Neier, Aryeh

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American University International Law ReviewVolume 21Issue 4 Symposium: International Criminal Tribunalsin the 21st CenturyArticle 32005Lessons Learned: Building on the Success of theCurrent International Tribunal Framework toDevelop the Next Era of War Crimes TribunalsAryeh NeierFollow this and additional works at: http://digitalcommons.wcl.american.edu/auilrPart of the Criminal Law Commons, Human Rights Law Commons, International LawCommons, and the Military, War and Peace CommonsThis Symposium or Conference is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at DigitalCommons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review byan authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contactfbrown@wcl.american.edu.Recommended CitationNeier, Aryeh. "Lessons Learned: Building on the Success of the Current International Tribunal Framework to Develop the Next Era ofWar Crimes Tribunals." American University International Law Review 21, no.4 (2006):517-523.LESSONS LEARNED: BUILDING ON THESUCCESS OF THE CURRENT INTERNATIONALTRIBUNAL FRAMEWORK TO DEVELOP THENEXT ERA OF WAR CRIMES TRIBUNALSARYEH NEIER*IN TR O D U C TIO N ........................................................................... 517I. HYBRID TRIBUNALS ........................................................ 519II. REGIONAL TRIBUNALS ................................................... 519III. COM PLEM ENTARITY ....................................................... 521IV. THE ROLE OF THE PLEA BARGAIN ............................... 521V. FUNDING MECHANISMS .................................................. 522C O N C L U SIO N ............................................................................... 523INTRODUCTIONThe Washington College of Law has played a central role inefforts on behalf of human rights internationally and, therefore, it isthe venue in which I feel it is most appropriate to be discussing theissues that will concern us today.I have been asked to talk about the next era in war crimestribunals, but I really cannot do so without reflecting briefly on thepast era. The era that has passed really lasted a very short period. Ithas not been very long since even the question of accountability forgreat crimes became an issue; it was only a little over twenty yearsago that it became an issue for the first time. At that moment there* President, Open Society Institute. This article is an expanded version of remarkspresented at a conference on "International Criminal Tribunals in the 21stCentury" hosted by the War Crimes Research Office of the Washington College ofLaw, American University, on September 30, 2005.517AM. U. INT'L L. RE v.was no thought of international criminal tribunals. It was still theCold War era and one could not have created such a tribunal in thatera. Discussion was focused on national remedies for great abuses ofhuman rights. It was the period in which both criminal trials andwhat became known as truth commissions were launched in theimmediate aftermath of the end of military dictatorships to try toaddress the abuses that had taken place during those dictatorships.I recall issuing a call for the establishment of what became theYugoslav Tribunal.1 The call was issued in July 1992, and none of uswho were involved in that early effort could have imagined thedevelopment that has taken place since then. We now have ad hoctribunals that are beginning to map out the conclusion of their work,we have hybrid tribunals, and we have an International CriminalCourt.2 Even though those institutions have sometimes beenfrustrating because they have seemed to proceed very slowly, as inthe conduct of the Milosevic trial, from a historical standpoint thishas all transpired in the blink of an eye. This was unimaginable tothose of us who were involved just a short time ago in trying toinvent this way of proceeding.When one thinks of the next era, I believe that the most importanttask confronting those who are concerned with international justice isto make certain that the current tribunals conclude their workproperly. That is a very difficult and a very expensive task. There aremany matters that were not thought of at the moment that thetribunals were created which one has to think of now: What happensto the evidence? What happens to the archives? What happens to theprisoners? What happens to the witnesses? Those matters now mustbe addressed. The assessment of how well the tribunals haveperformed will have a great deal to do with the manner in which theyconclude their work. That assessment is crucial if the next era in warcrimes tribunals is to get off to an appropriate start.1. See S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993), on theestablishment of the ICTY.2. See Rome Statute of the International Criminal Court, July 17, 1998, U.N.Doc. A/CONF.183/9 (1998) (establishing the International Criminal Court anddefining its jurisdiction).