Abstract
It has been a fashion among students of international relations and international law, as well as strategists, analysts, and pundits of all types, to refer to the end of the Cold War as a significant historical turning point, the beginning of an abrupt and remarkable transformation in world politics, and a clear departure from the previous international political and economic order. Numerous terms were coined in the context of adequately explaining this new tendency.
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Notes
- 1.
Lippman, “Towards an International Criminal Court,” pp. 94–95.
- 2.
Ibid., p. 95. Lippman gives an example: Louis Rene Beres, “Iraqi Crimes and International Law: The Imperative to Punish,” Denver Journal of International Law and Policy, Vol. 21, Issue 2, 1992, p. 335.
- 3.
For example, Bassiouni, referring to the need for an international criminal court that in particular could address such transnational crimes as terrorism, drug trafficking and the like, made his call in the following fashion: We no longer live in a world where narrow conceptions of jurisdiction and sovereignty can stand in the way of an effective system of international cooperation for the prevention and control of international and transnational criminality. If the United States and the Soviet Union can accept mutual verification of nuclear arms controls, then surely they and other countries can accept a tribunal to prosecute not only drug traffickers and terrorists, but also those whose actions constitute such international crimes as aggression, war crimes, crimes against humanity and torture…The permanency of an international criminal tribunal acting impartially and fairly irrespective of whom the accused may be is the best policy for the advancement of the international rule of law and for the prevention and control of international and transnational criminality…It is unconscionable at this stage of the world’s history, and after so much human harm has already occurred, that abstract notions of sovereignty can still shield violators of international criminal law or that the limited views and lack of vision and faith by government officials can prevent the establishment of such an important and needed international institution. The time has come for us to think and act in conformity with the values, ideals and goals we profess. M. Cherif Bassiouni, “The Time has Come for an International Criminal Court,” Indiana International and Comparative Law Review, Vol. 1, Issue 1, 1991, pp. 33–35.
- 4.
Lippman, “Towards an International Criminal Court,” p. 96.
- 5.
MacPherson, “Building an International Criminal Court for the 21st Century,” p. 12.
- 6.
Ibid., p. 13.
- 7.
However, it should be noted that the majority of states, especially Western countries, opposed the creation of such a court at that time. See Sharon A. Williams, “The Rome Statute on the International Criminal Court: From 1947–2000 and Beyond,” Osgoode Hall Law Journal, Vol. 38, Issue 2, 2000, p. 303.
- 8.
Ibid., p. 13.
- 9.
“Draft Code of Crimes against the Peace and Security of Mankind,” UN General Assembly Resolution 43/164, 43rd Session, 76th meeting, December 9, 1988.
- 10.
“International Criminal Responsibility of Individuals and Entities Engaged in Illicit Trafficking of Narcotic Drugs Across National Frontiers and Other Transnational Criminal Activities: Establishment of an International Criminal Court with Jurisdiction over Such Crimes,” UN General Assembly Resolution 44/39, 44th Session, 72nd meeting, December 4, 1989.
- 11.
“Draft Statute: International Criminal Tribuna,” U.N. GAOR, 45th Sess., U.N. Doc. A/Conf. 144/NGO.7 (1990).
- 12.
Report of the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. GAOR, 45th Sess., U.N. Doc. A/Conf. 144/28 (1990), cited in Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” pp. 55–56.
- 13.
Report of the International Law Commission, U.N. GAOR, 46th Sess., U.N. Doc. A/46/10 (1991).
- 14.
The events in the former Yugoslavia gained broad publicity largely because they were “occurring in Europe, which had twice endured World Wars. The Western powers could not ignore what was occurring in their back yard, as they might have had it been happening elsewhere.” MacPherson, “Building an International Criminal Court for the 21st Century,” p. 13.
- 15.
UN Security Council Resolution S/RES/713 (1991).
- 16.
Ibid., para 6.
- 17.
UN Security Council Resolution S/RES/764 (1992), para. 10.
- 18.
United Nations Security Council Resolution 771 (Concerning Information on Violations of International Humanitarian Law in the Territory of the Former Yugoslavia), S.C. res. 771, U.N. Doc. S/RES/771 (1992), para. 2.
- 19.
Ibid., para. 7.
- 20.
United Nations Security Council Resolution 780 (Establishing a Commission of Experts to Examine and Analyze Information Submitted Pursuant to Resolution 771), S.C. res. 780, U.N. Doc. S/RES/780 (1992).
- 21.
Ibid., para. 2.
- 22.
Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 40.
- 23.
Final Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 47th Sess., Annex, U.N. Doc. S/1994/674 (1994); Annexes to the Final Report, U.N. SCOR, 47th Sess., U.N. Doc. S/1994/674/Add.2 (1994).
