Prosecutor v. Tadic – 1995 (653) Defendant challenged legitimacy of Tribunal
Court finds that situation in former Yugoslavia was threat to peace
Then, SC has broad discretion to create appropriate remedy
Clearly not under Article 42 – military use
But, perfect under Article 41 – “measures not involving the use of force”
International Criminal Tribunal of Rwanda
Why are domestic tribunals less capable of handling cases in situations of gross violations of HR, particularly in states undergoing transition from authoritarian to democratic rule?
Judicial system might have totally inadequate physical resources, not enough trained judges and lawyers
Gov’t in power might use judicial system as weapon against political enemies
Domestic prosecutors might refuse to prosecute/judges might be afraid to hear cases against powerful governmental officials, former official, their supporters
Rwandan “gacaca” – traditional Rwandese method of conflict resolution
Most judges have no legal or HR background
International Criminal Law at its best?
Tapping into the legitimacy associated with law
However, RESOURCE limitations
End up focusing on individuals
Obscuring accountability for governments, organizations, senior leaders, non-governmental entities
Non-governmental entities also do not have same pressure to conform to int’l humanitarian law or maintain int’l reputation
Have to focus on DOMESTIC PROSECUTIONS of all war criminals at all times
Khmer Rouge in Cambodia
Communist party of Kampuchea (CPK)/Khmer Rouge – overthrew Cambodian government, and replaced with Khmer Republic.
1975 – renamed country Democratic Kampuchea
Caused deaths of 1.5-1.7M through forced population movements, forced labor, inhumane living conditions, attacks on “enemies” (including ethnic minorities).
Years of low level border war with Vietnam, then ten years civil war (khmer rouge v. Vietnamese former khmer rougers).
1986 – consideration of ICJ suit against Democratic Kampuchea
Draft accused DK for violations of Geneva Convention and customary int’l HR law
Jurisdiction based on Genocide Convention Article IX (disputes to ICJ) and/or Cambodian acceptance of ICJ jurisdiction
Can agree genocide committed against minority Cham, ethnic Vietnamese, Chinese, Thai, and Buddist monks
What about atrocities against general Cambodian population?
Khmer are “national group” – problem of INTENT.
Problem of Genocide Convention – mass killing of one segment of a group by another segment of that same group
1991 – everyone agreed to peace agreement.
NO ONE PRESSES CHARGES
“peace before justice” again.
Session 19 – International Criminal Court (Individual International Rights, Part Five) International Criminal Court
70% of world lives in countries not covered by ICC jurisdiction
Even those who participate, fail to cooperate fully (i.e. South Africa)
CRITICISM – Court for AFRICA.
Majority of countries we’re concerned with have signed
Exception – SUDAN. Before court through SC.
But better because no temporal or geographical restraints ala the ad hoc tribunals
May not issue many indictments, but effect might be useful if threat of ICC prosecution can be deterrent
Establishment of ICC
Intended to establish post-Nuremberg
Gave job to International Law Commission to develop standards – codify and progressively develop int’l law