Question

instructions: write your opinion on this topic no more or no less then 100-150 words!!!!!!

Discuss the accomplishments of global justice (Tribunals, ICC) in relationship to human rights. Is this a significant achievement, a goal of global governance – to punish those responsible – or simply a means to an end? And what would that end be? What issues does global justice resolve, and what does it leave open and/or fail to address?

Answer 1

The ICC (International Criminal Court) is the last great international institution of the twentieth century. In July 17, 1998, 120 states voted to adopt the Rome statute of the ICC at headquarters of the FAO (Food and Agriculture Organization of the United Nations) in Rome.

The elaborate and complex negotiated instrument, a framework for an international criminal justice system, represented the highest point of a process that began in the wake of the Nuremberg Judgement, when the first time United Nations considered the establishment of an international criminal jurisdiction.

In future, the ICC resolve more increasingly be capable of show, by way of powerful judgements resulting from fair and efficient trials, that it sets legal and moral standards that will contribute to the expansion of International Justice.

The ICC is based on a treaty, joined by 123 countries. The mechanism of Art.21(3), which is more precise than that of the ICTs, could encourage them to give greater weight to International human rights instruments.

Introduction

The ICC (International Criminal Court) is the last great international institution of the twentieth century. In July17, 1998, 120 states voted to adopt the Rome statute of the ICC at the headquarters of the FAO (Food and Agriculture Organization of the United Nations) in Rome.

.The elaborate and complex negotiated instrument, a framework for an international criminal justice system, represented the highest point of a process that began in the wake of the Nuremberg Judgement, when the first time United Nations considered the establishment of an international criminal jurisdiction.. Less than four years later - far sooner than even the most hopeful observers had imagined the statute had obtained the essential sixty ratifications for its entry come into the force, on July 1, 2002.

The ICC was officially opened in The Hague on March 11, 2003 in a special ceremony attended by the Queen of Netherlands and Secretary General of the UN Kofi Ann an.

While the Nuremberg and Tokyo Tribunals were established by the occupying and victories powers, the ICTY (International Criminal Tribunal for the Former Yugoslavia) and the ICTR (International Criminal Tribunal for Rwanda) are the first truly international criminal courts.

The setup of an International Criminal Court has twofold purpose. In one hand, the court would thereby preserve a common belief in the importance of implementing the legal order by punishing those guilty of serious breaches of intention and humanitarian law, which itself, would be an important goal to attain. Erstwhile, the court may be expected to have a strong preventive impact on those who plan to commit a criminal act.

In future, the ICC resolve more increasingly be capable of show, by way of powerful judgements resulting from fair and efficient trials, that it sets legal and moral standards that will contribute to the expansion of International Justice [4]. The ICC is based on a treaty, joined by 123 countries. The mechanism of Art.21 (3), which is more precise than that of the ICTs, could encourage them to give greater weight to international human rights instruments.

International Criminal Law

International law as an nearly shadowlike form that, having an important effect in the 6th and 17thcenturies, than hovers above the future world. International criminal law is a comparatively new and early branch of public international law. Nowadays, it is consist of a body of laws that includes statutes, customary international law, and, to a slighter extent, case law .

International criminal law is the law that governs international crimes. It may be said that this discipline of law is where the penal aspects of international law, including that body of law protected victims of armed conflict known as international humanitarian law, and the international aspects of national criminal law . International law originated like a product of the customs along with practices of states, but it all derived from certain basic national principles, and these in time became a separate source of international law known as “general principles”. A key concern of the ICC, as it will operate in the Hague, will be how to ensure that it is speaking to local needs as well as broader concerns for justice.

ICC combines the universalism of global criminal justice which bases the gravity of international crimes on their attack on universal values, with the relativism of national concepts, which encourage taking into account certain criteria, in a differentiated fashion.

Rome Statute of the International Criminal Court

The ICC statute is that is to say core document of International Criminal law today. It lay down the legal bases of the essence International Criminal Court and develops of new brands of procedure.

The ICC statute was also a most important step self-assured for substantive international criminal law. Intended for all its imperfections, the statute of the ICC, implemented on July 17 1998 by the Rome Diplomatic Conference, was a major breakthrough in the effective enervated of international criminal law .

The statute of the state parties, determined to these ends and on behalf of present with upcoming generations, to institute an independent permanent International Criminal Court in relationship with the United Nations system, by jurisdiction over the most ruthless crimes of concern to the entire international community.

The Court has jurisdiction in accordance with this statute with respect to the following crimes:

(a) The Crime of Genocide

(b)Crime against humanity

(c)War Crimes

(d)The Crime of aggression

The Nuremberg and Tokyo Trials

It was precisely such scenarios that lead to the successful establishment, in that way immediate post–war period, of the Nuremberg and Tokyo Tribunals. These tribunals were a response to the overwhelming horrors of the Nazi genocide in Europe and the Japanese wartime occupation of large parts of the many South – East Asian nations .

