IMPACT OF INTERNATIONAL CRIMINAL TRIBUNALS ON TRANSITIONAL JUSTICE AND POST CONFLICT RECONCILIATION

This article is written by Harleen Kaur of BALLB (Hons.) of UILS, Panjab University, Chandigarh, an intern under Legal Vidhiya

ABSTRACT

Transitional justice is a much-discussed concept in the international criminal justice field. Conflicts and wars leave a community shattered. There is a need for a lot of efforts to be made to ensure some peace and closure the victims. Healing is an important part to re-building a society. Transitional justice works on providing this to the victims whilst also punishing the perpetrators to make them liable for the pain they might have inflicted. Because of the alignment of the objectives of transitional justice and international tribunals, these have impacted the development of this concept a lot. These tribunals have become institutions for promoting transitional justice. This has what shaped the concept. This article discusses that concept of transitional justice vis-à-vis international tribunals. There are different approaches of transitional justice. The development of transitional justice has been discussed. The establishment of ICC provides a more promising future for transitional justice.

KEYWORDS: transitional justice, international tribunals, reparation, amnesty, impunity, hybrid courts, restorative approach, retributive approach.

INTRODUCTION

During a conflict, the individuals or communities suffer gross injustices, inhumane treatment, violation of human rights, loss of livelihood, family, etc. This leads to a lot of distrust which becomes a common trait in these groups. So, the very essence of what holds us together as a society—trust, is gone.

Recreation of trust is very important for development. This would begin with the promise of no repetition of such incidents which is where transitional justice comes in.

Now, let’s consider what transitional justice is.

As per the International Centre for Transitional Justice (ICTJ), transitional justice,

“Refers to how societies respond to the legacies of massive and serious human rights violations. It asks some of the most difficult questions in law, politics and social sciences and grapples with innumerable dilemmas. Above all, transitional justice is about victims”

It aims at ensuring accountability about such issues to give the victims some amount of closure.

But, a concept by itself cannot work, especially in the international arena. There has to be some international actors working towards the concept.

One such actor is the international criminal tribunals.

International criminal tribunals are special courts established to prosecute cases arising under the international criminal law. These tribunals have jurisdiction over international crimes such as war crimes, crimes against humanity, genocide and crimes of aggression.

These can be categorized into two types:

BACKGROUND

Even though the concept has a long history, the term is of recent origin. It was developed around 1980s due to numerous incidents of blatant human rights violations faced by communities in various countries in their transition from authoritarian rule towards a democratic regime. It then came to be applied on the post-conflict situations as well.

Transitional Justice refers to initiatives taken by the States to re-establish human rights and dignity of victims of such violations.

Internationally, United Nations’ commitment towards transitional justice was highlighted for the first time by UN Secretary, at the time in 2004, General Kofi Annan. It was the defined as,

“The full range of processes and mechanisms associated with a societies’ attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.”[1]

Transitional Justice may include the following elements:

1. Individual Prosecution
2. Reparation
3. Truth Seeking
4. Institutional Reforms
5. Vetting and Dismissals or Combination of both.

The first applaud to this concept was during the “third wave” of democratization in Latin America and in Eastern Europe—for the transition from a dictatorial or authoritarian regime towards a literal market democracy.

Transitional Justice focuses a great deal on conflict and post-conflict societies. It deals with justice in societies in transition, either post-conflict or during a conflict. It may apply measures judicial or non-judicial in nature for the same. Overall, it aims at ensuring peace and bringing the perpetrators to justice—same is the object of international tribunals. So, it is both forward and backward looking.

In 1992, the Charter 77 Foundation gathered in Salzburg with leaders from South America, Africa, Eastern and Central Europe, to define the best way of organizing the transition from dictatorial to democratic regime.[2] Consequently, transition became the central element of both human rights and international relations. It became a tool to confront the past, reform societies and to re-build State institutions.

After all these years, it has now become an integral part of the UN framework to make sure that the transitions in post-conflict societies takes place smoothly and effectively. To uphold and strengthen the rule of law, transitional justice plays an even more important role.

