Two international criminal tribunals were established in 1993

ETHR 103

• ETHR 103

• Week 14

Two international criminal tribunals were established in 1993 (ICTY) and 1994 (ICTR).

• Two international criminal tribunals were established in 1993 (ICTY) and 1994 (ICTR).

• Both tribunals were set up by the UN Security Council (see Res. 808 (1993) and Res. 827 (1993) for the ICTY, and Res. 955 (1994) for the ICTR).

• The first one, the “International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia” (ICTY) holds special importance because it was the first court entrusted with holding int’l. criminal trials 48 years after the Nuremberg and Tokyo experience.

• Furthermore, the ICTR created the next year mostly mirrors the ICTY.

• Both tribunals set a precedent and a reference for the future permanent ICC.

• In particular, the successful operation of the ICTY was a catalyst to the establishment of the ICC.

Optional reading concerning the political history and ethnic-cultural structure of, and civil war in, the Former Yugoslavia: You may read Önok, Tarihi Perspektifiyle Uluslararası Ceza Divanı, Ankara, 2003, s. 55-63.

• Optional reading concerning the political history and ethnic-cultural structure of, and civil war in, the Former Yugoslavia: You may read Önok, Tarihi Perspektifiyle Uluslararası Ceza Divanı, Ankara, 2003, s. 55-63.

• “Hatta mahkemede tanık ve sair delillerle ispatlanmış bir olayda, bir dede, torununun ciğerini yemeye zorlanmış; diğer bir vakada, bir esir, üç arkadaşının cinsel organlarını dişleriyle parçalamaya zorlanmış; diğer bir örnekte ise(,) 14 yaşındaki bir çocuk, annesine tecavüz etmek zorunda bırakılmıştır” (aktaran Önok, s. 61, dn. 216).

• Read Brdanin, para. 498-499, 503, 508-509, 512 et seq.

It is an ad hoc tribunal; It is another instance of ex post facto justice.

• It is an ad hoc tribunal; It is another instance of ex post facto justice.

• Contrary to the Nuremberg and Tokyo tribunals, it is not a military court.

• It is a subsidiary organ of the UN Security Council, as such, the Statute of the ICTY is binding upon every member of the UN.

• However, as a judicial organ, the ICTY is independent from the Security Council.

• The International Tribunal shall have its seat at The Hague.

• The temporal jurisdiction of the International Tribunal shall extend to a period beginning on 1 January 1991. This is to mean that only acts committed after that date may be tried by the ICTY.

• There is no clarity as to the final date after which the Tribunal no longer possesses temporal jurisdiction. However, in accordance with the Tribunal’s “completion strategy”, the last indictments (iddianame) were issued at the end of 2004.

• The categories of crimes over which the ICTY may exercise jurisdiction: war crimes, genocide, crimes against humanity.

The ICTY has indicted 161 persons.

• The ICTY has indicted 161 persons.

• Proceedings regarding 126 accused have been concluded: 13 persons were acquitted, 64 persons were convicted and sentenced, 16 persons, including the President of Serbia, Slobodan Milosevic, died either before or after their transfer to the Tribunal.

• Proceedings are ongoing with regard to 35 accused.

• The quite recent arrest (26 May 2011) of Ratko Mladić, who was the commander of the Serbian forces committing genocide in Srebrenica, was a major breakthrough. Again, another of the top responsible who had managed to escape for a long time, Radovan Karadžić (ex-President of the “Republika Srpska”), had also been arrested (21 July 2008) before that.

• The total budget of the ICTY since its creation is around 1.8 billion USD!

Early shortcomings: Many argued that the Tribunal was unsuccessful in its initial years of operation.

• Early shortcomings: Many argued that the Tribunal was unsuccessful in its initial years of operation.

• The Tribunal suffered serious financing problems and had a very limited staff.

