Addressing a selection of challenges faced at international courts and tribunals with jurisdiction over international crimes

• Published date: 20 September 2021
• Citation: (2020) African Yearbook on International Humanitarian Law 44
• Author: Roux, M.
• Pages: 44-77
• Date: 20 September 2021
• DOI: https://doi.org/10.47348/AYIH/2020/a3

44

Addressing a selection of challenges

faced at international courts and

tribunals with jurisdiction over

international crimes*

Mispa Roux†

Abstract

One of the core character istics of international cr imes is that they are

committed on a great sca le; therefore, the sheer volume and complexity

of evidence required to just ify investigation and u ltimately prosecution

inevitably leads to several cha llenges. Since the rst t ime that persons

were held individually c riminally re sponsible at an international level

at Nuremberg and in the Far E ast, to the way in which the per manent

International Crim inal Court f ulls its mandate, invest igating and

prosecuting intern ational crimes have involved manifold challenges. Th is

article identies t hree challenges face d by international crim inal courts

and tribunals in investigating and prosecuting international crimes.

The rst challen ge is the investigation phase of internationa l criminal

proceedings, spec ically the di fculty of selec ting cases and identif ying

persons with the g reatest responsibility for the c rimes. The second

challenge ows from the r st, specically i n light of the magnitude of

evidence indicating t he required gravit y to pursue fur ther investigation

and eventually prosec ution. This raises t he difcult quest ion whether

investigators, prosecutors, and judges are able to consi stently comply

with their duty to resp ect and protect the var ious fair trial r ights to

which suspected and acc used persons ar e entitled. The third a nd nal

* This article is a greatly improved version of a chapter in my LLD thesis.

I am grateful for the guidance, constructive criticism, and, perhaps most

importantly, endless patience of the AYIHL editors and the blind peer

reviewers. See further Mispa Roux A Comparative Analysis of the Causes for

Breaching the Erga Omnes Obligation to Prevent and Prosecute Gross Human

Rights Violations (LLD thesis, University of Johannesburg, 2012), available at

name=GlobalView&view=null&f0=sm_creator%3A%22Roux%2C+Mispa%

22&f1=sm_type%3A%22Thesis%22&sort=ss_dateNormalized%5C> (accessed

on 15 May 2021).

† LLB LLM (Inter national Law) LLD (I nternational Law) (UJ ); Senior Lectu rer

in the Depart ment of Public Law, Faculty of Law, University of Johannesburg;

Deputy Direc tor of the South Afr ican Institute for Advance d Constitutional,

Public, Human R ights, and International L aw (SAIFAC), a Centre of the

University of Johannesbu rg.

https://doi.org/10.47348/AYIH/2020/a3

(2020) African Yearbook on International Humanitarian Law 44

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JURISDICTION OVER INTERNATIONAL CRIMES 45

https://doi.org/10.47348/AYIH/2020/a3

challenge that wil l be engaged with in this art icle relates to the formidable

impact of international and p olitical relations at all stages of investigation

and prosecution of internationa l crimes, which may ulti mately thwart

compliance with the obligation to prose cute international cri mes.

Keywor ds: international criminal courts and tribunals, investigation,

prosecution, fair trial r ights, political relations, development of

international criminal justice

1 INTRODUCTION

In international criminal law, an obligation exists not only to prevent

the commission of international crimes, but also to prosec ute and

punish the perpetrators. Criminal prosecution can take place at

several fora, including international, regional and national criminal

courts and tribuna ls. The direct result of breaching the international

obligation to prosecute and punish is that perpet rators of international

crimes enjoy impunity, and it is one of the generally acknowledged

purposes of international criminal law to prevent this.1 If per petrators

enjoy impunity, the perception is created that mass atrocities may be

committed unchecked, and that the international community will

turn a blind eye to them:

The long-term consequences of such a c ulture of impunit y cannot

be underestimated. T he failure to uphold elementary inter national

norms has created a politica l climate in which exter mination,

deportation, and wanton destr uction lie withi n the range of options

available to rulers – not only as con scious decisions, but as a sublimin al

1 Preamble of the Rome Statute of the Inter national Crimi nal Court (‘ICC

Statute’); ICC Prosecutor v Jea n-Pierre Bemba Gombo (Public Judg ment pursuant

to Article 74 of the Statute No ICC- 01/05-01/08) (21 March 2016) para 209;

Geoffrey Robe rtson ‘Ending I mpunity: How Internat ional Crimina l Law

Can Put Tyrants on Trial’ (20 05) 38 Cornell Internat ional Law Journal 649;

Christodoulos Ka outzanis ‘Two Birds with One Stone: How the Use of the Clas s

Action Device for Vict im Participation i n the International Cr iminal Cou rt

can Improve both the Fight aga inst Impunity and Victim Pa rticipation’ (2010)

17:1 University of Californi a Davis Journal of Internati onal Law & Policy 111 at 118 ,

126–130, 134, 146–147; Tim Kluwen ‘Universal Jur isdiction In Absenti a before

Domestic Courts P rosecuting Internat ional Crimes: A Suitable Weapon to Fight

Impunity?’ (2017) 8 Goettingen Jou rnal of Internat ional Law 7 at 10–11; Beth

Zelman ‘A Crime Universa lly Acknowledged’ (2020) 51:3 Georgeto wn Journal

of International L aw 727 at 732; Brian L Cox ‘Recklessness, I ntent, and War

Crimes: Reni ng the Legal Standa rd and Clarif ying the Role of Internat ional

Criminal Trib unals as a Source of C ustomary Internation al Law’ (2020) 52:1

Georgetown Journ al of International La w 1 at 58–61; Anika Ades ‘ Unconditional

Injustices: Victim Pa rticipation and Ea rly Release in Internationa l

Criminal L aw’ (2020) 52 New York University Jour nal of International L aw and

Politics 593 at 631.

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conception of viable conduct. Impunit y erodes the inhibitions a nd

restraints again st such behavior, permitt ing an amoral account

of raison d’état. Reversing thi s entrenched cultu re of impunity is a

gradual and incre mental process. By insti lling such unconsc ious

inhibitions in the inter national community over ti me, and gradually

but denitively tran sforming the rules for the exercise of p ower, a new

reality of habitua l lawfulness may t ake root and develop.2

By their very nature, international c rimes are committed on a large

scale; therefore, the sheer volume and complexity of evidence required

to justify investigation and ultimately prosecution inev itably leads

to several challenges. Since the establishment of the International

Military Tribunals for Nuremberg and the Far East after the Second

World War, the ad hoc Internationa l Criminal Tribunals for the Former

Yugoslavia and Rwanda in the early 1990s, the hybrid courts for

Sierra Leone and Cambodia, as well as the permanent International

Criminal Court (‘ICC’), a great many challenges have been faced in

investigating and prosecuting international c rimes. The approaches

of these international courts and tr ibunals (‘ICTs’) to these various

challenges through the years indicate considerable development.

The purpose of this a rticle is specically to consider three main

challenges faced at ICTs with jurisdiction over international crimes,

and to seek an understanding of the way in which these challenges

can best be addressed in the future. Addressing the challenges will

contribute to avoiding impunity for international crimes. The

rst challenge that will be considered is the investigation phase

of international criminal proceedings, specically relating to the

difculty of selecting cases and identifying persons with the greatest

responsibility for the crimes. The second challenge ows from the rst

challenge: the decision to grant an application for a warrant of arrest

is based on a magnitude of evidence indicating the required gravity

to pursue further investigation and eventually prosecution. Persons

suspected and accused of international crimes are entitled to various

fair trial rights, and the magnitude of the required evidence raises the

complex question whether it is possible for investigators, prosecutors

and judges to comprehensively comply with their obligation to

respect and protect these rights throughout all proceedings. It will be

shown that throughout the years the various ICTs have addressed this

challenge by developing their responses to ensure equality of arms to

the defence. The nal challenge is the impact that political relations

have on the selection of cases for investigation and prosecution, as

2 Payam Akhavan ‘Be yond Impunity: Can I nternational Crim inal Justice

Prevent Future Atro cities?’ in Richa rd Falk, Hilal Elve r and Lisa Hajjar (eds)

Human Rights: Critical Concept s in Political Science vol III (2008) 123 at 131.

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well as on the conducting of international criminal trials as a whole.

This challenge can manifest in a variety of ways, including a lack of

political will to purs ue accountability, the exertion of political pressure

by previous leaders on new governments negotiating the establishment

of ICTs, and denials that atrocities amount to international crimes.

Before examining t he three challenges, it is important to note

that all three are closely connected. To illustrate: the decision to select

a case for investigation and prosecution at an ICT is inuenced by

the ‘political will’ of States to cooperate with that ICT’s request to

provide information and evidence, or arrest and ext radite a suspect

or accused person. Without such cooperation, irrespective of whether

the requested State is a member of that ICT, it undoubtedly becomes

extremely challenging for the ICT to successfully full its mandate.

Another illustration of the meshing of the challenges is political

interference with the manner in which IC Ts’ investigators, prosecutors

and judges full their duties. This impacts on whether the various

fair trial rights to which suspects and accused persons are entitled

throughout proceedings are thoroughly respected and protected by

these ofce bearers. Political interference with ICT proceedings may

ultimately play a role when considering the obligation placed on

investigators, prosecutors and judges to remain independent, impartial

and unbiased in carr ying out their respect ive functions.

Fortunately, the way in which the various ICTs have gradually

responded to these challenges has illustrated their development.

The value of engaging with the ICTs’ work is that it becomes clear

how to effectively address the challenges, thereby improving on the

ICTs’ responses thereto in future. There are undoubtedly many other

extremely complex challenges that ICTs face during the var ious stages

of investigation and prosecution of international crimes,3 and the

regional and national prosecution of international crimes also faces a

litany of challenges. These all deser ve a study of their own. This article

is therefore by no means intended to imply that the three challenges

identied are the only ones that exist. Instead, the discussion is to be

understood within the la rger context of challenges exper ienced during

the investigation and prosecution of international crimes.

3 See for instance Hassa n B Jallow ‘Challenges of I nvestigating and Prose cuting

International Cri mes’ in Emmanuel De caux, Adama Dieng and M alick Sow

(eds) From Human Rights to International Crimin al Law (2007) 437.

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2 THE CHALLENGE OF SELECTING CA SES FOR

INV ESTIGAT ION AND PROSECUT ION

Several hurdles must be overcome when selecting cases for investigation

at ICTs. As a starting point, the prosecutor must have sufcient

information that a reasonable basis to proceed exists, pointing to a

certain level of ‘gravity’ or seriousness.4 Furthermore, prosecutors at

ICTs are responsible for identifying those that assumed the greatest

responsibility for carry ing out atrocities, in other words, the most

senior leaders.5 The investigation of lower-level suspects should be

referred or transferred to national courts.6 Hence, the role of the

ofce of the prosecutor at an ICT is essential in considering whether

the information available and the evidence collected indicate that

there is a prima facie case that international c rimes falling w ithin the

jurisdiction of that ICT have been committed, in order to prepare an

indictment or warrant of arrest.7

4 Statute of the International Cr iminal Tribunal for t he Former Yugoslavia (‘ICTY

Statute’) art 18(1); Statute of the International C riminal Tribu nal for Rwanda

(‘ICTR Statute’) ar t 15(1); ICC Statute arts 15, 18(1) and 53(1). See further Susana

SaCouto and Katheri ne Cleary ‘The Grav ity Threshold of the Inter national

Criminal C ourt’ (2008) 23 Am erican University Inter national Law Revie w 807; G us

Waschefort ‘Gravity as a Requ irement in International Crimi nal Prosecutions:

Implications for South Af rican Courts’ 2014 Comparative and Internati onal Law

Journal of South Afr ica 38.

