Justice Tribunals June 21, 2008.

Justice Tribunals June 21, 2008

Justice Tribunals Background on human rights and humanitarian standards Nuremberg Principles United Nations International law Ad hoc tribunals International Criminal Court Extraordinary Chambers in the Courts of Cambodia Other transitional justice mechanisms

Human Rights Definition Early Groundings Philosophical Religious
Human Rights = basic rights people entitled to by virtue of being human Inalienable- inherently belong to each person and cannot be taken away Indivisible- all human rights are equally important and crucial as other rights and Interdependent- as a complete framework of interconnected and related rights Story re: logo and state fair, rt to health and food I want to address the early philosophical groundings of human rts. If you look to early philogosphers, you’ll see basic tenets of human rts: Philosophical Aristotle- natural moral order transcending socio-historical context to apply to everyone John Locke- presented concept of natural rights, which people possessed long before and independent of state recognition Religious Many major religions have principles relating to responsibility or duty toward others and on human dignity (Buddhism, Christianity, Confucianism, Hinduism, Islam, Judaism) My point here is to demonstrate that although in the past century, we’ve created these international standards and laws that protect human rights, the concept of human rights existed long, long before such codification—it’s really an inherent notion that has early roots that can be found in both philosophical and religious groundings.

Post-World War II Trials Establishment of the United Nations
International Military Tribunal in Nuremberg and for the Far East Establishment of the United Nations International human rights standards [DON’T READ SLIDE] Next, I’ll be talking about the trials that ensued after WWII—i.e. Nuremberg Trials and the Far Eastern Trials in Tokyo, as well as the establishment of the UN.

Nuremberg and Far Eastern Trials
Basis Crimes charged Defendants Judgments Aftermath Nuremberg (took place from ) Basis Had a multilateral basis: US, USSR, Great Britain, and France signed an agreement for the prosecution and punishment of major war criminals of the European Axis powers and the Charter of the Intl Military Tribunal Crimes 3 types of crimes the defendants were charged with: War crimes Crimes against humanity Crimes against peace Defendants 24 Nazis from among the highest levels who were charged Judgments 22 judgments: 12 death sentences, 7 prison sentences, and 3 acquittals Aftermath Other states charged Nazi war criminals and concentration camp staff (12 trials with 177 defendants) Far Eastern Trials (Tokyo Tribunal) (followed about a year later ) 28 charged w/ same range of crimes as Nuremberg. 7 sentenced to death.

Nuremberg Principles Punishment for crimes under international law
Absence of national law does not erase responsibility No head of state immunity Individual responsibility Right to a fair trial Enumeration of punishable crimes What emerged from Nuremberg were a set of basic principles developed by ILC: Any person who commits a crime under intl law is responsible and liable to punishment Even if the country’s domestic law does not criminalize the act, that does not relieve him of responsibility under intl law Even if the perpetrator was acting as a HoS or govt official does not relieve him of responsibility under intl law Even if the perpetrator acted under orders from a superior does not relieve him of responsibility under intl law, as long as a moral choice was possible to him. Accused has due process rights. Crimes punishable under intl law: crimes against peace, war crimes, crimes against humanity, complicity in any of these.

History of United Nations
League of Nations United Nations Declaration by United Nations (1942) UN Charter (1945) League of Nations Created in 1919 by countries to achieve greater intl cooperation Addressed specific human rights: rights of minorities, labor standards, slavery and treatment of former colonies, but lacked the human rights emphasis found in UN After failed to prevent WWII, activities ceased UN “United Nations” coined by Pres. Franklin Roosevelt during WWII, when reps of 26 countries pledged their govts to continue fighting against the Axis powers. This was done through Declaration by United Nations There were a series of other documents and declarations leading up to the UN Charter, which I’m not going to go into detail about here, but rather address the UN Charter itself. UN Charter Reps of 50 countries met in San Fran to draft UN Charter, which was later ratified on Oct. 24, 1945, at which point the UN officially came into being 4 main purposes outlined in UN Charter (can see its emphasis on peace and cooperation in the aftermath of WWII): Maintain intl peace and security Develop friendly relations among states based on equal rts and self-determination Achieve intl cooperation in solving economic, social, cultural or humanitarian problems and promote human rights and fundamental freedoms without discrimination Act as a centre to harmonize countries’ actions toward achieving these goals