In its judgement of 1446, the International Military Tribunal at Nuremberg assumed that Art.6(a) of the London Charter is declaratory of modern international law, which regards war of aggression as a gave crime . The framers of Nuremberg were confronted with a new offence, the bureaucratic crime, and a novel political menace, the criminal state.

Although according to long tradition, international law had permitted to try member of the aristocracy forces of an enemy state committing war crimes during the 19th and the 20th centuries no actual cases occurred where the political leadership of a defeated country had been put on trial .

The reception of the historic trial by the German legal community, and its legacy, that is its evolution into modern international criminal justice, should be understood as the result of a highly complex mixture of moral, political and legal considerations . The Nuremberg and Tokyo Tribunals drew heavily on the 1929 Geneva prisoner of war convention and the Fourth Hague Convention of 1907 as establishing the substantive law to be applied - that is, as customary law, and as norms of both state responsibility and individual criminal liability.

The Nuremberg Charter

The subsequent acts, or several of them, are crimes coming within the jurisdiction of the tribunal for which there shall be individual liability: (a) Crime against peace, (b) War Crimes (c) Crimes against humanity . In a world raven by lawless violence, it demonstrated that people need not stand by helplessly and witness atrocities without bringing the perpetrators to justice. Nuremberg began our halting efforts to impose the rule of law worldwide .

The Tokyo Charter

Like the Nuremberg charter, the Tokyo Charter, which was actually issued on 26 April 1946, included the newly articulated crimes against peace and humanity (Art.5). As defined in the Tokyo Charter the crimes against peace and humanity target high level orchestrates of war.

The Tokyo Tribunal relied heavily on the Pact of Paris of 1928 for the legal basis for the crime against peace. In addition, the Nuremberg and Tokyo tribunals represented a first effort by the international community to create a judicial mechanism for addressing the atrocities that can be committed during war.

These trials are the first major precedents of our time. Much less weight is generally accorded to the decision of the International Military Tribunal for the Far East than to Nuremberg for a variety of reasons, including the perception that the Tokyo proceedings were substantially unfair to many of the defendants. Indeed, its example is primarily relevant in considering what a credible international criminal justice system ought not to look like.

The International Criminal Tribunal for the former Yugoslavia

On Feb.22, 1993 the Security Council of the UN adopted a resolution envisaging the creation of an ICTY (International Criminal Tribunal for the Former Yugoslavia) shortly afterwards, on May 25, 1993, the tribunal was established by Security Council Resolution 827.

Whatever the practical achievements of the ICTY may prove to be, the UN Security Council has recognized the first truly international criminal for the prosecution of persons responsible for serious violations of international humanitarian law.

“The Tribunal” means the International Tribunal for the Prosecution of persons Responsible for serious violation of International humanitarian law committed in the territory of the Former Yugoslavia since 1991, established by the SC ( Security Council) pursuant to its resolutions 808(1993) and 827(1993) [26]. The establishment of the ICTY under Chapter VII was a measure not concerning the use of force and, thus, fell squarely within the influence of Art. 41 of the 1945 UN Charter, even though the fact that the indicative list of measures envisaged in that article make reference to judicial bodies. Its relation to the Security Council is that of a subsidiary organ under Art.29 of the UN Charter.

The Tribunal was established, and which are comprehensive in Article 2 to 5 (‘grave breaches’ of the Geneva Conventions, genocide and crimes against humanity ,violations of the laws or customs of war,) are of relatively recent origin going back to the immediate aftermath of the Second World war . The UN War Crimes Commission shares the view the conflicts in Yugoslavia be international along with thus the intention of all the laws of war, including, of course, the rules governing war crimes, are applicable.

According to the UN Secretary General report on the ICTY Statute, crimes against humanity were primary acknowledged in the Nuremberg Charter and in the trials of war criminal following World War II [29]. The ICTY Statute, in Art.5 defines “crimes against humanity” subject to the Jurisdiction of the Tribunal as certain crimes “committed in armed conflict, wherever charter of Internal or International [5].” The definition of ‘crimes against humanity’ in Art.6(c) of the Charter of the IMT (International Military Tribunal) exception that such crimes not to linked near the war or to the commission of other crimes [30].

Pursuant to Art.13 of the ICC statute, there are three modes of triggering the ICC’S jurisdiction: (a) recommendation of a situation to the prosecutor by a state party; (b) referral of a situation to the prosecutor by the Security Council of the UN acting under chapter VII of the UN Charter; (c) initiation of an investigation by the prosecutor his own initiative [10]. The relationship of the Tribunal to national jurisdiction, as enunciated in Art.9 and 10 provides insight regarding to possible intent of the Security Council. Art. 9 of the statute clearly establishes concurrent jurisdiction between national courts and the Tribunal, while Art.10 gives the Tribunal qualified primacy. Subsequently, customary international law, Art.5 of the ICTY Statute (1993) defined the crimes against humanity , when crimes committed in armed conflict internationally or internally directed against any civilian population: “(a) murder; (b) extermination ;(c) enslavement;(d) deportation;(f) torture; (g) rape; (h)persecutions on political, racial and religious grounds; (i) other inhumane Acts”. Since the Appeals Chamber decision referred to the Tadic Case assessment on protection motion for interlocutory appeal on jurisdiction (Oct 2, 1995), proof that the armed conflict in question in international in character has been treated as a jurisdictional must for the applicability of Art.2. The question in dispute was whereas the accused might be held criminally liable for breaches of international humanitarian law allegedly committed in an internal armed conflict; in other words, whether he might be held responsible for war crimes perpetrated in a civil war.