PILLARS OF TRANSITIONAL JUSTICE

1. Victims’ right to truth: Victims/survivors have the right to know the truth about the entire situation as they were the ones wronged in the whole scenario. They have the right to seek relevant information regarding the violation, process that enabled the violation and the whereabouts of the victims (if disappeared). There is no such specific convention but have elements in various other conventions.
2. Right to Justice: The importance of making the ones responsible for inflicting immeasurable amount of pain on the victims cannot be ignored in the process of transition and healing. Justice involves prioritizing the issues, who is to be brought to trial as not everyone can be made to. There are also a lot to political constraints in such a situation (especially for war crimes) as it has to be decided whether to create a power vacuum in the State by punishing the leaders who have also done wrong. But in order for efficient transition to occur, it is difficult to do so in an unstable political environment due to the lack of a leader.
3. Right to Reparation: This right is gain focusing on the victims/survivors. This has been established in numerous international conventions with the aim to restore dignity. This right provides that the victims/survivors must be provided with some compensation, official apologies, rehabilitation, etc. But it is important to understand what the victims/survivors want under this right.
4. Guarantee of Non-Reparation: The guarantee that such violations would not be repeated in the future. This works on the preventive aspect of transitional justice. It includes reforms to be brought in the institutional framework, as well as addressing root causes of conflicts.

NEED FOR TRANSITIONAL JUSTICE

Conflict, war, human rights violations lead to a lot of devastation.

The legal notions of Jus ad bellum (conditions under which it is decided to resort to war) and jus in bello (rules which govern the conduct of belligerent as well as neutral parties) are firmly employed in case of an armed conflict.

But who is to say what happens after war ends?

As Brian Orend states “there has never been a treaty to regulate war’s final phase and there are sharp disagreements regarding the nature of a just peace treaty”[3]

This is not to say that there are no provisions at all to deal with post conflict situations.

This is where the international community’s commitment to transitional justice comes in.

Transitional justice is an instrument for broad social transformation. It is based on the assumption that societies need to confront past abuses in order for them to be able to heal. That is why the international tribunals have played an important role in the process of transitional justice as the tools for the same.

TWO APPROACHES OF TRANSITIONAL JUSTICE

There are two approaches to the concept if transitional justice. These are provided as follows: –

IMPACT OF INTERNATIONAL TRIBUNALS

• Retributive Approach and International Tribunals
• Nuremburg and Tokyo trials:

The initiation of transitional justice actually is often said to be the Nuremberg trials, followed by the sister tribunal in Tokyo. The International Military Tribunal (IMT) –Nuremburg was set up in 1945 after World War II. The aim was to conduct trials which was what laid the foundations of transitional justice. These prosecutions were first of a kind and were believed to have curative powers. It worked to establish truth, educate public about the atrocities and promote re-building the State to bring about the application of rule of law.

Very similar in its functioning was the International Military Tribunal of the Far East—Tokyo which was set up in 1946. These tribunals are hence, also known as the sister tribunals.

Thus, these ended up developing or atleast bringing up a new aspect in the international justice system.

• Ad hoc Tribunals:

The Nuremburg model had almost disappeared during the Cold War (1947-1991) and so did the concept of transitional justice. It was not very popular until 1990s.

The application of it re-emerged after the Cold War, in the 1990s. There were numerous conflicts going on around the world. To deal with the same, there were some ad hoc tribunals such as ICTY (1993) and ICTR (1995). These tribunals were based on the retributive approach of transitional justice laid down in the Nuremburg Trials.  The aim with these tribunals was to end impunity and ensure peace in the conflict affected regions.

In fact, these tribunals brought into the international arena the new idea of judicial intervention in a State’s internal affairs. 

These tribunals established that the Heads of State were no longer immune from prosecutions. A person who is responsible should be prosecuted and not spared just because of the person’s authority; especially the ones who killed hundreds of thousands of people even if not by their own hands.

For instance, former Prime Minister of Rwanda was sent to Hague while still in power to stand trial for the offence of rape defined as an international crime for the first time by ICTR.

As a result, a lot of the important political figures were removed from the political arena creating further instabilities and making transition difficult.

• International Criminal Court (ICC):

These ad hoc tribunals to the establishment of International Criminal Court (ICC) by Rome Statute of 1998. Thus, ICC is also based on the retributive model of transitional justice.

