History of Individual Criminal Responsibility and Accountability Mechanisms

1. History of Individual Criminal Responsibility and Accountability Mechanisms

2. International Law • Traditional view • States were the critical members • Individuals had little to no status • Development of democracies began to change this international norm • State sovereignty still critical, but not sole, factor • Rights and responsibilities of individuals recognized

3. History • Codes of Chivalry • Early documented standards • 1856 Declaration of Paris • 1868 Declaration of St. Petersburg • 1874 Brussels Declaration • 1899 & 1907 Hague Conventions • Martens Clause

4. Early Documents • The 1856 Paris Declaration Respecting Maritime Law regulated relations between neutral and belligerent shipping on the high seas. • The 1868 Declaration of St. Petersburg was the first formal agreement restricting the use of weaponry. It renounced the use of explosive small arms projectiles. • The 1874 Brussels Declaration was a draft treaty created by 15 European states, addressing the laws and customs of war. While it never took effect, it was a key foundation for later international agreements.

5. Early Documents • The 1899 Hague Conventions and Declarations resulted from the First Hague Conference of 26 states. This series of 3 treaties and 3 statements limited certain weaponry and made initial efforts to provide protection to wounded and sick. • The 1907 Hague Conventions and annexed Regulations resulted from the Second Hague Conference of 44 states. The 13 treaties and 1 statement expanded upon the provisions of the 1899 Hague Conventions.

6. Enforcement Mechanisms • State accountability • Violators’ government paid compensation • Diplomatic sanctions • Individual accountability • Prosecution by own government’s courts

7. Post – World War I • Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties • Recommended inter-Allied tribunal for most serious offenses and victors’ national courts for others. • Treaty of Versailles • Called for military tribunals to try German officials for war crimes. • Indicted Kaiser Wilhelm; escaped to Netherlands

8. Post – World War I • Allies concerned about instability in Germany from perceived oppressive treatment. • Allies agreed to German Supreme Court trials (Leipzig War Crimes Trials) • Thousands for German officials considered • Only a few tried; relatively junior • Several acquitted; sentences ranged from a few months to four years

9. Post – World War II • Allies recognized weakness of Leipzig Trials. • Early preparations for individual criminal responsibility. • St James Declaration of 1942 • Moscow Declaration of 1943 • Widely publicized intent but little deterrent effect.

10. Early WW II Tribunal Preparations • St James Declaration of 1942 - a pledge to seek “punishment through the channel of organized justice of those guilty” of atrocities in occupied territories “whether they have ordered them, perpetrated them or in any way participated in them.” • Moscow Declaration of 1943 - the intention of the Allied powers, upon liberation of Nazi occupied territories, to pursue Nazi perpetrators of atrocities and massacres “to the uttermost ends of the earth” and to “deliver them to their accusors in order that justice may be done.”

11. Modern International Criminal Tribunals • Designed to avoid criticism of victors’ justice. • Created by widely accepted international instrument: • UNSC Resolution -- ICTY, ICTR • Bi-lateral Agreement with UN -- SCSL • Multi-lateral treaty -- ICC

12. International Criminal Tribunal for the former Yugoslavia (ICTY) • UN Security Council Resolution 827, dated 25 May 1993 created the first of the modern International Criminal Tribunals, pursuant to the Security Council’s authority under Chapter VII of the UN Charter to address threats to international peace and security. • Temporary mandate to prosecute serious violations of international law, including war crimes and crimes against humanity, committed in the territory of the former Yugoslavia since 1991.

13. International Criminal Tribunal for the former Yugoslavia (ICTY) • First modern international criminal tribunal. • Over 160 indictments against individuals from every ethnic background. • Over 120 cases completed. • 11 acquittals. • Most sentences range from 7 to 25 years. One sentence of life in prison.

14. International Criminal Tribunal for the former Yugoslavia (ICTY) • Completion of trial activity projected in 2012, and appellate activity in 2014. • Transfer of cases of intermediate and lower ranking accused to national jurisdictions. • Has created a solid historical record that precludes denial of atrocities. • Jurisprudence established foundation for all modern international criminal tribunals.

