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Crimes of War - Educator's Guide: International courts and tribunals

 
Corresponding Chapters in Crimes of War:

"Sexual Violence" by Thom Shankar (pp. 369-373)
"Detention and Interrogation" by Dana Priest (pp. 159-164)
"Sexual Violence: Systematic Rape" by Alexandra Stiglmayer (pp. 376-377)
"Due Process" by Gideon Levy (pp. 167-170)
"Siege" by Tom Gjelten (pp. 384-386)
"Sanctions" by Tom Gjelten (pp. 367-368)

Essential Question: What is the role of the International Criminal Court and how does it relate to domestic courts in the prosecution of war crimes? 

Learning Objectives:

  • Students will learn about International Humanitarian Law (IHL) concepts, including the International Criminal Court (ICC) and ad hoc tribunals
  • Students will gain an understanding how domestic law supports international conventions
  • Students will analyze the Nuremberg Principles and their importance in establishing jurisprudence for international law
  • Students will analyze historical events which have shaped the formulation of international courts and traditional extrajudicial processes

Methodology

This lesson will provide an introduction to or supplement a unit on International Criminal Courts and Tribunals. This chapter is especially useful in conjunction with the chapters from Crimes of War: What the Public Should Know, referenced above. These chapters highlight the importance of domestic court systems in international law, particularly in the Yugoslavia and Rwanda Tribunals, as well as the Special Court for Sierra Leone.

 

Introduction

Establishing accountability for individual violations of international humanitarian law (IHL) was first attempted on an international scale at the International Military Tribunal at Nuremburg. Prior to this effort, domestic courts had little precedence for prosecuting those accused of genocide, crimes against humanity, or war crimes. The Nuremberg Principles established a set of guidelines for determining what constitutes a war crime. The Principles were an attempt by the United Nations to codify the fundamental rules set out in the Charter of the Nuremberg Tribunal. Even after the results of the Nuremberg and Tokyo War Crimes trials, further development and application of IHL and accountability for war crimes stalled because of Cold War politics and the unwillingness of states to relinquish their sovereign rights.

Following the Cold War, and with the advent of the atrocities that occurred in the former Yugoslavia, Sierra Leone and Rwanda, a movement supporting the establishment of international accountability systems protected by international law re-emerged. The first results were special international courts, also known as ad hoc tribunals, set up in the 1990s to prosecute war crimes that had occurred in these locations.

Yugoslavia: On 25 May 1993, the United Nations Security Council, acting under Chapter VII of the U.N. Charter in Resolution 827, expressed grave alarm at "continuing reports of widespread and flagrant violations of international humanitarian law occurring within the territory of the former Yugoslavia, and especially in the Republic of Bosnia and Herzegovina, including reports of mass killings, massive, organized and systematic detention and rape of women, and the continuance of the practice of "ethnic cleansing." It concluded that "in the particular circumstances of the former Yugoslavia the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law" would put an end to such crimes and "contribute to the restoration and maintenance of peace."[1]

Rwanda: On 8 November 1994, the UN Security Council, acting pursuant to Chapter VII of the UN Charter, established the International Criminal Tribunal for Rwanda (ICTR) in Resolution 955. In that resolution, the Security Council expressed grave concern about:

"the reports indicating that genocide and other systematic, widespread and flagrant violations of international humanitarian law have been committed in Rwanda," and stated its determination "to put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them".[2]

Sierra Leone: On 14 August 2000, the UN Security Council, "deeply concerned at the very serious crimes committed within the territory of Sierra Leone against the people of Sierra Leone, the United Nations and associated personnel and at the prevailing situation of impunity", issued Resolution 1315 (2000) requesting the "United Nations Secretary-General to negotiate an agreement with the government of Sierra Leone to create an independent special court" to prosecute people who bear the greatest responsibility for crimes against humanity, war crimes and other serious violations of international law during Sierra Leone's civil war.