Wilfully causing great suffering or serious injury, a grave breach of the Geneva Conventions, is punishable under Art.2(c) of the statute. Cruel treatment, a violation of the laws or customs of war is punishable under Art.3 of the statute and is recognised by Art.3(1)(a) of the Geneva Conventions .

Art.2(3) of the statute contains a list of punishable crimes, including ‘genocide’ and ‘complicity in genocide’.Art.2(2), which prescribes the dolus specials, does not say that it pertains to ‘genocide’ with the other crimes listed in Art.2(3) including ‘complicity of genocide’. Nor does Art.2(3) which contains the list of crimes, say so.

In terms of the ICTY’S establishment, the international court should be build up to attempt those responsible for war crimes and crimes against humanity committed in the former Yugoslavia. To prove a charge under Art.5 of the ICTY statute (on crime against humanity), the prosecution has to prove not only that crimes took place, but also that those crimes were committed as part of a ‘widespread or systematic’ attack.

The ICTY case has often stressed that Art.3 of its statute constitutes a broad section which is intended to cover all serious violations of international humanitarian law not falling under other specific provisions ,e.g. Art.2 (grave breaches).

Much of the prosecution case in ICTY trials in concerned with evidence of the commission of crimes by subordinates of the accused, called ‘Crime base’ evidence. The prosecution must also lead other to link the accused to the crimes .

Art.25(3)(d) was problematic because it equated the responsibility of the defendant who intended to further the aim of the criminal enterprise with the defendant who was merely aware of the groups intention to commit the crime. Security Council Res.1503 (2003) was the first comprehensive blueprint for the ICTY completion strategy, emanating from the Security Council rather than ICTY itself . Dominic Raab, says there are two lessons for the ICC: First, the ICC will need to foster a degree of collective responsibility to enable it to operate with greater transparency. Secondly, the ICC status parties will need to take up the mantle of conducting meaningful oversight in relation to matters of general legal policy.

Art.5(h) of the ICTY Statute prohibits’ persecution on political and religious grounds.’ This offence has been used to encapsulate as a crime the ethnic cleansing practices relied upon by certain parties to the conflict in former Yugoslavia territory. Art.19(2) of the ICTY Statute provides that, “upon confirmation of an incident, the judge may, at the request of the prosecutor, issue such as orders and warrants for the arrest, detention, surrender or transfer or persons, and any other orders as may be required for the conduct of the trial.”

Extensive powers of arrest have been provided expressis verbis in the ICTY’S rules of procedure and evidence, and few objections based ahead the contents of rule 59 bis or other relevant rules vis-à-vis the overall scope of the ICTY’S general framework of delegated competence from UN Security Council Resolution 827 and chapter VII of the UN Charter appear convincing/ Art.2(7) of the UN Charter – which provides that the prohibition of UN intervention in matters fundamentally surrounded by states’ domestic measures under Chapter VII – paved the way for the evolution of norms applicable to internal conflicts and, eventually for the resolutions by which the security council has authorized forcible interventions in response to internal atrocities/ The ICTY Prosecutor’s decision not to investigate NATO, for example, which is further discussed in part IV of this article, was widely reported in the media and affected attitudes toward that tribunal.

International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda (ICTR) was set up by UN Security Council Res. 955 of Nov.8, 1994, in response to genocide along with other systematic, widespread, and blatant violations of international humanitarian law which had been committed in Rwanda . For the period of time approximately 800,000 people were killed in the genocide of Rwanda. The methodical massacre of men, women and children that took over the course of about 100 days since April and July 1994 will be remembered as one of the most distasteful measures of the twentieth century . In the first week of the genocide, it is estimated that 10,000 people a day were killed . Contained by two weeks after the genocide started some 250,000 Tutsis were massacred. As Tutsi refugees in Uganda reported the atrocities, the RPF (The Rwanda Patriotic Front) launched a northern offensive; however, the RPF’S offensive “simply could not match the pace at which the militiamen and soldiers were massacring civilians. The violence in Rwanda was distinctive of many brightly and euphemistically titled “post –conflict” operations that were overseeing transitions from civil war to civil peace . The organizers of the massacres wanted to create a new Rwanda a community of murders, who shared a collective sense of accomplishment or guilt. The new Rwanda’s would undergo an initiation rite by killing their neighbour. The ICTR shall have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring states, among Jan 1, 1994 and Dec.31, 1994, in agreement among the provisions of the present statute .