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Mass Atrocities, HR & Law > (1) International(ised) Prosecutions > Flashcards

(1) International(ised) Prosecutions Flashcards

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1
Q

5 difficulties in prosecuting intl crimes

A

1) hard to prove mens rea
2) hard to est responsibiltiy where someone maybe ordered but didn’t actually commit specific crime
3) limited resources
4) bias
5) can be hard to achieve TJ due to disconnect w affected communities

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2
Q

Advantages of internationalised prosecutions

A

key advantage is that atrocitiy crimes often perpetrated by state agents where after conflict may be ineffective, unavailable or too sensitive for national courts re impartiality and independence
- require intl court to provide legitimacy and deterrence for all

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3
Q

International Military Tribunal Nuremberg to prosecute NAzi leaders for what 3 crimes

A

1) crimes against peace (crimes of aggression)
2) war crimes
3) crimes against humanity

(similar court set up for Japanese leaders with the Tokyo Tribunals)

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4
Q

International Criminal Tribunal for the former Yugoslavia (ICTY) created by UNSC res per Ch VII: features

A

1) Primacy over national courts (art 9 Statute)
2) Transferred some smaller cases to the Bosnian War Crimes Chambers and national courts

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5
Q

Conflict in Yugoslavia - overview

A
  • atrocities committed in waars leading to dissolution of former Yugislavia and creation of several independent states
  • 130k + deaths, displacement of civilians, ethnic cleansing, sexual violence, torture, detention camps
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6
Q

ICTR per Ch VII - features:

A

1) jurisdiction over genocide, CAH, war crimes
2) primacy over national courts

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7
Q

Advantages of the ICTY

A
  • huge impact on development of IHL and ICL
  • individualisation of gulit, accountability of leaders
  • achieved justice and truth
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8
Q

Disadvantages of ICTY

A
  • no reconciliation
  • $$$
  • need for selectivity in prosecution of crimes problematic
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9
Q

Rwandan Genocide - overview

A
  • gencodie committed during civil war, around 100 days in 1994
  • Hutu militias killed 800k Tutsi and moderate Hutu
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10
Q

Advantages of ICTR

A
  • developed ICL (first genocide conviction)
  • recognised rape a means to perpetrate genocide
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11
Q

Disadvantages of ICTR

A

 Inefficient and costly, didn’t promote reconciliation, far removed from Rwandan culture and victims, legitimacy

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12
Q

What’s the ICC’s jurisdiction?

A

genocide
CAH
War crimes
Crime of aggression

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13
Q

In order for ICC to exercise jurisdiction what is required?

A

1) state a party to the RS or has accepted ICC’s jurisdiction AND
2) crimes committed in state’s territory or
3) by its nationals
based on principle of complementarity - court of last resort, where national courts unable/unwilling to prosecute

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14
Q

Why are internationalised (hybrid) courts advantageous?

A

cheaper than intl prosecutions whilst addressing national courts’ incapacity to adjudicate mass atrocities following conflict aftermath

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15
Q

internationalised courts have international and national elements concerning

A

1) establishment (ie treaty btw host state nad UN) or other intl organisation
2) crimes and applicable law
3) staff

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16
Q

What’s the biggest issue that internationalised courts have?

A

concurrent jurisdiction! Gives uncertainty to D’s, victims, prosecutors of international crimes + risks undermining legitimacy of the internationalised court and undermining confidence in UN administrative authority that created the court

+ risk of accused being tried 2x for same acts violating ne bis in idem

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17
Q

Is there consistency with internationalised courts and domestic legal systems?

A

No

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18
Q

Which internationalised courts operated independently to the national systems?

A

1) Kosovo Panels
2) Special Court for Sierra Leone

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19
Q

Which internationalised courts operated within the national systems?

A

1) East Timor Panels
2) Extraordinary Chambers in Courts of Cambodia (ECCC)
3) BiH War Crimes Chamber

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20
Q

Does creating an internationalised court as part of natoinal system avoid concurrent jurisidction issues?