• The ICTR had an advantage in that a large number of accused had already been apprehended by the new gov’t. That was not the case with the ICTY which had to start working in the midst of continuing armed conflict, and without initially enjoying the support and cooperation of States on whose territory the alleged crimes had been committed.

• The problem was aggravated by the fact that the Dayton Peace Agreement, which officially terminated the conflict and imposed upon the former Yugoslav Republics the obligation to cooperate with the ICTY, was only signed in December of 1995. But even after that date, little or no assistance was lent to the Tribunal by the various newly established States.

• Indeed, for some time, the great majority of suspects could not be apprehended. Croatia and Serbia, in particular, did not comply with their obligation to co-operate. Many suspects in Serbia, in particular, were able to conduct their daily life in a relatively comfortable manner.

By the middle of 1995, the Tribunal had still no accused to try, and States were getting tired of paying for a court that had no job (although, in April 1995, Germany deferred its own proceedings against a low-ranking suspect (Tadic), and transferred him to the ICTY for trial.

• By the middle of 1995, the Tribunal had still no accused to try, and States were getting tired of paying for a court that had no job (although, in April 1995, Germany deferred its own proceedings against a low-ranking suspect (Tadic), and transferred him to the ICTY for trial.

• As per the Dayton Peace Agreement, int’l. forces in Former Yugoslavia had the authority to arrest those indicted by the ICTY.

• On January 19, 1996 it was agreed that the NATO Stabilisation Force (SFOR) would assist in ICTY investigations and also detain any indicted persons whom it came across in the ordinary conduct of its duties.

• However, journalists and observers from Western States in the zone were alleging that UN and NATO personnel was not committing any effort in this regard, and that, as far as possible, they were trying to stay away from the suspects.

• At that time, Tomuschat was arguing that the political will to catch “the big fish” was lacking, and that only the trial of low-key figures should be expected. Even that, in his opinion, would depend on coincidences, such as being captured by chance in neighbouring countries to which they have fled hoping not to get recognized. Tomuschat even argued that the Tribunal could have been closed down without trying a case.

According to one view (Forsythe), the purpose of establishing the Tribunal was to give the impression that something was being done about the violations of international law. The Western States’ political will was not to intervene in the events, and the Tribunal was a means to conceal their real purpose. They thought about ending the conflict through diplomatic methods, and this required co-operation with alleged war criminals. If the Tribunal was to try these persons, diplomatic attempts would be undermined. Therefore, the Tribunal would exist on paper, but its hands would be tied by not providing the necessary support. In this way, diplomatic negotiations could be conducted behind closed doors without causing major stir in the public opinion.

• According to one view (Forsythe), the purpose of establishing the Tribunal was to give the impression that something was being done about the violations of international law. The Western States’ political will was not to intervene in the events, and the Tribunal was a means to conceal their real purpose. They thought about ending the conflict through diplomatic methods, and this required co-operation with alleged war criminals. If the Tribunal was to try these persons, diplomatic attempts would be undermined. Therefore, the Tribunal would exist on paper, but its hands would be tied by not providing the necessary support. In this way, diplomatic negotiations could be conducted behind closed doors without causing major stir in the public opinion.

• Even worse, in October 1996, the President of the International Tribunal, Judge Antonio Cassese, gave the Western States ten to twelve months to arrest leaders indicted for crimes against humanity in Bosnia, or he and his fellow judges "will propose to the Security Council to close down the tribunal [because it] is becoming an exercise in hypocrisy”!

• Another argument was that of secret bargains being conducted. It was speculated that a secret bargain existed between the leaders of the warring factions and the promoters of the Dayton Agreement to the effect that the former would be excluded from prosecution.

Gaining momentum: What happened until mid-way through 1997 proved that the int’l. community and the Serbian authorities in primis (in first place) were not determined or even willing to cooperate with the court.

• Gaining momentum: What happened until mid-way through 1997 proved that the int’l. community and the Serbian authorities in primis (in first place) were not determined or even willing to cooperate with the court.