5 Charter of the Internat ional Militar y Tribunal held at Nuremberg (‘I MTN

Charter’) a rts 1, 6 and 7; Charter of the Intern ational Militar y Tribunal for

the Far East (‘IM TFE Charter’) art s 5(c) and 6; ICTY Statute a rt 7(2); Letter dated

17 June 2002 from the Secret ary-General ad dressed to the President of the Se curity

Council (19 June 2002), S/2002/678 (‘2002 IC TY Completion Strateg y’) paras

1 and 44; Letter Dat ed 3 October 2003 fro m the Secretary- General addressed to

the President of the Sec urity Council (6 Oc tober 2003), S/2003/946 (‘2003 IC TR

Completion Strategy’ ); Letter dated 17 November 2015 from the P resident of the

ICTR addressed to the Presid ent of the Securit y Council (17 November 2015),

S/2015/884 (‘2015 ICTR Completion Strategy’ ) para 50; Letter dated 29 Nove mber

2017 from the President of the ICTY sin ce 1991, addressed to the President of the

Security Cou ncil (29 November 2017), S/2017/1001 (‘2017 ICTY Completion

Strategy’) at 66 –74; ICTR Statute art 6(2); Statute for the Special Cou rt for Sierra

Leone (‘SCSL Statute’) a rts 1(1), 6(2) and 15(1); Law on the Establishment of

the Extraordi nary Chambers in the C ourts of Cambodia for the Pro secution of

Crimes Commit ted during the period of Demo cratic Kampuchea (‘ECCC Law’)

arts 1 and 2 new.

6 2002 ICTY Complet ion Strategy op cit note 5; ICC Statute preamble and arts 1

and 17; 2015 ICTR Completion Strategy op cit note 5 para s 61–73; 2017 ICTY

Completion Strategy op cit note 5 pa ras 119–166.

7 IMTN Char ter arts 14 and 15; IMTFE C harter art 8; IC TY Statute art 18(4);

ICTR Statute ar t 15; SCSL Statute art 15; ECCC L aw art 16; ICC Statute arts 14,

15, 53 and 54. See furt her Carla Del Ponte ‘Reect ions Based on the ICT Y’s

Experience’ in Robert Bellelli International Criminal Just ice: Law and Practice

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The issuing of a warrant of arrest is not a given, despite the

magnitude of information and the evidence that must be submitted

by the prosecutor after extensive investigation. At the militar y and

ad hoc tribunals, the Tribunals and Trial Chambers were respectively

tasked with deciding whether or not to issue arrest warrants.8 The

Statutes of the hybrid tribunals for Sierra Leone and Cambodia

did not provide for the issuing of arrest warrants, but their rules of

procedure and evidence authorised a judge or ‘co-investigating judge’

respectively to do so.9 At the ICC, in instances when the Prosec utor

initiates investigations proprio motu,10 the Pre-Trial Chamber must rst

authorise investigations before it may even continue.11 If the Prose cutor

still believes that a prima facie c ase exists12 after further investigation in

all other instances where the ICC exercises jurisdiction,13 application

must be made for the issuing of an arrest war rant by the Pre-Trial

Chamber. Again, the Pre-Trial Chamber will issue a warrant of arrest

only after considering var ious factors, in particular that a crime fal ling

under the jurisdiction of the ICC has been committed.14

Assessing whether or not to proceed with investigations based

on the consideration of ‘gravity’15 should not solely be based on the

‘number of victims’.16 Other factors indicating ‘gravity’ include the

systematic nature of the crimes,17 whether ‘social alarm’ is caused

by the commission of the crimes in the international community,18

and whether ‘the situation involves crimes that were committed by

from the Rome Statut e to its Review (2010) 125 at 126–129. Del Ponte disc usses

some crucial poi nts which facilitate invest igation at an international leve l:

employing highly qua lied, skil led, trained and ex perienced legal pe rsonnel;

effective man agement of the collection of evidence; protecting w itnesses who

might be vulne rable; choosing which persons to charge, sp ecically high-level

accused; and ensu ring that States comply wit h their obligation to cooper ate

with the internationa l court or tribu nal. The ICC’s Ofce of the P rosecutor

also places great empha sis on this.

8 IMTN Char ter art 17; IMTFE Ch arter art 11; ICTY Stat ute art 19; ICTR Statute

art 18.

9 SCSL Rules of Procedu re and Evidence, Rule 47(E); ECCC Intern al Rules, Rule

55(5)(d ).

10 ICC Statute arts 13(c) and 15.

11 ICC Statute art 15(3)–(6).

12 ICC Statute arts 14, 15, 53 and 54.

13 ICC Statute arts 13 –15ter.

14 ICC Statute art 58.

15 ICC Statute art 53(2)(c).

16 KJ Heller ‘Situ ational Gravity under the Rome Statute’ i n C Stahn and L van den

Herik (eds) Future Perspect ives on International Criminal Justice (2010) 227 at 228.

17 Ibid at 228– 233.

18 Ibid at 228, 233 –237.

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St at es ’.19 The problem of considering only the ‘numbers of v ictims’

affected by international cr imes to assess the gravity of the cr imes is

that this causes a type of ‘hierarchy of crimes’: ‘[t]he question is why

– why do we believe that the average crime against humanity is more

serious than the average war crime but less serious than the average

act of genocide?’20

Former Chief Prosecutor of the ICC, Luis Moreno Ocampo, made

an interesting statement at an informal meeting of legal advisers

of Ministries of Foreign Affairs regarding t he issue of determining

whether there is ‘reasonable basis to start an investigation’:21

Determini ng the correct model is a legal,  nancial and strategic

question that will requ ire dialogue between many actors . It has a legal

dimension, namely the inter pretation of Article 53, and the refore

involves the OTP and ultimately t he judges. It has a budgetar y

dimension and therefore involves the States Pa rties. It also has a

strateg ic dimension – what is the desired scope a nd role of the Court?

– and therefo re involves all st akeholders.22

Moreno Ocampo’s successor, Fatou Bensouda, in turn, identied

challenges faced by the ICC at the investigation phase in particular,23

but these can nd equal application to other ICTs. In several instances,

investigations are conducted amid continuing armed conicts or

situations indicating the commission of international crimes, which,

in turn, inuences the access to and protection of witnesses.24

Furthermore, the seat of ICTs is often geographically distant from the

location of the comm ission of international cri mes,25 impacting on the

ease with which information and ev idence can be obtained. Sensitivity

towards cultural, rel igious and linguistic diffe rences between the Ofce

of the Prosecutor and persons affected by the crimes must be kept in

19 Ibid at 228, 237–239. It can be infe rred that what Heller meant by r eferring

to ‘crimes that were commit ted by States’ is that the internat ional crime

is ‘committed by State actors’, not that the state is a ‘crim inal state’. What

Heller is critic ising here is that the ICC doe s not sufciently dif ferentiate

between state and non-st ate actors who are involved in the comm ission of

international crimes.

20 Ibid at 2 31.

21 Luis Moreno Ocampo St atement at Informal Meeting of Legal Advi sors of Ministries

of Foreign Affairs (24 October 2 005) 8.

22 Ibid at 9.

23 Fatou Bensouda ‘Challenges Related to I nvestigation and Prosec ution at the

International Cri minal Cour t’ in Robert Be llelli Internat ional Criminal Justice:

Law and Practice f rom the Rome Statute to its Review (2010) 131 at 134–142.

24 Ibid at 134–135. See fur ther Steven R Ratner, Jason S Abra ms and James

L Bischoff Accountabilit y for Human Rights Atrocities in Internat ional Law: Beyond

the Nuremberg Legacy (20 09) 253 at 254.

25 Bensouda op cit note 23 at 138 –139.

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mind, specically for the challenge it poses in accurately translating

and interpreting information, evidence and testimonies.26

As pointed out in the Introduction, investigation into and

prosecution of international crimes are immeasurably dependent on

the cooperation and assistance of States,27 irrespective of whether a

requested State is a member to the requesting ICT. It must be reiterated

that, without State cooperation, it becomes an extreme challenge for

ICTs to full their mandates effec tively.28 It does not mean that the ICT

will automatically be able to exercise its jurisd iction over international

crimes whenever a State expresses its ‘willingness’ to cooperate with

the ICT to full its mandate: States must still have the ‘political will’

to cooperate.29 It is a serious misconception that membership to an

ICT equals the willingness to always cooperate with requests: ‘the

mission of rendering punishment for atrocities – at the ICC as at any

other judicial mechanism – can not move forward absent state support

in furtherance of investigations and cases.’30

The lack of cooperation of three ICC member States – Kenya,

South Africa and Uganda – illustrates this point.31 In 2014 and 2016

respectively, charges against Kenyan President Uhuru Kenyatta and

Deputy President William Ruto were withdrawn, mainly resulting

from the Kenyan government’s lack of political will in providing

26 Ibid at 1 39.

27 Brittney A Dimond ‘W hen the ICC Comes Knoc king, the United States

Should Welcome it With Open Arms’ (2019) 28:1 Washington Internat ional Law

Journal 181; Milena Sterio ‘T he Trump Administ ration and the Internationa l

Criminal C ourt: Misguided New Policy’ (2019) 51 Case Western Reserve Jour nal

of International L aw 201; and Sascha-Domi nik Dov Bachman n and Naa A

Sowatey-Adjei ‘The Afric an Union–ICC Controver sy before the ICJ: A Way

Forward to Streng then International C riminal Just ice’ (2020) 29 Washington

International La w Journal 247 at 264.

28 Agreement for the Prose cution and Puni shment of the Major War Criminal s

of the European A xis arts 3 and 5e; I MTN Statute ar t 1; ICTY Statute ar t 29;

ICTR Statute ar t 28; SCSL Rules of Proc edure and Evidence Par t II; ECCC

Internal Rules, Ru le 5; ICC Statute Part 9. See fu rther Antonio Cassese ‘On the

Current Trends towards Cr iminal Pros ecution and Pun ishment of Breaches

of International Huma nitarian Law ’ (1998) 9 European Journal of Internat ional

Law 2 at 17.

29 ICC Statute preamble, art 17, Part 9; Christ ine H Chung ‘The Punishment and

Prevention of Genocide: T he International Criminal Co urt as a Benchmark of

Progress and Nee d’ (2007–2008) 40 Case Western Reserve Jour nal of International

Law 227 at 235 and 237–238.

30 Chung op cit note 29 at 239 (own emphasis).

31 Walid Fahmy ‘From the Establ ishment of the Court of Just ice of the Africa n

Union to Malabo Protocol: The D ees to the Regional Judicia l Mode of

Protection of Human R ights’ (2019) 7 Russian Law Journal 16 5; A rch an gel

Byaruhan ga Rukooko and Jon Silverman ‘ The International Cr iminal Cour t

and Africa: A Fr actious Relationship Assessed’ (2019) 19:1 African Hu man Rights

Law Journal 85.

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information and evidence to the ICC in investigating and prosec uting

the two suspects.32 The South African government blatantly refused

to execute the ICC’s arrest warrant for former Sudanese President

Omar Hassan Ahmad al-Bashir when he was in the country in 2015,

attending an African Union summit, arguing t hat he enjoyed Head-

of-State immunit y.33 In turn, Uganda’s relationship with the ICC has

been described as ‘ambiguous’,34 ranging from being praised by the

ICC for its cooperation,35 to deliberately acting in deance of the

ICC’s requests for cooperation.36 The Ugandan government also hosted

32 ICC Prosecutor v Uhur u Muigai Kenyatta (Public docume nt: Notice of withdrawal

of the charges again st Uhuru Muigai Kenyat ta No ICC-01/09- 02/11)

(5 December 2014); ICC Prosecutor v William Samoei Ruto a nd Joshua Arap Sang

(Public redac ted version of Decision on Defence Applications for Judgments of

Acquittal No ICC- 01/09-01/11) (5 April 2016); Bachmann and Sowatey-Adjei

op cit note 27 at 264 and 283.

