The Hague, 15 November 2011
PANEL 2 - The Impact of the Tribunal on the Future of Global Justice and the Advancement and Enforcement of Human Rights
Ladies and Gentleman,
The aim of this panel is to reflect upon the impact of the Tribunal on the future of global justice and human rights.
Reviving the promise of Nuremberg
An obvious point of departure for this reflection will be Security Council Resolutions 808 and 955: The Security Council’s successive decisions to establish the ICTY and ICTR marked a watershed moment in the annals of international relations. Gross violations of human rights and humanitarian law and the ensuing impunity ensuing were, in a very practical and palpable way, made an issue of international concern.
The establishment of the ICTY and ICTR thus revived the promise of Nuremberg to establish a global rule of law where no one who commits crimes that shock the conscience of humanity is above the law. This promise finds certain legal expression in Article 7 of the ICTY Statute and Article 6 of the ICTR Statute, which deny even sitting Heads of State immunity from prosecution and was the basis for the indictment of Milosević while he was still President. The beachhead of international law afforded by these normative, legal and political adjustments emboldened forward movement to a point where international law no longer recognizes functional immunities in relation to international crimes. Even personal immunities can no longer be invoked in front of tribunals of an international character. In addition to the indictment of Milosević, those of Charles Taylor, Omar Al-Bashir and Muammar Gaddafi confirm this.
The ICTY and the ICTR helped pave the way for the ideal of an additional layer of justice, operating on the global sphere, to be invoked in substitution or complementarity for the efforts or failures of States in one of their core sovereign functions--the dispensation of criminal justice.
The high profile symbol of this new order is the ICC. But we also saw humbler efforts in Timor Leste, Sierra Leone and Cambodia. States are now more willing than before to entertain ideas of establishing justice mechanisms that will permit foreigners to participate in varying permutations in their internal justice systems aimed at addressing gross human rights violations.
Perhaps the most revolutionary feature of the Rome Statute, the principle that the Security Council, by way of referral, can impose the ICC’s jurisdiction on states, also finds its precedent in resolutions 808 and 955.
Providing definitional clarity
While delivering on the promise of Nuremberg, the ICTY also freed us of some of Nuremberg Charter and Judgment’s jurisprudential baggage. Today, it is clear that crimes against humanity can be committed in peacetime, and; war crimes in internal armed conflict, to name but a couple of pertinent examples. William Schabas will tell us more about these advances and I do not wish to steal his thunder.
What I would like to emphasize is that definitional clarity provided by the ICTY and ICTR has transformed human rights advocacy. Today, human rights advocates can revert with confidence to the concepts of crimes against humanity, war crimes and even genocide, when drawing attention to situations of extraordinary concern. Indeed, the application of the responsibility to protect would be unthinkable without definitional clarity on when it is engaged.
The ICTY and Gender Justice
Where the Nuremberg and Tokyo Tribunals treated rape and sexual exploitation as an inevitable, and hence somewhat negligible side effect of war, the ICTY and ICTR recognized the centrality of these crimes and helped shed light on women’s experience of war.
In the Furundžija judgment – handed down shortly after the ICTR had held in Akayesu that rape can be a constituent element of genocide – the ICTY affirmed that rape can amount to torture. This rape-as-torture finding is not just a legal finesse, but has very real implications for victims. A little while ago, a human rights defender, who had been raped by the henchmen of a military dictatorship, told me how important it was for her to be able to present herself as a victim of state torture, given the stigma that rape unfortunately still carries stigma in her country of origin. I will leave it at this anecdote, as I am certain that Patricia Sellers will provide us with a much more comprehensive review of the ICTY and ICTR’s advances, and also our failings in the field of gender justice.
Execution of arrest warrants
Perhaps one of the most remarkable achievements of the ICTY is the fact that every single arrest warrant the Tribunal ever issued was eventually executed. Not even Mladić and Karadzić have escaped the long arm of international justice. Ambassador Stephen Rapp and Richard Dicker from Human Rights Watch will shed more light on the complex issues linked to this aspect of the ICTY’s legacy.
Let me just mention that one key factor was undeniably the fact that the member states of the European Union placed justice over narrow trade and investment interests in dealing with accession candidates from the former Yugoslavia. Conversely, I find myself time and again in a position of publicly upbraiding states – some small, some very large – that have refused to back efforts aimed at arresting or diplomatically isolating subjects of ICC arrest warrants. I can only hope that the rapid changes brought about by the Arab Spring will give leaders an occasion to pause, look at their trade relations and political alliances and revisit their priorities vis-à-vis regimes that manifestly fail to uphold human rights.