15. International Criminal Tribunal for Rwanda (ICTR) • UN Security Council Resolution 955, dated 8 Nov 1994 created the ICTR. •  Temporary mandate to prosecute serious violations of international law, including war crimes and crimes against humanity, committed in the territory of Rwanda and violations by Rwandan citizens committed in neighboring States in 1994. Jurisdiction includes violations of Common Article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocol II to the Geneva Conventions.

16. International Criminal Tribunal for Rwanda (ICTR) • Over 90 indictments. • Over 50 cases completed. • 8 acquittals. • Most sentences 20 years in prison or more. Approximately 1/3 sentenced to life in prison.

17. International Criminal Tribunal for Rwanda (ICTR) • Completion of trial activity projected in 2011, and appellate activity in 2013. • Transfer of cases to national jurisdictions and relocations of some who have completed their proceedings/sentences. • Extensive outreach and education programs.

18. Special Court for Sierra Leone (SCSL) • The SCSL Agreement between the government of Sierra Leone and the United Nations, dated 16 January 2002, established the SCSL. The SCSL Statute is an appendix to this Agreement. • Temporary mandate to prosecute serious violations of international humanitarian law, including violations of Common Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocol II to the Geneva Conventions, as well as serious violations of Sierra Leonean law committed in the territory of Sierra Leone since 30 Nov 1996.

19. Special Court for Sierra Leone (SCSL) • 13 indictments. • 8 cases completed. • No acquittals. • Most sentences ranged from 15 to 50 years in prison. No sentences of life in prison.

20. Special Court for Sierra Leone (SCSL) • First tribunal in history to prosecute and convict for conscripting, enlisting and using child soldiers in armed conflict. • Trial of Charles Taylor, former President of Liberia, underway. • Trial moved to the Hague due to security concerns. • Several lengthy delays, but projected to complete trial in 2011.

21. Special Court for Sierra Leone (SCSL) • Trial activity has been completed in Freetown. • SCSL making plans to close upon completion of Charles Taylor case. • Outreach and education activities focus especially on authority communities and university students.

22. International Criminal Court (ICC) • Situations can be referred to ICC by States Parties or by the UN Security Council. • ICC Prosecutor also may open formal investigation upon approval of Pre-Trial Chamber of ICC. • All 5 situations at ICC arose in Africa: • 3 referred by States Parties -- DRC, CAR and Uganda. • 1 referred by UNSC -- Sudan. • 1 initiated by Prosecutor without referral -- Kenya.

23. International Criminal Court (ICC) • First ever ICC case arose from DRC – Thomas Lubanga Dyilo. Trial began in January 2009. He was also first person ever arrested under an ICC arrest warrant. Charges primarily involve conscripting and using child soldiers. Several delays over issues of revealing identities of victims and witnesses. • Second ICC trial also arose in DRC – Germain Katanga and Mathieu Ngudolo Chui. Wide range of international crimes. Trial began in November 2009.

24. International Criminal Court (ICC) • One accused in Sudan cases is President Al Bashir. First tribunal case against a sitting head-of-state. Also first ICC case involving charges of genocide. • Three of 6 accused appeared voluntarily. One case, Bahar Idriss Abu Garda, was dismissed for insufficient evidence. • President Al Bashir and 2 others remain at large.

25. Hybrid Tribunals • Also known as internationalized tribunals. • Combine international jurisdiction and standards with national proceedings. • Hybrid tribunals active in: • Kosovo • East Timor • Cambodia • Lebanon

26. Alternatives to Criminal Responsibility • Often referred to as restorative or transitional justice. • Collective approaches seeking reconciliation and establishment of peaceful, democratic society. • Examples: • Reparations • Truth commissions • Mediation • Amnesty

27. Conclusion • Post—World War I Leipzig Trials verified the need for international tribunals in certain situations. • Credible, transparent national courts remain a critical element to widespread respect for the rule of law.