Overview of existing accountability mechanisms

• Author: Olympia Bekou
• Pages: 11-26

State of play of ex isting instruments for co mbating impunity for inter national crimes

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Network Secretariat, Matevž Pezdirc. Other individuals from across the EU organs and bodies had been

extended an invitation but were unable to participate. It was of particular importance to gain perspectives

from accountability mechanisms themselves, especially the newly established modes of operation which

have not yet been well-studied or had time to form legacies. To that end, the three UN evidentiary

mechanisms for Syria, Iraq, an d Myanmar were represented by their respective Heads: Catherine Marchi-

Uhel, Karim A. A. Khan and Nicholas Koumjian. With prosecutions at the national level being increasingly

recognised for their contribution to the fight against impunity, a perspective on conducting national

processes for core international crimes was provided in his private capacity by National coordinating

advocate - general international crimes in the Netherlands, Simon Minks. Members of civil society were

consulted for this study and contacted to participate, however, they were not able to be formally

interviewed: predominantly as the interviews took place during the COVID-19 pandemic and addressing

its impacts was a matter of urgency. The interviews were extremely valuable and have provided personal

insights, or insider perspective, into the complex issues at hand.

2. Overview of existing accountability mechanisms

Although the International Military Tribunals established in Nuremberg and Tokyo at the end of the Second

World War are considered the fountainhead of international criminal justice, they were followed by nearly

fifty years of inactivity during the Cold War. Since the revival of international criminal justice in the early

1990s, the mechanisms mandated with achieving accountability have taken numerous forms.

This section analyses judicial and non-judicial mechanisms beginning with the ad hoc international

tribunals, which were the first type of accountability mechanism created after the Cold War. It then

considers the International Criminal Court, which is unique in its permanent nature and global outlook.

The analysis then looks at how accountability for core international crimes has been brought closer to the

directly affected communities by hybrid courts and specialised chambers within domestic courts. The

section moves on to look at how States have applied the principle of universal jurisdiction to crimes

committed outside their territory, before considering the establishment of the UN Evidentiary Mechanisms,

which are the newest model. Finally, the analysis examines the role of institution s such as regional human

rights courts and the International Court of Justice in the promotion of accoun tability for core international

crimes.

The focus is on accountability mechanisms which are either functioning at the time of writing, or have an

operational residual mechanism, and whose jurisdiction ratione materiae includes core international

crimes. These mechanisms are examined in light of common themes, in order to assess their strengths,

weaknesses and the challenges they face: prosecutions and convictions; fundamental rights; cooperation

and assistance; and accountability to affecte d populations.

2.1 The ad hoc International Tribunals

Ad hoc international tribunals are international justice mechanisms which are established to address a

specific situation, and which operate for a finite lifespan (Pittman). The first such Tribunal to be established

was the International Tribunal for the Former Yugoslavia (ICTY) (ICTY 2016), which was created by UN

Security Council resolution 827 of 1993 in response to core international crimes committed during conflicts

in the Former Yugoslavia. A year and a half later, UN Security Council resolution 955 of 1994 established

the International Criminal Tribunal for Rwanda (ICTR) to address atrocities committed in connection with

the genocide in Rwanda (infra Section 4.1.1). Collectively known as the ad hoc Tribunals, they issued

landmark judgments and leave a legacy which has made the process of providing accountability more

foreseeable and achievable for subsequent justice mechanisms (Acquaviva).

Policy Department , Directorate-General for External Policies

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With UN Security Council resolution 1966 of 2010, the responsibilities of the ad hoc Tribunals, including

overseeing sentences of imprisonment, were transferred to their successor institution: the International

Residual Mechanism for Criminal Tribunals (MICT), which is composed of two branches that respectively

carry out the residual functions of the ICTY and ICTR.

The Special Tribunal for Lebanon is also an ad hoc Tribunal; however, it is not analysed herein as its

jurisdiction ratione materiae does not cover the crimes which are the subject of the present study.

2.1.1 Prosecutions and convictions

Of the 161 individuals indicted by the ICTY, 90 were convicted, 18 were acquitted, 37 either died or had

their indictments withdrawn, 3 cases are ongoing before the MICT at the time of writing and no fugitives

are at large (S/2017/662). The Tribunal issued a series of landmark judgments, such as T, which

contributed to the current definition of non-international armed conflict, removed the nexus between

armed conflict and crimes against humanity, and was the first-ever case on sexual violence against men;

Aleksovski, the first case against a member of a non-State armed group; Mucić et al., which recognised rape

as torture; and Krstić, which linked rape and ethnic cleansing.

The MICT has convicted Radovan Karadžić and Vojislav Šešelj and, at the time of writing, it is hearing four

re-trials, including that of Ratko Mladić (MICT 2020a). On 19 June 2020, the Appeals Chamber issued a

decision to ensure Mladić proceeds expeditiously in light of Covid-19, including that the Registry should

be instructed to provide the technology to facilitate partially remote proceedings.

The ICTR indicted 93 individuals, 61 of whom were convicted, 14 were acquitted and 5 either died or had

their indictments withdrawn (S/2015/340). At the time of its closure, six cases against fugitives had been

transferred to the Rwandan domestic jurisdiction and three to the MICT (S/2015/340). Landmark ICTR cases

include Akayesu, which provided the first definition of rape under international criminal law and was the

first genocide conviction before an international tribunal; Nahimana et al., recognising the role of the

media in the genocide; Nyiramasuhuko et al., the first conviction of a woman defendant by an international

Tribunal; and Karemera et al., in which the Tribunal took judicial notice of the genocide against the Tutsi,

considering it a ‘fact of public notoriety’.

Of the three fugitives transferred to the MICT, the death of fugitive Augustin Bizimana was confirmed in

May 2020, concluding an investigation conducted by the MICT in cooperation with national authorities

(MICT 2020b). A second fugitive, Félicien Kabuga, was arrested in Paris in May 2020 after a joint effort of

the MICT, France, Rwanda, Belgium, the United Kingdom, Germany, the Netherlands, Austria, Luxembourg,

Switzerland, the United States, Europol and Interpol (MICT 2020c). After a request seeking temporary

transfer of Kabuga to The Hague rather than Arusha due to the impact of Covid-19 was dismissed, on 4

June 2020 a French Court approved the transfer to the MICT (Corbett).

Pursuant to these developments, the MICT is now seized with efforts to locate, arrest and prosecute the

remaining fugitive of the ICTR, Protais Mpiranya, and a contempt proceeding in Turinabo et al., which deals

with interference in the administration of justice and includes charges such as interfering with protected

witnesses. The ICTR and related MICT activity is discussed in further detail in the country section on Rwanda

(infra Section 4.1.1).

2.1.2 Fundamental rights

The Statutes of the ad hoc Tribunals complied with the international standards of protection of

fundamental rights for the accused, including guarantees of ne bis in idem and the exclusion of the death

penalty. The MICT has enhanced its legal and regulatory framework in relation to victims and witnesses,

detention and sentence enforcement to develop best practices. This has resulted in the application of a

modern detention framework for detainees in the UN Detention Facility and the UN Detention Unit