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Transitions in transitional justice: reflections on International Criminal Justice Day

Today we commemorate International Criminal Justice Day to honor the 1998 adoption of the Rome Statute, the treaty that created the International Criminal Court (ICC), the world’s first permanent international war crimes tribunal. This year we should take the opportunity to reflect on various transitions in transitional justice. With the recent closure, creation, and consideration of several ad hoc war crimes tribunals, this year marks an unusual historical period.

Two ad hoc war crimes tribunals—the UN International Criminal Tribunal for Rwanda (ICTR) and the Extraordinary African Chambers (EAC) within the Senegalese courts—have recently concluded their trials. The significant institutional and legal precedents each tribunal set are worth enumerating. On November 8, 1994, the UN Security Council (UNSC) established the ICTR to prosecute individuals suspected of committing genocide and other egregious offenses in Rwanda as well as Rwandan citizens who allegedly perpetrated such crimes in neighboring states in 1994. The ICTR thus became the second-ever ad hoc court to be created by the UNSC after that body founded the UN International Criminal Tribunal for the Former Yugoslavia (ICTY) the previous year. However, in contrast to the ICTY, as well as the Nuremberg and Tokyo tribunals, the ICTR was the first international court to exercise jurisdiction over atrocities committed during an internal conflict.

“This year has been significant not only for the concurrent conclusion to historic trials of multiple atrocity contexts but also because the Rome Statute approaches its adoption’s twentieth anniversary.”

In addition, the ICTR was the first tribunal to issue a legal finding of fact establishing genocide against Tutsi in 1994; to receive a guilty plea for genocide (from former Rwandan Prime Minister Jean Kambanda); to impose a genocide conviction on a man (Jean-Paul Akayesu, former mayor of Taba, Rwanda), a woman (Pauline Nyiramasuhuko, former Rwandan Minister of Family and Women’s Development), or a clergyman (Elizaphan Ntakirutimana, former head of the Seventh-day Adventist Church in western Rwanda); to codify rape in international law and hold that it can constitute genocide (in the Akayesu case, the subject of a new documentary, “The Uncondemned”); and to convict journalists of genocidal incitement (Jean-Bosco Barayagwiza and Ferdinand Nahimana, founders of the radio station Radio Télévision Libre des Mille Collines, and Hassan Ngeze, editor of the newspaper Kangura). On December 31, 2015, over 21 years after its creation, the ICTR closed and handed over remaining matters to the UN Mechanism for International Criminal Tribunals (MICT). The MICT’s tasks include tracking and prosecuting remaining fugitives, conducting appeals and retrials, protecting victims and witnesses, supervising the enforcement of sentences, assisting national jurisdictions, and preserving and managing archives.

On January 30, 2013, the African Union (AU) and the government of Senegal jointly established the EAC to try international crimes committed in Chad between June 7, 1982, and December 1, 1990. A month and a half ago, on May 30, 2016, the EAC convicted Hissène Habré, Chad’s former president and the only person the EAC tried, of war crimes and crimes against humanity, including murder, torture, rape, and sexual slavery. The Habré trial represents the first time a former head of state has been found guilty of rape or has been prosecuted (under the legal principle of universal jurisdiction) for human rights abuses in a country other than his own. The trial also reinforced the codification—and condemnation—of sexual and gender-based violence as violations of international criminal law. Last month, Habré’s lawyers appealed the verdict; the EAC plans to hear that argument in the near future.

This year has been significant not only for the concurrent conclusion to historic trials of multiple atrocity contexts but also because the Rome Statute approaches its adoption’s twentieth anniversary. On the one hand, the ICC is likely to assume even more prominence since the ICTR and the EAC have completed their trials. On the other hand, because of the ICC’s limited capacity as well as subject-matter, temporal, personal, and geographic jurisdictions, alternative transitional justice mechanisms will still be utilized. Indeed, just as the ICTR and the EAC have been winding up, new ad hoc war crimes tribunals have recently been created or at least considered, further indicating that the establishment of the world’s first permanent international war crimes court did not sate the international community’s appetite to continue proliferating such temporary tribunals. On April 22, 2015, the interim parliament of the Central African Republic (CAR) voted to establish a Special Criminal Court (SCC), a tribunal featuring domestic and foreign staff, to investigate serious crimes committed in CAR since 2003. The SCC is the first ad hoc “hybrid” war crimes tribunal to be created by a state government through national law to try serious crimes within its own country and to operate alongside the ICC, to which CAR referred the situation. Also last year, in September, the AU stated that an ad hoc hybrid war crimes tribunal would be established for South Sudan. The United States and the United Kingdom have pledged to support the AU’s efforts. Last year, as well, on August 4, the Kosovo parliament approved the creation of a court, the Kosovo Relocated Specialist Judicial Institution (KRSJI), to try members of the Kosovo Liberation Army for serious crimes they allegedly committed in 1999 to 2000 against ethnic minorities and political opponents. This ad hoc hybrid war crimes court, which will be staffed by international judges but created under Kosovo law, will be established in The Hague later this year and financed by the European Union.

The achievements of the ICTR and the EAC—which likely include inspiring the creation of the KRSJI and the SCC as well as the proposed tribunal for South Sudan—have not been flawless. Critics of the ICTR, for example, have charged that it was plagued by nepotism, mismanagement, incompetence, inefficiency, waste, insensitive treatment of witnesses, bias, and ineffective outreach to Rwandans. The full legacies of these tribunals—along with the ICC, the KRSJI, the SCC, and, if it comes to fruition, the court for South Sudan—will become clearer in the years and decades ahead. In the meantime, as we commemorate another International Criminal Justice Day, and as atrocities rage from Syria and South Sudan to Burma and Burundi, we should pause to consider how far we have come, and how much further we have yet to go, in achieving justice for the world’s worst crimes.

Featured image credit: The scales of justice, by James Cridland. CC BY 2.0 via Flickr.

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