International Justice Year-in-Review: Looking Backwards, Looking Forwards (Part 2)

Editor’s Note: We asked editors Beth Van Schaack and Alex Whiting to do a roundup of the top international criminal justice stories from 2015 and what readers should keep an eye on in 2016. This is Beth’s half of the list. You can find Alex’s here.

The Continuing Utility of Hybrid Justice. As Alex discussed, although the ICC is now fully operational, its jurisdiction remains incomplete and its resources limited, so other justice mechanisms may be required. The Court is plagued by challenges to its legitimacy, erratic state cooperation, and persistent perceptions of inefficacy and inefficiency. Originally envisioned as a standing institution that would obviate the need for new ad hoc courts, it is now clear that the ICC cannot handle all of the atrocity situations ravaging our planet. As such, there is an enduring need for the international community to create, enable, and support additional accountability mechanisms to respond to the commission of international crimes when the political will for an ICC referral is lacking, the ICC is inappropriate or foreclosed for whatever reason, or only a fraction of the abuses or perpetrators in question are before the ICC. Responding to this call, the international community in 2015 considered new hybrid accountability mechanisms for a range of historical and current atrocity situations, including Syria, the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Colombia, Sri Lanka, Chad, Kosovo, and even the July 2014 downing of Malaysian Air Flight 17 over rebel-controlled Ukraine.

Hybrid justice institutions — which combine international and domestic elements in staffing, operative law, structure, financing, and rules of procedure — work to bridge the gap between purely domestic proceedings and the ICC. Indeed, the Special Criminal Court (SCC) for CAR, which is unique in that it was established by domestic legislation rather than an international instrument, will operate in parallel with the ICC. The SCC and ICC may in fact eventually exercise jurisdiction over the same crime base following the ICC Prosecutor’s decision to open a second investigation into CAR concerning crimes committed since 2012 in connection with the Séléka rebellion. In the new year — and assuming the international community provides the necessary financial, diplomatic, and other support — we can expect to see this institution begin to come online given that the necessary legal framework and venue are in place.

Another notable example of hybrid justice is found in the Extraordinary African Chambers (EAC) in Senegal, which by virtue of an agreement with the African Union are prosecuting former Chadian head of state Hissène Habré and several confederates for crimes committed in neighboring Chad. The Habré proceedings began in July 2015, although trial was immediately delayed when Habré muzzled his lawyers and defense counsel had to be assigned to him. The Chambers have already heard harrowing testimony about a range of abuses committed during Habré’s regime. These include allegations of rape and sexual slavery that implicate Habré himself, although no formal sexual violence charges have been leveled against him. A group of lawyers, including yours truly, has urged the Chambers to consider adding sexual violence charges in light of the facts in the record and the statutory framework. This is the first hybrid institution to exercise a form of international universal jurisdiction over defendants who have no link at all to the forum state. The African Union with support of opposition leader Riek Machar has also discussed the possibility of a hybrid institution devoted to South Sudan, where abuses continue unabated.

Given the SCC, the EAC, and other related efforts, it is now possible to devise a taxonomy of models and a “menu” of hybridity elements that can be mixed and matched as new institutions are contemplated, as I discuss more fully here.

Unprecedented Prospects for Transitional Justice in Sri Lanka. After years of resistance, and following elections in August 2015 that ousted the Rajapaksa dynasty, the new government of Sri Lanka has now committed to launching a genuine transitional justice program to address, and redress, the grave international crimes committed by all sides in the almost 30-year conflict with the Liberation Tigers of Tamil Eelam (LTTE). In addition to comprehensive political reforms focused on good governance, the devolution of power, security sector reform, and the rule of law, the future transitional justice process will reportedly involve four main pillars:

  • a truth and reconciliation commission;
  • a reparations process;
  • an office to investigate and resolve disappearances (thousands remain missing); and
  • an accountability mechanism.

These building blocks find expression in a landmark consensus resolution by the Human Rights Council issued in September 2015. After fighting any action at the Council for years, the new government made a dramatic about-face and co-sponsored the most recent resolution.

Although this will be a Sri Lankan process, the resolution calls upon government actors to take advantage of “expert advice from those with relevant international and domestic experience” and to draw upon “international expertise, assistance and best practices.” In joining the resolution, Sri Lanka has affirmed the importance of including foreign personnel — including judges, defense counsel, prosecutors, and investigators, potentially drawn from among the Commonwealth states — in any judicial mechanism. The resolution thus embodies one of the key recommendations emerging from the United Nations Human Rights Council’s engagement in Sri Lanka: the imperative of establishing a hybrid tribunal of some sort to ensure an independent, impartial, and credible criminal process free of intimidation and political interference.

