable level of compliance in safeguarding the overall interests of the treaty is all that is required by a regime. Chayes and Chayes (179) elaborate that treaties are highly related to the interests of the state, and state cannot be legally bound to commit to such treaties except with their own consent. It means that a state cannot be coerced to enter into treaties that are not as per their own consent, and the treaty making process is a learning process, in which both national position and conceptions evolve in the direction that would aid in inducing compliance of the same (Chayes and Chayes 180). This assertion is a bit vague as argued from the ICTR tribune that was based on the UN resolution. The Rwandan government had objected to the penalties prescribed in Resolution 955, and wanted the death penalty to be included instead of the life imprisonment as required by their legal system (Barria and Roper, 354). The UN resolution did not take this state’s interests in the resolution and made a resolution that was against the will of the state, despite the aim of a treaty being to the best interests of the state. The limitation of the number of crimes that were to be investigated by these tribunals both in Rwanda and Yugoslavia, largely mean that most people who were actually guilty of crimes against humanity could not be charged and walked free due to the stringent and narrow approach that the UN resolution on the tribunal defined. This puts doubt on the ability of treaties to serve the national interests of the member countries. This best explains the ambiguity and indeterminacy of treaty language that may not be supported by the political system of the specific state in which such a treaty has to be applied (Chayes and Chayes, 180). This might result to the free rider problem where some states might continuously adhere to the treaty while others remain defiant to such treaties as they do not accord to the national interests. This was observed in the case of ICTY, where despite the tribunal issuing 34 public indictments, there were no defendants in custody (Barria and Roper, 354), the compliance of the state in such a case was questionable and might be reflected on the composition of the tribunal and the effectiveness in which it was aimed to achieve under its mandate. These two studies therefore might be argued to challenge the effectiveness and the spirit if such tribunals. Rudolph in a study “constructing and atrocities regime,” argues that due to proliferation of atrocities across regimes in the world and human rights violations, the norms of sovereignty that have limited intervention in cases of internal atrocities are being reconfigured (Rudolf, 681). The growing media coverage and nongovernmental organizations according to Rudolf are watchdogs that are use to check such regimes. Once these tribunals are established they articulate and reinforce the norms of state conduct and may also apply coercive force to states by calling for investigations or releasing information to the media (Rudolf, 681). Since states would not like to be labeled as ‘pariahs’ or ‘rogues’ in a global world, the states have to bow to this pressure and to enhance their reputation in the world of interdependence, where states would like to be associated with others. Therefore, Rudolf suggests the involvement of the international community before such regimes breakdown to atrocities as compared to an ex post facto case such as was the case in Rwanda and Yugoslavia (Rudolf, 682). Tribunals as Rudolf elaborates do not solve the problem and in fact are brought about as a cover up by the international community in the feeling that they had an obligation to protect the degeneration of the states into war as was in both countries. Rudolf indirectly attacks the effectiveness of these tribunals and blames the UN for watching over atrocities as they happen to form tribunals that are in most cases not able to deal with the delicate beeline in these states. This study is much similar to Barria and Roper study, which puts more doubts on the effectiveness of such tribunals. Rudolf however goes further to suggest a priori intervention as compared to formation of tribunals. Giving the case of Cambodia, East Timor and Chechnya, Rudolf remarks that “the just war (in targeting military strongholds) may involve regrettable human costs that should not be prosecutable offences under international law” (Rudolf, 682). War prevention should therefore be given an upper hand compared to military intervention. Hurd in a study “legitimacy and authority in international politics” argues that there is a need for all systems to confront the social control problems and get all actors to comply with society’s rules. However the problem is that the international community has no overarching center that has a palatial power that would enforce rules (Hurd, 398). Largely, Hurd argues that there is a need for the international community to ensure social order and countries cannot be taken as ‘Hobessian state of nature’ where material powers is the only important aspect or where the international community might only intervene when it is in the self interests of the state (Hurd, abstract). Hurd supports the intervention of international community despite the reluctance of individual states to accord to such requests; being against the self interests of the state. This might be explained to be the case of Rwanda tribunal Resolution that denied Rwanda the right to have the interests of passing death sentence to those found guilty in the tribunal as its legal system demanded (Barria and Roper, 354). Hurd further in the norm of legitimacy argues that ‘the belief by an actor that a rule or institution ought to be obeyed’, is crucial consideration because it confers authority upon governance structures” (Hurd, 381).Therefore, legitimacy of power is not embedded to the state only but to the other power structures such as international community that have a legitimacy to project the idea of democracy, human rights observation among others. The tribunals according to Hurd were in order and the international community had a role to ensure the systems were in place to maintain the social order. The above studies in investigating the effectiveness of international community intervention in case of crimes against humanity and genocide portrays, that there are grievous shortcomings in the establishment of the tribunals and the way the international community responds to such cases. However, there is a general agreement that the legitimacy of the state is not undermined by such intervention and the power structure by international community has to be excised to bring back social order. However, the timing of the intervention has been criticized as being too late, with formation of tribunals rather than preventing the atrocity from degenerating into genocide. Work Cited Chayes & Chayes, “On Compliance,” International Organization, (1993): 175-205. Christopher Rudolph, “Constructing an Atrocities Regime,” International Organization (2001): 681-687. Ian Hurd, “Legitimacy and Authority in International Politics,” International Organization, (1999): 53, 379-391. Lilian Barria & Steven Roper, “How Effective are International Criminal Tribunals?” The International Journal of Human Rights, (2005): 349-368. Read More