[21:517THE NEXT ERA OF WAR CRIMES TRIBUNALSI. HYBRID TRIBUNALSI think that the next era has to proceed along the lines of thecurrent era. We will need more hybrid tribunals3 in different parts ofthe world to address the particular crimes that have taken place ingiven countries. It is not possible for the International Criminal Courtto be a panacea in addressing the range and the severity of suchcrimes. It will not have the capacity to go into the depth in particularcountries that is required to make those countries whole and torestore a sense of justice within them. Therefore, hybrid tribunalswill continue to be needed.II. REGIONAL TRIBUNALSAn additional development that we need to start thinking about isthe establishment of regional tribunals under the auspices of variousregional international bodies.4 Unfortunately, there are not suchbodies in all parts of the world. There are such bodies in Europe,Latin America and Africa, but there really is nothing in Asia. TheAssociation for Southeast Asian Nations ("ASEAN"), a regionalbody in Asia, has no human rights mechanism whatsoever.' Thoughthere have been a few suggestions for the establishment of a humanrights mechanism within ASEAN, the prospect of creating such abody seems remote because a majority of the countries within that3. See generally Laura A. Dickinson, The Promise of Hybrid Courts, 97 AM.J. INT'L L. 295, 295 (2003) (explaining that hybrid tribunals are ones in which thetribunal itself and the applied law have both domestic and international elements).For instance, a hybrid tribunal could be composed of foreign and domestic judges,where the judges apply domestic law that has been supplemented with or alteredby international law principles. Id.4. Accord William W. Burke-White, Regionalization of InternationalCriminal Law Enforcement: A Preliminary Exploration, 38 TEx. INT'L L.J. 729,730 (2003) (advocating a move towards the regional enforcement of internationallaw, which would "strike a balance" between the costs and benefits of domesticand supranational enforcement).5. See Li-ann Thio, Implementing Human Rights in ASEAN Countries:'Promises to Keep and Miles to Go Before I Sleep,' 2 YALE HUM. RTS. & DEV. L.J.1 (1999) (asserting that the primary objective of ASEAN is promoting trade andeconomic development, and that ASEAN effectively marginalizes human rights byfailing to include human rights reform in its agenda).2006] 519AM. U INT'L L. REV.regional body are abusers of human rights rather than defenders ofhuman rights.ASEAN covers about ten countries of Asia6 but there are manycountries of Asia that are not part of any regional body. China, whichis a world unto itself, is not part of any such regional body. TheMiddle East is also an area where it would be virtually impossible toestablish such a body. 7 So there is a limit to what can be achieved bycreating tribunals under the auspices of regional bodies.I do not believe that difficulties in the future should deter one fromthinking in these terms. At this moment the cases on which theInternational Criminal Court is focusing are all African cases. 8 Theprosecutor for the International Criminal Court is very sensitiveabout this. He does not want-and I think he is right on this-hedoes not want the court to appear as a court for Africa. 9 In dealingwith leaders of the African Union, this is one of the major problemsthat he encounters. If there were an African court, that would be mostvaluable because, in fact, there are many other circumstances inAfrica besides those that are now under consideration by theInternational Criminal Court which require the attention of an6. Indonesia, Malaysia, Philippines, Singapore, and Thailand foundedASEAN in 1967; Brunei Darussalam, Vietnam, Laos and Myanmar, and Cambodiahave since joined. See Association of Southeast Asian Nations, Overview,http://www.aseansec.org/64.htm (last visited Mar. 3, 2006).7. For an analysis of whether Islamic principles of Shari'a in Muslim statejurisprudence can be reconciled with international human rights norms, see ClarkB. Lombardi & Nathan J. Brown, Do Constitutions Requiring Adherence to Shari'aThreaten Human Rights? How Egypt's Constitutional Court Reconciles IslamicLaw with the Liberal Rule of Law, 21 AM. U. INT'L L. REv. 379 (2006).8. See, e.g., S.C. Res. 1593, U.N. Doc. S/RES/1593 (Mar. 31, 2005) (referringthe Darfur situation to the International Criminal Court). In addition to Darfur,several other cases involving African countries have been directly referred to theICC by States parties. For various documentation associated with the casesinvolving the Democratic Republic of Congo, the Republic of Uganda, and theCentral African Republic, see International Criminal Court, Situations and Cases,http://www.icc-cpi.int/cases.html (last 'visited Mar. 6, 2006); and see generallyRuth Wedgwood, Address to the Cornell International Law Journal Symposium:Milosevic & Hussein on Trial, 38 CORNELL INT'L L.J. 779 (2005).9. See generally Luis Moreno-Ocampo, Keynote Address: Integrating theWork of the ICC into Local Justice Initiatives, 21 AM. U. INT'L L. REv. 497, 498(2006) (referring to the gravity of the harn as the current basis for pursuing thecurrent situations in Africa).520 [21:517THE NEXT ERA OF WAR CRIMES TRIBUNALSinternational criminal tribunal. The establishment of an African courtwould indicate that Africa is willing to deal with its own grossabuses for human rights.' ° The International Criminal Court couldgenuinely be international by dealing with other parts of the world-such countries as Colombia and Afghanistan.1II. COMPLEMENTARITYAs the International Criminal Court develops, one aspect of thenext era in war crimes tribunals will develop on its own. That is,complementarity will become a more significant factor. Asprosecutions are actually brought, I believe more governments willdecide that it is better for them to put their own houses in order byaddressing abuses of human rights within their own domesticcriminal justice systems rather than have the matters taken over bythe International Criminal Court. This would be a very healthydevelopment.IV. THE ROLE OF THE PLEA BARGAINIt is going to be necessary for the international tribunals toconsider seriously jurisprudential matters that will expedite theirefforts. The question of plea bargaining has to be considered moreseriously by all of the international criminal tribunals to cope withthe volume of cases. 