This resolution followed a request in June 2000 by President Ahmad Tejan Kabbah for assistance and guidance from the U.N. Secretary-General to establish a special court to try those responsible for crimes against the people of Sierra Leone. The Special Court for Sierra Leone (Special Court) is therefore an initiative by an African state to try those accused of crimes against humanity and war crimes against Africans.[3]

The Rome Statute established a permanent International Criminal Court (ICC) in 1998 and the Court came into existence in 2002 when enough states had ratified the statute. The Court is treaty-based and has jurisdiction only where crimes listed in the Statute are committed either by a national of a State Party or on the territory of a State Party. It can also be given jurisdiction over crimes in a non-member State by a vote of the UN Security Council. The crimes listed in the Statute are genocide, crimes against humanity and war crimes, with each crime closely defined both in the Statute itself and in a subsidiary document "Elements of Crimes". The statute also mentions aggression as a crime, but the states that are party to the statute have yet to agree on and adopt a working definition. The Court has jurisdiction over crimes committed after 2002.

There are limitations to the coverage provided by the statue and therefore there is likely to be a continuing need for other judicial approaches, including domestic or mixed domestic-international courts enforcing international law. Domestic courts' ability to seek justice for war crimes is important because not all states have signed the ICC Statute, the ICC has a limited scope and capacity to handle cases, and empowering domestic courts with the ability to prosecute their own crimes may increase the system's accountability and accuracy.

Local courts and judicial processes that are not traditional courts, such as the Gacaca trials in Rwanda, try individuals in their communities for crimes of murder and genocide. It is essential to promote accountability on national and state levels, but communities are directly affected by war crimes and thus are the locations which require deepest change and community building. These considerations extend to the conflict in East Timor, Sierra Leone, the retroactive prosecution of Cambodian war criminals, and "The Iraqi Higher Criminal Court" whose jurisdiction covers genocide, crimes against humanity and war crimes as well as certain offences under Iraqi law relating to the misuse of political power.

The United States is not a party to the Rome Statute. Below is the position of the U.S. State Department on the limitations of the court, according to a 2003 fact sheet:

Why are the protections provided for under the Rome Statute insufficient to meet U.S. concerns?

  • Under the Rome Statute, the ICC claims the authority to second guess the actions taken and the results reached by sovereign states with respect to the investigation and prosecution of crimes.
  • Even in cases in which the United States has appropriately exercised its responsibilities to investigate and/or prosecute in a particular case, the ICC prosecutor, with the approval of two judges from a three-judge panel, could still decide to initiate an ICC investigation or prosecution.
  • Such a decision by the ICC prosecutor would not be inconceivable. Features of the U.S. common law system, U.S. constitutional protections for criminal defendants, and the U.S. jury system are different than those that apply in most other countries. ICC prosecutors may not understand, or may disagree with the operation of these aspects of our system in particular cases. This could lead the ICC to deem actions taken by the U.S. to be inadequate and to prosecution of U.S. persons by the ICC.
  • We are also concerned that there are insufficient checks and balances on the authority of the ICC prosecutor and judges.
  • The Rome Statute creates a self-initiating prosecutor, answerable to no state or institution other than the Court itself. Without such an external check on the prosecutor, there is insufficient protection against politicized prosecutions or other abuses.[4]

Each conflict where crimes of war occur will have specific requirements and needs that will determine what process of accountability is most appropriate. Developing an international legal framework that is impartial and credible is essential for building global understanding of the rule of law and protecting human rights.

Memorialization

While trials offer hope for justice for victims of war crimes, they also play an important role in memorializing victims and people who have died. The United States Institute for Peace says the following about this important healing process: "Memorialization is a process that satisfies the desire to honor those who suffered or died during conflict and as a means to examine the past and address contemporary issues. It can either promote social recovery after violent conflict ends or crystallize a sense of victimization, injustice, discrimination, and the desire for revenge."[5] 

 

Discussion Questions

1. What are the Nuremberg principles and how did they provide a foundation for the Geneva Conventions? 

2. What events led to the establishment of the Rome Statute and the formation of the ICC? 

3. How do you think the political and military climate of the Cold War hindered the development of creating accountability for crimes of war?