• However, things started to change due to, mainly, the consistent int’l. pressure exercised on States not cooperating.

• UN personnel managed to apprehend two suspects within a month (Slavko Dokmanovic in June 1997 ve Milan Kovacevic in July 1997).

• By 1998 the Tribunal had 19 people in custody. In May 1999, Milošević was indicted for alleged crimes in Kosovo.

• The change of gov’t. in the (then) Former Republic of Yugoslavia provided the most important boost. The new administration, eager to maintain good relations with the Western States, facilitated the arrest and surrender of war criminals at large. It was clearly seen that justice could be achieved when backed up by political will.

• After this date, many suspects were apprehended thanks to the UN personnel gaining courage, and more cooperation at State level.

• The surrender of Slobodan Milošević to the Tribunal on 29 June 2001 was the culmination of the efforts to bring to justice those responsible for the atrocities committed during war time.

• In later years, many suspects who believed that they could no longer escape justice also began to surrender voluntarily.

The ICTY has been criticized for being a political, rather than judicial, structure. Its fairness and impartiality have been debated.

• The ICTY has been criticized for being a political, rather than judicial, structure. Its fairness and impartiality have been debated.

• Even so, it is fair to say that the ICTY has generally achieved its purpose.

• The Tribunal has made a very important contribution to ICL in determining that war crimes may also be committed in non-international armed conflicts. The prevailing opinion to that date was that war crimes could only be committed in international armed conflicts.

• It was established that genocide had been committed in Srebrenica.

• It might be concluded that the ICTY has proved to be an effective and reliable mechanism in establishing justice.

• The rules and principles laid down by the ICTY (and the ICTR) made a major contribution to the establishment of a permanent ICC.

ICTR

• ICTR

The videos we watched can be found at: http://freedocumentaries.org/index_cat.php?cat=27

• The videos we watched can be found at: http://freedocumentaries.org/index_cat.php?cat=27

• (Ghosts of Rwanda – 2 hours, Rwanda – 50 minutes)

• The ICTR was established in response to the tragic events which occurred in 1994 in Rwanda, namely, the killing of at least 800,000 civilians as a result of the genocide perpetrated by the Hutu majority against the Tutsi minority during the civil war.

• One data may suffice to grasp the magnitude of the terrible events that wrecked Rwanda: from April to the beginning of June, 80 % of the total casualties occurred.

• In other words, at least 500,000, and most probably 800,000 people were killed in just 100 days. Over 10 % of the total population was killed within such short period of time.

• The daily killing ratio is five times bigger than that in the Nazi concentration camps. This is to illustrate how meticolously the killings were planned and carried out.

The intervention of the int’l. community to the events in Rwanda was very weak. Not even the faint efforts, such as some UN and NATO military interventions and the mediation of Western powers made during the Yugoslavian crisis were implemented in Rwanda.

• The intervention of the int’l. community to the events in Rwanda was very weak. Not even the faint efforts, such as some UN and NATO military interventions and the mediation of Western powers made during the Yugoslavian crisis were implemented in Rwanda.

• In the aftermath of the bloodshed, Rwanda's Prime Minister-designate (a Tutsi) pressed the Security Council: "Is it because we're Africans that a similar court has not been set up for the Rwanda genocide?"

• Cryer et al. at 135-6: “Given the creation of the ICTY for a European conflict, when genocide clearly occurred in Africa, it was considered necessary and appropriate to create an analogous tribunal for crimes committed” (in Rwanda).

• The ICTR was established by way of UN Security Council Res. 955 on November 9, 1994. Its seat is in Arusha, Tanzania.

Temporal jurisdiction (Art. 7): The temporal jurisdiction of the International Tribunal for Rwanda shall extend to a period beginning on 1 January 1994 and ending on 31 December 1994. This limitation was strictly criticised by the later government in Rwanda. Indeed, as it was very rightfully stated, the preperations of the genocide conspired by the Hutus were initiated in 1990.

