justice, statue, woman

International Criminal Tribunals: History, Purpose, Future and the Lebanese Situation

“There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts”, once articulated the Mahatma great soul Ghandi[1].

The birth of an international tribunal requires the interference of a sovereign international body, being a state or an international organization.

The years following the end of the Second World War (1945-1948) witnessed the rise of international juridical bodies. With joint efforts; France, the United Kingdom, the United States and the former Soviet-Union forming “The Allied Powers”, set up the earliest international criminal courts: The International Military Tribunal (IMT) in Nuremberg, Germany and the International Military Tribunal for the Far East (IMTFE) in Tokyo, Japan.

Established respectively in 1945 and 1946, the IMT held trials for crimes against peace, war crimes and crimes against humanity committed by the European Axis Powers (Germany and Italy), according to its founding charter; the “London Charter” or the “Agreement for the prosecution and punishment of the major war criminals of the European Axis”. Successively, The London Charter has shaped the blueprint for the IMTFE Charter, which sequentially paved the way for the establishment of the IMTFE with the same purposes as the IMT and a jurisdiction limited to prosecuting the leaders of the Empire of Japan. Both tribunals were catalysts in the concept of creating a permanent international criminal court to prosecute individuals – not political nor legal entities- for crimes of genocide, crimes against humanity, war crimes and the crime of aggression.[2] For this reason, the International Law Commission (ILC) having the objective of promoting the development of international law, was requested for the first time by UN General Assembly to draft an establishing code for a permanent court. However, it did not see the light.

Moving forward, it is significant to emphasize that the ultimate misapprehension a legal scholar may get trapped in is believing all international courts serve one purpose while each organization has been established for its own specific reasons, following a particular set of historical events.

Article 41 of the United Nations Charter: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions….”

To maintain international peace and security, according to the Article 41 of the UN Charter, the UN has contributed into the establishment of several international tribunals, most notably the International Court of Justice (ICJ), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) – both have been merged within the International Residual Mechanism for Criminal Tribunals (IRMCT) to perform their remaining functions-  and the Special Tribunal for Lebanon (STL).

As a matter of fact, long after the end of World War II and as a response to atrocities committed by armed forces, the UN Security Council created in 1993 the ICTY and in 1994 the ICTR, one more time to prosecute the individuals responsible for the war crimes. The idea of establishing a permanent international criminal court became thus far more essential. Consequently, the ILC were requested a second time by the UN General Assembly to draft a charter for a permanent international criminal court. Yet, due to the political contentions reigning during this period of time, the draft did not see daylight until 1998 and later entered into force in 2002.

On the other hand, despite the fact that the International Criminal Court’s (ICC) founding charter, the Rome Statute, was established by a UN organ, unlike the ICJ, the ICC remains an independent judicial body from the UN, while simultaneously having a strong complementary relationship with the UN according to the Rome Statute and the Negotiated Relationship Agreement between the ICC and the UN[3], entered into force on October the 4th, 2004.

Finally, a permanent tribunal got established to prosecute individuals for the international war crimes, crimes against humanity, crimes of aggression and genocide.

Legal scholars have observed this historically adopted concept recently, with the decision carried out publicly by the STL on August 18th, 2020. The STL, itself an ad hoc hybrid tribunal – operating with international and national jurisdictions[4] has indicted individuals for the terror attack investigated, and found one person among them guilty beyond reasonable doubt, independently from any legal or political entity.

The Lebanese Situation:

Lebanon like India and China, have neither signed nor ratified the Rome Statute; a general principal of international law, hence not binding for non-party states. Therefore, the ICC has no jurisdiction when it comes to prosecuting individuals for any war crimes, crimes against humanity, crimes of aggression or genocides in Lebanon.

It may be for political reasons that the Lebanese government has not yet signed and ratified the Rome Statute.

Knowing that the STL has limited jurisdiction to the prosecute individuals responsible for the February 14th terror attack in 2005 and the acts which may turn out as directly connected to this attack, the hopes of demanding international prosecution to the individuals responsible for the Beirut Blast on August the 4th, 2020 have reached a dead end.

Future of International Prosecution of Local Atrocities is ad-hoc Tribunals:

Ad hoc: adj. Latin meaning “for this purpose only”.

Ad-hoc tribunals are special tribunals established for specific reasons with limited jurisdiction as per their founding treaty. The STL, the ICTY, the ICTR, the Special Court for Sierra Leone (SCSL), the Extraordinary Chambers in the Courts of Cambodia (ECCC) are examples of existing ad-hoc tribunals.

Some scholars predict that the future belong to these special tribunals given the external pressures constantly performed on the ICC and the political biases it is sometimes accused of.[5]

Not only political reasons are a motive for international ad-hocs but also the new types of crimes arising with the technological advancement such as piracy, international economic crimes, cybercrimes, environmental disputes…[6]

Sasha Matar

[1] J. Bubar, “The Legacy of Ghandi”,< https://upfront.scholastic.com/issues>, consulted on March 6, 2021

[2] K. HELLER, The Nuremberg Military Tribunals and the Origins of International Criminal Law, Oxford University Press, 2012, p.3.

[3]Best Practices Manual for United Nations – International Criminal Court Cooperation, https://legal.un.org/ola

[4] O. MARTIN-ORTEGA and J. HERMAN, “Hybrid Tribunals & the Rule of Law: Notes from Bosnia & Herzegovina & Cambodia”, JAD-PbP Working Paper No, 7, May 2010, p. 7.

[5]L. HART, The International Criminal Court biased or simply misunderstood, https://una.org.uk/magazine/2018-1, consulted on March 6th 2021.

[6]The Future of International Courts and Tribunals: What Developments and Models Will We See in 20 Years? https://www.brandeis.edu/ethics/pdfs/internationaljustice/biij/, consulted on March 6th 2021.

 

Notice: This article is protected under Lebanese Copyrights Law. No one shall copy more than 25% of this article without referring to its main source.

 

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