- 24.
Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 41.
- 25.
Ibid., Part V. General Conclusions and Recommendations.
- 26.
Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 41.
- 27.
S.C. Res 827, U.N. SCOR, 48th Sess., at preamble, U.N Doc. S/RES/827 (1993). It states, “the Commission of Experts established pursuant to resolution 780 (1992) should continue on an urgent basis the collection of information relating to evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law as proposed in its interim report.”
- 28.
Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 42.
- 29.
Interim Report of the Commission of Experts Established pursuant to Security Council Resolution 780 (1992), U.N. SCOR, 48th Sess., Annex, at 20, U.N. Doc. S/25274 (1993).
- 30.
S.C. Res. 808, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/808 (1993). The Council determined that the situation in the former Yugoslavia constituted a threat to international peace and security and thus required effective action to “put an end to such crimes and to take effective measures to bring to justice the persons who are responsible for them.” Accordingly, the Council expressed its agreement that “the establishment of an international tribunal would enable this aim [addressing the situation in the former Yugoslavia] to be achieved and would contribute to the restoration and maintenance of peace.”
- 31.
Ibid., preamble.
- 32.
Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993), U.N. SCOR, 48th Sess., U.N. Doc. S/25704 (1993).
- 33.
Ibid.
- 34.
S.C. Res 827, U.N. SCOR, 48th Sess., at preamble, U.N Doc. S/RES/827 (1993). The Council decided
to establish an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia between 1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and to this end to adopt the Statute of the International Tribunal annexed to the above-mentioned report.
Ibid., paragraph 2. The Council also requested that the Secretary-General give the tribunal judges, once they had been elected, “any suggestions received from the States for the rules of procedure and evidence.” Ibid., paragraph 3.
- 35.
Ibid., paragraph 4, which states,
all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance or orders issued by a Trial Chamber.
- 36.
Ibid., paragraph 5.
- 37.
However, it should be noted that establishing the tribunal was not without controversy; there was not a firm consensus on the matter. For instance, not all of the permanent members of the Security Council favored the action. The opposing members were of the view that such a tribunal would be “potentially disruptive of negotiations for a political settlement of the conflict.” Some insisted that the tribunal should be established under the auspices of the General Assembly, not under the control of the Security Council. Some also proposed that a multilateral treaty be accorded for the purpose of establishing the tribunal. Although the minority favored a permanent international criminal court, “the political advantages of controlling ad hoc institutions by the Security Council prevailed.” See, Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 44.
- 38.
The tribunal that was established for the purpose of prosecuting the crimes committed in the former Yugoslavia drew significant attention and interest from academics. As a result, many works have appeared on the matter. See, among others, George H. Aldrich, “Jurisdiction of the ICTY,” American Journal of International Law, Vol. 90, Issue 1, 1996, pp. 64–69; Louise Arbour, “The International Tribunals for Serious Violations of International Humanitarian Law in the Former Yugoslavia and Rwanda,” McGill Law Journal, Vol. 46, Issue 1, 2000, pp. 195–201; Louise Arbour and Aryeh Neier, “History and Future of the International Criminal Tribunals for the Former Yugoslavia and Rwanda,” American University International Law Review, Vol. 13, Issue 6, 1998, pp. 1495–1508; M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (Irvington-on-Hudson, NY: Transnational Publishers, 1996); Morten Bergsmo, “International Criminal Tribunal for the Former Yugoslavia: Recent Developments,” Human Rights Law Journal, Vol. 15, 1994, pp. 405–410; Gideon Boas, “Creating Laws of Evidence for International Criminal Law: The ICTY and the Principle of Flexibility,” Criminal Law Forum, Vol. 12, Issue 1, 2001, pp. 41–90; Anne Bodley, “Weakening the Principle of Sovereignty in International Law: The International Criminal Tribunal for the Former Yugoslavia,” New York University Journal of International Law and Politics, Vol. 2, 1998, pp. 417–471; Matthew M. DeFrank, “ICTY Provisional Release: Current Practice, a Dissenting Voice, and the Case for a Rule Change,” Texas Law Review, Vol. 80, Issue 6, 2002, pp. 1429–1463.
- 39.
Article 1 of the Statute of the International Tribunal, annexed to Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993).
- 40.
Ibid., Article 7. Article 7(1) states, “A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.” Heads of states were not immune to prosecution by the tribunal in accordance with Article 7(2): “The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.”
- 41.
Ibid., Article 2.
- 42.
Ibid., Article 3.
- 43.
Ibid., Article 4.
- 44.
Ibid., Article 5.
- 45.
Ibid., Article 9(1): “The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991.”
- 46.