• Temporal jurisdiction (Art. 7): The temporal jurisdiction of the International Tribunal for Rwanda shall extend to a period beginning on 1 January 1994 and ending on 31 December 1994. This limitation was strictly criticised by the later government in Rwanda. Indeed, as it was very rightfully stated, the preperations of the genocide conspired by the Hutus were initiated in 1990.

• Crimes to be tried by the ICTR: genocide, crimes against humanity, war crimes.

To summarize the activity of the ICTR, it can be mentioned that it has been operating effectively, not being as efficient as the ICTY, though. It should be kept in mind that the ICTR has been confronted with highly serious obstacles.

• To summarize the activity of the ICTR, it can be mentioned that it has been operating effectively, not being as efficient as the ICTY, though. It should be kept in mind that the ICTR has been confronted with highly serious obstacles.

• As of 26 December 2011, 23 persons are currently being tried, 1 person is awaiting trial, further cases concerning 10 more persons are on appeal.

• So far, 42 persons were convicted (the cases of 17 more persons convicted by the Trial Chamber are pending appeal), 10 persons were acquitted, two persons died before judgment. 9 accused are still at large.

• It is worthy to note that the total budget for 2008-2011 alone was just around 500 million USD!

Problems:

• Problems:

• - Very slow start with the seat of the Court only determined in February 1995, and with major recruitment of staff problems.

• ICTR had to carry out the investigation without being able to obtain much support from the local government or the Organization of African Unity (named African Union after 1999). However, some African States did cooperate quickly. Relations with Rwanda were almost always problematic.

• The funds were not controlled well financially and administratively; there were serious allegations of mismanagement, as highlighted by a Report of the Secretary-General. The Registry was criticised very severely for financial irregularities, employing under-qualified staff, and weak asset management. The Registrar resigned.

• In the same Report, the Office of the Prosecutor was considered inefficient, and beset by leadership failure by the deputy prosecutor, who was also asked for (and made to) resign.

• The Court was confronted with thousands of suspects, but had to deal with appalling conditions in terms of physical infrastructure and the lack of local lawyers who could represent those suspects.

• There were long delays in the conduct of trials, partly due to translation problems.

• Coordination was a problem since the Tribunal is based in Arusha (Tanzania), whereas the Office of the Prosecutor is in Kigali (Rwanda).

Some achievements:

• Some achievements:

• It was determined that genocide has indeed been committed. Former Prime Minister Jean Kambanda pleaded guilty to genocide. In Akayesu (2.9.1998), in the first express application of the Genocide Convention by an int’l. tribunal, the Trial Chamber found the defendant guilty of genocide.

• It was determined that genocide may be committed by way of sexual offences.

• A milestone judgment determined the responsibility of controllers of mass media with regard to incitement to genocide.

• It is striking that the former prime minister (Jean Kambanda) and many other ministers were tried. With this respect, ICTR has been more successful than ICTY in terms of apprehending and trying suspects who are high ranked officials.

International Criminal Court

• International Criminal Court

An International Criminal Court (‘ICC’) has been established with the Rome Statute.

• An International Criminal Court (‘ICC’) has been established with the Rome Statute.

• The ICC is a permanent institution.

• The ICC is not an organ of the UN, it is an independent body.

• The seat of the Court is in The Hague, the Netherlands.

• The Rome Statute was adopted at an international conference held in Rome in 1998 (120 votes in favour, 21 abstentions, 7 against (US, China, Libya, Iraq, Israel, Qatar, Yemen)).

• The Statute entered into force on July 1, 2002.

• The Rome Statute has been signed by 139 States, and 120 States are now parties to the Statute (as of 26.12.2011).

Turkey abstained at the voting in Rome, and is not (yet) a party to the Statute.

• Turkey abstained at the voting in Rome, and is not (yet) a party to the Statute.