4. What is the relationship between international courts, domestic courts, and state sovereignty? How did the cases cited in this chapter, i.e. Cambodia and Rwanda, balance sovereignty and international standards in armed conflict? 

5. What are some of the challenges facing the ICC and Ad Hoc Tribunals? How do you think these can these be addressed? 

6. What alternatives exist for seeking justice for crimes outside of the traditional court system? Why do you think these might be valuable for communities in post-conflict reconstruction? What do we know about how effective are they? 

7. Why is individual accountability such an important concept in the establishment of international criminal law? 

8. What enforcement mechanisms are in place to facilitate adherence to international criminal court rulings? What is the role of the Security Council? 

9. What do you think are the reasons why states choose not to sign the Rome Statute, (in particular the United States)? What do you think it would take for these states to become party to these agreements? 

10. How do international courts and tribunals increase individual accountability in the international community

11. What examples exist within traditional societies to resolve conflict and administer justice? Do you think it matters that these procedures often do not correspond to international standards of fairness and due process?

12. Why are local courts and local judicial process increasingly looking to international courts for justice, prosecution of war crimes and addressing the past?

 

Extension Activities 

Courts and Tribunals 

ICC Mock Trial: Congo Example 

  1. Introduce learners to the ICC Newsletter online, which details the pre-trial hearing of a recent case at the ICC, The Prosecutor v. Thomas Lubanga Dyilo. Have students watch the Video Stream of the court proceedings to get an idea of what a pre-trial at the ICC looks like and entails.

Teachers Tip: Thomas Lubanga Dyilo was born on 29 December, 1960 in Djiba, in the Democratic Republic of the Congo (DRC); a national of the DRC, he is the alleged founder of the Union des Patriotes Congolais (UPC) and the Forces patriotiques pour la libération du Congo (FPLC), the alleged former Commander-in-Chief of the FPLC and the alleged President of the UPC.

The Charges to be confirmed:  
Mr. Thomas Lubanga Dyilo is charged on the basis of individual criminal responsibility (article 25 (3) (a) of the Rome Statute) with:

(i)     the war crime of enlisting children under the age of fifteen punishable under article 8 (2) (b) (xxvi) or article 8 (2) (e) (vii) of the Statute;

(ii)    the war crime of conscription of children under the age of fifteen punishable under article 8 (2) (e) (b) (xxvi) or article 8 (2) (vii) of the Statute, and

(iii)   the war crime of using children under the age of fifteen to participate actively in hostilities punishable under article 8 (2) (b) (xxvi) or article 8 (2) (e) (vii) of the Statute.

  1. Using the ICC Newsletter website as a guide, have students discuss the organization of the court and the trial chamber. Introduce the various roles within the court including the prosecutor, the defense, legal representation of the victims, legal representation of the state, the accused, witnesses, and the pre-trial chamber (judges). Use "In the Courtroom" link on the ICC Newsletter website for details of these roles.
     
  2. Divide the class into groups of three and have each prepare a brief presentation. Have the groups answer the following questions about the case: What was the crime? Who was the victim? Who was the accused? What historical events have shaped this case? Why is the case important in the development of the ICC? What arguments were made? Each group must use at least three visuals to illustrate its presentation; these can be photographs (of the individuals involved, the crime scene, evidence, etc.), newspaper headlines, magazine covers, or some other source. At the end of the presentation, have students assess the challenges they faced in collecting this information as well as to assess whether prosecuting this case will make a difference to the conflict or the cause of justice.
  3. As a class, conduct your own version of the trial. First, divide the class into three groups. One group will serve as the judges, while the other two groups represent the defense and the prosecution. Using information from the ICC Newsletter and the preceding group presentations, have each of the latter two groups prepare a summation of its side of the case for the judges and then elect one member of the group to make the presentation. The summation does not need to reflect what was said at the actual trial but should present what each group thinks is the most compelling case for its side. After both sides have presented their summations, the judges should give their reactions and discuss how they would likely vote based on the presentations.