ICC has jurisdiction over genocides, crimes against humanity, war crimes and crimes of aggression committed after July 1^st, 2002. The Statute of ICC was difficult to formulate due to strong political constraints with respect to the concept of State sovereignty. It basically follows the principle of complementarity so ICC can only act where domestic courts are unwilling or unable to do so but it would be the last resort.

The main role of ICC was to gather evidence and lead investigation in conflict areas. It works to promote personal interest of victims. Article 68(3) of the Rome Statute provides,

“Where the personal interests of the victims are affected, the Court

shall permit their views and concerns to be presented and considered

at stages of the proceedings determined to be appropriate by the Court

and in a manner which is inconsistent with the rights of the accused

and a fair and impartial trial. Such views and concerns may be

 presented by the legal representatives of the victims were the

Court considers it appropriate, in accordance with the Rules of

Procedure and Evidence.”

Considering this, ICC is seen as an important tool for transitional justice as it works to provide victims with a voice to help them heal and bring perpetrators to justice.

As per UN Report on transitional justice, International Court of Justice (ICJ) aims at “ending human rights violations and preventing their recurrence in future, guaranteeing victim’s rights and their dignity, established the truth about past, promoting national reconciliation, building of a sustainable peace.”[4]

It was unique in establishing a trust fund to provide compensations and reparations to victims recently made progress in terms of communication strategy.[5]

• Hybrid Courts:

ICC had one major criticism i.e., remoteness to the conflict. To rectify this, innovative approaches were followed such as setting up hybrid (international) courts. It is emphasized that local actors involved where the conflict took place because it is easier to transition through such local actors as they know the situation better. Moreover, in such situations, empathy is also important.

These courts have left a positive legacy as a part of training local lawyers and establishing rule of law. It makes the access to witnesses, victims and even evidence.

Such courts were set up in Sierra Leone, Cambodia, Iraq and Lebanon. These are accompanied with alternative forms of accountability such as Truth Commissions. But there are of course, such technical difficulties in terms of questions about fairness, organizational framework, etc.

• Local Justice:

The persistent influence of legalism on transitional justice has made it appear more and more distant from the communities actually victimized.

The retributive initiatives are too technical and fail to analyse what transitional justice is and whom should it serve.[6] Indigenous (or local) justice is often seen as restorative in nature with elements of punishments and reparations too subject to the local factors such as power, politics, etc.

Often seen as alternative to ICC, the hybrid courts function on the assumption that international tribunals are oppressive and it is the local institutions that can promote transition as they know the culture better emphasizing that there is no need to have outside intervention. This promotes participation as well as a sense of ownership over the transitional justice, peace-building and thus, over restored community.

• Restorative Approach

Transitional justice recently moved towards a more holistic approach, i.e., restorative approach. It focuses on social repair, sufferings of the victims.

This is based on the assumption that a conflict affects the community so the primary focus is not on the crime but the aftermath. Simply, punishing the perpetrators is not enough.

This approach also increases the participation of victims.

The aim is to democratize the system making it more participatory. The founding moment of this concept is said to be Truth and Reconciliation Commission (TRC) in South Africa. TRCs are the main tools to apply restorative transitional justice to post-conflict areas. They deal with the remembrance of the events. These commissions aim on clarifying the situation, need of victims and create accountability alongside dealing with prospects of reconciliation to reduce the possibility of such situations.

Impunity is the current reality for the overwhelming majority the instances. For example, a very controversial judgement was the one of Amir Coralic who, together with two other soldiers had abducted two underage girls. He then raped one of them. When he was reported to the Swiss Authorities, he proceeded to surrender to Bosnia-Herzegovina, expressed remorse, and pled guilty. He received a one-year prison sentence but what happened was that he was allowed to purchase his freedom by paying 86,500 marks[7]. But what actually was not reported in the media was that one of the victims did not object to the lenient punishment but she sought a compensation of 50,000 marks to repair her house. And she received the amount almost immediately after the judgement.

Such approaches have become a point of discussion amongst a lot of scholars in the past decade. Most of the time the debate is to follow restorative approaches for ensuring post-conflict transitional justice. This is done mostly in war crimes because it is very difficult to gather evidence. Hence it is believed better to follow this approach, provide impunity rather than risking an acquittal so that atleast something comes out of the trial.

• Role of International Court of Justice (ICJ)

The International Court of Justice (ICJ), due to the lack of compulsory jurisdiction, does not play such a decisive role in transitional justice processes. It was set up by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention).