A

To an extent yes!

note that in East Timor Panels, Indonesia hindered effectiveness of the prosecutions by not aiding at all

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21
Q

Irrespective of whether its external to or within the court system, what is the most decisive factor in the success of internationalised courts?

A

readiness of gov of the post-conflict state and neighbouring states to cooperate

22
Q

Features of the 64 Kosovo Panels

A
  • UN Sec Res to create Regulation 64 Panels to prosecute perpetrators
  • UN Res failed to address jurisdiction overlap, but no concurrent jurisdiction due to itl judges appointed in local courts for impartiality
  • Issue was that Serbia started to prosecute too, claiming jurisdiction over Kosovo’s territory
  • created paralell system of intl criminal justice
23
Q

What was eventually ordered by NATO re Serbia’s exercise of jurisdiction?

A

ordered Serbia to stop prosecuting crim cases in Kosovo

24
Q

The Kosovo 64 Panels was an internationalised court operating outside of the national legal system but w/o being directed towards

A

concurrent jurisdiction with national courts

25
Q

What was the issue with the East Timor Panels which operated within East Timor’s national jurisdiction?

A

main issue overall was that Indo stifled the Panels, the 440 nationals mostly indonesian and thus they didn’t have exclusive jurisdiction over them on basis of territoriality as outside of ET and protected by lack of extradition treaty btw the countries

26
Q

What was an advantgae of the ET Panel model over the Kosovo Panels

A

It directly addressed ne bis in idem, stating trial by the Panels barred subseqeuent trial by another ET court except wher eperson had been shielded in some way from conviction etc

27
Q

Sierra Leone - overview of conflict

A
  • decade long civil war
  • 2000, SL Gov asked UN to assist in prosecuting perpetrators of crimes
28
Q

How was the Sierra Leone Special Court different from Kosovo and East Timor Panels?

A

Created via bilateral treaty btw the UN and Sierra Leone (vs creation by Ch VII UN SC REs) whereby this is more of a ture ‘international tribunal’

29
Q

Features of the Sierra Leone Special Court

A
  • operated independelty - not anchored in UN or SL constitutional systems
  • operated concurrently w SL’s domestic courts
  • primacy given to Special Court over domestic court
  • still risk of being tried twice but hasn’t happened yet
30
Q

ISsue that the SL Special Court faced

A

lack of cooperation from third state authorities

31
Q

Did the Extraodinary Chamnbers in Courts of Cambodia made in 2003 to try leaders of Khmer Rouge (2 mil ppl killed in 70s) operate externally or within the Cambodian system?

A

Within!
- had jurisidction over intl crimes + certain domestic bad crimes (murder, torture, religious persecution)

32
Q

Key problem teh ECCC faced

A

major time gap btw the commission of crimes (70s) and ultimate prosecution in 2003+

33
Q

In BiH, the Internationalised War Crimes Chamber was within or external to the domestic system?

A

Within the domestic system

34
Q

Features of the War Crimes Chamber (internationalised)

A
  • within domestic system
  • couldn’t assume responsibility for all crimes to proseucte so had referral system, war crimes reported by local prosecutes to BiH State Prosecutor who then assessed whether they’d be tried by WCC or referred back to local courts
35
Q

Features of the BiH War Crimes Chamber

A
  • part of domestic system
  • WCC couldn’t assume responsibitliy for all prosecutions due to widespread nature of it, it created a referral system – all warm crimes cases reported by local prosecutors to the BiH State Prosecutro who then assessed each case and determined whether it should be tried by the WCC or referred back to the local courts to exercise territorial jurisdiction
36
Q

Advantage of the WCC in BiH?

A

internationalised chamber exercises control over the prosecutions + avoids situation where Ds shielded from effective prosecutions by sham proceedings at the national level.

37
Q

ISsue with the WCC in BiH

A

immense no reported cases and inability of local courts to fairly try politically sensitive/complex cases created issues

38
Q

Following teh WCC in BiH what was created?

