The creation of the ICTY-ICTR provided a catalyst for the prosecution at national level of crimes committed in those countries. War crimes chambers were set up in Bosnia and Serbia; many proceedings were brought before the courts of Rwanda. In addition, throughout the last two-three decades various int’l. criminals had to respond for their misdeeds: - In South Africa those accountable for civilian atrocities were put on trial. - The bloody dictator of Chile, Augusto Pinochet faced the prospect of extradition and trial. - The former President of Chad, Hissein Habre was arrested in Senegal. - The leader of the terrorist organisation PKK, A. Öcalan, was convicted to lifetime imprisonment by Turkish courts. - The former president of Serbia, Slobodan Milosevic died as he was being tried in The Hague by the ICTY. - In addition, an int’l. criminal tribunal was set up in Sierra Leone; extraordinary chambers exercising criminal jurisdiction were set up in Cambodia, a special court was set up in Lebanon, “so-called special panels” were set up in East Timor, a sui generis court tried the perpetrators of the Lockerbie tragedy, the Iraqi High Tribunal tried the high-ranked officials of the Baas regime, including Saddam Hussein.
THE NEED FOR AN INTERNATIONAL CRIMINAL TRIBUNAL
You might think that murder, torture, rape and acts of similar gravity are crimes in every State. Therefore, the perpetrators of mass atrocities may be tried before the local courts of any State. You might think that murder, torture, rape and acts of similar gravity are crimes in every State. Therefore, the perpetrators of mass atrocities may be tried before the local courts of any State. However, experience has proved that the reliability of national organs to prosecute serious violations of int’l. criminal law (ICL) is limited. For example, at the end of World War One, German war criminals were tried at Leipzig before their own courts. The result were “show trials” which turned into a mockery, and justice was denied. 907 proceedings were initiated before the German Reich Supreme Court on the basis of the extradition list, and the Court took up 837 more proceedings on its own initiative. However, only 13 proceedings actually reached the trial stage. 9 trials concluded in a judgment as to the merits. 6 accused were acquitted by overextending the scope of concepts such as “military necessity” or “superior orders”. The 10 remaining accused who were convicted were sentenced to very light terms compared to the gravity of the offences they had committed. And even worse, even those sentences were never fully executed (the statistics are conflicting, different sources provide for different figures. The info provided here is taken from Werle et al. at 5)
Similarly, after WW2, the war criminals who managed to escape international prosecution were very seldom tried by national courts. Similarly, after WW2, the war criminals who managed to escape international prosecution were very seldom tried by national courts. An exceptional example is the trial and conviction by the Ottoman Empire during WWI of 1397 accused held responsible for the death of Armenians during the deportation of 1915. Although many argue that these trials were only made possible thanks to political pressure exercised by Western States (which is true), it is also a fact that many persons responsible for the deaths of Armenians, including high-ranked State officials, were tried. In fact, many of them were sentenced to death.
National courts may be UNABLE to start or continue the trial. For example, at the end of a devastating civil war, the national judicial system may have collapsed. National courts may be UNABLE to start or continue the trial. For example, at the end of a devastating civil war, the national judicial system may have collapsed. Secondly, a state which has jurisdiction over the crime may be UNWILLING to exercise it. In the next slides, I will explain in detail this second factor.
Unwillingness may depend on the fact that the perpetrators are still in an effective position within the state. This was the situation in post-conflict Serbia: the military and political staff which was alleged to have committed many international crimes was still in power in Serbia. Indeed, it is only after his fall from power that Milosevic was submitted to international authorities in order to be tried. Unwillingness may depend on the fact that the perpetrators are still in an effective position within the state. This was the situation in post-conflict Serbia: the military and political staff which was alleged to have committed many international crimes was still in power in Serbia. Indeed, it is only after his fall from power that Milosevic was submitted to international authorities in order to be tried. In similar fashion, many violations are committed by state organs or state-sponsored groups against their own citizens. In such cases, these perpetrators enjoy a “de facto” (fiili) immunity within that state. When a government commits crimes against its own nationals, it is not realistic to expect the police to catch them, and the judiciary to be able to try them. Another cause for the unwillingness of the national system, especially with regard to the trial of persons who have committed crimes in/against other States, may be the risks to national security associated with a potential prosecution. Think about any state intending (at the time) to try Usame Bin Ladin. Such state would have been under the constant threat of retaliation with terrorist acts directed against its own nationals. Similarly, you may remember how Abdullah Öcalan was sent from one state to another, and no state wanted to take the risk of holding him (although, actually, it might be that they did not believe that he should be tried!)
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