What Are the Stated Objectives of International Judicial Responses to Atrocities in Asia and Africa?

Introduction

Having witnessed a number of horrible incidents where crimes against humanity, genocide and human rights abuses have been committed, global society has recognized that leaders of these heinous crimes should not be left unpunished. In response to this growing recognition, attempts to use internationally endorsed criminal trials to prevent and to end atrocities, and also to facilitate national reconciliation have emerged. Starting from ad hoc international tribunals set in the former Yugoslavia and Rwanda in the 1990s, a permanent international judicial institution, the International Criminal Court (ICC), was established in 2002, and the Extraordinary Chambers in the Courts of Cambodia, a domestic court with an assistance of the UN initiated in 2006. However, despite these innovative steps in international judicial framework to respond to crimes with global concerns, it is highly questionable whether these objectives are being achieved and have benefited affected communities. By looking at cases in Rwanda, Congo and Cambodia, this paper intends to show the process of institutional improvements in response to atrocities in Asia and Africa and also the gap between the stated aims and the real functions of these global courts.

ICTR- Rwanda

The first step for the international judicial mechanism for serious crimes committed by state leaders will be the response to Rwandan bloody situation. In order to deal with crimes plotted in Rwandan genocide of 1994, the International Criminal Tribunal for Rwanda (ICTR) was established by the United Nations Security Council. Objectives of this temporal tribunal were to adjudicate high rank leaders and organizers of crimes with international standard tribunal and thereby to end "culture of impunity". It was authorized this task by the Security Council on the ground that prosecuting the most responsible would contribute to the national reconciliation and maintenance of the peace (Clark, 2009). The consequent approach adopted there was "Concurrent Jurisdiction", with which both domestic and international entities could cooperate with each other to ensure the accountability of trials. Indeed, it has succeeded in giving punishment to a number of individuals responsible for atrocities including the Rwandan former President, Jean Kambanda. Also, it is said that previously unaddressed area in international law, such as rape and sexual crimes and genocide, has developed with the case of Akayesu J. Paul and Ruggiu Georges in ICTR (Alfredsson et al, 2009). However, still, the actual outcome of this mechanism seems to be far from positive due to the ICTR's shortsighted justice administration.

First of all, ICTR has limit in reflecting Rwandan local situation well into its judicial response. As the ICTR specified the certain period of genocide, from 1 January to 31 December, 1994, it precluded crimes committed prior to 1994 from its jurisdiction. Considering complicated Rwandan historical context of the genocide, these crimes may had been rooted before 1994, and only focusing on this specific period seems to be too narrow to give impartial justice. Also, as the ICTR did not consider the death penalty for targeted high rank leaders or organizers of genocide, which existed in the Rwandan Penal Code, there was the potential unfairness: lower level perpetrators sent to the Rwandan domestic court could receive heavier sentence than the more responsible leaders tried in the ICTR (Morris, 1997).

More importantly, ICTR's concurrent jurisdiction created tension between national and the international body over the distribution of defendants. The ICTR is entitled priority over the national body when both of them are seeking to exercise jurisdiction over the same case. However, as there is no clear criteria for deciding which case it should be prioritized or not, conflicts over jurisdiction for certain defendants have emerged, making the effective cooperation in evidence sharing and investigation difficult (Morris, 1997).

Inattention to victims in the proceedings of the cases was another problem for the ICTR. According to SáCouto and Cleary (2008), one of the specific criticism for the ICTR is its failure to focus on victims' interests, the very thing those institutions were designed to address. Despite its stated aim of "restorative justice", victims had no opportunity to participate in their own right, nor could they request compensation in proceedings before the tribunals. Also, Clerk (2008) suggests that many of the ICTR personnel distanced themselves from Rwandan population on the ground that their direct interaction with affected communities would cloud their objective and impartial judgments. This detachment form Rwandan population's real situation seems to show contradiction to its supposed aim of contributing to national reconciliation.

Taking these negative aspects in to account, Morris (1997) argues that establishment of the ICTR was not motivated for the sake of justice in Rwanda, but for other reasons: to hush up the international community's inaction during the genocide and to use ICTR as another preliminaries for an ICC. Thus, the case of Rwanda can mark the ICTR with "failure" in bringing justice and restoring peace in the affected communities.

ICC -Congo

Having learnt from ICTY and ICTR, in July of 2002, the ICC, the first permanent, treaty based institution was established. Although the stated aim is more or less the same - to end impunity for the most serious crimes of international concern and to contribute to their prevention- the ICC is different from ICTY and ICTR. While they were temporal, context-time specific tribunals based on concurrent jurisdiction, the ICC is independent and standing body whose principle is "Complementary Justice", meaning that a state has the primary responsibility to prosecute perpetrators but where it is unwilling or unable to do so, the ICC will step in to give assistance (Symbeye, 2004). Also, the innovative framework for protection and participation of victims, the Victims and Witnesses Unit (VWU) was set up for the first time within the charter of international law (Goetz, 2008). However, although lessons from the ICTR and ICTY are reflected in the ICC, in reality, the ICC does not seem to have overcome previous mistakes.

A case of the Democratic Republic of Congo illustrates how ICC's complementarity in practice does not work well. Firstly, there is a problem of case selection. Clerk (2008) points out that ICC focused its attention on crimes committed in Ituri, even if this province has the best-functioning local judiciary. The ICC chose Thomas Lubanga, Floribert Ndjabu and Germain Katanga as its first prosecuted