It is anticipated that any accountability mechanism in Sri Lanka will be the product of domestic legislation, although this may be accompanied by a bilateral treaty with some UN component to address staffing, funding, or legal issues, such as the definition of actionable crimes. Recent research confirms that there is no constitutional impediment to creating specialized chambers or staffing them with international experts. In particular, it has been observed that

a fully functional hybrid court could be structured within Sri Lanka’s legal system in a way that is entirely compatible with the existing constitution. A legislative package passed by a simple majority of Parliament along with incidental regulatory changes could establish a uniquely Sri Lankan hybrid mode.

Assuming the political will does not dissipate, these institutions may come to fruition in the new year.

The ICTY Continues Apace. Although a number of new justice institutions are being built or are on the horizon, the original ad hoc tribunals continue to make important contributions to international justice while also raising some controversy. The International Criminal Tribunal for the former Yugoslavia (ICTY) is in its twilight, with the five current trials and two appeals focused on the liability of Serb leaders for crimes committed in Bosnia-Herzegovina and elsewhere in the former Yugoslavia. The trial judgment in the Radovan Karadžić case, which includes genocide counts that were reinstated by the Appeals Chamber after a Trial Chamber dismissed them on a no-case-to-answer motion by the defense, was slated to be issued this past summer following a five-year trial. The verdict, however, is still under consideration in the Trial Chamber and is now expected before the end of March. Proceedings against Ratko Mladić also remain ongoing, in part due to the Prosecution’s request to reopen its case following the 2013 discovery of a new mass grave in Tomašica holding the remains of upwards of 1,000 victims. (An estimated 9,000 people remain “missing” following the war in the Balkans.) The trial of Goran Hadžić has been adjourned due to the defendant’s ill-health.

A number of opinions issuing from the ICTY of late — including the acquittals on appeal of Croatian General Ante Gotovina in 2012 and of the Chief of the Yugoslav General Staff, Momcilo Perisic in 2013, and the acquittal following a retrial of KLA leader Ramush Haradinaj — have raised troubling questions about jurisprudential consistency, the integrity of witness protection measures, and judicial independence. In particular, the failure of the ICTY to hold any senior Yugoslav official liable for crimes in Bosnia-Herzegovina has threatened to undercut the very legacy of the tribunal and its ability to promote reconciliation in the region. But last month, the Appeals Chamber quashed a Trial Chamber’s decision to acquit Jovica Stanišić, formerly Deputy Chief and Chief of the State Security Service of the Ministry of Interior of the Republic of Serbia, and Franko Simatović, also high in the Security Service. The Trial Chamber’s acquittal had turned largely on the question of whether the defendants possessed the requisite mens rea to be held liable for the crimes committed by Serbian forces under a joint criminal enterprise theory. Pursuant to Rule 117, the Appeals Chamber has ordered a retrial of both defendants on all counts of the indictment before the Mechanism for International Criminal Tribunals (MICT), which was established by UNSCR 1966 (2010) to handle legacy issues emerging from the ad hoc tribunals. In December, the accused made their initial appearances before the MICT.

Although progress has been made toward implementing the ICTY’s Council-mandated Completion Strategies, the original deadlines are long-passed. At this point, it is not anticipated that the ICTY will fully wind up its work until 2017. In protest over these delays, Russia has abstained from recent Security Council votes extending the terms of the ICTY judges and prosecutor.

The ICTR is Gone, Long Live the ICTR. In December 2015, the President and Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR) gave their last biannual briefing to the Security Council. In 2015, the ICTR completed all trials and appeals, having issued the Judgment in the Nyiramasuhuko et al. case in December, and has effectively shut down its operations following a closing event in November. (The Nyiramasuhuko case — involving mother-and-son defendants — marks the first time a woman has been convicted for rape under international law.) Lingering issues involving contempt allegations, parole, archives, and witness protection will be dealt with by the MICT, which has branches in Arusha, Tanzania, and The Hague, The Netherlands.

The ICTR Office of the Prosecutor published an important manual on the tracking of fugitives — one of the major challenges of the ICTR, which has no independent enforcement powers and depends on the cooperation of states. The MICT is now responsible for tracking the last eight fugitives, with assistance from Interpol. Until the December capture of Ladislas Ntaganzwa in DRC, there were nine indicted fugitives, the three most senior of which were to be prosecuted by the MICT and the other six by Rwandan national authorities. Ntaganzwa was subject to a reward issued by the US State Department’s War Crimes Rewards Program. All the remaining fugitives will remain part of the Rewards Program, even if they are slated to be prosecuted by domestic authorities, since they were indicted by an international or hybrid tribunal. It is unclear if a reward will be paid for the capture of Ntaganzwa (who is not yet in Rwandan custody); the State Department does not discuss the details of any reward recipients for their own safety.