33 Declaratory statement by t he Republic of South Afr ica on the Decision

to Withdraw from the Rome Statute of t he International Cri minal Cour t,

United Nations Treaty Collect ion, reference: CN786.2 016.TREATIES-XVI II.10

(Depositary N otication), 19 October 2016; Implementation of the Rome

Statute of the Internationa l Criminal C ourt Act Repeal Bi ll (B23 – 2016);

The Prosecutor v O mar Hassan Ahmad Al-Bashir 6 July 2017 ICC- 02/05-01/09

(decision under a 87(7) of the Rome Statute on the non-complia nce by South

Africa wit h the request by the cour t for the arrest and sur render of Omar Al-

Bash ir); Souther n Africa Litigation Ce ntre v Minister of Justice and Con stitutional

Development 2015 (5) SA 1 (GP); Minister of Justice and Constitutional D evelopment

v Southern Afr ica Litigation Centre 2016 (3) SA 317 (SCA); Democratic Allian ce

v Minister of Internat ional Relations and Coope ration and Others 2017 (3) SA

212 (GP); Withdrawal of Notication of Withdrawa l, United Nations Treaty

Collection, reference: cn121.2017.treAtieS-XViii.10 (Depositary Notication),

7 March 2017; International Crime s Bill (B37 – 2017); Bachmann a nd Naa A

Sowatey-Adjei op cit note 27 at 250–252, 266, 270, 277–278.

34 International Justice Mon itor: A Project of the Open S ociety Justice In itiative

‘Uganda’s Ambiguous Relationsh ip with the ICC Amid st Ongwen’s Trial’,

available at elation

ship-with-the -icc-amidst-ongwens-tr ial/> (accessed on 9 July 2021). See further

in this regard Joe Olok a-Onyango ‘Unpacki ng the Africa n Backlash to the

International Cri minal Cour t (ICC): The Case of Uganda a nd Kenya’ (2020)

4 Strathmo re Law Journal 41; Instituto Per Gli St udi di Politica Intern azionale

‘Between Dis dain and Cooper ation: Uganda’s Controversial Place in the IC C-

Africa Relation ship’ available at ine.it/it/pubblicazione/

between-disda in-and-cooperation-ugandas- controversial-place-icc-africa-

relationship-16453> (accessed on 9 July 2021).

35 International Cri minal Cour t ‘ICC Ofce of the Pros ecutor Participates i n

Training Initiat ive in Uganda: Collaboration is Ke y to Closing the Impunit y

Gap’ available at nt/Pages/item.aspx?name=pr1368>

(accessed on 9 July 2021).

36 Alexander K A Greenawalt ‘Complementarit y in Crisis: Uganda, A lternative

Justice, and the Internat ional Crimina l Court’ (20 09) 50 Virginia Journal of

International La w 109.

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al-Bashir in 2016, and also refused to execute the ICC’s warrant of

arrest against him.37

Usually only those with the greatest responsibil ity for international

crimes are held individually criminally responsible at ICTs: the

general aim is that lower-level suspects are tried at national courts.38

National prosecution of international crimes is greatly encouraged

by the international community, especially when considering its

importance in supporting the domestication of international criminal

law as well as avoiding impunity.39 The ‘inability’ to prosecute at a

national level is thus something which ICTs will take into account,

‘whether, due to a total or substantial collapse or unavailability of its

national judicial system, the State is unable to obtain the accused or

37 ICC Prosecutor v Om ar Hassan Ahmad Al-Bashir (Public Docume nt: Decision on

the non-compliance by the Re public of Uganda with the reques t to arrest and

surrender Oma r Al-Bashir to the Court and refe rring the matter to the United

Nations Secur ity Council and the Assembly of St ate Parties to the Rome Statute

No ICC-02/05 -01/09) (11 July 2016).

38 2002 ICTY C ompletion Strategy op cit note 5; ICC Statute preamble and art s 1

and 17; 2015 ICTR Completion Strategy op cit note 5 para s 61–73; 2017 ICTY

Completion Strategy op cit note 5 pa ras 119–166; Chung op cit note 29 at

235–236.

39 ICTR Ofce of the P rosecutor ‘Complementarit y in Action: Lesson s Learned

from the ICTR P rosecutor’s Referral of I nternational Crim inal Cases to

National Jurisdic tions for Trial’ (Februa ry 2015) available at r.

irmct.org/sites/u nictr.org/fi les/legal-libra ry/150210_complementarit y_in_

action.pdf> (accessed on 10 May 20 21) (‘ICTR Complementarity Doc ument’);

Rüdiger Wolfrum ‘P rosecution of Internat ional Crimes by Inter national

and National Crim inal Courts: C oncurring Ju risdiction’ in St udi di Diritto

Internazionale in On ore di Gaetano Arangio-Ruiz vol III (2004) 2199 at 2202;

Roberto Bellel li ‘The Establish ment of the System of International Cr iminal

Justice’ in Roberto B ellelli Inter national Criminal Justi ce: Law and Practice

from the Rome Statut e to Its Review (2010) 5 at 56; Muyiwa Adigu n ‘The Rome

Statute Complementarit y Principle and the Cre ation of the Africa n Court

of Justice and Human and Pe oples’ Rights’ (2018) 1–2 African Jou rnal of

International Cr iminal Justice 5; David Hughes ‘Investigation as Legit imisation:

The Development, Use and Misus e of Informal Complementa rity’ (2018) 19:1

Melbourne Journal of In ternational La w 84; Dumitrita F lorea, Narcisa Gales a nd

Loredana Terec-Vlad ‘The P remise of the Establ ishment of the International

Criminal C ourt’ (2019) 6 European Journal of Law and Public Administ ration 213

at 216–218; Daimeon Dean Shanks ‘ From Aspiration to Presc riptive Capacity

Building: Post-con ict States, Rule of Law and Hyb rid International Just ice’

(2019) 90:4 Colorado Law Review 1195 at 1209; Dan Zhu ‘The C omplementarity

Regime of the Internationa l Crimina l Court: Concer ns of China’ (2019) 41:1

University of Pennsylvania Jour nal of Internatio nal Law 177; Bachmann and Naa

A Sowatey-Adjei op cit note 32 at 253, 287, 289 and 298; Yuliya Mik and Mirko

Bagaric ‘The Jur isprudential Wasteland t hat is International Sentenc ing Law:

Justied Scept icism of International Criminal L aw’ (2021) 15:2 Charleston Law

Review 291 at 307.

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54 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

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the necessary evidence and testi mony or otherwise unable to carr y out

its proceedings’.40

Unfortunately, the result of ICTs focusing its selection of cases

on only suspected and accused persons who bear the greatest

responsibility is that ‘[n]ot all of those responsible for ultimate evil

[are] brought to justice’.41 This is a seemingly insurmountable obstacle,

as it would be a near impossible task to hold each and every person

criminally accountable for their role in the commission of genocide,

crimes against humanity and war crimes.42 This ‘impunity gap might

well affect socia l reconciliation in conict-torn regions and, therefore,

local and international stability’.43 However, this should rather be

viewed as an opportun ity for States to hold lower-level persons

individually criminally responsible for their international crimes,

thereby contributing to lling the ‘impunity gap’.44

Despite becoming a priority, the national prosecution of

international crimes faces its own unique challenges, mostly resulting

from the atrocities themselves, or the impact of political relations

at all levels.45 There is also the risk that national prosecutions may

be open to abuse by States that wish ‘to pursue politically motivated

pr os ecu ti on s’.46 Therefore, the national prosecution of international

crimes will be benecial only–

if the judicial system i s [generally] fair a nd effective [and a] fair and

effective judicia ry requires four f undamental conditions: a workable

legal framework through wel l crafted statutes of cr iminal law and

procedure; a traine d cadre of judges, prosecutors, defenders, a nd

investigators; adequate infrast ructure, suc h as courtroom faci lities,

investigative ofces, record-keepi ng capabilities, and detention and

40 ICC Statute art 17(3).

41 Roger S Clark ‘The Developme nt of International Criminal L aw’ in Chili Eboe-

Osuji (ed) Protecting Humanit y: Essays in Internation al Law and Policy in Honour

of Navanethem Pillay (2010) 367 at 368.

42 Del Ponte op cit note 7 at 128.

43 Bellelli op cit note 39 at 56.

44 Ibid.

45 Alison Des Forges and T imothy Paul Longman ‘Lega l Responses to Genocide in

Rwanda’ in Richa rd Falk, Hilal Elver and Lis a Hajjar (eds) Human Rights: Critical

Concepts in Political Science vol III (2008) 285 at 293 –297. T he national trials of

perpetrators of t he Armenian genoc ide were also greatly pl agued by political

pressure: ‘the politic al inghting, both withi n Turkey and between the All ied

Powers, often played a larger role in t he crimina l trials than the appreciation

of the need to adhere to and uphold the sta ndards of justice’. See in this regard

Vahakn N Dadrian The History of the Armeni an Genocide: Ethnic Conict from th e

Balkans to Anatolia to the Caucasu s (1995) 333.

46 Stephen Macedo Universal Jurisdic tion: National Court s and the Prosecut ion of

Serious Crimes U nder International Law (2006) 28.

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prison facilities; a nd, most importantly, a culture of respe ct for the

fairness and impa rtiality of the process and the r ights of the accused.47

The national prosecution of international cri mes may in some instances

be problematic also because members of the judiciar y and legal

profession are often part of the group that was exterminated during

the commission of international crimes. The result is that this group

has to be re-established in order to prosecute the perpetrators. Part of

the Khmer Rouge genocidal ideology was to create a ‘classless society’,

and any intellectuals, includi ng lawyers, were seen as obstacles to the

realisation of the ideology; therefore, ‘practically a whole generation of

lawyers was eliminated’.48

A similar thing happened during the Rwandan genocide, where

more than 80 per cent of members of the judicial sy stem ‘disappeared’,

and the system also faced ‘serious shortages of resources, basic facil ities

an d e qu ipm en t’. 49 Legislation was adopted by the Rwandan government

to try persons involved in the genocide by dividing them into four

different categories in an attempt to overcome the serious difculties

faced by the judicial system. The categories ranged from persons in

senior positions involved in the actual planning of the genocide to

persons who were involved with ‘crimes against property’.50 However,

this legislation was not as successful as i nitially envisioned, as the trials

of the accused were deemed unfair, staggering numbers of persons

were accused, and previous leaders of the former genocidal regime

still exerted political inuence over the trials, all contributing to the

‘confession and guilty plea procedure’ of the legislation becoming

‘i ne f fe cti ve ’.51 The Rwandan government then decided to create ‘gacaca

tribunals’,52 which were based upon a trad itional accountability system

reminiscent of a ‘truth comm ission’:

47 Ratner et al op c it note 24 at 204.

48 C Leang and W Smith ‘T he Early Exper ience of the Extraord inary Chamb ers

in the Courts of C ambodia’ in R Bellelli International Criminal Justice: Law and

Practice from the Ro me Statute to Its Review (2010) 143 at 144.

49 Leila N Sadat ‘Inter national Criminal L aw and Alternative Modes of Redress’ in

Andreas Zim mermann Inter national Criminal Law and the Current De velopment

of Public Internati onal Law: Proceedings of an Inter national Symposium of the Kiel

Walther Schücking Institute of Inter national Law, May 30–June 2, 2002 (2 003) 161

at 167.

