Strengths and Weaknesses of the Different War Crime Tribunals

International justice is concerned with the establishments of laws that guide the conduct between nations, and the arbitration whenever any two parties are in conflict. The framework for international justice has always been the United Nations (UN). The preamble to the UN charter recognizes the objective of establishing an environment where justice and respect for obligations arising from treaties and other sources of international laws can be achieved. The principal adjudication body for the UN is the International Court of Justice (ICJ) which is charged with arbitrating conflicts between nations, provided both nations have chosen to use the ICJ for such purposes. However, the ICJ was designed to arbitrate between nations, a fact that led to the requirement for a court to try people who engage in international criminal acts on an individual basis. The International Criminal Court (ICC) was formed for just that purpose and is charged with investigating crimes such as genocide, war crimes, crimes against humanity, and crimes of aggression. The creation of the ICC is, however, a relatively recent development, and other measures have had to be developed by the international justice movement to achieve justice in an international setting. The political dynamism of modern international law necessitates a continuous analysis of the justice or injustice of the solutions, and an adjustment in order to derive the most benefit from the solutions. Further, new solutions to arbitrate crime have to be constantly developed to address the challenges that such dynamism international law presents.

One of the first challenges that were to face international law was the trial of the crimes perpetrated against the Jews during World War II. International jurists had long recognized the need for an international court to try cases that were perpetrated by individual but had an international reach, although to the point, nothing had been done towards this end. The end of the World War and the severity of the crimes perpetrated against the Jews called for decisive action in the part of international organizations in order to dissuade future recurrence of similar events. To this end, an Allied-run military tribunal was instituted in the German city of Nuremberg. The Nuremberg trials had the stated objective of punishing top Nazi leadership from crimes against the Jews in Europe during the war. While Hitler and two of his top aides, Heinrich Himmler, and Joseph Goebbels, had already committed suicide, the trial continued on to indict twenty-three other persons accused of the holocaust of the Jews. The Nuremberg trials were noted for the inclusion of several different nationalities in the proceedings, and a process that mirrored the judicial practices in several countries. The Nuremberg trials were in actuality thirteen distinct trials over the course of 1949 to 1950, and they resulted in the sentencing of all indicted parties, ten of them to death by hanging.

The Nuremberg trials have been subjected to an intense examination on their validity as well as their contribution to international justice. While some maintain that the trials were a win for international justice and were the precursor to the establishment of the ICC, others contend that the trials were an exercise without regard for good judicial practice. The Nuremberg trials were considered to have extended a small measure of justice to the affected parties, and led to the establishment of human rights law through the universal bill of rights and led to the development of the Geneva Conventions laws on justifications for engagement in wars, as well as the conduct during the war. The trials also set the basis for the establishment of the ICC and a precedent for the Tokyo trials as well as the tribunals in Yugoslavia (1993) and Rwanda (1994). However, the trials were also challenged on the basis of the retroactivity and selectivity in the judicial process. The crimes that were tried were crimes which before the Second World War had no precedent since the international law had up to that point left countries to dispose of its citizens as it pleased. A further criticism arose in the trial of “Ex Posto” factors since the accused claimed that their actions were only crimes after they committed them. The challenges and issues raised with regards to the Nuremberg trials were, however, to play an important role in the establishment of the ICC.

While the Nuremberg trials had dispensed with justice for the Jewish holocaust, a couple of key issues emerged. The most prominent of these was the need for an international arbitration body specifically to handle such cases. A principal concern was that the principal perpetrators of international crimes were escaping responsibility. The need for an international judicial body to try individual cases was thus recognized. While the need was evident, the court was not established until almost until four decades later. After the Nuremberg trials, the countries had each gone back to their concerns, with little thought of the establishment of an international body for the judicial arbitration. The war crimes and genocide carried out in the Yugoslavia (1991) and in Rwanda (1994) gave them the impetus to review the creation of the body. The ICC was thus created under the Rome Statute of 1998 to prosecute individual crimes touching on genocide, crimes against humanity, and war crimes. Later amendments proposed the inclusion of crimes of aggression under the types of crimes that the ICC can prosecute. The International Criminal Court, which currently has 123 signatories, has been instrumental in the prosecution of individual crimes and has gone a long way towards the arbitration of cases involving individual responsibility.

