international criminal justice in the context of conflict prevention and the promotion of peace

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INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE John Cubbon, Senior Legal Officer, International Criminal Tribunal for the former Yugoslavia This presentation will give my views and does not necessarily reflect the views of the International Tribunal or the United Nations in general.

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INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE. John Cubbon, Senior Legal Officer, International Criminal Tribunal for the former Yugoslavia - PowerPoint PPT Presentation

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Page 1: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF

PEACE

John Cubbon, Senior Legal Officer, International Criminal Tribunal for the former Yugoslavia

This presentation will give my views and does not necessarily reflect the views of the International Tribunal or the United Nations in general.

Page 2: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

SUBJECT-MATTER

Judicial mechanisms established by the international community to try those accused of major crimes arising from an armed conflict

OVERVIEW

What has criminal justice got to do with conflict prevention?

Why can the international community contribute?

International criminal courts

Internationalised or hybrid criminal courts

Significance of international criminal justice for conflict prevention and the promotion of peace

Page 3: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

WHAT HAVE CRIMINAL PROCEEDINGS GOT TO DO WITH CONFLICT PREVENTION AND THE PROMOTION

OF PEACE?

• Peace-making as stopping the fighting• Measures to make peace sustainable include:

Transitional justice: “A set of judicial and non-judicial measures that have been implemented…..in order to redress the legacies of massive human rights abuse” (ICTJ)

Page 4: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

TRANSITIONAL JUSTICE

• Criminal Prosecutions• Truth Commissions• Reparations programmes• Institutional reforms of abusive state institutions, such as

the armed forces, police and courts

Page 5: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

HOW DO CRIMINAL PROCEEDINGS CONTRIBUTE TO CONFLICT PREVENTION AND THE PROMOTION OF

PEACE?

Some slogans:

• Ending impunity• Justice for victims• Closure• Addressing the enormity of the crimes

Page 6: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

Judicial mechanisms established by the international community to try those accused of major crimes arising from an armed conflict

Two categories: international criminal courts and internationalized or hybrid criminal courts

INTERNATIONAL CRIMINAL JUSTICE

Page 7: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

INTERNATIONAL CRIMINAL COURTS

• International Criminal Tribunal for the former Yugoslavia (ICTY)

• International Criminal Tribunal for Rwanda (ICTR)• International Criminal Court (ICC)

Page 8: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

INTERNATIONALISED OR HYBRID CRIMINAL COURTS

• Panels of International Judges in Kosovo (UNMIK AND EULEX)

• Special Panels in East Timor (UNTAET)• Special Court for Sierra Leone• War Crimes Chamber of the Court of Bosnia and

Herzegovina• Extraordinary Chambers in the Courts of Cambodia

(ECCC)

Page 9: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

WHY CAN’T COURTS IN THE COUNTRIES AFFECTED DEAL WITH CRIMES COMMITTED IN ARMED

CONFLICT?

• Hardly a functioning court system as a result of the conflict

• Often the domestic judicial system had serious shortcomings before the armed conflict

• Extreme difficulty that Judges have in being and being seen to be independent and impartial on issues arising from an armed conflict that has affected them– Judges may be subject to pressures and even

intimidation in such cases

Page 10: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

LIVERSIDGE V. ANDERSON (1941)

• Regulation 18D of the Defence (General) Regulations 1939 which permitted the Home Secretary to intern people if he had “reasonable cause” to believe that they had “hostile associations”.

• The effect of the Majority Decision was that the order for Liversidge’s detention was lawful if the Home Secretary honestly asserted that he had reasonable cause to detain him under the law and that in such circumstances no court could investigate whether in fact he had reasonable grounds for his belief.

Page 11: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

• Lord Atkin dissented and argued that the courts should decide whether the Home Secretary really had reasonable grounds for his belief and not just whether he thought he had.

• Extreme conditions of wartime as the reason for the Majority Decision

Analogous situation in the peace-process in Northern Ireland

Page 12: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY)

• UN Security Council Resolution 827 of 25 May 1993• Acting under Chapter VII of he UN Charter• Ad hoc temporary measure• Jurisdiction over war crimes, crimes against humanity

and genocide committed in the territory of the former Yugoslavia since 1992

Page 13: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR)

• UN Security Council Resolution 995 of 8 November 1994• Acting under Chapter VII of the UN Charter• Ad hoc temporary measure• Jurisdiction over war crimes, crimes against humanity

and genocide committed during 1994

Page 14: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

INTERNATIONAL CRIMINAL COURT (ICC)

• Rome Statute of 1998• 120 States Parties• Created as a permanent court• At the present time jurisdiction over war crimes, crimes

against humanity and genocide• Referrals

Security Council under Chapter VII State Party Investigation initiated by the Prosecutor proprio motu

Page 15: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

INTERNATIONAL CRIMINAL COURT (ICC)

• Referrals by States Parties Uganda in 2003 DRC in 2004 CAR in 2005 Mali in 2012

Page 16: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

• Proprio Motu investigations by the Prosecutor Events in Kenya between 1 June 2005 and 26

November 2009 Alleged crimes since 28 November 2010 in Cote

d’Ivoire• Referrals by the UN Security Council

Situation in Darfur since July 2002 Situation in Libya since 15 February 2011

• Impact and significance of the ICC

Page 17: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

LIMITATIONS OF INTERNATIONAL CRIMINAL COURTS

• Logistical difficulties• Reduced opportunities for institution-building• Perceptions of the courts as alien impositions

Page 18: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

• International Judges and Prosecutors in Kosovo. UNMIK Regulation No. 2000/64, 15 December 2000.

• Special Panels in East Timor. Jurisdiction over serious crimes. Majority of internationals on the panels. Sat from 2000 to 2006.

• Special Court for Sierra Leone. Established by agreement in 2002 between the UN and the Government of Sierra Leone. Jurisdiction over serious crimes committed in Sierra Leone since 30 November 1996. Majority of internationals on the panels. Closed in 2013.

INTERNATIONALISED OR HYBRID CRIMINAL COURTS

Page 19: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

• Extraordinary Chambers in the Courts of Cambodia. Agreement between Cambodian Government and the UN in 2003. Jurisdiction over crimes committed during the period of Democratic Kampuchea from 1975 to 1979.

• War Crimes Chamber of the Court of Bosnia and Herzegovina. Started work in 2005. Initially panels of two international Judges and one Bosnian Judge.

Tendency for internationalised or hybrid criminal courts to have broader material jurisdiction than international criminal courts.

Page 20: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

SIGNIFICANCE FOR CONFLICT PREVENTION AND THE PROMOTION OF PEACE

• Apparently well-intentioned initiatives in the international sphere Pessimistic and optimistic views

• Political factors• Genuine courts

Page 21: INTERNATIONAL CRIMINAL JUSTICE IN THE CONTEXT OF CONFLICT PREVENTION AND THE PROMOTION OF PEACE

CONTRIBUTION OF INTERNATIONAL CRIMINAL JUSTICE

Prevention of crime through reform, deterrence and protection of society

Reduction of impunity for particularly serious crimes which are an obstacle to peace and reconciliation

Individualisation of guilt Providing a more objective account of events

Optimistic and pessimistic views of international criminal justice