50 Organic Law No. 08/96 on the Organisat ion of Prosecutions for Offences co nstituting

the Crime of Genocid e or Crimes against Humanity Committed sin ce 1 October 1990

30 August 1996, available at ps://www.refworld.org/docid/3ae6b4 f64.

html> (accessed on 15 May 2021). The Organic Law ca me into force on

1 September 1996. See al so Sadat op cit note 49 at 167.

51 Sadat op cit note 49 at 167–168.

52 G Hankel ‘Gacaca Cour ts’ MPEPIL vol IV (2012) 279.

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Under Gacaca, suspects w ill be brought before 19-member lay tribunal s

sitting in the vi llage where the crimes occ urred. Anyone can sp eak

for or against those charged, a nd the accused may confess a nd seek

forgiveness or deny the charges and de fend himself. However, the

accused wil l not be protected by many of the rights normally available

to criminal d efendants, leading some internat ional observers to

express concern about the u ltimate fairness of the result. Neverthele ss,

Rwanda’s pursuit of the Gacaca process suggest s the continued

importance of accountabil ity and justice to Rwanda [sic] so cie ty.53

The contribution of t he gacaca system to the peace process is

questionable, as is the prosecution of perpetrators at Rwandan national

courts, but these approaches are still better than if no recourse to

criminal justice was available within Rwanda.54 Victims are not fully

supportive of the gacaca system, as ‘survivors of the genocide continue

to argue that any compromise with stric t criminal justice violates their

rights and offends the memories of hundreds of thousands who were

butchered in 1994’.55

In deciding to refer lower-ranking ofc ials to national prosecutions

as part of their Completion Strategies, the ad hoc tribunals recognised

the various challenges that th is would trigger.56 In 2015 the Ofce of the

Prosecutor at the ICTR published a manual entitled ‘Complementarity

in Action: Lessons Learned from the ICTR Prosecutor’s Referral of

International Criminal Cases to National Jurisdictions for Trial’.57 The

purpose of this ‘ best practices’ document is to provide recommendations

and solutions to challenges in prosecuting international crimes at

national courts.58 Crucial ly, States must be ‘willing a nd able’ to prosecute

international crimes in thei r national courts.59 T he ability to prosecute

53 Sadat op cit note 49 at 168–169.

54 Akhavan op cit note 2 at 145–148.

55 William A Sch abas ‘National Cour ts Finally Begin to Prosecute Ge nocide, the

“Crime of Crimes”’ (2003) 1 Jour nal of International Criminal Justice 39 at 47.

56 2002 ICT Y Completion Strategy op cit note 5 at Part 1; 2003 IC TR Completion

Strategy op cit note 5; 2015 ICTR Completion Strategy op c it note 5 at Parts I and

III; 2017 ICTY Completion St rategy op cit note 5 at 75– 83. See furt her Fausto

Pocar ‘Reect ions on the Independence and Impa rtialit y of International

Judges’ in Chili Eboe -Osuji (ed) Protecting Hum anity: Essays in Intern ational

Law and Policy in Honour of Navanet hem Pillay (2010) 595 at 74 (Pocar); Erik

Møse ‘The Internat ional Crimina l Tribunal for Rwanda’ in Rob erto Bellelli

International Cr iminal Justice: Law and Practice f rom the Rome Statute to its Review

(2010) 80 at 89–90, 96–98 .

57 ICTR Complementar ity Document’ op cit note 39.

58 Ibid foreword and paras 168–172. A pract ical example of this is when the ICC

has decided in term s of Article 17 of the Statute th at a case is inadmissible,

whereafter a nationa l court may assert jurisdic tion.

59 Ibid para 35.

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manifests in dif ferent ways, depending on the state: the judicial system

in States where international crimes were committed must be restored

and its capacity rebuilt, as atrocities have a devastating impact on all

levels of such societies.60 The inability of third States may result from

inexperience in investigating a nd prosecuting international crimes, an

already overburdened judicial system, as well a s lack of funding.61 This

inability is also a factor in the willingness of States to accept referrals

from ICTs: not only are third States loath to spread valuable nancial

resources in resolving thei r inability to prosecute international crimes,

in many instances States also lack the political will to investigate and

prosecute in the rst place.62

The challenge in selecting cases, as discussed above, mostly relates

to their investigation, and the decision whether to grant an application

to issue a warrant of arrest. Evidence collected during investigation

will then have to be presented during t rial proceedings, and ultimately

be sufcient to prove guilt beyond reasonable doubt. The next part

of this article will consider the challenge posed by the obligations of

ICT personnel, investigators, prosecutors and judges to respect and

protect the rights of suspected and accused persons throughout the

proceedings. This challenge extends from the challenge of selecting

cases: the sheer volume of evidence necessary to merit issuing a wa rrant

of arrest for any international crime raises the question whether an

accused person ever truly enjoys the right to a fair trial, is indeed

presumed innocent until proven guilty, and whether international

criminal t rials are entirely free from bias. These are d ifcult questions,

yet it is extremely important to still respect and protect a person’s

various rights, despite the evidence against such a person accused of

international crimes.63

3 THE CHALLENGE OF CONSISTENTLY RESPECTING

AND PROTECTING T HE RIGHTS OF SUSPECTS AND

ACCUSED PERSONS

All constitutive international instruments of international courts and

tribunals g uarantee certain rights to a person su spected of international

crimes as well as an accused person,64 which will be disc ussed in this

60 Ibid paras 45–76.

61 Ibid paras 22 –34.

62 Ibid paras 22 –34.

63 Jacob Katz Cogan ‘Inter national Crimi nal Courts and Fa ir Trials: Difc ulties

and Prospects’ (20 02) 27 Yale Journal of Internat ional Law 111.

64 IMTN Char ter arts 6, 8, 16, 27 and 29e; IMT FE Charter a rts 9 and 12; ICTY

Statute arts 2(f), 7, 10, 20, 21 and 23–28; ICT R Statute arts 4(g), 6, 9, 19, 20

and 22–27; SCSL Statute ar ts 9, 17, 20 and 21; ECCC Law arts 6, 14 new, 29, 33

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part. It will be shown that this area has seen tremendous development

since the International Military Tribunals held at Nuremberg and in

the Far East. The discussion will start by setting out the various ways

in which the rights of suspects and accused persons must be respected

and protected by investigators, prosecutors and judges, and then a

discussion of the specic rights guaranteed to suspects a nd accused

persons will follow. The difcult question of whether it can ever be

possible to fully respect and protect suspected and accused persons

during international criminal trials will then be engaged with.

The obligation to respect and protect the rights of suspects

and accused persons is generally imposed on personnel at ICTs,

investigators and prosecutors throughout proceedings, and on judges

particularly dur ing trial proceedings at the ICTs.65 Furthermore, the

discussion below will illustrate the great development and expansion

of the rights of suspects and accused persons, from the time of the

International Military Tribuna ls held at Nuremberg and the Far East

until their cur rent treatment at ICTs. However, it must be pointed out

that despite the development and expansion of the rights of suspects

and accused persons, fu rther attention can and should be paid to this

‘forgotten gure of the international criminal trial’.66

It must rstly be highlighted that investigators, prosecutors and

judges must possess certain characteristics and qualications to fu ll

their obligation to respect and protect the rights of suspe cts and accused

persons. Investigators and prosecutors must act ‘independently’ and

may not act on the ‘instructions’ of any source.67 Furthermore, they

must be of ‘high moral character’, must be ‘impartial’, and must have

the necessary expe rience to conduct investigations and prosecutions.68

They are appointed by the Secretar y-General of the United Nations,69

or in the case of the ICC, the Assembly of State Parties.70 Interestingly,

the ICC Statute also places an obligation on the Prosecutor, in ensuring

that the accused has a fair trial, to provide the defence with evidence

that ‘shows or tends to show the innocence of the accused’ and that

new–36 new, and 38–4 0 new; ICC Statute arts 8(2)(a)(vi), 8(2)(b)(xiv), 8(2)(c)

(iv), 9, 20, 22–25, 61, 63, 65–67, 81, 82 and 84.

65 Mik and Bagaric op c it note 39.

66 Frédéric Mégret ‘“Bri ng Forth the Accus ed!” Defendant Attit udes and the

Intimate Legiti macy of the Internationa l Criminal Tria l’ (2019) 36:3 Arizona

Journal of Internat ional and Comparative Law 39 7.

67 ICTY Statute ar ts 16(2) and 18(1); ICTR Statute arts 15(2) and 17(1); SCSL Statute

art 15(1); ECCC Law arts 19 and 25; ICC Statute ar t 42(1), (5) and (7).

68 ICTY Statute art 16(3) and (4); SCSL Statute art 15(4); ECCC Law ar ts 19 and 25;

ICC Statute art 42(3).

69 ICTY Statute ar t 16(5); ICTR Statute art 15(3); SCSL Statute a rt 15(3); ECCC Law

arts 18 and 26.

70 ICC Statute art 42(4).

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would ‘mitigate the guilt of the accused, or which may affect t he

credibility of prosecution evidence’.71

In contrast, the Charters of the Military Tribunals did not require

investigators and prosecutors to be independent, of high moral

character, impartial, and possessing the necessary experience to

conduct investigations and prosecutions.72 Only Art icle 15 of the IMTN

Charter provided that Chief Prosec utors had to act ‘individually’ and

‘in collaboration with one another’.73

When it comes to the characteristics and qualications of judges,

there has also been considerable development since the Military

Tribunals. Judges must have ‘high moral character’ and ‘integrity ’,

must be ‘impartial’ and ‘independent’, and must have the necessary

qualications required within their States of nationality that will

enable them to be appointed to the ‘highest judicial ofces’.74 ICT

judges are generally elected by the United Nations General Assembly,

after its consideration of a list compiled by the Security Council.75

Judges of hybrid courts are appointed by agreement between respec tive

governments and the UN Secretary-General,76 and ICC judges are

elected by the Assembly of State Parties.77 Finally, judges are required

to ensure that the trial is conducted in a fair and expeditious manner,

and strictly in accordance with the applicable rules of procedure

and evidence.78

In comparing the current requirements relating to judges with

the Military Tribunal Charters, it becomes evident just how much

development has occurred. Neither Charter required judges to be of

high moral character, impartial, having integrity, and having the

necessary quali cations to be appointed to ‘the highest judicial ofces’

in their States of nationality.79 The Charters provided that ‘members’

of the Tribunals were to be elected by the signatories thereto.80 Two

rather peculiar provi sions should be highlighted; the rst was i ncluded

in both Charters, the second only in t he IMTN Cha rter. Both Charters

71 ICC Statute art 67(2).

72 IMTN Cha rter arts 14 and 15; IMTFE Charter a rt 8.

73 IMTN Cha rter art 15.

74 ICTY Stat ute art 13; ICTR Statute art 12(1); SCSL Statute art 13(1) and (2); ECCC

Law art 10 new; ICC Statute ar ts 36(3)(a) and (b) and 40.

75 ICTY Statute ar t 13bis, ter and quarter; ICTR Statute art 12 (3), (4) and (5).

76 SCSL Statute ar t 12; ECCC Law arts 11 new and 46 new.

77 ICC Statute art 36(4)–(8).

78 ICTY Statute ar ts 15 and 20; ICTR Stat ute arts 14 and 19; SCSL Statute art 14;

SCSL Rules of Proce dure and Evidence, Rules 80 and 89; ECCC L aw arts 33 new

and 46 new; ICC Statute art s 51, 64, 69, 70 and 71.

79 See in general IM TN Charte r arts 2– 4, 16–21 and 24–2 8; IMTFE Cha rter

arts 2– 4 and 9–13.

80 IMTN Char ter art 2; IMTFE Char ter art 2.

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provided that the Tribunals ‘shall not be bound by technical r ules of

evidence’ and should ‘adopt and apply to the greatest possible extent

expeditious and non-technical procedure’.81 Then, the IMTN Charter

provided that ‘[n]either the Tribunal, its members nor their alternates

can be challenged, whether it is by the prosecution, defendants, or the

latter’s Coun sel’.82

During the investigation stage, persons suspected of committing

international crimes have the right to be informed, in a language

that they understand, that there are ‘grounds to believe’ that they

committed an international crime within the jurisdiction of the ICT;

the right to remain silent; the right to have access to legal representation

or assistance; and the right to be questioned in the presence of their

counsel.83 Furthermore, an arrest warrant or indictment must be

timeously furnished to the person, specifying detailed charges, in a

language that they understand.84

Before trial proceedings may commence, charges against the

person must rst be conrmed by the ICT.85 Thereafter, an accused

person has the right to be present at public, fair, expeditious, impar tial

and independent trial proceedings; the right to be presumed innocent

until their guilt is proven beyond reasonable doubt; the right to

equality before the ICT; the right to access to legal representation; the

right to silence; the right to participate in proceedings in a language

that they understand or speak; the right to raise a defence against

charges and have adequate time to prepare for it; the right against self-

incrimination; the right to examine or have witnesses examined; the

right to have access to an interpreter; and the right to appeal.86

The Charters of the Military Tribunals made limited provision for

the rights of accused persons; the focus was mainly on the run ning

of expeditious trial proceedings; granting the accused access to legal

81 IMTN Cha rter art 19; IMTFE Char ter art 13(a).

82 IMTN Cha rter art 3.

83 IMTN Cha rter art 16(b) and (c); ICTY Statute ar t 18(2) and (3); ICTR Statute

art 17(3); SCSL Rules of Procedure a nd Evidence, Rule 42; ECCC L aw

art 24 new; ICC Statute a rt 55.