1 We know that the American system ofcriminal justice would simply collapse if it were not for pleabargaining. The international criminal justice system also faces,because of the complexity of its cases, the possibility of becomingbogged down. Plea bargaining would enhance the capacity of the10. The Protocol to the African Charter on Human and Peoples' RightsRegarding the Establishment of an African Court of Human and Peoples' Rights,June 9, 1998, OAU Doc. OAU/LEG/EXP/AFCHPR/PROT.I.rev. 2, came intoforce in 2004. However, its implementation has been delayed by another proposalfor the establishment of a more generalized African Court of Justice. SeeNsongurua J. Udombana, Between Promise and Performance: Revisiting States'Obligations Under the African Human Rights Charter, 40 STAN. J. INT'L L. 105,140-41 (2004).11. Cf Julian A. Cook, III, Plea Bargaining at The Hague, 30 YALE J. INT'L L.473 (2005).2006] 521AM. U. INT'L L. REV.tribunals to reach a larger number of those cases that should bebrought before them.V. FUNDING MECHANISMSThe final point I want to make about the future of internationalcriminal tribunals is that we need a better funding mechanism.Fortunately, we have a model which is working right now that wecan consider. It is the Global Fund to Fight AIDS, Tuberculosis andMalaria ("Global Fund"), 2 which is funded by governments. Itsfunding decisions are made by a technical review panel thatexamines applications coming from different countries around theworld. It not only funds governmental efforts to address the diseasesthat are within its mandate, but where it thinks that such efforts arenot the appropriate mechanism, it will either go to an internationalagency such as the United Nations Development Program or-forexample in the case of Russia-the Global Fund has providedfunding through non-governmental institutions.The decisions of the technical review panel, an expert committee,are reviewed by the board of the Global Fund, which represents thedonors. So far, the board of the Global Fund has always endorsed thedecisions of the technical review panel. There have been no incidentsso far in which political decisionmaking has interfered with fundingby the Global Fund. It is emerging as an extremely effectiveinternational instrument. The Global Fund's budget for the comingyear is $3.6 billion. It aspires to spend a much larger amount ofmoney per year going forward. The funding formula that had beenconceived some time ago was that one-third of the funding wouldcome from the United States, one-third from the countries of theEuropean Union, and one-third from all other donors.In practice, it is more like one-third from the United States, fiftypercent from the countries of the European Union, and the remainderfrom other countries. It insulates the donor governments from a12. See THE GLOBAL FUND TO FIGHT AIDS, TUBERCULOSIS AND MALARIA, APARTNERSHIP TO PREVENT AND TREAT AIDS, TUBERCULOSIS AND MALARIA 1,http://www.theglobalfund.org/en/files/publications/qaen.pdf (explaining that theGlobal Fund was established in 2002 "as a partnership between governments, civilsociety, the private sector and affected communities" to combat these diseasesthrough international health financing).[21:517THE NEXT ERA OF WAR CRIMES TRIBUNALSdirect relationship to the expenditure, and that helps to depoliticizethe funding. Also, it creates a sense of responsibility by the donorgovernments to deal with the diseases which are within the mandateof the Global Fund.I do not think we can start work now on a global fund for justice,but that is what I believe the next era of war crimes tribunalsrequires. It could be much smaller than the Global Fund to FightAIDS, Tuberculosis and Malaria. If $1 billion a year were availableto a global fund for justice, that would be more than adequate tocover the needs in this field as they will develop for some timeahead. That would be a way to remove this from the always pinchedbudgets of the United Nations, the political issues that enter into thedecisionmaking there, and the need for the officials of the differentinternational criminal tribunals to spend some of their time goingaround hat in hand, trying to raise the funds that are needed for theoperation of these tribunals. If three or four or five years from nowwe get to the point of establishing such a global fund for justice, Ithink that we would make a significant advance in this field.CONCLUSIONIt is appropriate now to think in these terms even though we didnot think matters through at the time that the international criminaltribunals were being launched. We can think ambitiously. We haveseen that the reality of what has been achieved so far has farexceeded the ambitions of those who were involved in creating thecurrent era of international criminal tribunals. Hence, I believe thereis no reason to hold back in thinking about what might be done in thefuture.2006]

Lessons Learned: Building on the Success of the Current International Tribunal Framework to Develop the Next Era of War Crimes Tribunals

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Lessons Learned: Building on the Success of the Current International Tribunal Framework to Develop the Next Era of War Crimes Tribunals

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