New Era under ICTY & ICTR.
Student’s name:
Affiliation:
New Era Under ICTY & ICTR
Introduction
Crimes against International humanitarian law were long ignored until public outcry influenced the formation of tribunals meant to convict those responsible for crimes against human rights. These tribunals are the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal of Rwanda. These tribunals have brought a new light in respect to the importance of protecting human rights, creating a roadmap into what amounts to a crime against humanity, genocide, and a war crime. They have created precedence for matters to do with these kinds of crimes. They have also provided a leeway for states to charge and prosecute those who would, in the typical setting, be found immune to any punishment or accountability necessity. This paper seeks to critically discuss the contribution that these tribunals have made towards making International humanitarian law more recognized and the jurisprudence formed around international human rights violations
ICTY and ICTR created a significant feature for the protection of the people against whom crimes were committed, which violates International humanitarian law. ICTY stands for International Criminal Tribunal for the former Yugoslavia. It was formed in 1993 to try all offenses committed on the people of Yugoslavia within 1990. This was among the first tribunals created by the United Nations Security Council to deal with situations in which Serbians and other groups were discriminated against and, in the same instance, tortured. ICTR refers to the International Criminal Tribunal for Rwanda. It was formed to handle matters of human rights violations against Tutsis in Rwanda committed in 1994. These tribunals have provided a platform where all crimes committed against people of a particular community are considered despite the atrocities being committed by popular leaders. The tribunals have heard between 70 – 120 cases within three decades (Fryer,2010). In consideration that there are no branches to these tribunals, this is a remarkable figure to act as an example for other tribunals.
These tribunals have provided a substantial and a large amount of jurisprudence on genocide, war crimes, and crimes against humanity offenses. These tribunals give weight to which crimes are punishable, the extent to which a crime is termed as a war crime, a crime against humanity or genocide, and who can be held liable for commission of these crimes. The ICTR was the first to deliver an international judgment on the crime of genocide. They created an analogy which will be analyzed below. The statutes provide that the tribunals are supposed to try crimes that relate to acts of genocide, war crimes, crimes against humanity, among other offenses. Genocide is a crime prosecutable under Article 2 and 4 of the ICTY and ICTR, respectively. The statute provides that genocide involves acts that destroy a group or persons partially or entirely based on their religion, race, and nationality.
For an act to amount to genocide, the following actions must be fulfilled; a group of people must have been killed or seriously harmed physically or mentally. It can also arise when people instill measures to prevent or curb the target groups from giving birth or transfer children of one group to another. For purposes of ensuring every person who participated in the crime is held accountable, the statutes broadened the crimes punishable to the following, “Conspiracy to commit genocide, direct and public incitement to commit genocide, attempted genocide and complicity in genocide.” This was cemented by the Kambanda case of 1998, where the accused pled guilty to international human rights violations. It was in this case that ICTR emphasized that genocide must involve a special intent, and crimes against humanity must be proven through an activity where the accused caused a deprivation of his victims’ life and liberty. The conviction of Kambanda, who was the prime minister, was crucial as it broke the glass towards the immunity of national leaders.
The statutes also identify crimes against humanity as crimes to which the tribunal can prosecute. In its authority, they provided that a crime against humanity must be proven to be an act that was committed as part of a systematic attack meant to be widespread and targeting a particular community or a group of people. The statute stipulates that the crime involves murder, deportation, imprisonment, rape, extermination, torture, enslavement, among others. The law also specifies that any persecution communicated on a group based on political affiliation, race, or religion is also considered a crime against humanity (Via, Sjoberg, 2010). This is provided for under Article 3 and Article 6 of ICTR AND ICTY consecutively.
Another crime clarified is a war crime under Article 3 and 4 of ICTY and ICTR consecutively. They provide that a war crime amounts to a prohibited crime in times of war or violations against war victims. Subject to this, the statutes have stipulated that a war crime must amount to violence risking human life, either mental or physical harm, as well as murder. It may also amount to the taking of hostages, carrying out of torture, mutilation among other grievous harm, imposing indecent acts such as rape on a particular community or group, and sentencing people unfairly without having a sitting in a court of law. Relevant is the case of Ephrem Setako V. The prosecutor. The court ruled that with war crimes the prosecutor has to prove that the victim was not part of the hostilities, he was criminally liable for act or omission against the victim and that the accused intended to kill or seriously injure the victim. Setako was sentenced to 25 years of imprisonment, and he died while serving the sentence.
These tribunals seek to ensure that all members, including leaders who participated in the commission of crime through participation or influence are held liable(Peterson,2016). The ICTY under the matter of Rutaganda provided a reference about how a person may be identified as one who has committed violations under Article 3 of the Geneva Convention. They must belong to a particular group involved in the conflict, whether belonging to the government or the opposing group. The tribunal held that there is no category of people persecuted under this crime. Still, anyone in the military force, public officials or agents, and individuals are responsible for the offenses as they represented the government or the dissenting party. Rutaganda was acquitted of some grounds under war crimes on the justification that he was not in the armed forces, but he was convicted for three of the charges.