International Courts Matrix: 

1. Distribute the International Courts Matrix which is provided in the chapter annex. Using information from the Crimes of War Chapters and Internet resources, have students fill in the matrix. 

2. Have the learners work in pairs and choose a country listed from the International Courts Matrix.  Next, ask the pairs to research their chosen country and court in more detail by using the following questions as a guide: What successes has the court had? What challenges does it face? Describe in detail the historical events that lead to the creation of the court. What personal accounts can be found from individuals who experienced the events leading to the establishment of the court? 

Alternatives to Formal Court Processes: The Gacacas of Rwanda 

(Adapted from Public Broadcasting System's "Ghosts of Rwanda: Extension Activity") 

1.  Students will have the opportunity to participate in a mock gacaca (pronounced ga-CHA-cha) trial.  Remind students, based on the case study, that gacaca trials are the grass-roots level courts after the 1994 genocide in Rwanda for those who participated in the genocide but were not leaders.  For a brief introduction to the role and scope of gacaca, visit "Rwanda - After the Genocide" on the FrontlineWorld section of the PBS website.[6] 

2. Distribute brief descriptions of the main participants (killer, victim, and court monitor) in the following gacaca trial:

3. Divide learners into three groups. Each one will represent one of the following three view points: killer, victim, or court monitor. Learners should have time to brainstorm in their groups, choosing one or more student(s) to read the words of the person for whom they are speaking.

4. After a 5- to 10-minute brainstorm, the teacher (judge) should convene the gacaca.

5. The court monitor should speak first, briefly telling why he thinks the gacaca is necessary for the future of Rwanda.

6. The victim should speak next.

7. The perpetrator should speak next.

8. With the facilitation of the teacher/judge, students should maintain the roles they were assigned and discuss the issues, problems, and effectiveness of the gacaca.

9. Learners can write a one-page evaluation of their view of the effectiveness of gacacas in Rwanda.

 

 

Take Action

Despite the support of most Americans, the United States will not officially support the International Criminal Court.

Take action by writing a letter to the editor of a local newspaper encouraging more Americans to support the ICC and encouraging the Federal Government to reformulate their policy on this issue.

Talking points and even a sample letter are available at http://usaforicc.org/justice.html.

 

 

ADDITIONAL RESOURCES 

FILMS:

Gacaca. Living Together in Rwanda Again?, directed by Anne Aghion (First Run Icarus Films, 2002). This film can be purchased with First Run Icarus Films and contacted by email at mailroom@frif.com, by phone at (718) 488-8900, or visit their website at www.frif.com.

International Criminal Court, Audio-Visual Gallery, highlighting different ICC presentations and events.

 

WEB RESOURCES:

International Criminal Court (major ICC web site of the NGO Coalition for an International Criminal Court, CICC)

International Criminal Court (United Nations' official ICC web page including links to the Preparatory Commission for the International Criminal Court (1999 Sessions: 16-26 Feb 1999; 26 Jul-13 Aug 1999; 29 Nov-17 Dec 1999), the Rome Statute of the International Criminal Court, ratification/status information, and other related documents)

The Rome Statute of the International Criminal Court (done at Rome, 17 July 1998; A/CONF.183/C.1/L.76 and Addendums 1 through 14)

UN Diplomatic Conference concludes in Rome with decision to establish permanent International Criminal Court (UN Press Release, L/ROM/22, 17 July 1998)

Adopted: Rome Statute of the International Criminal Court, 17 July 1998

Women's Initiatives for Gender Justice (site contains information about the Women's Initiatives and its work on the International Criminal Court (ICC) and the Optional Protocol to CEDAW; includes recent papers and publications, such as position papers distributed at the Preparatory Commissions at the ICC, reports, articles, newsletter and their recent document on the ICC for the Beijing

Benjamin B. Ferencz: Writings and Lectures on the International Criminal Court & World Peace (includes links to a brief biography, documents, and resource pages)


International Courts Matrix

 

Type of Judicial Process

Event Trigger

Challenges of Judicial Process

Strengths of Judicial Process

Cambodia

Extraordinary Chambers established under Cambodian law but with international support and assistanceViolations of Cambodian and international law between 17 April 1975 and 6 January 1979 during the Pol Pot regimeBeset by political and financial difficulties and has just begun to functionRetroactive ad hoc tribunal established decades after atrocities.

