The Leitner Center launches a new report, “International Criminal Tribunals: A Visual Overview,” providing an introduction to the work of the. Tribunals and the view that they represent a definitive advance of international law and justice, there.
This module is a resource for lecturers
Challenges and benefits
As it has been demonstrated, it is possible for serious acts of terrorism to be prosecuted as international crimes sourced in both the universal instruments against terrorism, other crime-related international instruments, as well as in customary international law.
In order to secure a possible conviction, however, it is necessary to find an appropriate forum in which suspected terrorists may be effectively and appropriately investigated, prosecuted, and, if convicted, sentenced. There can also be issues surrounding where such a person is to be imprisoned. Due to the complexities and serious nature of the terrorist crimes examined in this Module, it may well be more appropriate for them to be dealt with by an international court or tribunal, not only due to the wider interest of and impact upon the international community that such offences can have, but also because many national legal systems do not have the necessary expertise and resources to deal with such significant crimes. This was one of the original factors that led Trinidad and Tobago to seek the creation of the International Criminal Court, i.e., due to the complexity of transnational drug offences (see e.g. Bagoo, 2011).
Although they can be financially very costly and take a long time to get up and running, as demonstrated by the recent experiences of the International Criminal Court, international courts and tribunals have accompanying benefits as well. These can include the necessary technical and administrative expertise to manage sensitive and voluminous legal and political materials, and developing best practices, notably for securing justice and reparations for victims when national systems are unable to provide them with effective remedies.
That said, these courts and tribunals can encounter many of the same difficulties experienced by national courts, such as the reluctance or refusal even of States parties to the Rome Statute to disclose or hand over important evidence or suspects, despite their obligations under the treaty to cooperate fully with the International Criminal Court. That said, various mechanisms exist for dealing with such issues. For example, any citing of national security reasons as grounds for a refusal to cooperate are reviewable by Chambers and many result in negative inferences for the State concerned. Ultimately and exceptionally, in the most serious instances, compliance may be forced through legal means such as the adoption of a Chapter VII Security Council resolution (see e.g. UNSC Resolution 1207 (1998)).
Jurisdiction for terrorism-related offences
Despite their serious nature and international interest in the effective, fair prosecution of serious international terrorist crimes, there are in fact very few international criminal courts or tribunals with jurisdiction over them, whether express or indirect. The only international tribunal with express jurisdiction over terrorism-related offences is the Special Tribunal for Lebanon (created by a Chapter VII Security Council Resolution, UNSC Resolution 1757 (2007)), which was specially created to investigate and prosecute one major terrorist incident and the jurisdiction of which is largely determined by Lebanese criminal law. In addition, several international courts and tribunals make some provision for terrorism related offences, notably the Statute of the International Criminal Tribunal for Rwanda (article 4(d)), the Statute of the Special Court for Sierra Leone (article 3(d)), and the Law on Establishment of the Extraordinary Chambers in the Courts of Cambodia (article 8). Regarding the former two tribunals, their jurisdiction is limited to those terrorist activities prohibited in international humanitarian law for temporal situations of specific armed conflicts.
Ultimately, the Rome Statute creating the ICC did not include terrorism offences within its jurisdiction despite multiple proposals by States for the inclusion of 'treaty crimes' (United Nations conference 183/C.1/L.27, pp. 71-71), and lengthy related debates on the topic taking place during the treaty negotiations. Although the merits of including terrorist offences within the Court's remit were recognized, the Preparatory Committee was of the opinion that the Rome Statute should be restricted to defining the agreed international crimes within its jurisdiction. Other significant factors underpinning this decision included the lack of global agreement as to terrorism, various jurisdictional differences regarding the prosecution of terrorism-related crimes, and as highlighted above, issues concerning the universal instruments against terrorism are based on, and limited to, the principle of aut dedere aut judicare as previously explained. The other crimes falling with the Court's jurisdiction benefit from universal jurisdiction, which stands in stark contrast to the legal and political difficulties associated with the absence of a universal definition of terrorism, including the possibility of deterring a number of States from signing up to the treaty. The perception existed as well that terrorism, however defined, did not rank as one of the most serious crimes towards which the ICC should direct its scarce energy and resources. For such reasons, the Statute's jurisdiction is limited tothe crimes of genocide, crimes against humanity, war crimes and the crime of aggression (article 8bis) That said, the Assembly of States Parties to the Rome Statute agreed on 15 December 2017 to activate the jurisdiction of the Court over the crime of aggression, which will take effect from 17 July 2018. Such jurisdiction may be relevant for future counter-terrorism efforts involving military intervention. That said, to some extent some of these restrictions are overcome by the principle of complementarity (article 17).