Ibid., Article 9(2): “The International Tribunal shall have primacy over national courts. At any stage of the procedure, the International Tribunal may formally request national courts to defer to the competence of the International Tribunal in accordance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal.”
- 47.
Ibid., Article 16(1).
- 48.
Ibid., Article 16(2).
- 49.
Ibid., Article 16(3): “The Prosecutor shall be appointed by the Security Council on nomination by the Secretary-General. He or she shall be of high moral character and possess the highest level of competence and experience in the conduct of investigations and prosecutions of criminal cases.”
- 50.
Ibid., Article 18(1): “The Prosecutor shall initiate investigations ex-officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed.”
- 51.
Ibid., Article 18(2).
- 52.
Ibid., Article 18(4).
- 53.
Ibid., Article 19(1).
- 54.
Ibid., Article 23(2).
- 55.
Ibid., Article 24(1).
- 56.
Ibid., Article 28:
If, pursuant to the applicable law of the State in which the convicted person is imprisoned, he or she is eligible for pardon or commutation of sentence, the State concerned shall notify the International Tribunal accordingly. The President of the International Tribunal, in consultation with the judges, shall decide the matter on the basis of the interests of justice and the general principles of law.
- 57.
“Bringing Justice to the Former Yugoslavia the Tribunal’s Core Achievements,” http://www.un.org/icty/cases-e/factsheets/achieve-e.htm.
- 58.
Article 32 of the Statute of the International Criminal Tribunal for Former Yugoslavia.
- 59.
Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 44.
- 60.
Ibid., p. 45.
- 61.
Ibid.
- 62.
For details and comprehensive analyses of the ICTR, see, among others, the following: Howard Adelman and Astri Suhrke, The Path of a Genocide: The Rwanda Crisis from Uganda to Zaire (New Brunswick, NJ: Transaction Publishers, 1999); Payam Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” American Journal of International Law, Vol. 95, Issue 1, 2001, pp. 7–31; Amnesty International, Rwanda: The Hidden Violence: “Disappearances” and Killings Continue (New York: Amnesty International, 1998); Amnesty International, Rwanda: Ending the Silence (New York: Amnesty International, 1997); Amnesty International, Rwanda: Crying Out for Justice (New York: Amnesty International, 1995); Louise Arbour, “History and Future of the International Criminal Tribunals for the Former Yugoslavia and Rwanda,” American University International Law Review, Vol. 13, Issue 6, 1998, pp. 1495–1508; Michael Barnett, Eyewitness to a Genocide: The United Nations and Rwanda (New York: Cornell University Press, 2002); Stuart Beresford, “In Pursuit of International Justice: The First Four-Year Term of the International Criminal Tribunal for Rwanda,” Tulsa Journal of Comparative & International Law, Vol. 8, Issue 1, 2000, pp. 99–132; Evelyn Bradley, “In Search for Justice: A Truth and Reconciliation Commission for Rwanda,” Journal of International Law and Practice, Vol. 7, Issue 2, 1998, pp. 129–158; Christina M. Carroll, “An Assessment of the Role and Effectiveness of the International Criminal Tribunal for Rwanda and the Rwandan National Justice System in Dealing with the Mass Atrocities of 1994,” Boston University International Law Journal, Vol. 18, Issue 2, 2000, pp. 163–200; Rocco P. Cervoni, “Beating Plowshares Into Swords: Reconciling the Sovereign Right to Self-determination with Individual Human Rights Through an International Criminal Court: The Lessons of the Former Yugoslavia and Rwanda as a Frontispiece,” St. John’s Journal of Legal Commentary, Vol. 12, Issue 2, 1997, pp. 477–534; Erin Daly, “Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda,” New York University Journal of International Law and Politics, Vol. 34, Issue 2, 2002, pp. 355–396; Adama Dieng, “International Criminal Justice: From Paper to Practice: A Contribution from the International Criminal Tribunal for Rwanda to the Establishment of the International Criminal Court,” Fordham International Law Journal, Vol. 25, Issue 3, 2002, pp. 688–707.
- 63.
Legal Advisor to the International Criminal Tribunals for Former Yugoslavia and Rwanda Payam Akhavan stated that “the Rwanda Tribunal was established because of the precedential effect of the Yugoslav Tribunal.” Payam Akhavan, “The International Criminal Tribunal for Rwanda: The Politics and Pragmatics of Punishment,” American Journal of International Law, Vol. 90, Issue 3, 1996, p. 501.
- 64.
Bassiouni, “Establishing an International Criminal Court: Historical Survey,” p. 57. Some scholars contend that the UN Security Council’s swifter action in the case of Rwanda could be attributed to the success of ICTY. For instance, MacPherson argues that “the Security Council felt compelled to do the same the following year when faced with ever-greater ethnic violence and death in Rwanda,” and subsequently “established a tribunal to deal with that situation.” MacPherson, “Building an International Criminal Court for the 21st Century,” p. 14.