• However, Prime Minister R.T. Erdoğan has declared on October 6, 2004 before the General Assembly of the Council of Europe Parliamentary Assembly that Turkey would become a party to the Statute in the “near future”.

• Art. 38 of the Constitution has been amended to that effect and the provisions regarding extradition of the new Penal Code (Art. 19) have been formulated in the light of the probability of becoming a party to the Statute.

The Western European States, on an individual basis, very strongly support the ICC.

• The Western European States, on an individual basis, very strongly support the ICC.

• Institutionally, both the Council of Europe and the EU support the Court in a very determined manner.

• The Organization of African Unity has also initially showed strong support for the ICC, although the reaction to the arrest warrant (tutuklama emri) issued concerning Ömer El Beşir has caused a mixed response.

• The Organization of American States has also always expressed support for the Court.

• As to those States against the ICC, the strongest opposition was advanced by the USA, who voted against the Statute at the Rome Conference. Therefore, the USA, which had been a pioneer in the development of int’l. criminal lawand had spent a major effort for the establishment of such a court, decided to part its way on the issue of the ICC with all of her close allies, the Western states and almost every democratic state. Although the Clinton administration initially signed the Statute, that signature was “withdrawn” by the Bush administration who launched a crusade on the ICC through various initiatives. The Obama administration is not hostile to the Court, although no ratification should be expected in the near future.

American public opinion and many American scholars do not share their administrations’s view with regard to the ICC.

• American public opinion and many American scholars do not share their administrations’s view with regard to the ICC.

• According to a poll conducted by The Chicago Council on Foreign Relations, 76% of the participants think that the US should be a party to the Rome Statute, and 82% are favourable to the possibility of terrorist suspects being tried by the ICC.

• The Obama Administration has initiated a full policy review of US policy towards the ICC. It has indicated that the US will take a more positive approach to the ICC.

• On August 6, 2009 Secretary Clinton stated that it is a "great regret" that the US is not a member of the ICC but said that "we have supported the work of the court and will continue to do so under the Obama Administration.”

• On February 26, 2011 the US voted in favor of Resolution 1970, adopted unanimously by the UN Security Council, which referred the situation in Libya to the ICC.

To resume, Western and Central European countries, as well as European-based int’l. organisations are strongly supportive of the ICC. In fact, African and American-based int’l. organizations are also institutionally in favour of the Court.

• To resume, Western and Central European countries, as well as European-based int’l. organisations are strongly supportive of the ICC. In fact, African and American-based int’l. organizations are also institutionally in favour of the Court.

• However, US opposition to the ICC was a major threat to the functioning of the Court. The American stance is now more neutral.

• In addition, two other permanent members of the UN Security Council, Russia and China are not parties to the Statute and China is rather hostile too. Finally, India is also not supportive of the ICC.

• Therefore, many “big” countries are not in the sytem.

• For the moment being, most of the burden will be on Western European countries. Even so, the Court will be able to survive and succeed without American support. That being said, having the USA also on board would provide an immense boost to the prospects of success of the ICC.

The Court is intended to supplement, not to replace, national jurisdictions.

• The Court is intended to supplement, not to replace, national jurisdictions.

• The ICC is a ‘court of last resort’ and it does not replace national jurisdiction. This is to mean that the ICC is in a subsidiary/secondary position with regard to national states in respect of prosecuting the crimes within its jurisdiction.

• The states have primacy and priority in trying those crimes that fall within the jurisdiction of the ICC, in case they want to exercise jurisdiction they are free to do so.

• Only in two cases may the ICC enter into play and replace national criminal jurisdiction: when national prosecution organs are unwilling or or unable genuinely to carry out the investigation or prosecution.

Probably the most important and controversial issue at the Rome Conference regarded the conditions under which the ICC may exercise jurisdiction.

• Probably the most important and controversial issue at the Rome Conference regarded the conditions under which the ICC may exercise jurisdiction.

• For one thing, once a State becomes party to the Rome Statute, no further action or statement is required for the recognition of the Court’s competence to exercise jurisdiction over the crimes in question.