It is at least theoretically and technically possible for the Rome Statute to be amended in the future to extend its jurisdiction to cover terrorism-related offences, although this is not expected to occur any time soon. The necessary treaty amendments would be accompanied by many complexities and hurdles, together with the likelihood of not quickly achieving the requisite levels of consensus, illustrated by the drawnout experience of almost 20 years to reach international agreement regarding the meaning and activation of the crime of aggression, which was originally included within the Statute's jurisdictional scope under article 5, subject to international agreement being reached, which has occurred. Furthermore, there are many other delicate political factors currently surrounding the International Criminal Court and its longer term future, including the recent withdrawals, and threats of withdrawal, from the Rome Statute by a number of States parties (see e.g. The Guardian (Addis Ababa), 2017). Most recently, Burundi announced its withdrawal (see Trahan, 2017).
In practice, however, such formal exclusion of terrorism-related offences from the express jurisdiction of most international courts and tribunals has not prevented international crimes of terrorism from being tried directly or indirectly in practice where their nature and gravity have satisfied the legal elements of those offences falling within the jurisdiction of these courts and tribunals. Certainly, as was discussed earlier, the international crimes of genocide, war crimes and crimes against humanity (see Rome Statute, arts. 6-8) can encompass a broad range of terrorist acts. Indeed, this is already the practice of international courts and tribunals, as is reflected within the jurisprudence of the International Criminal Tribunal for former Yugoslavia and the International Criminal Tribunal for Rwanda, Special Court for Sierra Leone and the International Criminal Court. There is a developing body of case law which supports such approaches, influenced by more general trends towards closing existing impunity gaps for non-State (terrorist) actors. (See e.g. Prosecutor v. Stanislav Galić, 2006, para. 598; Prosecutor v. Tihomir Blaškić, 2000). One benefit of this approach is that it does not require international agreement to be reached on a definition of terrorism, although this indirect approach does not perhaps attract the same degree of respect or have the gravitas as would express jurisdiction over terrorist crimes. Additionally, not all international terrorist crimes will comfortably fit within the legal elements of core international crimes, such as terrorist financing, particularly in view of the globalization of finance, as noted expressly in the 1999 Terrorism Financing Convention.
For the first time in history, an international tribunal - the ICTR - delivered verdicts against persons responsible for committing genocide. The ICTR was also the first institution to recognise rape as a means of perpetrating genocide.
The United Nations Security Council established the International Criminal Tribunal for Rwanda to 'prosecute persons responsible for genocide and other serious violations of international humanitarian law committed in the territory of Rwanda and neighbouring States, between 1 January 1994 and 31 December 1994'. The Tribunal is located in Arusha, Tanzania, and has offices in Kigali, Rwanda. Its Appeals Chamber is located in The Hague, Netherlands.
Since it opened in 1995, the Tribunal has indicted 93 individuals whom it considered responsible for serious violations of international humanitarian law committed in Rwanda in 1994. Those indicted include high-ranking military and government officials, politicians, businessmen, as well as religious, militia, and media leaders.
With its sister international tribunals and courts, the ICTR has played a pioneering role in the establishment of a credible international criminal justice system, producing a substantial body of jurisprudence on genocide, crimes against humanity, war crimes, as well as forms of individual and superior responsibility.
The ICTR is the first ever international tribunal to deliver verdicts in relation to genocide, and the first to interpret the definition of genocide set forth in the 1948 Geneva Conventions. It also is the first international tribunal to define rape in international criminal law and to recognise rape as a means of perpetrating genocide.
Another landmark was reached in the 'Media case', where the ICTR became the first international tribunal to hold members of the media responsible for broadcasts intended to inflame the public to commit acts of genocide.
The ICTR delivered its last trial judgement on 20 December 2012 in the Ngirabatware case. Following this milestone, the Tribunal's remaining judicial work now rests solely with the Appeals Chamber. As of October 2014, only one case comprising six separate appeals is pending before the ICTR Appeals Chamber. One additional appeal from ICTR trial judgement was delivered in December 2014 in the Ngirabatware case by the appeals chamber of the Mechanism for International Criminal Tribunals, which started assuming responsibility for the ICTR's residual functions on 1 July 2012.
One key function assumed by the Mechanism is the tracking and arrest of the three accused who remain fugitives from justice. The ICTR indicted Félicien Kabuga, Protais Mpiranya, and Augustin Bizimana on charges of genocide and crimes against humanity, but the accused have to date evaded justice. The continued cooperation of national governments and the international community as a whole is of paramount importance to the successful apprehension of these fugitives. When apprehended, the Mechanism will conduct their trials and supervise any sentence imposed along with all of the sentences previously imposed by the ICTR.
The ICTR's formal closure is scheduled to coincide with the return of the Appeals Chamber's judgement in its last appeal. Until the return of that judgement in 2015, the ICTR will continue its efforts to end impunity for those responsible for the Genocide through a combination of judicial, outreach, and capacity-building efforts. Through these efforts, the ICTR will fulfil its mandate of bringing justice to the victims of the Genocide and, in the process, hopes to deter others from committing similar atrocities in the future.