Declaration of St. James’ Place
The only true basis of enduring peace is the willing cooperation of free peoples in a world in which, relieved of the menace of aggression, all may enjoy economic and social security. It is our intention to work together, and with other free peoples, both in war and peace, to this end. [DON’T READ SLIDE] I wanted to share these quotes, which were in one of the declarations leading up to the UN Charter, the Declaration of St. James’ Place. This declaration was signed in 1941 by several countries and really demonstrates the international recognition of the importance of preserving peace by working together.

International Human Rights Law
International Bill of Human Rights Universal Declaration of Human Rights (UDHR) International Covenant on Economic, Social and Cultural Rights (ICESCR) International Covenant on Civil and Political Rights (ICCPR) First Optional Protocol Second Optional Protocol (death penalty) I’m going to next address the intl legal standards that emerged. First, we have what is known as the International Bill of Human Rights (5 docs) UHDR adopted in 1948 by the UN. UDHR is most comprehensive instrument, and was the only intl human rts standard for nearly 2 decades. ICESCR and ICCPR were promulgated in the 1960s, but then took another decade to enter into force in 1976. ICCPR has 2 optional protocols—one of which provides an implementation mechanism for communications and the other which aims at abolishing the death penalty.

Eleanor Roosevelt, Chairperson of the UN Commission on Human Rights, with the UDHR;

Core International Human Rights Treaties
Convention on the Elimination of All Forms of Discrimination against Women Convention on the Elimination of All Forms of Racial Discrimination Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention on the Rights of the Child Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Women, race, torture, children, and migrants workers Also, 2 optional protocols address use of children in armed conflict, and on the sale of children, child prostitution and child pornography In total, more than 60 human rights treaties

International Humanitarian Law
“Laws of War” Seeks to limit effects of armed conflict Protects persons who are not or are no longer participating in the hostilities restricts the means and methods of warfare Applies to international and domestic armed conflicts Humanitarian law basically seeks to limit effects of armed conflict here you can see the 2 basic tenets of humanitarian law: To protect persons… this could be civilians, injured combatants who are no longer fighting, POWs. To restrict the means and methods… for example, restricting or banning the use of certain weapons, like chemical weapons or landmines

International Humanitarian Law
Geneva Conventions (4) Protocols Additional to Geneva Conventions Rome Statute of the International Criminal Court Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and Warfare, Convention for the Protection of Cultural Property in the Event of Armed Conflict Just a sampling of the international humanitarian law treaties out there. At least 24 conventions and protocols, and up to around 100 other documents that address aspects of armed conflict. The first 2 bulletpoints are some of the major treaties on the subject. The last two I included as examples so you can see some of the means to limit the methods of warfare as mentioned earlier.

Geneva Conventions Grave Breaches
Willful Killing Torture or inhuman treatment Willfully causing great suffering or serious injury to body or health Unlawful deportation or transfer or unlawful confinement of a protected person Compelling a protected person to serve in the forces of a hostile power Willfully depriving a protected person of the right to a fair trial Taking of hostages Extensive destruction and appropriation of property Next, I want to address specific aspects of humanitarian law. These are terms and concepts you’ve probably run across or will run across when investigating the issue. The Geneva Conventions contain specific articles which addresses grave breaches. States that have ratified the Geneva Conventions must penalize and prohibit these grave breaches States are under obligation prosecute these grave breaches, regardless of the nationality of the accused persons Also, AP I (protection of victims of intl armed conflicts) addresses grave breaches in Articles 11 and 85.