• However, the Court may not try crimes committed by anyone or anywhere. There are certain pre-conditions to the exercise of jurisdiction: the crime within the jurisdiction of the Court must have been committed by the national of or on the territory of a State party to the Rome Statute.

• Finally, in order for the ICC to handle a situation, a case that may fall within its jurisdiction must be referred to it, i.e. it must be brought before/to the attention of the court. The term ‘trigger mechanisms’ is used to refer to the methods initiating proceedings. In this sense, the first alternative is referral by a State Party, the second alternative is referral by the Security Council acting under Chapter VII of the UN Charter, and the last alternative is the institution of an investigation by the Prosecutor acting on his own iniative (proprio motu power conferred on the prosecutor).

Temporal jurisdiction: The Court may only try crimes committed after 1 July 2002.

• Temporal jurisdiction: The Court may only try crimes committed after 1 July 2002.

• Subject matter jurisdiction indicates which types of crimes fall within the jurisdiction of the Court.

• The ICC has jurisdiction with respect to the following crimes: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression (saldırı suçu – kabaca, bir devletin diğer bir devlete karşı hukuka aykırı olarak kuvvet kullanması).

As of 26 December 2011 the ICC is conducting seven investigations.

• As of 26 December 2011 the ICC is conducting seven investigations.

• Three of these investigations followed self-referrals by the Democratic Republic of the Congo (DRC), Uganda and the Central African Republic.

• Two investigations were prompted by UN Security Council referrals:

• UN SC Res. 1593 (2005) on 31.03.2005 concerning the situation in Darfur, Sudan.

• UN SC Res. 1970 (2011) on 26.02.2011 concerning Libya.

• With regard to Kenya, the prosecutor used -for the first time- his proprio motu powers to launch an investigation following which he applied for, and obtained authorization from the Pre-Trial Chamber (31.03.2010) to continue the investigation. The same thing happened with Côte d’İvoire (Fildişi Sahili) more recently (03.10.2011).

When a newly established democracy has to face up to its past (geçmişle yüzleşmek), there are, usually, four available options:

• When a newly established democracy has to face up to its past (geçmişle yüzleşmek), there are, usually, four available options:

• Amnesty or forgetfulness (e.g., Spain after the Franco regime, Japan after WWII);

• Lustration (purging of public servants who are thought to be responsible for int’l. crimes, eg., former East Germany, Czech Republic);

• Criminal trials;

• Truth commissions.

• The so-called “peace”, “truth”, or “reconciliation” commissions (hakikat/barış/uzlaşma komisyonu) are organs usually established when the oppressive regimes committing widespread human rights violations which amount to international crimes collapse or lose power.

• They might be useful when resorting to criminal prosecutions may constitute a risk from the viewpoint of national peace. In addition, the very long, complicated, and ambiguous judicial process may therefore be eschewed.

Indeed, the initial aim of the democratic governments replacing the regimes committing grave violations is to provide national peace without neglecting what happened in the past.

• Indeed, the initial aim of the democratic governments replacing the regimes committing grave violations is to provide national peace without neglecting what happened in the past.

• During this phase, a very important way of eliminating the dangers of the judicial process is to determine what happened, before granting amnesty. This fact-finding mission is important because amnesties might lead to forgetfulness or denial in the future.

• This is why the idea of establishing mechanisms that determine the material facts and the responsibility of the parties, without undertaking any judicial role, is a popular option.

• It is claimed that such a mechanism suggests a middle course between war crimes tribunals and forgetting about all the injustice.

If we look into the history of these commissions, we observe that the first commission established in the 20th Century was the international commission entrusted to investigate the acts allegedly committed against the prisoners of war and civilians during the Balkan Wars in 1912-1913.

• If we look into the history of these commissions, we observe that the first commission established in the 20th Century was the international commission entrusted to investigate the acts allegedly committed against the prisoners of war and civilians during the Balkan Wars in 1912-1913.