An open ICTR issue is what to do with the acquitted; a number of acquitted individuals are living in a safe house in Arusha because it has been deemed too dangerous for them to return to Rwanda and no other country will take them. (Belgium and other European countries have accepted some individuals who were acquitted or who have served their sentences.) Tanzania, which has not granted the men permanent residency, has appealed for assistance from the international community in relocating the former defendants.

Corporations in the Crosshairs. The Nuremberg Tribunal was unique in that it could declare certain groups and organizations to be criminal pursuant to Articles 9 and 10 of its Charter. (The Tokyo Tribunal had no parallel competency.) Until recently, this experiment in collective liability had not been replicated; most of the original ad hoc criminal tribunals were empowered to prosecute natural persons only. For example, jurisdiction over corporations was considered, but rejected, during the building of the ICC. Several of the more recent international courts have taken a different approach, however.

In an interesting 2014 development, the Appeals Chamber of the Special Tribunal for Lebanon (STL) issued a decision asserting that the STL has jurisdiction over legal persons (in that case, it found jurisdiction over a Al Jadeed S.A.L., a TV news organization) accused of contempt of court. Taking a page from Citizens United, the Appeals Chamber indicated that the term “person” in contempt provisions of the STL Statute could be interpreted to encompass legal persons, particularly given evolving standards of human rights and the Tribunal’s inherent powers. (This despite the STL Statute suggesting it has primary jurisdiction over natural persons only.) Al Jadeed and individual journalists were charged with obstruction of justice under Rule 60bis for releasing the names of and other information about protected witnesses in a series of broadcasts in August 2012 and then for failing to remove the confidential information following  the issuance of a court order to that effect. (The indictment is here.) This marked the first time an international criminal tribunal had charged a legal entity since the Nuremberg Tribunal indicted and convicted various Nazi organizations following WWII.

Following a short trial last spring, the single contempt judge acquitted the corporate defendant on all counts in September 2015. Given the high degree of variation in national law regarding corporate criminal liability, the judge relied upon Lebanese law for the operative standard (Article 210 of the Criminal Code), which provides that:

legal persons shall be criminally responsible for the activities of their directors, members of the administration, representatives and employees when such activities are undertaken on behalf of or using the means of such legal persons.

The judge thus ruled that it was necessary to identify a natural person, capable of representing the corporation, who committed the criminal conduct with the requisite state of mind.

With regard to the disclosure count, the judge concluded that the prosecutor had not proven beyond a reasonable doubt that the disclosure of the identifying information was “objectively likely to undermine public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses.” The second count dealt with the violation of the court order (for continuing disclosure after it was issued). The judge found that there was insufficient evidence in the record that the impugned disclosures were available on the defendant’s YouTube channel and Facebook page after the court order was issued. But he also found there was evidence that the material was available on the TV station’s website at that time and that the individual defendant had knowledge of, or was willfully blind to, the existence of the relevant court order. The Appeals Chamber determined, however, that the individual defendant’s conduct could not be attributed to the corporate defendant. The amicus curiae Prosecutor has appealed. (The case history is available here). Contempt/obstruction of justice cases against additional individual and corporate defendants will commence in February 2016.

Besides this ruling in the STL, the proposed African Court of Justice and Human and Peoples’ Rights (ACJHPR), which still exists only on paper, will be empowered to assert jurisdiction over “legal persons,” including corporations. Article 46C of the draft ACJHPR Statute states:

Corporate intention to commit an offense may be established by proof that it was the policy of the corporation to do the act which constituted the offence. … Corporate knowledge of the commission of an offence may be established by proof that the relevant knowledge was possessed within the corporation and that the culture of the corporation caused or encouraged the commission of the offence.

The current proposal for mixed judicial chambers in DRC also contemplates jurisdiction over legal persons and the ability to mete out a range of relevant penalties, including dissolution, judicial surveillance, exclusion from public markets and access to capital, confiscation of property, and fines. In another context, with the passage of a 2013 statute, the Bangladesh International Crimes Tribunal can, in theory, assert jurisdiction over “organizations” involved in the commission of crimes during Bangladeshi War of Liberation in 1971. This text is aimed directly at two opposition parties, notwithstanding that any continuity with their liberation-era predecessors is questionable. (More background here.) 

About the Author(s)

Beth Van Schaack

Fellow at the Center for Advanced Study in the Behavioral Sciences (CASBS) at Stanford University, Former Leah Kaplan Visiting Professor of Human Rights at Stanford Law School, Former Professor of Law at Santa Clara University School of Law, Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department All views are her own. Follow her on Twitter (@BethVanSchaack).