84 IMTN Cha rter art 16(a); IMTFE C harter art 9(a) and (c); ICTY Statute art 18(4);

ICTR Statute ar t 17(4); SCSL Rules of Proce dure and Evidence, Rule 47(B) and

(C); ECCC Internal Rules, Ru le 45; ICC Statute arts 58(3) and 67(1)(a) and (b).

85 ICTY Statute ar t 19; ICTR Statute art 18; SCSL Rules of Proce dure and Evidence,

Rule 47(E) and (F); ICC Statute ar t 61.

86 ICTY Statute ar ts 20 and 21; ICTR Statute ar ts 19 and 20; SCSL Statute ar t 17;

ECCC Law arts 33 new, 34 new and 35 new; IC C Statute arts 63, 64, 66 a nd

67. These rights of accused persons a re also considered a r ule of customary

international law. See fu rther S Jegede ‘The Right to a Fair Tria l in International

Criminal L aw’ in C Eboe-Osuji (ed) Protecting Hum anity: Essays in International

Law and Policy in Honour of Navanet hem Pillay (2010) 519 at 520–545.

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representation and reasonable time to prepare for the trial a nd for their

defence, to submit evidence, and to question witnesses; and ensuring

that proceedings would take place in a language they understood.87 In

contrast to current practice, accused persons did not have the right to

appeal the judgments; the judgments were not subject to review;88 and

both Tribunals could impose the death pena lty on convicted persons.89

The IMTN Charter provided that if an accused person ‘has not been

found’, the Tribunal ‘had the right’ to conduct tr ial proceedings ‘in his

ab se nc e ’.90 Currently, when an accused person exercises their right to

remain silent during tr ial proceedings, it may not be ‘a consideration

in the determination of guilt or innocence’.91 In contrast, the IMTFE

Charter ‘[permitted] comment on [the accused’s] refusal to a nswer any

question’ posed by the Tribunal.92

Respecting and protecting the right of the accused to expeditious

proceedings arguably poses one of the most serious challenges to

prosecutors and judges at ICTs.93 Most international criminal tria ls have

taken an extremely long time to na lise, and this may inevitably result

in ‘violating the defendant’s right to a speedy trial and the victims’

right to see justice done quickly’.94 A factor that undoubtedly impacts

on the duration of trials is the high nancial cost of running ICTs.95

Financial contributions are made by member States of the constitutive

documents of ICTs, member States of the United Nations, or simply

generous States.96 Another factor impacting expeditious proceedings

is negotiating the establishment of ICTs, particularly considering t he

number of States and decision-makers involved in participating. Very

few States were involved in the negotiation process to establish the

Nuremberg Tribunal, and less than a year a fter the end of the Second

World War, the Tribunal was established, trials were held and the

accused were punished.97 Both the International Criminal Tribunal

87 IMTN Cha rter arts 16, 18 and 24; IMTFE Char ter arts 9, 12 and 15.

88 IMTN Char ter art 26; IMTFE Cha rter art 17.

89 IMTN Cha rter art 27; IMTFE Charter a rt 16.

90 IMTN Cha rter art 12.

91 ICC Statute art 67(1)(g).

92 IMTFE Cha rter art 11(b).

93 Jean Galbraith ‘T he Pace of International Criminal Just ice’ (2009) 31 Michigan

Journal of Internat ional Law 79; David Tolbert and Fergal Gaynor ‘Intern ational

Tribunals and the R ight to a Speedy Trial: Problem s and Possible Remedies’

(2009) 27 Law in Context: A Socio -Legal Journal 33.

94 Ratner et al op cit note 24 at 252. The Military Tribunals we re established and

delivered judgments in a ve ry swift ma nner when compared to cu rrent trials

at IC Ts.

95 Katz Cogan op cit note 63 at 132–133.

96 IMTN Cha rter art 30; IC TY Statute art 32; ICT R Statute art 30; ECCC Law art

44 new; ICC Statute Part 12 a rts 113–118; Ratner et al op cit note 24 at 252–253.

97 See furt her IMTN Charter; Nuremberg Judgment op cit note 114.

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for the Former Yugoslavia (‘ICTY’) and the International Criminal

Tribunal for Rwanda (‘ICTR’) took a relatively short period of time to

set up,98 in contrast to the negotiation process to establish a court

or tribunal for Cambodia, which took approximately thirty years.99

Several reasons for this delay have been put forward: t he last Khmer

Rouge leaders surrendered only in 1999 and ‘many of the political,

military and nancial elites in Cambodia were and still are afliated

with former Khmer Rouge ofcials’.100 The internationa l community

was also focused on peacebuilding and ensuring that Vietnam

withdrew from Cambodia.101 There was also disagreement between

the international community and the Cambodian government about

whether to establish an international or national criminal tribunal,

the latter being strongly supported by the Cambodian government.

Agreement was eventually reached that a mixed or hybrid tribunal

was to be established. At the time of writing, trials at the ECCC are

still ongoing. Unfortunately, the tribunal’s legitimacy and future

effectiveness have been called into question, particularly as a result of

reports of political interference by the c urrent Cambodian government

in the overall runn ing of proceedings.102 The impact hereof is that it

is uncertain whether investigators, prosecutors and judges are act ing

in accordance with the required independence, impartiality and lack

of bias. Most of the top leadership of the Khmer Rouge have already

98 Ibid.

99 The ‘trials’ held in 1979 can not be viewed as anything but a sham. Se e in this

regard World Chronicle: The ‘Khmer Rouge Trials’ (No 993) recorded 8 Nove mber

2005; Christophe r Stephen ‘International Crim inal Law: Wielding the Sword of

Universal Cri minal Justice’ (2012) 61:1 International Comparative Law Quarterly

55 at 68.

100 L Keller ‘Cambo dia Conicts ( Kampuchea)’ MPEPIL vol I (2012) 1093, para 39

at 110 0.

101 Ibid.

102 David Cohen ‘Hybrid Just ice in East Timor, Sierra L eone, and Cambodia :

Lessons Lear ned and Prospec ts for the Future’ (2007 ) 43 Stanford Journal

of International L aw 1; Elizabeth Niel son ‘Hybrid Internationa l Criminal

Tribunals: Political I nterference and Judicia l Independence’ (2010) 15 UCLA

Journal of Internat ional Law and Foreign Affairs 289; Mathi as Holvoet and Paul de

Hert ‘Internationa l Law as Global Law: An Assessment of the Hy brid Tribunals’

(2012) 17:2 Tilburg Law Review 228; Tomas Hamilton and Mich ael Ramsden

‘The Politicisation of Hybr id Courts: Obser vations from the Ex traordinar y

Chambers in t he Courts of Cambo dia’ (2014) 14:1 International Crimi nal Law

Review 115; Jennifer Trahan ‘The Futu re of International Just ice’ (2017) 50

Studies in Transnational Legal Policy 47 at 60; Ra ndle C DeFalco ‘The Uncertain

Relationship betwee n International Criminal L aw Accountability and the Rule

of Law in Post-atrocity St ates: Lessons from Camb odia’ (2018) 42 Fordham

International La w Journal 1; and Dean Shanks op cit note 39.

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passed away (Pol Pot, for instance), but a large number of lower-level

leaders are part of the current Cambodian government.103

Turning to the running of the trials, the ICTY, the ICTR and the

Special Court for Sierra L eone (‘SCSL’) have taken years to complete

their mandates, and it was eventually decided to transfer cases to an

oversight body that would ensure the completion of their work after

their closure. This leads to the di fcult question of whether the right

of accused persons to exped itious proceedings at these ICTs was indeed

respected and protected by its ofce bearers.104 The United Nations

attempted to rectify this by establishing oversight bodies to speed up

criminal proce edings at these ICTs. In August 2010, the United Nations

and the Government of Sierra Leone agreed to establish the Residual

Court for Sierra Leone to complete the work of the SCSL.105 Then,

in December 2010, the United Nations Security Council established

the International Residual Mechanism for Criminal Tribunals that

would ‘continue the material, territorial, temporal and personal

jurisdiction’ of the ad hoc tribunals.106 The Completion Strategies of

the ICTY and the ICTR made a number of recommendations that

would assist in expediting proceedings to enable future ICTs to ensure

that the accused’s right to expeditious proceedings is respected,

without forfeiting the importance of achieving justice. The Strategies

highlighted that this responsibility fell on the ofce of the prosecutor,

the defence team, and the trial and appea l judges.107 Recommendations

included referring cases to national courts, focusing on prosecuting

the most senior persons and those with the greatest responsibility,

joining related cases, reducing the scope of charges, efcient case

management, and ensuring that both the prosec ution and the defence

comply with time limits.108

Specic focus must be placed on the right of accused persons

to raise a defence against charges. This area has developed greatly

103 See, in general, Ma hnoush Arsanjan i ‘The Uses and Abuses of I llusion in

International Politics’ i n Mahnoush Arsa njani, Jacob Katz Cogan, Robe rt

Sloane and Siegfrie d Wiessner (eds) Looking to the Future: Essays on Internatio nal

Law in Honor of W Michael Reisman (2011) 51 at 60.

104 VK Ahuja ‘Closure of the IC TY: The Mandate is Not Yet Over’ (2020) 10:2 GNLU

Journal of Law and De velopment and Politics 1.

105 Agreement bet ween the United Nations and the G overnment of Sierra Le one

on the Establishment of a Residua l Special Cour t for Sierra Leone (‘RS CSL

Agreement’) a rt 1(1).

106 Statute of the Internat ional Residual Mechan ism for Crimina l Tribunals

(‘IRMCT Statute’ ) art 1(1).

107 2017 ICTY Completion Strateg y op cit note 5 at 66.

108 2002 ICT Y Completion Strategy op cit note 5 at 4–17; 2015 ICTR Completion

Strategy op cit note 5 at paras 61–73; 2017 ICTY Completion St rategy op cit

note 5 at 66–83.

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over the years, and the most extensive provision is made in the ICC

Statute. The constitutive treaties of other ICTs provided that the

defence of acting under superior orders may only ‘be considered in

mitigation of punishment’ if ‘justice so requires’.109 In terms of the ICC

Statute, defences for accused persons are based on general principles

of criminal law, and include nullum crimen sine lege, nulla poena sine

lege (‘no crime without law, no punishment without law’), duress,

mistake of law or fact, mental disease or defect, intoxication, and self-

defence.110 The defence of acting under superior orders may be raised

only if the accused acted ‘under a legal obligation to obey orders of

the Government or the superior in question’, ‘did not know that the

order was unlawful’, and ‘the order was not manifestly unlawf ul’.111

Orders to commit genocide and crimes against humanity are always

considered ‘manifestly unlawful’.112

The way in which the Nuremberg Tribunal responded to defences

raised during tr ial proceedings illustrates the development hereof. One

of the defences raised by the accused at the Nuremberg Tribunal was

nullum crimen sine lege, nulla poena sine lege,113 which meant that the

Tribunal lacked jurisdiction to tr y the major war criminals, as there

was no law prohibiting their acts at the time of their commission,

specically with regard to waging a war of aggression.114 The accused

argued that the–

ex post facto punishment is abhorrent to the law of a ll civilized nations,

that no sovereign power had made agg ressive war a crime at the time t hat

the alleged crim inal acts were comm itted, that no statute had dened

aggressive war, that no penalt y had been xed for its commission, and

no court had been created to t ry and punish offenders.115

The Tribunal held that nullum crimen sine lege, nulla poena sine lege ‘has

no application to the present facts’116 and that it would be ‘unjust’ to

allow those who violate international treaties ‘to go unpunished’.117

The heritage of this is apparent in Art icle 22 of the ICC Statute, which

provides that a person may be held crimina lly responsible only for

109 IMTN C harter art 8; I MTFE Char ter art 6; ICT Y Statute art 7(4); ICTR Statute

art 6(4); SCSL Statute art 6(4).