Former Yugoslavia attempted to make ICJ an authority along-side ICTY. Several cases were brought before ICJ, but none were successful. In 1993, Bosnia-Herzegovina sued Serbia[8]. The case as brought before ICJ on the grounds of violations of Genocide Convention. After fourteen years of proceedings, and at the end ICJ found that Serbia did not commit genocide. Still, it was found that Serbia failed to prevent the genocide and punish the perpetrators. Even though, technically this judgement was reasoned, it still did not fulfill the expectations of transitional justice and disappointed the victims. Unfortunately, ICJ played a counter-productive transitional justice role in former Yugoslavia in numerous cases.

JUDGEMENTS

1. The Croatia v. Serbia genocide case (1999) was the longest proceeding before ICJ. It went on for fifteen years even though no one was found guilty for the alleged “genocide in Croatia”. It is believed that the reason behind these proceedings were to give an opportunity for political leaders to resolve dispute themselves, but it did not work.

Such instances prove that ICJ is not the right forum to promote transitional justice. It is believed that political leaders would be more cooperative in peace negotiations if they were threatened with prosecution by the ICC. The lack of compulsory jurisdiction really limits the power of ICJ to ensure transitional justice. As a result, there have been proposals to extend its jurisdiction, for instance, over crimes committed by UN peacekeeping missions. These are just proposals as of now. Thus, ICJ continues to lack potency to assert transitional justice. There is a need for substantial changes in its jurisdictional provisions.

• In the case of Prosecutor v. Norac[9], the Croatian General Mirko Norac illustrates the possibilities for public enlightenment about transitional justice when centered in the local community from the Hague. Norac was arrested after being indicted by ICTY. Following this, about 1,00,000 people flooded the streets in protest. Due to this, ICTY had to transfer the case to Croatia where he was convicted. This time there was much less protest which was said to be partly due to the enlightening local coverage of the trial by Croatian journalists.
• The case of Prosecutor v. Krajisnik [10] was another important one in the field of transitional justice.  The highest-ranking person who pled guilty in former Yugoslavia was Republika Srpska’s President Biljana Plavsic. She pled guilty to one charge in exchange for dropping seven other charges from the indictment, including two for genocide. She, as a result, only received an eleven-year prison sentence for committing crimes of humanity. She was sent to a prison in Sweden. She denied her guilt providing that she only pled guilty to avoid genocide charges as she was unable to find witnesses. Such cases help uncover evidence, establish the truth, and provide satisfaction to victims, even if just to a certain extent—fulfilling the goal of transitional justice.
• In Prosecutor v. Erdemovic[11], a soldier named Erdemovic was a member of a unit of the Bosnian Serb Army. He participated in the execution of 1,200 men and children in Bosnia in July 1995. Erdemovic was then charged with crimes against humanity by ICTY. He pled guilty but argued that he had been forced to commit the atrocities. Had he not done that, he would have been killed for disobeying the orders.  He was sentenced to ten years in prison. This was a relatively lenient sentence based partly on his cooperation in the investigation. This is an example of bottom-level transitional justice because many of the war crimes are borderline cases.

CONCLUSION

Transitional justice is the concept which lays down that after a conflict, each society goes through numerous changes. There is a need to rebuild the society and assist the State to transition from a certain regime to a more efficient framework. For such a concept to be globally applied, it requires a strong foundation and authorities to promote the same. The international tribunals, thus have played an important role in devising the concept of transitional justice, advancing it and laying down guidelines for the same. Of course, there have been issues with doing so. Not all tribunals follow the same path and not all of them have contributed positively or majorly to transitional justice. Beginning from the International Military Tribunals in Nuremburg and Tokyo, going through to the Ad hoc tribunals, the hybrid tribunals, now there is a permanent body for international criminal law known as ICC. ICC is a major achievement in the field but transitional justice is still a work in progress. There is still debate and need of clarifications on this concept but it is to be understood that it is very difficult to do this as this concept aims at rebuilding lives—all that was lost in the conflicts. This requires cooperation at the national as well as international level for transitional justice to be ensured as efficiently as it was envisaged.

