Effectiveness of International Courts and Tribunals - Essay Example

Running Head: International Courts and Tribunals International Courts and Tribunals [Institute's International Courts and Tribunals: Are international courts and tribunals ever effective when they dealing with human rights "The fundamental rights of [humanity] are, first: the right of habitation; second, the right to move freely; third, the right to the soil and subsoil, and to the use of it; fourth, the right of freedom of labor and of exchange; fifth, the right to justice; sixth, the right to live within a natural national organization; and seventh, the right to education." the trials of World War II give birth to significant ideology. Specifically, it defined parameters for crimes against humanity as a vital part of law. Though both tribunals at Tokyo and Nuremberg , and all successive trials held by various military tribunals, left inapplicable guidelines regarding war crimes and violations of human rights. Despite the measures left behind by British military tribunal, all international and especially Americans did not practice separate hearings for matters in which guilt has been established. Most tribunals seldom affix an obligatory final clause to their judgments appraising extenuating factors in rare cases. Therefore there is little or no standard to help courts and tribunals now that that international justice has been rejuvenated almost 50 years later with the setting up of international tribunals for the previous Yugoslavia and Rwanda. Firstly what are international tribunals, international criminal tribunals are specialized courts set up to convict individuals accused of violations standardized under international humanitarian law as committed in a particular place and time. (Albert Schweitzer, np, 1960) It is imperative to understand what the international criminal tribunal for Rwanda is. The ICTR has prominent jurisdiction to arraign people accused of genocide, human right violations and war crimes. In Rwanda particularly between January 1st and December 31st, the trial courts situated in Arusha, Tanzania, the appeals court situated inn the Hague, and the Second-in-command Prosecutor was located in Kigali, Rwanda. Till today the tribunal has handed down 22 judgments in which 28 were accused. Eleven trials are in progress, involving a grand total of 27 accused. Surprisingly these include up to eight ministers, one parliamentarian, three prefects, about eight military officers and tree burgomasters. The tribunal holds about fifteen detainees awaiting trial and about fourteen remain at large. All trials are presumed to end by 2008 and closing date set at 2010.as of 2006 about 102 countries were a part of the international criminal court, all NATO members except turkey and two members from the UN Security Council France and the United Kingdom. Although the United States has long been involved in international justice, currently USA is opposed to the ICC, although US has been kind enough not to bar UN security council vote to refer to crimes committed in Dafur to the ICC Prosecutor, officials say that US will assist if asked by the court. An important considerations is the ethical aspects of these trials, the Rome Statute incorporates the very best evolved, most ample understanding of what comprises a fair trial. In addition the Rome Statue contains every chapter process protection in the constitution of the United States of America, the death sentence is excluded. The world is greatly concerned if ICC will conduct any investigations in Iraq; this is highly unlike because of the fact that all potential crimes were committed on Iraqi territory, on which ICC does not have any jurisdiction as Iraq does not belong to the parties to the Rome Statue. All prosecutors agreed that all allegations concerning killings and maltreatment of civilians were substantial and failed to be admissible under the Rome Statue, which require crime to be of a certain level. Prosecutors believe that such allegations need to be addressed on a national level. (McMorran ,np, 2003) In the first three years of the existence of the Tribunal has passed out daunting number of ruling and substantive issues regarding international law. The tribunals in Yugoslavia especially had many procedurals accomplishments which are significant. it had adopted the complete set if rules for conducting criminal proceedings. These rules of procedure had significant innovations, such as the induction of rule 61 procedure, which is enforced in cases when the custody of accused is hard. The tribunal also inducted rules to depict international standards in traditional areas of criminal prosecution like having access to prosecution documents. The tribunal's rules also contain a few evidence provisions that cater for the admissibility and the criteria for exclusion. Eventually the tribunal can be regarded as the protector of humanity rights standards in two broad respects. It was initially set up to assert the basic rights of the thousands of civilians who were battered victims of war crimes in Yugoslavia, being the first ever tribunal set up, it must strive to be commendable in its adherence of human rights standards keeping the accused in mind. The friction between these two roles might be reflected clearly in the umpteenth decisions made on witness protection. When in turn the prosecutor tried to keep secret from the accused the tribunal was compelled to reconcile the need to protect witnesses and give them a chance to speak, and a right to full and fair trial. In striking a balance both the chambers and tribunal found it essential to seclude themselves from other involved judicial bodies. The problems faced in balancing the rights of the accused and witness was portrayed by the two trial chambers. Chamber two has agreed to permit the anonymity of witnesses during trials and chamber one on the other has ordered anonymity beyond