The ICC has a number of distinct contributions to international justice. The most visible of these benefits has been the deterrence of crimes by individuals. Prior to its establishment, the general view was that no legal body could prosecute individual crimes against other people. This led to an increase in impunity and the perpetration of serious crimes against fellow man. The ICC has served to check this effect as people are less likely to engage in such crimes, especially with the possibility of prosecution. Moreover, the ICC acts as a complimentary body through which along with the local judicial processes can prosecute cases. The ICC has also stepped in at times when the countries were either unable or unwilling to step in. Since the decision making is based on common law, this has also added to the legitimacy of the judicial body. The court also has disadvantages, however.  The foremost issue has been that the ICC is liable to instigate the very crimes that it is meant to protect against. The perception that the ICC is targeting a specific subgroup in cases of genocide or ethnic cleansing is common and does little to lend to its credibility or diffuse the situation.

Also, the ICC has been subjected to political machinations. Sudanese President Omar Hassan el-Bashir used his recent ICC indictment as a campaign tool. The Congolese President Joseph Kabila is also thought to have contributed to the indictment of Jean-Pierre Bemba, his main rival for the presidency of the country. The ICC has also faced the challenge of lacking international support. Three permanent members of the UN Security Council, the USA, Russia, and China, are not signatories of the Rome statute and, therefore, the threat of a veto is a very real possibility. The court has also been plagued by delays in the judicial process, and at the moment ICC has only completed twelve cases out of thirty-nine indictments, with only two convictions. The lack of a policing force has also impeded the ability of the ICC to effectively prosecute. While the ICC can indict, it cannot execute an arrest and has to rely on member countries to carry out the arrests for them. Despite the many issues that currently plague the ICC, the judicial organ has proven to be very flexible, even allowing for the establishment of hybrid courts.

Hybrid courts are such courts where both the institution and applicable law is derived from both international and local processes (Stover 150). International judges from a panel along with local judges to try cases of international significance. The courts have been used to try cases in Kosovo and East Timor.  More recently, the court has been used in Sierra Leone to prosecute former Chadian dictator Hissene Habre, who is accused of massacring over 40000 citizens during his eight-year rule. Hybrid courts, which like the ICC are meant to sanction serious breaches in international law, particularly in human rights and humanitarian law, have a number of distinct advantages over the other judicial processes. The principal advantage they offer derives from their ability to seamlessly combine international and local legal practices (Roht-Arriaza 314). As a result, such courts for not suffer the problems of legitimacy and capacity building that the other courts do. Hybrid courts have however been accused of diminishing the legitimacy of local judicial authorities as some pundits point out that a decline in a domestic adjudication accompanies a rise in supranational arbitration. Another challenge arises from funding issues as most of the local countries are unable or unwilling to fund the courts, even with their insistence on the trials being carried out locally.

To conclude, the solution in place at any point in time for the prosecution and arbitration of cases of international law have to be constantly adjusted to fit the general requirements demanded of it by the time period. While international law is fraught with many challenges, with the most well-known of these being the issues of dynamism and jurisdiction, care should be taken to adjust the solutions to fit the current requirements in the international scene. The international justice movement has, through time, resorted to a variety of measure on how to handle international cases. From the earliest solutions of the adoption of an Allied-run military tribunal, through the establishment of the International Criminal Court, to the current solution that utilizes hybrid courts to lend credibility as well as build capacity, the international community has always been able to identify the shortcomings or issues presented and adjusted accordingly. In all, this strategy has greatly enabled the maintenance of international law, and the prosecution of serious individual crimes.