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

SUBJECT-MATTER Judicial mechanisms established by the international community to try those accused of major crimes arising from an armed conflict OVERVIEW What has criminal justice got to do with conflict prevention? Why can the international community contribute? International criminal courts Internationalised or hybrid criminal courts Significance of international criminal justice for conflict prevention and the promotion of peace

WHAT HAVE CRIMINAL PROCEEDINGS GOT TO DO WITH CONFLICT PREVENTION AND THE PROMOTION OF PEACE? Peace-making as stopping the fighting Measures to make peace sustainable include: Transitional justice: “A set of judicial and non-judicial measures that have been implemented…..in order to redress the legacies of massive human rights abuse” (ICTJ)

TRANSITIONAL JUSTICE Criminal Prosecutions Truth Commissions Reparations programmes Institutional reforms of abusive state institutions, such as the armed forces, police and courts

HOW DO CRIMINAL PROCEEDINGS CONTRIBUTE TO CONFLICT PREVENTION AND THE PROMOTION OF PEACE? Some slogans: Ending impunity Justice for victims Closure Addressing the enormity of the crimes

 Judicial mechanisms established by the international community to try those accused of major crimes arising from an armed conflict  Two categories: international criminal courts and internationalized or hybrid criminal courts INTERNATIONAL CRIMINAL JUSTICE

INTERNATIONAL CRIMINAL COURTS International Criminal Tribunal for the former Yugoslavia (ICTY) International Criminal Tribunal for Rwanda (ICTR) International Criminal Court (ICC)

INTERNATIONALISED OR HYBRID CRIMINAL COURTS Panels of International Judges in Kosovo (UNMIK AND EULEX) Special Panels in East Timor (UNTAET) Special Court for Sierra Leone War Crimes Chamber of the Court of Bosnia and Herzegovina Extraordinary Chambers in the Courts of Cambodia (ECCC)

WHY CAN’T COURTS IN THE COUNTRIES AFFECTED DEAL WITH CRIMES COMMITTED IN ARMED CONFLICT? Hardly a functioning court system as a result of the conflict Often the domestic judicial system had serious shortcomings before the armed conflict Extreme difficulty that Judges have in being and being seen to be independent and impartial on issues arising from an armed conflict that has affected them –Judges may be subject to pressures and even intimidation in such cases

LIVERSIDGE V. ANDERSON (1941) Regulation 18D of the Defence (General) Regulations 1939 which permitted the Home Secretary to intern people if he had “reasonable cause” to believe that they had “hostile associations”. The effect of the Majority Decision was that the order for Liversidge’s detention was lawful if the Home Secretary honestly asserted that he had reasonable cause to detain him under the law and that in such circumstances no court could investigate whether in fact he had reasonable grounds for his belief.

Lord Atkin dissented and argued that the courts should decide whether the Home Secretary really had reasonable grounds for his belief and not just whether he thought he had. Extreme conditions of wartime as the reason for the Majority Decision Analogous situation in the peace-process in Northern Ireland

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY) UN Security Council Resolution 827 of 25 May 1993 Acting under Chapter VII of he UN Charter Ad hoc temporary measure Jurisdiction over war crimes, crimes against humanity and genocide committed in the territory of the former Yugoslavia since 1992

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR) UN Security Council Resolution 995 of 8 November 1994 Acting under Chapter VII of the UN Charter Ad hoc temporary measure Jurisdiction over war crimes, crimes against humanity and genocide committed during 1994

INTERNATIONAL CRIMINAL COURT (ICC) Rome Statute of States Parties Created as a permanent court At the present time jurisdiction over war crimes, crimes against humanity and genocide Referrals  Security Council under Chapter VII  State Party  Investigation initiated by the Prosecutor proprio motu

INTERNATIONAL CRIMINAL COURT (ICC) Referrals by States Parties  Uganda in 2003  DRC in 2004  CAR in 2005  Mali in 2012

Proprio Motu investigations by the Prosecutor  Events in Kenya between 1 June 2005 and 26 November 2009  Alleged crimes since 28 November 2010 in Cote d’Ivoire Referrals by the UN Security Council  Situation in Darfur since July 2002  Situation in Libya since 15 February 2011 Impact and significance of the ICC

LIMITATIONS OF INTERNATIONAL CRIMINAL COURTS Logistical difficulties Reduced opportunities for institution-building Perceptions of the courts as alien impositions

International Judges and Prosecutors in Kosovo. UNMIK Regulation No. 2000/64, 15 December Special Panels in East Timor. Jurisdiction over serious crimes. Majority of internationals on the panels. Sat from 2000 to Special Court for Sierra Leone. Established by agreement in 2002 between the UN and the Government of Sierra Leone. Jurisdiction over serious crimes committed in Sierra Leone since 30 November Majority of internationals on the panels. Closed in INTERNATIONALISED OR HYBRID CRIMINAL COURTS

Extraordinary Chambers in the Courts of Cambodia. Agreement between Cambodian Government and the UN in Jurisdiction over crimes committed during the period of Democratic Kampuchea from 1975 to War Crimes Chamber of the Court of Bosnia and Herzegovina. Started work in Initially panels of two international Judges and one Bosnian Judge. Tendency for internationalised or hybrid criminal courts to have broader material jurisdiction than international criminal courts.

SIGNIFICANCE FOR CONFLICT PREVENTION AND THE PROMOTION OF PEACE Apparently well-intentioned initiatives in the international sphere  Pessimistic and optimistic views Political factors Genuine courts

CONTRIBUTION OF INTERNATIONAL CRIMINAL JUSTICE  Prevention of crime through reform, deterrence and protection of society  Reduction of impunity for particularly serious crimes which are an obstacle to peace and reconciliation  Individualisation of guilt  Providing a more objective account of events Optimistic and pessimistic views of international criminal justice