pre-trial. The international criminal tribunal of Yugoslavia is still in its inception stage. Its jurisprudence which amalgamates different facet of law needs to be improved and tested to a greater extent. Undoubtedly the tribunal's achievements are magnificent and its infrastructure and jurisprudence provide foundations for an international criminal court. The obtaining of custody has been one of the major issues of the tribunal also teach an important lesson, for an effective court to function one need to have the authority and zeal to bring offenders to trial. (Duggard, 1, 1997) During the first hundred days following the brutal assassination of Rwanda's president April 6th 1994the citizens of this minute African republic experienced, by far the most hideous genocide the world has witnessed, in the period of next few months over 800000 people were brutally massacred by the Hutu majority. The killings were carried out in the most derogatory manner with neighbors killing each other, Hutu husbands killing their Tutsi wives, gangs raped and tortured women then cutting of their breast before killing them, people were burnt alive or drowned. People belonging to the Tutsi tribe were hunted all over the country. No place could be considered a safe haven, all joined in this ludicrous frenzy, priests, teachers, policemen and burgomasters. Most of the jails and court houses in the country were bought down to ruins. The new government now had the responsibility of building up a justice system from scratch. In the alacrity to deal with the consequences of the genocide, the United Nations decided to set up the ICTR, International criminal tribunal for Rwanda, and adopted the Organic Law system in the following year. Unfortunately both the organic law and the ICTR where developed by the west which lacked understanding of the complexities of Rwanda's society. Solely based on the model of retribution, neither forum as been able to efficiently deal with the intricate issue of how to deal with the accused of the 1994 genocide. The goals of the ICTR were mainly to bring the culprits of the genocide to justice. Set up in frame of tribunals of Nuremburg the ICTR was based on western notion of criminal law. It comprises of Western and European procedures as well as privileges according to the west. Punishments as well are based on western culture alien to African societies. Along with this there are many reasons why the new government of Rwanda opposed ICTR since its conception. Primarily, the issue of including the death penalty as a form of punishment for the starters of the genocide, jurisdiction and location of court seats. Unjustified procedural issues liking the releasing of a leader of the genocide, Jean-Bosco Baryagwiza, as the tribunal was inefficient in being him to trial after his arrest, has led to strong denunciation and distrust in the tribunal by the people. To the narrow minded, respect for the court was even diminishing as they viewed them as foreign instrument. Most locals have absolutely no access to the courts. The majority was financially impaired t travel to Arusha, and so could not participate. And due to the lack of televisions in Rwanda, and only few rich locals having access to unbiased reports. Accordingly, the people had not a chance to review the facts of the genocide, its planning or execution, neither did they see the individuals behind the massacre being bought to trial. In process victims didn't get to face their abusers, leaving a huge vacuum by the Hutu, which in turn impediment to reconciliation, therefore in order for Rwanda to excel with the reconciliation process the Tutsi must forgive of the responsibility of the genocide. Although the ICTR has had some success in hunting down fugitives responsible for the genocide that fled Rwanda in 1994, and gave notice to the international community that such crimes against humanity go unpunished, but in the bigger picture ICTR has been quite unsuccessful in its higher objectives of healing and reconciling Rwanda's divided society. The argument reflects the tribunal's fragile position. It cannot come across as giving into Rwandan pressure. If the ICTR wants to come across as an impartial delegation in the eyes of the international community and defense lawyers then it will need to corroborate with the Rwandan government. (Jefferson, np, 2004) Unfortunately the Genocide convention neither stipulated the punishment type of system of justice. All that was expected was the tribunal show competence and punishment be effective. The international lawyer's common repugnance for impunity, to design a legal system based on the Nuremburg model dealing with war crimes and violation of international law. But the fact that all societies are not same was ignored by these lawyers, the issues prevalent in Rwanda were different and sensitive compared to any other society in terms of law and concept. In numerous ways the internal violence was akin to the entire family of violence. The families and victims did not heal just by imprisoning the offenders. As there are many ways to remedy the scars of the victimized families so should there be flexibility in dealing with violence in the nation. Therefore the ICTR and the Organic Law have failed miserably in Rwanda. Gacaca is probably the government's last chance to establish laws which will seem substantial and reconciliation more than just a tribunal. For some the Gacaca may seem a program with little competence, for other it is a solution to problems. In both cases, it is highly unlikely to cause an improvement in the system operating in Rwanda. And vitally this is an attempt by the government to force the population to be involved in the justice system as a mechanism to participate in the society. This is from far a solution to Rwanda's problems but a small step towards justice will definitely be better then none at all. Conversely at the same time, Rwandans are not going