Eroding Impunity for International War Crimes: Criminal Tribunals or National Reconciliation Commissions?

Next week, the International Criminal Tribunal for the Former Yugoslavia is hosting a conference to look back at the 17 years of criminal trials they have held since their founding. Looking back and looking forwards at the legacy of the ICTY and truly calculating its impact is a daunting prospect. Since its creation, the ICTY has been charged with prosecuting the most egregious violations of international humanitarian law during armed conflicts in the Balkans in the early 1990s. The UN Security Council established the Tribunal with Resolution 827 in 1993, with the conviction that “the prosecution of those most responsible for the commission of atrocities during the conflicts would contribute to the restoration of peace and security in the former Yugoslavia.”

Almost two decades later, the spectre of armed conflict no longer looms on the horizon for the former Yugoslav republics, but questions of nationalism and identity are still pervasive. Today’s peace in the Balkans is an uneasy one, punctuated by political flareups. The 2008 declaration of independence by Kosovo is but one example of the recent history of contested outcomes; the matter is still before the International Court of Justice.

But perhaps the ICTY has helped to entrench the notion of turning to courts – whether domestic or international – as a recourse for grievances. “Assessing the Legacy” of the ICTY considers exactly these questions. Although the Tribunal has indicted over 160 person, including…

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Last Week in International Law

1. Prosecutor v. Karadzic

Proceedings against Radovan Karadzic began on October 28, 2009, despite the accused’s refusal to attend court. The case was supposed to start on October 26 but Karadzic, who is representing himself, asked for at least eight more months to prepare his case. The court gave him 24 hours to change his mind. After he failed to appear on Tuesday, judges ordered the Prosecution to open its case and warned Karadzic to appear in court or risk having counsel assigned to him and being tried in absentia.

For more information, see the Reuters article or our own Lee Rovinescu’s analysis of the situation.

2. R. v. Munyaneza

On October 29, 2009, Justice André Denis of the Quebec Superior Court handed down a life sentence to Désiré Munyaneza, the Rwandan genocidaire who helped organize and perpetrate the mass-murder of Tutsis in the Butare area. On May 22, 2009, Justice Denis found Munyaneza guilty of two counts of genocide, two counts of crimes against humanity and three counts of war crimes. Having concluded that the killings were premeditated, Justice Denis held that Munyaneza would not be eligible for parole for 25 years.

Munyaneza was the first person to be charged under Canada’s Crimes Against Humanity and War Crimes Act. The Act incorporates universal jurisdiction, allowing Canada to prosecute any individual present in Canada for genocide, war crimes and crimes against humanity.

3. United States of America v.…

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KARADZIC A NO-SHOW: HOW SHOULD THE ICTY PROCEED?

Radovan Karadzic’s ICTY trial in The Hague has begun with the accused missing in action. Presiding Judge O-Gon Kwon allowed the prosecution to make their opening statement and said that the trial would continue regardless of Karadzic’s presence. The revised indictment contains charges for nine separate criminal acts for which he faces a maximum sentence of life imprisonment. In support of these accusations, the prosecution may present hundreds of witnesses and up to 1.2 million pages of evidence. Karadzic has asked for 9 more months in order to properly prepare and defend himself, a request that has been denied by both the Trial and Appeal Chambers.

The Right to be Present: Fundamental but not Absolute

Those standing trial in front of the ICTY have the statutory right to be present at their own trials (art. 21(4)(d) ICTY Statute). Moreover, the accused is entitled to adequate time to prepare for his trial (art. 21(4)(b)). While the right to be present at one’s own trial is a fundamental one, Judge Kwon remarked on Tuesday, it is not absolute. Indeed the Human Rights Committee (see Monguya Mbenge v. Democratic Republic of the Congo, Communication No. 16/1977) confirms that one may, when voluntary and unequivocal, waive the right to be present. Karadzic had notice of the beginning of the trial and decided not to show up.

One can, however, infer his seriousness to defend himself in front…

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