• In 1919, at the end of the First World War, a commission was established in order to investigate crimes allegedly perpetrated by the Allied States during the war.

• Two separate commissions were established after the Second World War as well; one in order to investigate the war crimes allegedly perpetrated by Germany, and the other to investigate those crimes allegedly committed by Japan.

• In 1978, States which ratified the Additional Protocol I to the 1949 Geneva Conventions established a commission with the duty of investigating grave violations articulated in these conventions.

• In 1990, there was a boost in the establishment of international commissions, and Truth Commissions were established through the UN initiative in El Salvador, Guatemala, Somali, Former Yugoslavia and Rwanda.

• Besides, national commissions were established in various states which were going through a democratization period, such as Argentina, Bolivia, Chad, Chili, South Africa, Germany, Haiti, Honduras, Philippines, Sierra Leone, Uganda.

There is no single approach with regard to the functions of these commissions.

• There is no single approach with regard to the functions of these commissions.

• In some cases, these organs aim to restore justice rather than provide for retribution, therefore they have a function of complementing the judicial process (e.g. South Africa). In Sierre Leone, for example, the Truth and Reconciliation Commission and the Special Court for Sierra Leone (which is another ad hoc int’l. criminal court) operated concurrently.

• In other cases, they are the sole method of determining the responsibility deriving from the alleged crimes (e.g. El Salvador). They are set up as an alternative to prosecutions, especially where it would be very difficult, if not impossible, to prove the crimes committed because of their secret nature.

• Nonetheless, these institutions generally perform the following functions:

• 1) Collecting evidence with regard to the violations;

• 2) Investigating the general social, economic and political reasons leading to the perpetration of the violations;

• 3) Preparing a report directed to the public, which comprises the detailed account of the findings and some relevant recommendations. For example, the Guatemalan commission had the authority to make recommendations for reform. The scope of the report will depend on the mandate of the commission. In certain cases, the commissions are only allowed to deal with certain and limited aspects of past violations (e.g., the South African report could only deal with political violence).

Generally, it can be asserted that such functions serve four different purposes:

• Generally, it can be asserted that such functions serve four different purposes:

• 1) Determining and placing on record historical facts: the initial aim is to prevent that history becomes forgotten and to ensure that lessons are derived from the mistakes done in the past. Indeed, the first purpose of these commissions is not necessarily to determine the perpetrators, but to document the suppressions and crimes. This is important to prevent future denials. That is why some commissions (e.g., Argentina) did not have the authority to name the offenders.

• 2) Providing justice for the victims: the second purpose is to make sure that the victims have at least some moral redress, a sense of closure by the determination of the perpetrators and their responsibilities. It is important to officially acknowledge that harm was done to victims.

• 3) Providing national reconciliation: the third purpose is to listen to the complaints of the victims, providing them with solutions, making them feel that their situations are minded and the state is supporting them.

• 4) Preventing future violations: the fourth purpose is to make plans to obtain future stability via information provided by the past mistakes.

1) As regards states that have just got rid of suppressive regimes or which have just cast aside war or internal turmoil and are striving to build up a new future in particular, trying to prosecute the perpetrators of crimes may create negative effects in terms of providing societal peace. Because, in such situations, past events will come up once again, past strives will exacerbate and new disputes will arise and persist. Consequently, the atmosphere of serenity required to have a new beginning will not be obtained.

• 1) As regards states that have just got rid of suppressive regimes or which have just cast aside war or internal turmoil and are striving to build up a new future in particular, trying to prosecute the perpetrators of crimes may create negative effects in terms of providing societal peace. Because, in such situations, past events will come up once again, past strives will exacerbate and new disputes will arise and persist. Consequently, the atmosphere of serenity required to have a new beginning will not be obtained.

