Ad hoc tribunals

29 October 2010

International tribunals have existed since the beginning of the modern international system, with the purpose of settling disputes in-between States and sometimes other international actors. It is mainly with the Nuremberg trials after World War II, however, that ad hoc tribunals dealing with criminal cases against individuals have been created to deal with the core international crimes, namely genocide, war crimes and crimes against humanity.

Ever since the Nuremberg and Tokyo trials, the first international criminal tribunals were established in the 1990's, to respond to atrocities committed during the conflict in the former Yugoslavia and the mass-killings in Rwanda. The International Criminal Tribunal for the former Yugoslavia (ICTY) and its sister court for Rwanda (ICTR) were both created by the UN Security Council.

Since then, special courts have also been set up to prosecute domestic and international crimes. Examples of such mixed tribunals can be found in Kosovo, Bosnia Herzegovina, East Timor, Sierra Leone, Cambodia, and most recently Lebanon.

The development of these legal mechanisms remains a significant aspect of some post-conflict scenarios. They fuel an ongoing debate around the necessity to work towards peace and reconciliation for a country or community, against the demands for justice for the victims of mass violations of human rights.

Arguments made for the conduction of post-conflict trials, there where there have been accusations of genocide, war crimes or crimes against humanity, are based on: the need to deter the commission of further crimes, the need for justice for the victims and the community and the need to establish the truth of what happened as part of a future process of peaceful co-existence.

It is not possible at this stage to assess the deterrent effect of ad hoc tribunals in preventing future crimes. There is not enough evidence. The same is true of claims that they establish the truth. Providing justice is clearer in public perception, but there is still the problem of identifying and bringing those suspected of committing crimes before the courts.

ICRC lawyers believe that tribunals such as that set up for the former Yugoslavia herald a major step in the implementation of IHL. They have contributed to IHL by affirming the customary nature of certain principles, reducing the gap in the rules applicable to international and non-international armed conflicts and by adapting more traditional provisions of IHL to modern realities through a more flexible interpretation.

The ICRC welcomes these trends and the creation of the International Criminal Court as a complement to ad hoc tribunals.

As the guardian of international humanitarian law, the ICRC also supports efforts to end impunity through the development of international criminal justice, be it by encouraging States to implement the required legislation so that the fight against impunity for international crimes can be fought at the domestic level, as well as supporting the trend towards the internationalization of individual responsibility for genocide, war crimes and crimes against humanity.