110 ICC Statute arts 22 , 23, 31 and 32.

111 ICC Statute art 33(1).

112 ICC Statute art 33(2).

113 Ratner et al op c it note 24 at 23.

114 IMT N Judicial Decisions: Inter national Military Tribunal ( Nuremberg), Judgment

and Sentences, reprinted i n (January 1947) 41 AJIL 172 (‘Nuremberg Judgment’)

at 217–220. See also Ratner et al op cit note 24 at 23–24.

115 Nuremberg Judgment op cit note 114 at 217.

116 Ibid.

117 Ibid.

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conduct that ‘constitutes, at the time it takes place, a crime within the

jurisdiction of the Cour t’,118 and that the denition of such crime ‘shall

be interpreted in favour of the person being investigated, prosecuted

or convicted’.119 With regard to the maxim nulla poena sine lege,

Article 23 provides that the punishment of a convicted person may

only be ‘in accordance with this Statute’.120

Another defence raised by the accused at the Nuremberg Tribunal

was that ‘international law is concerned with the actions of sovereign

States, and provides no punishment for individuals; and further, that

where the act in question is an act of State, those who carry it out

are not personally responsible but are protected by the doctrine of

the sovereignty of the State.’121 The Tribunal rejected this defence as

well, and stated that ‘crimes against international law are committed

by men, not by abstract entities, and only by punishing indiv iduals

who commit such crimes can the provisions of international law

be en f or ce d’.122 The Tribunal also held that the international law

principle that acts of state do not involve the personal responsibility

of the representatives of that state ‘cannot be applied to acts which

are condemned as criminal by international law’ and ‘authors of

these acts cannot shelter themselves behind their ofcial position in

order to be freed from punishment in appropriate proceedings’.123 The

implication of this was that high-rank ing ofcials could henceforth be

held personally accountable for committing international cr imes, and

these ofcials could no longer hide behind the shield provided by the

principle of state sovereignty.124

The Axis war cr iminals also used the defence that they were simply

carrying out the orders of the State and of Hitler.125 The Tr ibu nal

held that ‘[h]e who violates the laws of war cannot obtain immunity

while acting in pursuance of the authority of the state if the state in

authorising action moves outside its competence under international

la w ’,126 and that ‘[t]he true test, which is found in varying degrees in

the criminal law of most nations, is not the existence of the order,

but whether moral choice was in fact possible’.127 The implication of

this was that there were certain types of conduct for which immunity

118 ICC Statute art 22(1).

119 Ibid art 22(2).

120 Ibid art 2 3.

121 Nuremberg Judgment op cit note 114 at 220.

122 Ibid at 221.

123 Ibid.

124 ICTY Statute ar t 7(2); ICTR Statute art 6(2); ICC Statute a rt 27; ECCC Law art 29.

125 Nuremberg Judgment op cit note 114 at 221.

126 Ibid.

127 Ibid.

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might not be claimed and that immunity would not be available

when it moved beyond international law. It also ensured that ofcia ls

could no longer blindly obey superior orders: there would always be a

‘moral choice’.128

The absence of a ‘moral choice’ implies that the accused can

raise the defence of duress or compulsion.129 This defence becomes

particularly complicated with regard to ca rrying out superior orders to

commit genocide and crimes against humanity.130 The case of Dražen

Erdemovi´c at the ICTY dealt with the question whether the defence of

committing cri mes against humanity and war crimes against in nocent

civilians ‘under duress and without the possibility of another moral

choice, that is, in extreme necessity’ would be available to a soldier

acting under superior orders.131 This case illustrates the challenge that

the defence of duress raises in international c riminal trials. Erdemovi´c

was a soldier in the Bosnian Serb armed forces and was accused of

crimes against humanity and war crimes for part icipating in the

genocide at Srebrenica in July 1995.132 He was ordered by the operations

commander, Brano Gojkovi´c, to take part in the ring squad to kill

Bosnian Muslim men; however, Erdemovi´c ‘asserted his immediate

refusal’. He entered a guilty plea with regard to the cha rge of crimes

against humanity, and explained that he–

was threatened with i nstant death and told ‘If you don’t wish to do

it, stand in the line with t he rest of them and give others your rie so

that they can shoot you.’ He declared th at had he not carried out the

order, he is sure he would have been killed or t hat his wife or child

would have been direct ly threatened. Regarding t his, he claimed to

have seen Milorad Pelemiš order ing someone to be killed b ecause he

had refused to obey. He reported th at despite this, he attempted to

spare a man betwee n 50 and 60 years of age who said that he had

saved Serbs from Srebrenic a. Brano Gojkovi´c then told him that he did

not want any surviv ing witness to the crime.133

128 Ibid.

129 Ratner et al op cit note 24 at 153. Ratner et a l state that duress may be use d

as a defence by an accus ed only if the following e lements are satised: ‘(1) an

immediate thre at to his life or physical well-being (or perhaps th at of another)

if he fails to car ry out the crime; (2) no adequate way to avert t he threatened

evil; (3) that the cri me committed was not disproportionate to the th reatened

evil; and (4) that he did not voluntarily br ing about the situation.’

130 Shane Darcy ‘D efences to International Crimes’ i n William A Schabas and Nad ia

Bernaz Routledge Hand book of International Criminal Law (2011) 231 at 235.

131 ICTY (Appeal s Chamber) The Prosec utor v Dražen Erdemovi ´c 7 Oc tober 1997

ICTY IT-96-22 -A (Judgment) para 11 at 9 (‘Erdemovi ´c Judgment’).

132 ICTY The Prosecutor v Dražen Erdem ovi ´c 22 May 1996 ICTY IT-96 -22 (Indict-

ment) para 12 at 2.

133 Erdemovi ´c Judgment o p cit note 131 para 7 at 6.

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After an exam ination of the difference in the legal positions of civil-law

and common-law systems, the majority at the Appeals Chamber of the

ICTY held that ‘duress does not afford a complete defence to a soldier

charged with crimes against humanity and/or a war crime involving

the killing of in nocent human beings’.13 4 Judges McDonald and Vohrah

concluded ‘that there is no consistent concrete rule which answers the

question whether or not duress is a defence to the killing of innocent

persons. It is not possible to reconcile the opposing positions and,

indeed, we do not believe that the issue should be reduced to a contest

between common law and civil law.’135 The Tribunal concluded t hat

duress, despite not affording a complete defence indicating acquittal

for the accused, may be used in mitigation of the sentence.136

The ICC Statute states that duress would exclude the criminal

responsibility of an accused person provided it resulted–

from a threat of imm inent death or of continuing or imminent serious

bodily harm aga inst that person or anothe r person, and the person

acts necessari ly and reasonably to avoid this threat, provided that the

person does not intend to cause a greater ha rm than the one sought to

be avoided. Such a threat may either be: (i) made by other pe rsons; or

(ii) constituted by other circ umstances beyond that person’s control.137

The defence of carrying out superior orders is still used by alleged

perpetrators of international crimes, and ‘the order itself becomes, for

the defendant, a justication for any brutality’.138 Following superior

orders has not been available as an ‘absolute’ defence to persons accused

of international crimes since the days of the Nuremberg Tribunal, and

international courts and tribunals specically exclude it as such.139 As

mentioned above though, it may be taken into account in mitigation

of punishment of the accused.140 As a general r ule, this defence does

134 Ibid para 19 at 16.

135 ICTY (Appeal s Chamber) The Prosec utor v Dražen Erdemovi ´c 7 Oc tober 1997

ICTY IT-96-22 -A (Joint Separate Opin ion of Judge McDonald and Judge Vohrah)

para 72. See also IC TY (Appeals Cha mber) The Prosecutor v D ražen Erdemovi ´c

7 October 1997 ICTY I T-96-22-A (Separate and Di ssenting Opinion of Judge

Cassese); ICTY (Appea ls Chamber) The Prosecutor v Dražen Erdem ovi ´c 7 October

1997 ICTY IT-96-22-A (Se parate and Dissenting O pinion of Judge Stephen);

ICTY (Appeals C hamber) Prosecutor v Draže n Erdemovi ´c , ICT Y, 7 O ctober 1997,

IT-96-22-A (Separ ate and Dissenting Opinion of Judge Li).

136 Erdemovi ´c Judgment o p cit note 131 para 21 at 16. See also in this rega rd ICTY

(Trial Chamber) The Prosecutor v Dražen Erdemovi ´c 5 March 1998 ICTY I T-96-

22-T bis (Sentencing Judgment).

137 ICC Statute art 31(1)(d).

138 Ratner et al op cit note 24 at 150 –151.

139 ICTY Statute ar t 7(4); ICTR Statute art 6(4); ECCC Law art 29.

140 Darcy op cit note 130 at 238 .

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not free an accused of criminal responsibility,141 except if the accused

‘was under a legal obligation to obey orders of the Government or the

superior i n question’,142 ‘did not know that the order was unlawful’143

and ‘the order was not manifestly unlawf ul.’144 Again, orders ‘to commit

genocide or crimes against humanity are manifestly unlawful’.145

A defence that follows on this is ignorance or mistake of fact or

law: the accused did not know that what they were doing was unlawf ul

in terms of international law. However, ignorance of the law is not

a defence that will exclude the criminal responsibility of a person

accused of international crimes.146 The ICC allows the defences147

‘where the mistakes are such as to prevent the accused from having

formulated the necessary men s rea for the of fence’.148

Despite the extensive provision for the respect for and protection

of the rights of suspects and accused persons at all stages of

international crimina l proceedings, the question must nevertheless be

asked whether or not such trials can ever be completely impartial.149

The reason for this is that when so much information and evidence

from a variety of reliable sources exists, which convincingly points

towards the commission of international crimes, immense pressure

is understandably placed on ICTs to initiate formal investigations to

test its veracity, in the hope that international criminal accountability

will follow. This, in turn, means that investigators, prosecutors and

judges of ICTs must remain impartial from the time when the ver y

rst reports are made of atrocities t hat may amount to international

crimes. Complicating the challenge of complying with the obligation

to remain impartial is the language used in fact-nding reports,

whatever its source may be, which often predetermines the guilt of

suspects by, for instance, referring to them as ‘perpetrators’. This

impacts on the right to be presumed innocent until proven guilty, as

141 ICC Statute art 33(1).

142 Ibid a rt 33 (1)(a).

143 Ibid a rt 33(1) (b).

144 Ibid a rt 33(1)(c).

145 Ibid art 33(2). Ratner op c it note 24 at 151 states that ‘in many situations

where orders are not clearly i llegal and the defenda nts lack such knowledge,

following orders wi ll be a defence’. However, ignorance of the law will not be

a defence for the commission of genoc ide or crimes again st humanity, as the

ICC Statute provides in ar t 33(2) that such internationa l crimes will always be

‘manifestly un lawful’.

146 ICC Statute art 32(2).

147 Ibid ar t 32.

148 Darcy op cit note 130 at 235.

149 IMTN C harter arts 2 –4 and 17–29; ICTY Statute arts 11–14, 18–20, 23–28 a nd

30; ICTR Statute a rts 10–13, 17–19, 22–27 and 29; ICC Statute ar ts 34–52; ECCC

Law arts 9 new–15, 41 and 42 new.

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well as the defences raised by accuse d persons during trial proceed ings,

which may be viewed with suspicion. It is thus crucial for prosecutors

and judges to respect and protect, in an independent, impartial

and unbiased manner, the defences raised by accused persons during

trial proceedings.

