Sunday, March 20, 2011
In light of the recent attack on Libya, I have posted the following article that I wrote recently regarding international tribunals, which are set-up by the United Nations Security Council (UNSC). The UNSC voted unanimously to apply sanctions (UNSC Resolution 1973) against Moammar Gadhafi and his regime for firing indiscriminately on peaceful protesters, killing as many as 1,000 people. Council members from all 15 nations also agreed unanimously to refer Gadhafi's regime to a permanent war crimes tribunal (The Hague Tribunal) for an investigation of possible crimes against humanity. Tribunal Prosecutor, Luis Moreno-Ocampo—Prosecutor of the International Criminal Court (ICC)—and the Security Council announced that there was enough evidence of alleged crimes against humanity by Gadhafi’s regime to warrant a full investigation.
International criminal tribunals are “courts established to try individuals accused of crimes recognized under international humanitarian law…” (Annan, 1997). Perhaps the most well-known of them is the Nuremberg Trials (1945-46), which were a series of military tribunals held by the allied forces of World War II, prosecuting several members of Nazi Germany for committing various war crimes—heard by the International Military Tribunal (Conot, 1984).
Tribunals are important to two or more countries for several reasons. They hold individuals accountable for committing crimes that their countries neither have the means nor the laws in place to do so. They also help dismantle the tradition of impunity for war crimes and other serious violations of international law (Taverneir, 1997). Furthermore, they shield entire communities from being labeled as being collectively responsible for the actions of others, and causing suffering; thus paving the way for the reconciliation process within war-torn societies (Annan, 1997). If there are not tribunals all of these things become harder to achieve, if not impossible.
Tribunals are not only affected by cultural and political differences of nations, they are also formed because of them. For instance, the massacres and genocide in Rwanda spawned the International Criminal Tribunal for Rwanda (ICTR). The ICTR was established so “that those responsible for serious breaches of international humanitarian law and acts of genocide must be brought to justice,” and at the same time assist in instilling “national reconciliation” and “respect for the fundamental rights of individuals” will be respected (Erasmus & Fourie, 1997). In order for the tribunal to achieve these objectives they must play a game of back-and-forth with Rwanda and their government; hence, be affected by the relationship—and Rwanda’s cultural and political ideas.
The creation of ad hoc Tribunals, such as in Yugoslavia and Rwanda, was largely improvised—resulting in numerous ambiguities in both procedure leading to their establishment and the legal status assigned to the two tribunals (Taverneir, 1997). Further ambiguity arises from the fact that these two Tribunals, mentioned above, depend on the decision making of the United Nations Security Council (small body), in which five world powers have veto rights, and there are financial constraints—hence inadequate funding and resources—available to these tribunals. Ambiguities exist further in the questions of binding nature of Security Council decisions and the requirements of State cooperation.
State cooperation, nonetheless, is required under Article 29 of the Statute of the International Tribunal for the former Yugoslavia and under Article 28 of the Statute of Rwanda Tribunal. These tribunals were established under Chapter VII of the Charter of the United Nations, and the UN can take military action, along with its member nations, against those not in compliance with international law. Consequently, this is another way that a nation’s cultural and political differences can affect these Tribunals—by charting the course of their actions or responses.
Read PART 2