REFERENCES

1. What is Transitional Justice, https://www.ictj.org/what-transitional-justice, (Last visited on 10^th September, 2023)
2. Transitional Justice and Reconciliation, https://cdn.sida.se/app/uploads/2020/12/01125338/transitional-justice-and-reconciliation.pdf, (Last visited on 10^th September, 2023)
3. Drazˇan Ðukic, Transitional justice and the International Criminal Court – in ‘‘the interests of justice’’, Volume 89. Int. Review of Red Cross. September 2007.
4. Juan E. Méndez, National Reconciliation, Transnational Justice, and the International Criminal Court, https://iilj.org/wp-content/uploads/2016/08/Mendez-National-Reconciliation-Transitional-Justice-and-the-International-Criminal-Court.pdf, (Last Visited on 11^th September, 2023)
5. Ioannis Armakolas & Eleni Vossou, Transitional Justice in Practice: The International Criminal Tribunal for the Former Yugoslavia and Beyond, UNISCI 21, 2008, https://www.ucm.es/data/cont/media/www/pag-72511/UNISCI%20DP%2018%20-%20ARMAKOLAS%20AND%20VOSSOU.pdf
6. Carsten Stahn, International Criminal Justice and Reconciliation: Beyond the Retributive v. Restorative Divide. FICHL Policy Brief Series No. 36, 2015. https://www.toaep.org/pbs-pdf/36-stahn
7. Kazi D, The Role of International Criminal Tribunals and Courts in the Establishment of Post War Truth and Reconciliation. J Pol Sci Pub Aff 6: 351, 2018. https://www.longdom.org/open-access/the-role-of-international-criminal-tribunals-and-courts-in-the-establishment-of-post-war-truth-and-reconciliation-37378.html
8. Rebecca Devitt, Justice and Peace: The Role of International Tribunals in Transitional Justice. E-International Relations, 2012. https://www.e-ir.info/2012/01/24/justice-and-peace-the-role-of-international-tribunals-in-transitional-justice/
9. Security Council Report, Transitional Justice: What Role for the UN Security Council, 2022. https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/transitionaljustice_2021.pdf
10. Kai Ambos, The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC, 2009. https://www.legal-tools.org/doc/a21072/pdf/
11. Aleksandar Marsavelski & John Braithwaite, Transitional Justice Cascades, 53 CORNELL INT’L L.J. 207 (2020). https://johnbraithwaite.com/wp-content/uploads/2021/11/Transitional-Justice-Cascades.pdf
12. Tetsuo SATO, Transitional Justice and International Law: What Role is Played by the UN in Post-conflict Peacebuilding, Autumn Bi-Annual Meeting of the Japanese Society of International Law, 2011. https://www.jsil.jp/annual_documents/2011/fall/sato_0926.pdf
13. Andrieu Kora, Transitional Justice: A New Discipline in Human Rights, THE ASIA PACIFIC JOURNAL, 2010. https://www.sciencespo.fr/mass-violence-war-massacre-resistance/fr/document/transitional-justice-new-discipline-human-rights.html

---

[1] The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies: Report to UNSC (2004).

[2] Kritz, 1995

[3] Orend B (2002), Justice after War, Ethics and Internal Affairs.

[4] UN, 2004

[5] 2007

[6] Nagy, 2008

[7] This amount is equal to 100 average monthly wages at the time in Bosnia-Herzegovina. As per the law, persons sentenced upto 1 year of prison can choose to pay fine, amounting to 100 marks per day in prison, instead of being in prison. KRIVICNI ZAKON BOSNE 1 HERCEGOVINE [CRIMINAL CODE] art. 42 (Bosn. and Herz.)

[8] Bosn. & Herz. v. Yugoslavia (Serb. & Mont.), Application Instituting Proceedings, 1993.

[9] IT-03-68-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 3 July 2008, available at: https://www.refworld.org/cases,ICTY,48ad3a4d2.html [accessed 19 September 2023]

[10] IT-00-39-T, International Criminal Tribunal for the former Yugoslavia (ICTY), 27 September 2006, available at: https://www.refworld.org/cases,ICTY,48ad29642.html [accessed 19 September 2023]

[11] IT-96-22-Tbis, International Criminal Tribunal for the former Yugoslavia (ICTY), 5 March 1998, available at: https://www.refworld.org/cases,ICTY,402766904.html [accessed 19 September 2023]