4 THE CHALLENGE OF CONFRONTI NG THE

POWERFUL INFLUENCE OF POLITICAL RELATIONS

ON THE INVESTIGATION AND PROSECUTION OF

INTERNATIONAL CRIMES

The nal challenge faced by ICTs with jurisdiction over international

crimes that will be discussed in this article relates to the inuence of

political relations on conducting their proceed ings, including initial

investigations into reports of atrocities, deciding which cases are to

be selected for further investigation and eventual prosecution, and

the resulting trials. The proper functioning of ICTs depends on the

cooperation of States, and in some cases previous leaders continue

to exert political inuence over newly established governments, or

other international role-players, which, in turn, prevents cooperation

with ICTs. Furthermore, the denial that reported atrocities amount to

international crimes, whether by suspec ts, victims or the international

community, impacts on garnering the political w ill to investigate and

prosecute them.

International law in general is inextricably linked with politics,

the one inuencing the other. One of the greatest obstacles to the

investigation and prosecution of international crimes is the lack of

political will of States in the international community to cooperate

with requests made by ICTs. During the investigation stage it is

difcult to reach consensus on the appropriate criminal forum in

which to charge perpetrators with t he atrocities. The struggle between

realpolitik and the obligation to prosecute is most acutely felt within

international human rights law, and, in turn, has an impact on the

investigation and prosecution of international crimes by ICTs.150

Article I of the Genocide Convention provides that States are

obliged to punish the commission of genocide, and States are also

obliged to cooperate with international courts and t ribunals wishing to

prosecute alleged perpetrators. Genoc ide and crimes against humanity

are predominantly carr ied out by the governments and regimes in

150 M Cherif Bassiou ni ‘Justice and Peace: The I mportance of Choosin g

Accountability over Rea lpolitik’ (2003) 35 Case Western Rese rve Journal of

International La w 191 at 191. See also Christopher K Lamont Internat ional

Criminal Justice and the Polit ics of Compliance (2010) 13.

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power: therefore, even once that government is no longer in power, the

previous leadership corps still holds considerable inuence withi n the

state. Despite the new government’s taking active steps to dissociate

itself from the previous genocidal regime, former heads of state and

senior government ofcials still exert political power over the new

government. This inuence of political power is most apparent when

these former heads of state or government and senior government

ofcials are extradited, and eventually prosecuted in international

courts and tribunals.

The political pressure exerted by prev ious leaders is more acutely

felt in alternative courts. To illustrate, one-third of the judges

at the Rwandan gacaca courts had to be replaced in 20 06 as it was

suspected that they had been ‘involved in crimes of genocide’, which,

in turn, caused a ‘loss of faith on the part of the survivors’.151 At the

Extraordinar y Chambers in the Courts of Cambodia, the controversial

resignation of the International Co-Investigating Judge at the ECCC,

Judge Siegfried Blunk,152 followed shortly after the conclusion of

the judicial investigation for Case 003.153 Blunk alleged that several

Cambodian government ofcials had attempted to interfere in the

investigation of Cases 003 and 004.154

Another former senior government ofcial who exercised a ver y

strong political inuence over the new government was General Ratko

Mladi´c. Mladi´c was a former General in the Army of the Serbian

Republic of Bosnia and Herzegovina/Republika Srpska (the ‘VRS’), and

the ICTY issued a war rant of arrest charging him with genocide, cr imes

against humanity and war c rimes.155 The ICTY’s rst warrant of arrest

against him was issued on 24 July 1995,156 but Mladi´c was transferred

into the custody of the ICTY only on 31 May 2011, after his arrest in

the Republic of Serbia on 26 May 2011.157 In 2007, the International

151 Hankel op cit note 52 at 279.

152 ECCC News Release ‘St atement by the International Co -Investigating Judge’

10 October 2010, avail able at ticles/statement-

international-co -investigating-judge> (accessed on 15 April 2020).

153 ECCC Case 003 29 April 2011 ECCC Case Fi le No: 003/07-09-2009-ECCC -OCIJ

(Notice of Conclusion of Judic ial Investigation).

154 ECCC News Release op c it note 152.

155 Prosecutor v Ratko Ml adi ´c (Prosecut ion’s Second Amended Indictment), ICTY,

1 June 2011, IT-09-92-I.

156 ICTY Prosecutor v Radovan Ka radži ´c , Ratko Mladi ´c (Indictment), ICTY,

24 July 1995, IT-95-5-I.

157 ICTY Prose cutor v Ratko Mladi ´c (Schedu ling Order for Init ial Appearance),

ICTY, 1 June 2011, IT-09-92-I at 2. See a lso ICC Press Release ‘Ratko Mladi ´c in

Tribunal’s Custody’ 31 May 2011, available at .org/sid/10678>

(accessed on 15 April 2020). Mlad i ´c was convicted of most of the ch arges against

him in November 2017; see fur ther in this rega rd, ICTY (Trial Ch amber I)

Prosecutor v Ratko Mlad i ´c (Judgment, Volume I of V), ICTY, 22 November

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Court of Justice in the Bosnia Geno cide case asked whether Serbia was

in breach of its international obligation to cooperate with the ICTY by

failing to arrest Mladi´c, despite reports that the Serbian government

was fully aware of his whereabouts.158 The Cour t held that it ‘cannot but

attach a certain weight to the plentiful, and mutually corroborative,

information suggesting that General M ladi´c … was on the territory of

[Serbia] at least on several occasions and for substantial periods dur ing

the last few years and is still there now, without the Serb authorities

doing what they could and can reasonably do to ascertain e xactly where

he is living and arrest him’.159 Bosnia and Herzegovina also referred to

public statements made by the Serbian Minister of Foreign Affairs that

Serbian intelligence services ‘knew where Mladi´c was living in Serbia,

but refrained from informing the authorities competent to order his

arrest because cert ain members of those services had a llegedly remained

loyal to the fugitive’.160 Serbia did not dispute the ‘authenticity and

accuracy of those statements … at any time’.161 The ICJ concluded that

Serbia was in breach of its international obligation in terms of Article

I of the Genocide Convention to punish the perpetrators of genocide

by failing in ‘its duty to co-operate fully with the ICT Y’ by refusing to

arrest Ratko Mladi´c.162

Denial undoubtedly impacts on generating the political will to

investigate and prosecute reports of the commission of international

crimes. During investigation proceedings, denial takes place on

three levels: suspects deny reports of international crimes; victims

are too traumatised to fully acknowledge and testify as to what

they experienced; and States seemingly endlessly debate the type of

international crimes that reported atrocities can be categorised as.

Denial also consists of ‘organised attempts to cover up the record of

past atrocities’ by governments to repress the truth of the past, or of

society that downplays the past or dismisses it as ‘myth’.163 One of

2017, IT-09-92-T; ICTY (Trial Chamber I) P rosecutor v Ratko Mladi ´c ( Judgment,

Volume II of V), ICTY, 22 November 2017, IT-09-92-T; ICTY (Trial Chamb er

I) Pro secutor v Ratko Mladi ´c ( Judgment, Volume III of V), ICTY, 22 November

2017, IT-09-92-T; ICTY (Trial Chamber I) P rosecutor v Ratko Mladi ´c ( Judgment,

Volume IV of V), ICTY, 22 November 2017, IT-09-92-T.

158 Application of the Convent ion on the Preventio n and Punishment of the Cr ime of

Genocide (Bosni a and Herzegovina v Serbia and Montenegro) 26 Februa ry 2007 ICJ

Reports 1 ( Judgment).

159 Ibid para 44 8 at 160.

160 Ibid para 44 8 at 161.

161 Ibid.

162 Ibid para 4 49 at 161.

163 Stanley Cohen ‘ State Crimes of Previou s Regimes: Knowledge, Accountab ility,

and the Policing of the Past ’ in Richard Fal k, Hilal Elver a nd Lisa Hajjar (eds)

Human Rights: Critical Concept s in Political Science vol III (2008) 174 at 179–181.

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the biggest problems of denial of international crimes is that it ‘robs’

the victims of the tr uth of their suffering:164 after the commission of

international crimes ‘memory is all t hat is left’.165 The ‘last victim’166 of

international crimes is therefore the memories of the victims.

The impact of the denial of international cr imes by neither

investigating nor prosecuting them is twofold: victims are denied

justice, and suspects are thereby ‘encouraged to redene the offence

in such a way that the criminality of the act is either diluted or denied

altogether.’167 The var ious forms of denial of different international

crimes tend to reveal strik ing similarities168 that may be presented

in the following guises: accounts are deemed to be mere ‘wartime

propaganda’;169 it is alleged that the targeted group posed a threat to

the perpetrators who had to act in self-de fence to protect themselves;170

it is alleged that there was no intention to physically destroy the

targeted group – they were merely being deported, reloc ated or enabled

to emigrate;171 it is alleged that the number of victims is grossly

exaggerated;172 and the fundamental right to freedom of speech and

academic freedom allows deniers to challenge the existing historical

‘truths’.173

Referring the investigation of international crimes in the Syrian

Arab Republic to the ICC, and the possible prosecution of perpetrators

thereof, is another illustration of the impact of politics and the denial

of reports of international crimes. Both the United Nations High

Commissioner for Human Rights and the Independent International

Commission of Inquiry had already recommended this in 2013,174 yet

draft resolutions by the Secu rity Council in this regard were repeatedly

vetoed by Russia and China.175 This failure to hold perpetrators

164 Richard G Hova nnisian Denial of t he Armenian Geno cide in Comparison with

Holocaust Denial (20 04) 4.

165 Ibid.

166 Ibid.

167 Dadrian op c it note 45 at 387.

168 Hovannisia n op cit note 16 4. See also Robert A Kahn Holocaust D enial and the

Law: A Comparative Study (20 04). See also Kir sten Sellars ‘I mperfect Justice at

Nuremberg and Tokyo’ (2010) 21 European Journal of Inter national Law 1085.

169 Hovannisia n op cit note 164 at 5, 7–9.

170 Ibid at 5, 9–13.

171 Ibid at 5, 13–19.

172 Ibid at 5, 19–21.

173 Hovannisia n op cit note 164 at 27–28.

174 Fourth Rep ort of the Independent Internationa l Commission of Inquiry on the

Syrian Arab Re public, Human Rights Council, A/ HRC/22/59 (5 February 2013)

paras 18 and 180.

175 Securit y Council Draft Res 348 , S/2014/348, 22 May 2014, available at

www.securitycouncilreport.org/atf/cf/%7b65BFCF9B-6D27-4E9C-8CD3-

CF6E4FF96FF 9%7d /s_2014_3 48.pdf> (accessed on 15 May 2021).

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accountable at any forum for atrocities committed in Syria raises

the question whether the Security Council is still denying that that

the crime of genocide, crimes against humanity, and war crimes are

indeed taking place.

An alarming form of denial of the commission of genocide and

crimes against humanity, in particular, is when the victims a nd

survivors of these cri mes are questioned about ‘[letting] themselves

be slaughtered’176 and asked whether they should not have tried to

defend themselves against the attacks. Blame for the commission of

international crimes is hereby placed on the vict ims by claiming that

the obligation to prevent what happened to them rested squarely upon

their own shoulders. However, although members of the targeted

group may have made isolated efforts to resist the attacks, none of

these would have prevented genocide and crimes against humanity

from being committed.177

The way in which victims of both the Holocaust and the Rwandan

genocide were ‘blamed’ for ‘[letting] themselves be slaughtered’178

serves to illustrate this point. Perhaps one of the most controversial

voices on the issue of collaboration between the Jewish Councils and

the Nazi Party is Hannah Arendt’s; she specically stated that the

Jewish Councils played a role in the destruc tion of their own people.179

However, Arendt’s criticism of Jewish victims of the Holocaust loses

sight of the fact that, in most cases, members of the Jewish Councils

had no choice or alternative option when orders were received from the

Nazis: ‘[N]othing the victim c an do or choose (or could have chosen or

could have done) makes any difference to the intention of which is the

ob je ct’.180 Therefore Arendt’s ‘claim that the existence of the Councils

contributed to the destruction of the Jews is not very far from saying

that the existence of the Jews themselves did so’.181 Furthermore, the

administration of the SS ‘tra nsformed everything which had come

into its orbit – including its victims – into an integral par t of the

chain of command, an area subject to the strictly disciplinary rules

and freed from moral judgement’.182 Refusal of orders would inevitably

lead to death and being replaced by another person more willing to

obey orders.183

176 Reuben Ains ztein Jewish Resistanc e in Nazi-Occupied East ern Europe: With a

Historical Surve y of the Jew as Fighter and Soldier in the Diaspora (1 974) x v.