A

1993 - ICTY made, primacy over intl crimes committed in territory of former Yugoslavia

39
Q

Whilst the WCC regarded aas successful generally for internatoinalised prosecutions, in practice what issues did it face?

A

, is in practice presiding over a system where the lower courts to which it refers cases, are unable to administer effective accountability, whether because of a lack of funding, resources and political will, or because of entrenched ethnic biases.

40
Q

5 successes of the ICTY

A
  1. Large amount of important cases prosecuted
  2. Development of ICL and IHL
  3. Individualization of guilty, responsibility of leaders
  4. Truth and justice
  5. Security and independence of trials due to location
41
Q

weaknesses of the ICTY

A
  1. Costly
  2. Did not promote reconciliation (e.g. denial of genocide)
42
Q

strengths of the ICTR

A
  1. Development of ICL (first genocide conviction and rape as genocide)
  2. Prosecution of most responsible
  3. Security and independence due to location
43
Q

Whaat are some of the most notable successes of the ICTY

A
  • bringing some of the most high-profile war criminals to justice. These included former Yugoslav president Slobodan Milosevic, who was charged with crimes against humanity and genocide. His indictment and subsequent trial sent a strong message to other leaders that they could be held accountable for their actions.
  • The ICTY also secured convictions against other high-ranking officials, military commanders, and paramilitary leaders responsible for war crimes.
44
Q

How did the ICTY clarify circumstances under which wartime actions could be prosecuted as crimes?

A

by promoting idea of individual responsibitliy under intl crimes - did this by establishing legal precedent

45
Q

3 criticisims of the ICTY

A

1) operated too slowly, with some trials lasting for several years. This problem was compounded by the fact that the ICTY had a limited number of judges and a backlog of cases.
2) too focused on prosecuting high-ranking officials and commanders and did not do enough to address crimes committed by rank-and-file soldiers or civilians. This meant that some victims of war crimes were left without any form of justice.
3) challenges with witnesses and evidence. Some witnesses were afraid to testify, and others had been killed or intimidated. The ICTY also often had to rely on hearsay evidence or testimony from insiders, which made it difficult to build strong cases in some instances.

46
Q

Whilst there were a number of challenges that undermined the effectiveness of the ICTR, what was its main strength

A

successfully prosecuted some of the key perpetrators of the genocide. This included senior political and military leaders, as well as media figures who incited violence against Tutsis.
* The ICTR’s ability to hold high-level individuals accountable for their actions helped to establish a precedent for the prosecution of crimes against humanity and genocide at the international level.

47
Q

What tribunal helped to est a precedent for the prosecutin of CAH and genocide at the intl level?

A

ICTR - through its prosecution of key perpetrators of genocide

48
Q

Aside from prosecutions, what was another important role of the ICTR?

A

documenting the atrocities that took place during the genocide. Its investigations helped to uncover evidence of the massacres, rapes, and other forms of violence that were perpetrated against Tutsis and moderate Hutus. The tribunal’s work contributed to a better understanding of the nature and extent of the crimes committed in Rwanda.

49
Q

Main weakness of ICTR

A
  • its pace! Slow pace, took decades for some - delayed justice for victims, harder to hold perpetrators accountable
50
Q

How was the scope of the prosecutions of the ICTR a weakness?

A

e tribunal was only able to prosecute individuals who were directly involved in the genocide, and not those who played a supporting role or who were complicit in the crimes. This meant that many individuals who were involved in the violence were not held accountable, and some were able to escape justice altogether.

51
Q

how was the ICTR’s relationship w the Rwandan gov a weakness?

A

The tribunal was accused of being biased against the government and of ignoring crimes committed by the Rwandan Patriotic Front, the group that ended the genocide. This strained relationship made it more difficult for the ICTR to carry out its investigations and prosecutions effectively.

Mass Atrocities, HR & Law (8 decks)

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