Geneva Conventions – Art. 3
Addresses non-international armed conflicts States must: Prohibit specific crimes against persons taking no part in the hostilities Ensure the wounded and sick are collected and cared for Common art. 3 is provision found in all 4 of the Geneva Conventions and applies to domestic conflicts. [READ ENTIRE SLIDE] The specific crimes states are required to prohibit include: Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture Taking of hostages Outrages against personal dignity, in particular humiliating and degrading treatment The passing of sentences and the carrying out of executions without appropriate and regular judicial guarantees

War Crimes Rome Statute Grave breaches of the Geneva Conventions
Serious violations of the laws of international armed conflict Serious violations of common art. 3 (non-international) Serious violations of the laws of non-international conflict According to the Rome Statute, which established the ICC, the listed acts constitute war crimes and are punishable. These include: [READ ENTIRE SLIDE] The serious violations are enumerated in more detail in the Rome Statute

Crimes against Humanity
Rome Statute Murder; Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law Enforced disappearance of persons; The crime of apartheid; Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. A “Crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack Can occur in times of war or peace

Genocide Convention (1951)
Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group. Genocide means any of the listed acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. Moreover, the following acts are punishable: Genocide; Conspiracy to commit genocide; Direct and public incitement to commit genocide; Attempt to commit genocide; Complicity in genocide So, even those who did not have a direct hand in the genocide, but publicly incited or was complicit in it, can be held responsible. Can occur in times of war or peace

Ad Hoc Tribunals International Criminal Tribunal for Yugoslavia (ICTY) (1993) International Criminal Tribunal for Rwanda (ICTR) (1995) Special Panels for East Timor ( ) Special Court for Sierra Leone (SC-SL) (2002) Extraordinary Chambers in the Courts of Cambodia (ECCC) (2003)

ICTY and ICTR ICTY The Hague, Netherlands
Crimes committed in territory of former Yugoslavia from 1991 Committed by any person who planned, instigated, ordered, committed or otherwise aided and abetted 161 indictments 113 cases concluded ICTR Arusha, Tanzania Crimes committed between 1 January and 31 December 1994 Committed by Rwandans in Rwanda and in neighboring States, as well as non-Rwandans for crimes committed in Rwanda At least 33 concluded cases These are 2 examples of ad hoc tribunals, which Are international in nature (in terms of law and staff) Notice they are not located in the countries of conflict, but elsewhere Are trying many individuals (you can see their mandate is quite large—looking at the persons who can be held responsible, it’s a pretty broad scope) Have a much larger budget and longer timeline (trials still ongoing)

ICTY and ICTR ICTY Genocide Crimes against humanity
Grave breaches of the 1949 Geneva Conventions Violations of the laws or customs of war ICTR Genocide Crimes against humanity Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II Here, you can see the crimes over which they have jurisdiction. They’re pretty similar to one another.

Special Panels of Serious Crimes for East Timor
Mandate Jurisdiction Proceedings Completed 55 trials 84 individuals convicted 3 individuals acquitted Mandate: Special Crimes Unit set up by the United Nations to prosecute: War Crimes Crimes against Humanity Individual offences of murder torture and rape SCU operates under the legal authority of the Prosecutor-General of East Timor. Jurisdiction Has jurisdiction over the mentioned crimes committed in East Timor between 1 January and 25 October 1999 Proceedings: All cases were brought before the Special Panels, coordinated jointly b/w UN and local courts, and consisting of 2 intl judges and 1 East Timorese judge The Special Panels’ mandate ended in 2005, but since then some Indonesian national courts have prosecuted some of the military leaders.

Special Court for Sierra Leone
Hybrid Tribunal Mandate 4 cases: AFRC CDF RUF Charles Taylor Hybrid Tribunal: Uses both intl and Sierra Leonean law Mix of staff and judges (good b/c intl / local bring different things to the table) Leave a legacy (both skills transfer and physical) Mandate: who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law This is a very narrow mandate and means only 13 people were indicted. 3 people died, one at large, so only 9 people before the court—IMPLICATIONS! 4 cases: (3 acronyms stand for the fighting factions) AFRC concluded: 50 years, 45 years, and 50 years. CDF concluded: 15 and 20 years. RUF ongoing Charles Taylor’s case transferred to The Hague (regional instability) and begun

Special Court for Sierra Leone.