177 Ibid at 176.

178 Ainsztein o p cit note 176.

179 Hannah Ar endt Eichmann and the Holocaust (1963) 60 –72.

180 Berel La ng Act and Idea in the Nazi Genocide (1990) 66.

181 Ibid at 68.

182 Zygmunt Bauman Moder nity and the Holocaust (1989) 22, 23 and 117–150.

183 Ibid at 118. See furt her Erdemovi ´c Judgment op cit note 131 para 7 at 6.

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In the Rwandan genocide, Tutsis were portrayed as a threat to

Hutus, the latter having no choice but to defend themselves: ‘Tutsi

posed a danger to Hutu, who were always the victims, whether of Tutsi

military power or of Tutsi cunning (use of their women to seduce the

Hutu, use of their money to buy Hutu), and so Hutu had a right and

duty to defend themselves.’

184

5 CONCLUSION

International crimes are considered to be ‘the most serious crimes

of concern to the international community as a whole’,185 and their

commission must be prevented and prosecuted.186 The prohibition

of genocide, crimes against humanity and war crimes are all widely

recognised as jus cogen s norms;187 a jus cogens norm is ‘a norm accepted

and recognised by the international community of States as a whole

from which no derogation is permitted’.188 It is therefore of crucial

importance to hold perpetrators of these international crimes

accountable, notwithstanding the incredible challenges that must

be faced in order to do so. The result of failing to comply with the

obligation to prosecute international crimes is that perpetrators will

enjoy impunit y.

This article has shown that the way in which international crimes

are investigated and prosecuted currently is vastly different to the way

184 Human Rig hts Watch The Rwandan Genocide: Ho w it was Prepared: A Human

Rights Watch Brieng Paper (April 20 06) 6, available at ps://www.hrw.org/

legacy/backgrounder/africa/rwanda0406/rwanda0406.pdf> (accessed on 9

July 2021). See also Jared Cohen One Hun dred Days of Silence: America an d the

Rwanda Genocide (2 007) 38.

185 ICC Statute preamble and a rts 1, 5, 6, 7, 8 a nd 8bis.

186 Mispa Roux ‘T he Erga Omnes Obligation to Prevent and Prose cute Gross Human

Rights Violations with Sp ecial Emphasis upon G enocide and Persec ution as a

Crime against Hu manity’ 2012 African Yearbook on International Humanitarian

Law 98.

187 Commentary to A rticle 26, para 5 at 2 08, of the ILC Ar ticles on State

Responsibility, Report of the Inte rnational Law Commission, Ofc ial Records of the

General Assembly, Fifty-Third Session 23 Apr il–1 June, and 2 July–10 August 2001,

Supplement 10 (A/56/10); Report of the International Law Comm ission, Ofcial

Records of the General A ssembly, Seventy-rst Session, 29 Apr il–7 June and 8

July–9 August 2019, Supplement No. 10 (A/70/10) paras 21 and 286; Report of

the International L aw Commission, Ofcia l Records of the General Assembly,

Sixty-seventh S ession, 4 May–5 June and 6 July–7 August 2015, Supplement No.

10 (A/74/10) para 52 at 141; Fourth Report on Peremptor y Norms of General

International Law ( Jus Cogens), Dire Tladi (Spec ial Rapporteur), Report of t he

International Law Com mission, Ofcia l Record of the General As sembly,

Seventy-rst Ses sion, 29 April–7 June and 8 July–9 Aug ust 2019, (A/CN.4/727)

31 January 2019 para 137.

188 Vienna Convention on the L aw of Treaties art 53.

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in which the International Militar y Tribunals for Nuremberg and the

Far East approached the process. Then, in the 1990s, the ad hoc IC TY

and ICTR, in turn, improved on the shortcomings of the Military

Tribunals, yet also faced their own challenges. For instance, it took

some time for the ad hoc Tribunals to focus on identify ing the most

senior leaders responsible for atrocities; even later, cases of a similar

nature were joined, and lower-level suspects were referred to national

courts.189 Then the way in which the hybrid courts for Sierra Leone

and Cambodia respected and protected the rights of suspects and the

accused, and treated defence teams in particular, improved during

the years of their existence: this becomes evident if the treaties that

established these ICTs and the rst and nal versions of their rules of

procedure and evidence are compared. In t urn, the ICC Statute and

Rules of Procedure make extensive provision for the selection of cases,

the rights of suspects and accused persons, as well as the treatment of

defence teams. This can be interpreted as evidencing that, in drafting

these documents, the challenges faced by the ICC’s predecessors were

unpacked and identied, and a great effort was made to address these

challenges and ensure equal ity of arms.

The United Nations suggests that various transitional justice

mechanisms must be implemented in a holistic way: complete amnesty

for international crimes is not supported, whereas ‘both judicial and

non-judicial processes and mechanisms’ should be sought, including

‘prosecution initiatives, truth-seeking, reparations programmes,

institutional reform or an appropriate combination thereof’.190

Supporters of establishing truth commissions instead of criminal

tribunals or cour ts still ‘recognise the value of crimina l trials in theory,

but suggest that truth commissions that promote healing and tr uth

telling may be more useful for societies than criminal trials which

they believe may be, in contrast, divisive, expensive and possibly

unfair’.191 A truth and reconciliation commission is a temporary

‘institution established to collect information about the facts of a

prior conict and attendant human rights violations, with a view to

providing an accurate pictu re of what occurred dur ing the conict in a

comprehensive report ’.192 Truth commissions focus mainly on victims

189 2002 ICT Y Completion Strategy op cit note 5; ICC Statute preamble and ar ts 1

and 17; 2015 ICTR Completion Strategy op cit note 5 at paras 61–73; 2017 ICTY

Completion Strategy op cit note 5 at par as 119–166.

190 United Nations Approach to Transitiona l Justice, Guidance Note of the

Secretar y-Genera l (March 2 010) uleoaw/les/TJ _

Guidance_N ote_March_2010FINA L.pdf> (accessed on 15 May 2021).

191 Sadat op cit note 49 at 175.

192 See in general Ruti G Teitel ‘Transit ional Justice Genea logy’ (2003) 16 Harva rd

Human Rights Journal 69; Ruti G Teitel Transitional Justi ce (1997) 11; Melissa

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of atrocities as well as crimes comm itted under the former regime.193

‘Amnesty’ derives from the Greek word ‘amnestia’, which means

‘forgetfulness’:194 therefore the crimes are forgotten but not forgiven,

as in the case of a pardon. This is then also the essential difference

between granting a mnesty and pardoning a convicted criminal, as

the latter is ‘an act of mercy’195 where the criminal is ‘released’ from

the punishment, and the criminal is forgiven for committing the

crime. Amnesty, on the other hand, means that the person’s crime is

‘overlooked’, as this is deemed to serve the public interest more than

prosecut ion would.196

However, in the case of international crimes, truth commissions

seem more appropriate than the granting of amnesty, especially if

truth commissions precede a formal prosecution at an international

or national court or tribunal a nd ‘[serve] as precursors to the adoption

of measures of accountability including reparations, restitution,

civil remedies, lustration laws and even criminal prosecutions’.197

By contrast, ‘[g]ranting amnesty means cutting off the opport unity

for the post-conict society to go through the cathartic process of

Vergangenheitsbewältig ung, the process of working on the issues of the

conict with a view to overcoming the nightmares of the past’.198

Amnesty has not been gra nted to alleged perpetrators of genocide

or crimes against humanit y, nor have international tr uth commissions

been established for these crimes,199 because of the international

S Williams, Rose mary Nagy and Jon E lster Transitional Justice (2012); Cheryl

Lawther, Luke Moffet t and Dov Jacobs Research Handbook on Transitional Justice

(2016); Jens David Ohlin ‘On the Very Idea of Transitional Ju stice’ (2007) 8

Whitehead Journal of D iplomacy and International Relat ions 51; Kenneth Chr istie

‘Transitional Justice: L essons from the Past’ (20 09) 6 International Studie s Journal

171; International Centre for Transitional Just ice ‘What is Transitional Justice?’

available at ://www.ictj.org/sites/default/les/ICTJ-Global-Transitional-

Justice-200 9-English.pdf> (accessed on 15 May 2021).

193 Sadat op cit note 49 at 169.

194 Daniel T Kobil ‘T he Quality of Mercy Strai ned: Wrestling the Pardoning Power

from the King’ (1991) 69 Texas Law Review 56 9 at 576–57 7.

195 Ibid at 576.

196 Ibid.

197 Sadat op cit note 49 at 169. Sadat discusses the exa mple of the South Africa n

Truth and Reconciliat ion Commission, and states that ‘the ultimate success of

the Truth and Reconcil iation Commission is not yet assured’ (at 173).

198 Angelika Sc hlunck Amnesty versu s Accountability: Third Party Inte rvention Dealing

with Gross Human Rights Violation s in Internal and International Conic ts (2000)

3 (Bochumer Schrif ten zur Friedenssiche rung und zum Humanit ären Völkerrecht).

Schlunck expla ins Vergangenheitsbewält igung in n 7 at 3 as re ferring ‘to the

process of working th rough the past with a view to overcoming t raumas either

on an individual leve l or as a society as a whole’.

199 Louise Mal linder ‘Amnesties’ in William A S chabas and Nadia Bernaz Routledge

Handbook of Internat ional Criminal Law (2011) 419; E Wiebelhaus-Br ahm ‘Truth

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obligation imposed upon the international community not only to

prevent international crimes, but also to prosecute perpetrators of

such violat ions.200 Therefore, if an alleged perpetrator of genocide is

granted amnesty, especially in the form of a blan ket amnesty, then

that person is not prosecuted for the crime and the international

obligation is not fullled. Blanket amnesties for international crimes

should be prohibited as they ‘undermine the rule of law, and are, for

the most part, simply self-servi ng declarations by government ofcials

exempting themselves from the reach of the law’.201 Conditional

amnesties likewise are ‘unthinkable’ in the case of international

crimes. 202 However, truth commissions could still be implemented,

but then in concert with prosecution and not as a replacement for

prosecution. Truth commissions can, in this way, be employed as a

method of assisting victims of international crimes to come to terms

with the atrocities.

It is therefore recommended that international courts or tr ibunals

should focus their work on investigating and prosecuting the main

perpetrators of international crimes, and that truth and reconciliation

commissions should be established for lower-level accused. Furthermore,

individual crim inal responsibility for international crimes should take

place in tandem with ICTs and truth and reconciliation commissions

at regional and national criminal courts and tribunals. This will in

due course ensure a holistic approach to ful lling the obligation to

prosecute international crimes, and will also ensure that these crimes

are confronted a nd acknowledged.

To conclude, the investigation and prosecution of international

crimes will continue to face challenges, many of which were not

discussed in th is article. Investigators, prosecutors, judges and defence

teams in ICTs will undoubtedly encounter fur ther challenges and are

ultimately best placed to suggest practical ways in which to address

them. Drafters of treaties est ablishing future ICTs wil l do well to consider

the lessons learnt by their predecessors and implement them in their

provisions. Finally, the hope is expressed that future amendments to

the ICC Statute and its Rules of Procedure will continue to evolve and

be improved upon, specically to meet the manifold challenges that

the ICC will continue to face.

Commissions’ in Wi lliam A Schabas a nd Nadia Bernaz Routledge Handbook of

International Cr iminal Law (2011) 369; Sadat op cit note 49 at 193. Amnesty

and pardons are gr anted for crimes with a p olitical factor rather t han for

international cr imes. See in this regard Schlu nck op cit note 198 at 24.

200 Sadat op cit note 49 at 180–181.

201 Ibid at 18 3.

202 Ibid at 18 4.

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