Lecture: International criminal tribunals and the ICC
Early attempts
• Challenges and limitations of prosecuting international crimes through domestic
law enforcement have led to the contemplation of creating international criminal
tribunals
1919-1945- one reason for failure is high regard for state sovereignty
Nuremburg and related tribunals
• The IMT in Nuremberg after WWII and the Tokyo Tribunal
Horrors of Nazi genocide and Japanese crimes in many South East Asian countries
The British led by Churchill – hang those primarily responsible for applying Nazi
policies and try those guilty of minor offences
o Roosevelt, Us Defence Secretary and Stalin disagreed
An international tribunal to prosecute high ranked officials
Lesser Allied Tribunals to deal with minor criminals
USA justifications for the Nuremberg Tribunal to try Nazi criminals:
o Need for a fair trial
o To make visible to the world the crimes committed by the Nazi’s
o Serve as a history lesson for future generations
o We couldn’t use the perpetrators national courts to prosecute them (system
criminality) we needed a neutral court
o It would confirm the crimes committed by Nazi’s in USA
• Big four-August 1945- convened the London conference- adoption of the Charter
of the IMT at Nuremberg (jurisdiction, substantive and procedural principles)
Nov 1945- Oct 1946- War crimes, crimes against humanity and crimes against peace
Nuremberg tribunal
4 judges
Adversarial system
Right to counsel
Right to provide evidence
Right to testify on their own behalf
Right to cross- examine witnesses
But, right to trial in absentia and judgements were final
Tokyo tribunal
26 July 1945- Big four issued a declaration announcing their intention to prosecute
leading Japanese officials for the same crimes
Jan 1946- Tokyo Charter was approved
Modeled on Nuremberg Charter- 11 judges
Commenced on 3 May 1946 and lasted for almost 2.5 years
o Revenge for pearl harbour
o Trying to reduce their own guilt over the use of atomic weapons
Both tribunals imposed victors justice so not independent international courts
proper
Importance of Nuremberg and Tokyo tribunals
1. First time non-national or multi-national prosecution and punishment
2. New crimes-against humanity and against peace
3. Not only servicemen and minor officers but military leaders and high ranking
politicians and civilians also
4. Development of new legal norms and standard of responsibility- e.g. elimination of a
defence of obedience to superior orders
International criminal tribunals
These tribunals were a great contribution to the development of intl. crim law;
however
o Where the judges impartial?
o Defendants could not question the tribunals jurisdiction
o Violation of nullum crime sine lege
o Procedural and evidentiary defects
o Victors justice
ICTY and ICTR (1993-1994)
In the early 90s civil war in Yugoslavia leading to a genocide in which about 100.000
people were killed
UN SC- to maintain and restore intl peace and security
ICTY
o Genocide
o Grave breaches of the Geneva conventions – violations of customs of war
o Crimes against humanity
o Purposes in establishing ICTY
Face- saving measure
‘Pious’ hope to prevent further crimes
o Objections
1. ICTY was established to compensate for the political and diplomatic
impotency
2. The Security Council (SC) had exceeded its powers
3. SC had chosen selective justice
ICTR
Genocide so urgency
No double standards – Europe, Africa
New government attracting intl. blessing
Criticisms towards ICTR and ICTY
1. Too costly
2. Too slow
3. Remoteness from where crimes have been perpetrated (limited impact)
4. ‘trials of a number of low-ranking defendants’
Attempts to overcome these faults – internationalised (mixed) courts that are mixed
in their composition, rules and statutes; they prosecute those most responsible
Some justifications for mixed courts
1. ‘emergency situation’
2. ‘breakdown of the judicial system’
3. ‘response does not lie in the establishment of an international ourt political
(geopolitically inconsequential or cause ‘further friction’)/financial
4. Gradual reconciliation
Other internationalized