International Criminal Court
Permanent court (2002) Rome Statute Mandate Court of last resort 4 countries under investigation: Uganda Democratic Republic of Congo Central African Republic Sudan Mandate: Genocide (article 6) Crimes against humanity (article 7) War crimes (article 8) Aggression (undefined) 106 States Parties ratified the Rome Statute, subjecting their citizens or crimes committed on their territory to jurisdiction of the court Court of last resort: will not act if a case is investigated or prosecuted by a national judicial system unless the national proceedings are not genuine, for example if formal proceedings were undertaken solely to shield a person from criminal responsibility. Also note, that its temporal jurisdiction is limited to crimes committed after July 1, 2002. 4 countries: 11 individuals have warrants for their arrest or are before the ICC.

Assembly of States Parties.

Extraordinary Chambers in the Courts of Cambodia (ECCC)

ECCC - Background Mixed tribunal
Established by the Cambodian government and the UN Located in Phnom Penh, Cambodia Timeline Budget Mixed tribunal- hybrid court using international and Cambodian laws, with both international and Cambodian judges. Established by the Cambodian govt and UN Located- local location, makes it easier for the local population—the victims—to see justice be done. Anyone can go to watch the trials—there is a special section reserved for the public—unless judges determine the proceedings need to be closed to protect the witnesses or victims’ identities. Timeline – estimated 3 years, but depends on numerous factors: how long investigators need to collect evidence how many people are put on trial Number of witnesses called Number of appeals Budget - $60 million over 3 years ($20 million per year). Compare to: ICTY/ICTR: $100 million per year More in line w/ SC-SL: $24 million per year, which as you recall, has fewer defendants before it.

Senior leaders of Democratic Kampuchea
ECCC - Who Senior leaders of Democratic Kampuchea Those most responsible for the crimes recognized under the Law on the Establishment of the ECCC 5 former Khmer Rouge leaders in custody and awaiting trial: Kaing Guek Eav, leng Sary, leng Thirith, Khieu Samphan, Nuon Chea [DON’T READ SLIDE] So, who will the ECCC try? You can see it’s a narrow mandate— Senior leaders —it’s going after the highest levels of the Khmer Rouge, and furthermore, many of these people may have already died, e.g. Pol Pot Those most responsible —again, a very narrow mandate, not unlike Sierra Leone’s Court which is prosecuting those who bear the “greatest responsibility.” 5 former leaders are in custody

ECCC - Crimes Crimes between April 17, 1975 – Jan. 6, 1979
Crimes under both Cambodian law and international law

ECCC - Crimes Cambodian Law International Law Homicide Torture
Religious Persecution International Law Genocide Crimes against humanity Grave breaches of the Geneva Conventions Destruction of cultural property Crimes against internationally protected persons Cambodian law- these crimes derive from the 1956 Penal Code of Cambodia International law – again, you see many of the same crimes we have discussed previously, as well as the destruction of cultural property and crimes against internationally protected persons, such as diplomats.

ECCC Crimes under International Law
Genocide Killing members of the group; Causing serious bodily or mental harm to members of the group; Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group; Forcibly transferring children of the group to another group. [DON’T READ SLIDE] Same definition as the Genocide Convention. Following acts are punishable: Attempts to commit acts of genocide Conspiracy to commit acts of genocide Participation in acts of genocide

Crimes against humanity Murder Extermination Enslavement Deportation Imprisonment Torture Rape Persecutions on political, racial and religious grounds Other inhumane acts Any acts committed as part of a widespread or systematic attack directed against any civilian population on national, political, ethnic, racial or religious grounds

Grave breaches of the Geneva Conventions Willful killing Torture or inhumane treatment Willfully causing great suffering or serious injury to body or health Destruction and serious damage to property, not justified by military necessity and carried out unlawfully and wantonly Compelling a prisoner of war or a civilian to serve in the forces of a hostile power Willfully depriving a POW or civilian the right to a fair trial Unlawful deportation or transfer or unlawful confinement of a civilian Taking civilians as hostages Finally, there are grave breaches. Again, these are any acts committed against persons or protected property between that period of April 17, 1975 to Jan. 6, 1979.