- 65.
Shraga and Zacklin, “The International Criminal Tribunal for Rwanda,” European Journal of International Law, Vol. Issue p.
- 66.
It is asserted that the conflict between the Hutus and the Tutsis was an unavoidable part of daily life in Rwanda ever since the Tutsi royal family was overthrown in 1959. Massive atrocities were committed in 1959, 1963, 1966, and 1973, and nearly annually beginning in 1990. Ibid., p.
- 67.
For a brief historical survey of the tension between the tribes and ethnic groups as well as the campaign of genocide, see, for example, the following: Alexandra A. Miller, “From the International Criminal Tribunal for Rwanda to the International Criminal Court: Expanding the Definition of Genocide To Include Rape,” Pennsylvania State Law Review, Vol. 108, Issue 1, 2003, pp. 350–357 and Beresford, “In Pursuit of International Justice: The First Four-Year Term of the International Criminal Tribunal for Rwanda,” pp. 100–104.
- 68.
In fact, the President of the Security Council condemned all beaches of international humanitarian law in Rwanda on April 30, 1994, three weeks later than the beginning of the atrocities. Statement by the President of the UN Security Council, UN Doc. S/PRST/1994/21, April 30, 1994.
- 69.
UN Security Council Resolution 918 (1994), UN Doc. S/RES/918, May 17, 1994, at paragraph 13.
- 70.
Report of the Secretary-General on the Situation in Rwanda, UN Doc. S/1994/640 (1994), para. 36.
- 71.
- 72.
UN Security Council Res. 935, U.N. SCOR, 49th Sess., U.N. Doc. S/RES/935 (1994).
- 73.
Report of the Secretary-General on the Establishment of the Commission of Experts pursuant to paragraph 1 of Security Council Resolution 935 (1994), UN Doc. S/1994/879 (1994).
- 74.
Preliminary Report of the Independent Commission of Experts, U.N. Doc. S/1994/1125 (1994).
- 75.
Ibid.
- 76.
Ibid.
- 77.
Ibid.
- 78.
Progress Report of the Secretary-General on the United Nations Assistance Mission for Rwanda, U.N. Doc. S/1994/1133 (1994). Keeping in mind the commission’s preference regarding the international tribunal, the Secretary-General’s report did not contain any specific recommendation but left the matter to the Security Council’s discretion.
- 79.
Final Report of the Independent Commission of Experts established in accordance with Security Council Resolution 935 (1994), U.N. Doc. S/1994/1405 (1994).
- 80.
Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 46.
- 81.
S.C. Res. 955, U.N. SCOR, 49th Sess., U.N. Doc. S/RES/955 (1994).
- 82.
Ibid.
- 83.
The relevant provision reads as follows: the UN Security Council decided that
all States shall cooperate fully with the International Tribunal and its organs in accordance with the present resolution and the Statute of the International Tribunal and that consequently all States shall take any measures necessary under their domestic law to implement the provisions of the present resolution and the Statute, including the obligation of States to comply with requests for assistance.
Ibid., paragraph 2.
- 84.
The relevant provision is as follows: the Council urged “States and intergovernmental and non-governmental organizations to contribute funds, equipment and services to the International Tribunal, including the offer of expert personnel.” Ibid., paragraph 3.
- 85.
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between January 1, 1994 and December 31, 1994, annexed to S.C. Res. 955 (1994). Article 1:
The International Tribunal for Rwanda shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, in accordance with the provisions of the present Statute.
- 86.
Ibid., Article 2.
- 87.
Ibid., Article 3.
- 88.
Bassiouni, “Establishing an International Criminal Court: Historical Survey,” p. 47.
- 89.
Ibid., Article 4.
- 90.
Ibid., Article 6.
- 91.
Ibid., Article 7.
- 92.
Ibid., Article 8.
- 93.
Beresford, “In Pursuit of International Justice: The First Four-Year Term of the International Criminal Tribunal for Rwanda,” p. 132.
- 94.
Statement Dated 28 September 1994 on the Question of Refugees and Security in Rwanda, U.N. SCOR, 49th Sess., U.N. Doc. S/1994/1115 (1994), cited in Madeline H. Morris, “The Trials of Concurrent Jurisdiction: The Case of Rwanda,” Duke Journal of Comparative and International Law, Vol. 7, Issue 2, 1997, p. 353.
- 95.
Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court,” p. 48.
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Çakmak, C. (2017). From the End of the Cold War to the Present. In: A Brief History of International Criminal Law and International Criminal Court. Palgrave Macmillan, New York. https://doi.org/10.1057/978-1-137-56736-9_5
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