The tribunals have provided a reference for who can be prosecuted for crimes against humanity. This has been done in matters handled by the tribunals. It stated that anyone and any institution is liable for acts of violence meant to discriminate and harm a particular group or community. An example is in the Media case where the stations were broadcasting information that would lead to public outrage and also discrimination against a specific group. The broadcasting led to public destruction, where members of one particular group were persecuted. The parties in the case were Ferdinand, Hassan, and Jean-Bosco, who were charged with using certain words and sentences that were used in code to instruct the Hutus to kill the Tutsis. This case was a trademark in media cases as it raised the question of how the media can be held responsible for acts that they did not physically commit. It was then that the court stated that there are acts that people can commit that aid in the commission of the actual act. Thus, the broadcasters were charged with conspiracy to cause genocide, publicly inciting citizens of Rwanda to commit acts of genocide, and commission of crimes against humanity. The media was found liable as their airing influenced the people to inflict harm and death on the segregated community.
The tribunals emphasized the duty to ensure expeditious and fair tribunals through the introduction of the aspect of disclosure. The burden of disclosure applied to both the prosecution and the defense. In it, it emphasized that all parties are entitled to know the reason for the indictment. The accused person must know the reasons to which they have been charged and be given adequate opportunity to reply to those charges. The ICTR stated that it is the responsibility of the prosecution to ensure that the facts brought before the court comprise of the information and evidence that proves that the accused is guilty or otherwise the charges will be termed as defective. The exception was that if the prosecution identifies a defect in the case on course, they should disclose that to the court before it progresses to be fatal. This was showcased in the ICTR-96-46 case where the court acquitted Ntagerure, Imanishimwe, and Bagambiki on the charge of joint criminal enterprise on the ground that it was only introduced to the matter at trial but not in the indictment.
These tribunals have also established precedence for other cases that followed either domestically or internationally. In its power, ICTR was the first to define rape as a constituent of genocide (Kaitesi,2016) The International Criminal Court has been using this precedence to deal with crimes filed relating to sexual violence. The case that created a mark on the matter of sexual abuse is that of Prosecution versus Akayesu. The accused, in this matter, was charged with committing crimes against humanity in 1993 during the Rwanda genocide, including acts of sexual violence. This matter was really significant in cementing the ICTR’s aim to ensure perpetrators were held accountable because the tribunal issued an order that the prosecution renews their investigation after listening to witnesses’ testimonies, which involved situations of sexual violence. The trial had to review and rewrite the crimes to which Akayesu was being charged with. ICTY introduced a widely relied upon aspect of JCE called Joint Criminal Enterprise (Ohlin,2011). This aspect provides that every perpetrator is individually responsible for their acts in a crime. Thus, it gives room to prosecute members of a group for the actions committed by the group.
The ICTR established a ground for inchoate offenses. These refer to attempts to commit crimes. It amounts to situations where an accused person is accused of partially or fully planning to undertake a particular offense. ICTR provided that these crimes are punishable even if it wasn’t completely done to amount to a crime violating international humanitarian law (Peffley,2014). This was evidenced in the Alfred Musema case. In this case, the accused being the former director of the Gisovu tea factory was charged with the commission of genocide and crimes against humanity. The judgment provided that it is not mandatory to prove that a person convicted for crimes acted on the offense in full. A person is individually responsible for crimes committed partially or for other crimes that aided in the commission of the final offense. This was vital for precedence to domestic courts in dealing with cases that involve attempts. He was convicted of the crimes.
These two tribunals created a platform to enforce international humanitarian law. This was a weakness before the establishment of these tribunals as people who claim sovereign immunity. The ICTR insisted that no person internationally is free from punishments due to actions committed against human rights. The two tribunals have provided a firm reference or precedence for who gets to be punished and tried under crimes against humanity, genocide, and war crimes. These tribunals ensured to incorporate every party involved in the evils in the trials. Thus, corporate actors were also held liable for actions against human rights. Regarding corporate actors, these are the people who had might either in terms of wealth or influence. The people who influenced or ordered their followers to commit acts of violence against targeted groups of people were held accountable by the two tribunals to answer for their crimes (Farell,2010). Ratko Mladic was the last person to be sentenced in the last sitting of the ICTY. He was the former commander of the central staff of the Bosnian Serb Army, who was charged with participating and contributing to the crimes against humanity and commission of other forms of violence by Serbs forces from 1992 to 1995. The leader was convicted to life imprisonment as he took part in the four joint criminal enterprises.
The tribunals have also set a high stake for consistency and efficiency in carrying out trials. The consistency applies in situations where the tribunals strictly dealt with crimes that happened at a particular year. ICTR only dealt with crimes that occurred in 1993, while ICTY only dealt with crimes against humanity that occurs in 1990. The trials were very fair in that all parties were given opportunities to defend themselves, the witnesses were also allowed to narrate the experiences they went through, and the judgments were made on formulated law and precedence. Trials, in some instances, have even gone for a short period. An example is the case of Alfred Musema, whose trial only lasted six months.