ECCC Punishment Imprisonment between 5 years to life imprisonment
Confiscation of property and/or money No death penalty [DON’T READ SLIDE] Imprisonment – as you can see, there is no death penalty. Interestingly, the first draft law for the court allowed the death penalty, but it was found to be in conflict with Cambodia’s constitution, which prohibits the death penalty. So, it was actually sent back to Parliament to be amended to not include the death penalty Confiscation – the Court may order confiscation of personal property, real property and money that was acquired unlawfully or by criminal conduct. The confiscated property is to be returned to the State.

ECCC - Structure Judicial Chambers Co-Prosecutors
Trial Chamber Supreme Court Chamber Co-Prosecutors Co-Investigating Judges Defence Support Office of Administration Victims Unit Judicial Chambers Trial Chamber- 5 judges (3 Cambodians + 2 internationals) Supreme Court Chamber – both appellate and final instance chamber, 7 judges (4 Cambodians + 3 internationals) Co-Prosecutors 1 Cambodian + 1 international Prepare indictments against suspects Co-Investigating Judges Carry out investigations on basis of information from any organizations, can question suspects, victims, hear witnesses, and collect evidence. Defence Support Responsible for providing accused who cannot afford a lawyer with free legal assistance Office of Administration Also mixed staff of both Cambodian and foreign nationalities Supports and facilitates the judicial process through coordinated provision of services Victims Unit – will mention in next slide.

ECCC – Victims Unit Maintain and provide a list of foreign/national lawyers to represent Victims or Victims Associations Administer applications for admission to the list of Victims’ Associations to act on behalf of Civil Parties Assist Victims in lodging complaints; Assist Victims in submitting Civil Party applications; Provide information to Victims and Civil Parties to facilitate effective participation; Facilitate participation of Victims and the common representation of Civil Parties; Assist the Public Affairs Section in outreach activities related to victims; Adopt regulations to implement this Rule. [DON’T READ SLIDE] You can see there is an extensive list of responsibilities—having to do with administration, victim support and assistance, and outreach.

ECCC- Victims Unit Role of Victims Testify as witnesses
File complaints Participate as civil parties Participate in criminal proceedings against the suspects by supporting the prosecution; seek collective and moral reparations, You may be wondering what is the role of victims in this process? [READ SLIDE]

ECCC - Victims “Collective and Moral Reparations:”
An order to publish the judgment in any appropriate news or other media at the convicted person’s expense; An order to fund any non-profit activity or service that is intended for the benefit of Victims; or Other appropriate and comparable forms of reparation. What does “collective and moral reparations” mean? According to the Internal Rules, some of the suggested include [READ SLIDE]. These are just some of the suggested awards mentioned. But, some criticize the “collective and moral reparations” as being vague with few examples in Cambodian or international law in determining how to interpret this language and award such reparations.

ECCC 1st hybrid tribunal where international justice and prosecutors are not the majority Length of time that has passed since crimes committed exceeds any other tribunal’s proceeding ECCC only official venue for claims of truth and justice about Khmer Rouge A few last things to note about the ECCC: 1st hybrid tribunal… Length of time – more than 3 decades since the crimes were committed ECCC- only official venue, no serious attempts to establish a truth commission or similar process.

ECCC website:

Transitional Justice Mechanism(s) to help a country and its people move forward after war or massive human rights violations Truth and Reconciliation Commissions TRCs Not all countries may have the budget or the legal infrastructure to prosecute individuals Means many victims may have to walk down the street and see their perpetrators Promotes airing of truth, telling one’s story, documenting the past, and providing a forum for making recommendations and reconciliation In some cases, a TRC may facilitate reconciliation ceremonies, whereby the perpetrator asks victim or community for forgiveness. Doesn’t need to conflict with a court, but can be a complementary mechanism

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