Global Justice with Local Impact
We are not here to present laudatory speeches for a venerable institution approaching retirement. Discussing a legacy also means acknowledging shortcomings and the ICTY had a few notable ones. I say this with the humility of someone who served with the ICTR Bench, which has shared many of the same deficits.
Global justice has to have a local impact. In this context, it has often been criticized that ICTY and ICTR failed to bridge the gap between them and the people who lived through the crimes under their jurisdiction. This was more than a geographical divide.
I am looking forward to Diane Orentlicher presenting to us her research on public perceptions of the ICTY’s work in former Yugoslavia. From my own experience, I can say that we waited too long to systematically reach out and explain our work, while local perceptions on the ground were gradually crystalizing into firm convictions.
Victim participation and reparation
Moreover, the two Tribunals did not provide much room for victim participation in the proceedings. Victims could not join proceedings as civil parties, let alone claim reparation directly in the ICTY or ICTR. In this regard, I must credit President Robinson who became ICTY President many years after a number of judges (including myself) had served as Presidents of the ICTY and the ICTR. None of us who had served before him saw the need as clearly—and put in as much of a tireless effort—to advocate for the establishment of a trust fund for victims of crimes under ICTY jurisdiction.
The ICTY and ICTR experience shows that retributive justice without reparation is not enough. But this does not answer the question how to provide reparation, where hundreds of thousands of victims and their families could present claims and many perpetrators are indigent. Clearly the experience of the interplay between the findings of the ICTY and the subsequent judgment of the International Court of Justice in the Bosnian Genocide case does not provide much of a response.
Early Release and Rehabilitation
The ICTY has also triggered a lot of negative reaction among victimized communities, who felt that it released convicts like Biljana Plavšić too early, especially since the ICTR has refused to agree to the early release of any of its convicts. I am not against early release, if the conditions are right. In fact, human rights law recognises rehabilitation as an essential aim of imprisonment, which logically implies that even those sentenced to life imprisonment should have a chance to be considered for early release.
However, I feel that we should think a bit harder about ways in which sentencing and early release practices can contribute to reconciliation. Last month, I gave a lecture at the National Institute for the Reintegration of Criminal Offenders in South Africa, where I laid out some ideas in this respect.
The Paradigm of Articulated Administration of Justice
ICTY and ICTR were exclusively international tribunals, and their jurisdictions enjoyed primacy over that of concurrent national jurisdiction. Developments since have entailed a steady movement away from this model to a paradigm, where the international element is articulated just enough to ensure an effective and fair administration of justice. This paradigm is driven by concerns that international tribunals are too remote from local communities. Financial constraints are undoubtedly also at play given that the ICTY and ICTR were expensive endeavours. In light of the many competing demands for international justice, it will not be realistic to lightly brush such pecuniary considerations aside.
The first expression of the articulated model of administration of justice can be found in the complementarity principle set out in the Rome Statute. The ICC only comes in where national mechanisms are unwilling or unable to investigate or prosecute. The model arouses mixed feelings. On the one hand, it can create very divisive debates, when some states clamour for the right and opportunity to try suspects themselves without necessarily being ready to do so.
On the other hand, complementarity has had many positive effects. It has spurred states to integrate international crimes into their domestic law and launch prosecutions on this basis. Many even expand the bases for the exercise of jurisdiction in relation to crimes committed abroad, which has meant de facto travel sanctions for many perpetrators. I think what is often little understood is the fact that the fewer the number of cases that make it to the International Criminal Court, the better the Rome Statute Regime works.
A second aspect of the articulated administration of justice paradigm has been the setting up of hybrid tribunals in the affected country– either international tribunals integrating national judges or national courts that also have international judges on the bench.
Hybrid courts might appear to be financially and politically more palatable alternatives to classic kind of international tribunals in the model of the ICTY. However, we have also seen the drawbacks for the independence and impartiality of the process where national judges and prosecutors remain under the sway of national executives or strong local opinions. Perhaps we have to consider whether the pendulum needs to swing back a little towards more international justice.
With these remarks, I have great pleasure to hand over to the other panellists.