The ICTR came up with an explanation concerning the concept of cumulative charges under crimes charged in court. The question was if one could be accused of multiple crimes but on the same set of facts. If they would, then would the crimes be separate as one or be tried as each. Another question was if the accused was found guilty, would the person be sentenced for each felony or would be termed as double jeopardy. The court, in the case of Akayesu, ruled that all the crimes under International Humanitarian law have different elements, therefore, if the facts depict a chance of any of the crime, then it should be indicated. Consequently, based on the fact that the elements of the crimes are different, it is only logical to provide separate sentences for all the charges.
The tribunals have ensured to protect the sanity of the trails and enhance the knowledge of the parties. A good example is the restitutive justice program established by the International Criminal Tribunal for Rwanda. This was an institution established to provide medical assistance for the witnesses and victims during the trial, facilitating psychological counseling for the individuals, and providing legal aid to the parties. This promoted the feeling that the tribunal cared about the welfare of their witnesses and victims in the trial. They embark on instilling victims with knowledge on the procedures to follow in the court. The ICTY also established an outreach program meant to preach peace among the citizens, thus incorporating activities where the tribunal meets with the people to try and help to pick up the pieces from the war rather than just convicting and acquitting suspects (Clark,2012). The purpose of this program was to reconstruct the broke relationships in the religion, thus carrying out capacity buildings to promote peace among the people, most notably the youth.
In conclusion, the above information provides for the contribution that the International Criminal tribunals have made in protecting human rights. The tribunals, namely ICTY and ICTR, have created an era where crimes that were committed against individuals, thus violating their rights were acknowledged and consequently tried in the tribunals. These tribunals provided that the crimes that can be prosecuted by them include genocide, crimes against humanity, and war crimes. The tribunals did not only try the people that physically committed the crime but even those who sponsored and influenced. The tribunals introduced various aspects of the prosecution of crimes such as joint criminal enterprise and the element of rape, forming an offense under genocide. The statutes incorporating the tribunals have also provided that acts that helped in the commission of crimes such as aiding and abetting or broadcasting information that would discriminate one group are also punishable by law. The tribunals have also intervened in conflicts in instances of jeopardy based on the fact that the elements of these crimes eat into each other, providing that every sin is independent; thus, sentencing is separate. The tribunals have also created an excellent example for the different courts and tribunals to emulate in terms of providing medical, legal, and psychological assistance for the victims in court. In a bid to ensure the importance of International Humanitarian Law, ICTY established an outreach program to promote peace among the people under the former Yugoslavia. This, therefore, proves that the ICTY and the ICTR have created an era that has a platform for protecting victims who, in the regular courts, wouldn’t be able to defend themselves.
References.
Geneva Convention Relative to the Treatment of Prisoners of War,3rd Geneva Convention,1949.
Additional Protocol II to the Geneva Conventions of 12 August 1949,1977.
The statute of the International Criminal Tribunal for the former Yugoslavia,1993.
The statute of the International Criminal Tribunal for Rwanda, 1994.
The prosecutor V. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, ICTR-99-52-T.2003.
Ephrem Setako V. The prosecutor, ICTR-04-81-A,2011.
Prosecutor V. George Rutaganda, ICTR-96-3-T.
Prosecution V.Jean Paul Akayesu, ICTR-964-1
Prosecution V. Kambanda, ICTR-97-23-5.
The prosecutor V. Ntagerure et al. (Cyangugu) (ICTR-96-46),2004.
The prosecutor V. Ratko Mladic, IT-09-92.
Farrell, N. (2010). Attributing criminal liability to corporate actors: some lessons from the international tribunals. Journal of International Criminal Justice, 8(3), 873-894.
Ohlin, J. D. (2010). Joint intentions to commit international crimes. Chi. J. Int’l L., 11, 693.
Peterson, I. (2016). Open Questions Regarding Aiding and Abetting Liability in International Criminal Law: A Case Study of ICTY and ICTR Jurisprudence. International Criminal Law Review, 16(4), 565-612
Kaitesi, U. (2013). Genocidal gender and sexual violence. The legacy of the ICTR, Rwanda’s ordinary courts, and gacaca courts. Intersentia.
Peffley, E. (2014). A Cautious Expansion of Direct and Public Incitement to Commit Genocide: Confusion between Inchoate Offences and Modes of Liability. Minn. J. Int’l L., 23, 160.
Clark, J. N. (2012). The ICTY and reconciliation in Croatia: A case study of Vukovar. Journal of International Criminal Justice, 10(2), 397-422.
Fryer, B. (2010). The extent to which the ICTY and the ICTR deliver justice to victims in post-conflict societies. Jurist, 10, 1.
Fryer, B. (2010). The extent to which the ICTY and the ICTR deliver justice to victims in post-conflict societies. Jurist, 10, 1.
United Nations Residual Mechanism for Criminal Tribunals, https://unictr.irmct.org/en,2015.
.