Rwanda

International Tribunal Courts for RwandaGenocide of Tutsis in 1994Too expensive, too remote (they are located outside the territories with which they deal) and too slow

In the case of Rwanda, the Statute broke new ground in granting international jurisdiction for the first time over war crimes committed in a non-international armed conflict.

 

Yugoslavia

International Tribunal Courts

For Yugoslavia

Ethnic cleansingToo expensive, too remote (they are located outside the territories with which they deal) and too slowFirst ad hoc tribunal after the Cold War

Germany

International Military Tribunal at Nuremberg World War II and the Holocaust Cold War prevented any further attempts to build on the Nuremberg Principles’ foundations

First attempt in modern times to hold accountable in criminal proceedings before an international tribunal the perpetrators of crimes against international law.

Allowed for the adoption of the “Nuremberg Principles” establishing much of the jurisprudence.

Kosovo

War and Ethnic Crimes CourtsEthnic cleansing

Will be watched closely by the domestic courts in Croatia, Serbia and Montenegro and Bosnia-Herzegovina as the ad hoc Tribunal in The Hague winds down its work and begins to refer cases back to the national jurisdictions.

 

Deals with international crimes.  Whilst these are national courts, they are staffed by both international and national personnel though operating primarily under domestic law provisions.

East Timor

Special Panels of Dili District CourtEthnic cleansing Funding difficulties and partly due to the failure of the Panels to obtain jurisdiction over many of the indictees who are now located in Indonesia.  Deals with international crimes.  Whilst these are national courts, they are staffed by both international and national personnel though operating primarily under domestic law provisions.

Sierra Leone

Special Court, established in 2002Civil warLack of lawyers, limited mandate, limited funding.Hybrid of the UN and the Government of Sierra Leone, jurisdiction over international crimes and some other crimes under national law.

Iraq

The Iraqi Higher Criminal CourtDuring the occupation to try the leaders of the Saddam regime.Originally the Court was required to appoint international advisers and observers to the various sections of the Court but that has, under the new law, become optional rather than obligatory.  It remains to be seen to what extent there will be international involvement, particularly as the death sentence, suspended under the occupation, has now been restored. There is ongoing suspicion of attempted political interference in the workings of the tribunal.The Court will operate under a procedure that is a mixture of Iraqi and international law but will be mainly staffed by Iraqi nationals. The Court has jurisdiction over genocide, crimes against humanity and war crimes as well as certain offences under Iraqi law principally involving the misuse of political power. 

 

 

 



[1] Amnesty International website. Accessed on June 15, 2007.
[2] Ibid.
[3] Amnesty International website. Accessed on June 15, 2007.
[4] U.S. Bureau of Political-Military Affairs, "Frequently Asked Questions about the U.S. Government's Policy Regarding the International Criminal Court" Fact Sheet. Washington, DC. July 30, 2003. For a more in-depth presentation and analysis of the U.S. policy on the International Criminal Court consult: "U.S. Policy Regarding the International Criminal Court" by Jennifer K. Elsea, Legislative Attorney, American Law Division, August 29, 2006, written for the Congressional Research Service http://fpc.state.gov/documents/organization/73990.pdf.
[5] For more information on memorialization, see Judy Barsalou and Victoria Baxter's monograph, "The Urge to Remember: The Role of Memorials in Social Reconstruction and Transitional Justice"(January 2007).
[6] www.pbs.org/frontlineworld/fellows/rwanda1103/context.html#gacaca

 

 

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