to impart any trust on the tribunal until they perceive the genocide culprits are hiding in Arusha. Both tribunals in Yugoslavia and Rwanda have undoubtedly contributed to revolutionary jurisprudence on sex violence and gender and armed conflicts. But both have been ineffective due to weak investigative abilities as well as long term prosecution strategies. Before the end of its term the tribunal risks being remembered for what it couldn't achieve rather than achieved. The ICTY like the ICTR was established to prosecute serious crimes again human, breaches against the Geneva Convention committed in Yugoslavia since 1991. The world community of women's rights has applauded the creation of ICTY as it consents public revelation of rape in war. Human right activist perceived the ICTY would try sexual assault cases in equilibrium to other crimes during the war. The ICTY like the ICTR has definitely failed to meet its expectations and requirements for establishing the much needed accountability for Sexual violations in Yugoslavia, although it has to its credit have about twenty seven sex related crimes. (Maogoto, 73, 204) The ICTY's past record on prosecuting is underwhelming, many of its tried cases have revolutionized jurisprudence on sexual abuse. In one radical case the ICTY convicted Draoljub Kunarac, Radomir Kovac and Zoran Vukivic for Torturing, raping and enslaving, the three got up to twelve and twenty eight years imprisonment. These convictions were considered monumental as it marked the first time ever an international tribunal's conviction for a crime solely based on sexual violations. Similarly like the ICTY, the ILTR has failed to prioritize sexual violations. Although the United Nations and many other NGO's have calculated that thousands of women were sexually assaulted during the genocide in Rwanda, the ICTR has by far only handed one conviction involving sexual abuse that sustained appeal. Countries attempting to make a shift from a harsh exploitive regime to democracy, these sorts of tribunals offer the citizens and leaders to instill faith in an equitable law. Countries that intend to become pure democracies must accept international law and enforce them on powerful criminals. Will this process and transitions takes enormous national wealth and will, nations that successfully instill these tribunals within their counties prove to the world they can function effectively without resorting to harsh methods of repression and violence. Thus tribunals have the potential to assist emerging democracies attain he benefits of a substantial legal system which setting aside past atrocities. (Victor Peskin, np, 2002) One of the most powerful arguments against any war tribunals is that they provide justice to victors. The essential ingredient missing from the Second World War was nit Hitler at Nuremberg but the criminal trials from the Americans, Russians, English and French who committed atrocities considered crimes of war if allies had to lose the war. The mass bombing of the city of Dresden and atomic bombing of Nagasaki and Hiroshima are apparent acts for which Allied leaders would have definitely been tried for war criminal offenses in the favor of Germany or Japan. War tribunals do not always assuage the causes of conflict. At times these tribunals escalate the conflict in a multi ethnic society. Usually in the case of a genocide its one particular group to blame, this group maybe oppose the tribunal. In Rwanda, Hutus were accused of killing Tutsis. Now if the tribunal was being run by the Tutsis a fair trial wouldn't be possible. Thus a war tribunal could act as a separator between two groups. While it is easy and fulfilling to put enemies into prison for what he or she might have done, it is not entirely fair if all those that participate in war are not tried at the same standards. If truth be told one of the reasons why U. S. has failed to recognize and support the international tribunal for crimes of war, the International Criminal Court, for one feel the American officers might be found guilty. The Americans also feel that this Court may and will be used for political leverage and revenge against the world's only dominant superpower. (Drew, np, 2000) References Drew, Philip (2000). Dealing with Mass atrocities and Ethnic Violence. Retrieved May 20, 2008, from Canadian forum of Civilian Justice Web site: http://cfcj-fcjc.org/clearinghouse/drpapers/rwanda.htm Dugard, John (1997). Declining Jurisdiction in Private International Law. European Journal of Internatioal Law, 8, Retrieved may 19, 2008, from http://www.ejil.org/journal/Vol8/No1/sr1-03.html Fraham, Karin (2001). Multiplication of International court. Retrieved May 20, 2008, from Max-Planck-Institute Web site: http://www.mpil.de/shared/data/pdf/pdfmpunyb/oellers_frahm_5.pdf Jefferson, LaShawn (2004). Human rights watch world Report. Retrieved May 20, 2008, from Human Rights watch Web site: http://www.hrw.org/wr2k4/15.htm McMorran , Chris (2003). International War crime tribunals. Retrieved May 20, 2008, from Beyond Intractability Web site: http://www.beyondintractability.org/essay/int_war_crime_tribunals/ MAOGOTO , JACKSON (2004). The International Criminal Tribunal for Rwanda: A Paper Umbrella in the Rain Initial Pitfalls and Brighter Prospects . Nordic Journal of International Law, 73, Retrieved may 20 2008, from http://papers.ssrn.com/sol3/papers.cfmabstract_id=901221 Schweitzer, Albert (1960). Human Rights Quotes. Retrieved May 20, 2008, from Wisdom Quotes Web site: http://www.wisdomquotes.com/cat_human_rights.html USA, Amnesty International (nd). Factsheet. Retrieved May 20, 2008, from Amnesty International USA Web site: http://www.amnestyusa.org/international_justice/pdf/Factsheets.pdf Victor Peskin, Victor Peskin (2002). Legal Affairs. Retrieved May 20, 2008, from Legal Affairs Web site: http://www.legalaffairs.org/issues/September-October-2002/feature_peskin_sepoct2002.msp Read More