• In such cases, what needs to be done with regard to the states trying to make a transition from a regime in which human rights are gravely and frequently violated to one which relies on human rights, rather than to prosecute the perpetrators, is to bring all the segments of the society, including the perpetrators and the victims, together and reconcile them.

2) States which regard the intervention of international judicial organs in cases of acts perpetrated in their own territories as deprivation of sovereignty will not have such a fear if commissions step in instead.

• 2) States which regard the intervention of international judicial organs in cases of acts perpetrated in their own territories as deprivation of sovereignty will not have such a fear if commissions step in instead.

• 3) States which are not willing to surrender their citizens to an international court will most probably have a much more positive view about the functioning of the commissions.

• 4) Establishing an international criminal court will require substantial expenditures. However, resources may be allocated in other ways. We have seen how expensive international criminal justice is. Funds may be invested for other means, such as rebuilding the judiciary of the state in question.

5) An important reason that makes avoiding prosecution a feasible option is that the realization of an effective and just prosecution is not possible in some newly established democracies and/or states which have just gone through a period of struggle. Factors such as the weakness of the new government, technical or economic difficulties, public opposition or the opposition of the military institutions that are strong enough to endanger the new regime may preclude a potential prosecution.

• 5) An important reason that makes avoiding prosecution a feasible option is that the realization of an effective and just prosecution is not possible in some newly established democracies and/or states which have just gone through a period of struggle. Factors such as the weakness of the new government, technical or economic difficulties, public opposition or the opposition of the military institutions that are strong enough to endanger the new regime may preclude a potential prosecution.

• 6) Such commissions are more convenient to designate the environment where a certain struggle takes place and the historical context leading to such a struggle. This is a mission that prosecutions can not fulfil, as criminal trials do not aim at establishing the political, social, economical and other reasons behind the crimes.

• 7) Offenders will be more likely to tell the whole truth if they are not to be prosecuted. This can be particularly important when people have disappeared and their relatives want to know the fate of their family members.

The most important drawback is that these commissions are not entitled to punish the perpetrators. This deficiency brings with it all the problems associated in the past with the lack of a permanent international criminal court (e.g., lack of accountability). For this reason, it is asserted that such commissions should not be deemed as a substitute for judicial organs with regard to international crimes.

• The most important drawback is that these commissions are not entitled to punish the perpetrators. This deficiency brings with it all the problems associated in the past with the lack of a permanent international criminal court (e.g., lack of accountability). For this reason, it is asserted that such commissions should not be deemed as a substitute for judicial organs with regard to international crimes.

• 2) Eliminating the victimization caused by the crimes is possible only by resorting to prosecution. Indeed, criminal trials are the only way to fully identify the victims and the nature of their victimization, as well as the perpetrators and the scope of their responsibility. Consequently, decisions providing redress (compensation) may be rendered by courts.

• 3) The establishment of such organs might be a political manoeuvre to exhaust public interest in greater measures of political and legal accountability.

4) The fact that criminal prosecutions are open to the public will enable that lessons are derived from the past by making the world community conceive both the quantitative and qualitative aspects of the perpetrated crimes. However, this function is quite restricted in terms of the commissions, which do not operate publicly.

• 4) The fact that criminal prosecutions are open to the public will enable that lessons are derived from the past by making the world community conceive both the quantitative and qualitative aspects of the perpetrated crimes. However, this function is quite restricted in terms of the commissions, which do not operate publicly.

• 5) The commissions established in the past have caused some problems since they were not permanent. The inadequacy of monetary resources, the skepticism as regards the impartiality of these commissions, the fact that they get affected by the internal circumstances and the delay of investigations may be enumerated among those problems.

• 6) Looking at past practice, very few of the commissions established until recently were able to designate the perpetrators of the past violations. Mostly, they could not succeed in originating national peace and paved the way to the granting of sweeping amnesties. It is arguable whether truth-telling can, in fact, lead to reconciliation or to move beyond the past. Probably, it can have a role, but not be decisive. As a positive example, the South African commission was, in general, successful.