Vol. 15 No.3 (March 2005), pp.200-203
INTERNATIONALIZED CRIMINAL COURTS AND TRIBUNALS: SIERRA LEONE, EAST TIMOR, KOSOVO, AND CAMBODIA, by Cesare P.R. Romano, Andre Nollkaemper, and Jann K. Kleffner (eds). Oxford, U.K.: Oxford University Press, 2004. 550pp. Hardback. $165.00 / £75.00. ISBN: 0-19-927673-0. Paper. $65.00 / £35.00. ISBN: 0-19-927674-9.
Reviewed by Daniel C. Turack, Capital University Law School. Email: DTurack@law.capital.edu .
The content of this book deals with the third generation of international criminal law courts to have emerged since 1999. If we designate the post-World War II tribunals – namely, the Nuremberg and Tokyo Tribunals – as the first generation, and the ad hoc International Criminal Tribunal for the former Yugoslavia, the ad hoc International Criminal Tribunal for Rwanda, and the permanent International Criminal Court as the second generation, then the forums considered by this book can be characterized as third generational internationalized (the adjective adopted by the editors) criminal courts. The contributors to this work based their research on three active jurisdictions—the Serious Crimes Panels in the District Court of Dili (East Timor), the “Regulation 64” Panels in the Courts of Kosovo, and the Special Court for Sierra Leone. In addition, the so-called Extraordinary Chambers in the Courts of Cambodia are considered as well.
INTERNATIONALIZED CRIMINAL COURTS AND TRIBUNALS contains an updated assortment of twenty-one papers that emerged from a 2002 conference in Amsterdam. The final paper is a contribution by a non-attendee of that conference whose insightful input enhances the overall excellence of this collection. One should generally commend the editors, Cesare Romano, Andre Nollkaemper, and Jann Kleffner, for their cross-references to chapters by the many contributors that are helpful in identifying specific issues that the reader may wish to consult. Contributors bring expertise as academics, officials and practitioners, to produce a wide-ranging discussion and analysis of these internationalized criminal courts and tribunals (henceforth, I will use the term, internationalized, to encompass the four institutions).
Professor Antonio Cassese provides an excellent introduction in which he (1) compares the ad hoc international tribunals for the former Yugoslavia and Rwanda, the internationalized criminal courts and national criminal courts; (2) explores the reasons behind creation of international criminal courts and the internationalized tribunals; (3) considers some of most conspicuous practical and legal problems encountered by the internationalized tribunals; (4) discusses existing particular situations where further internationalized tribunals could be contemplated; and, (5) assesses the prospects for international criminal justice when national courts or the International Criminal Court (ICC) is not an option. [*201]
In the second chapter, Daphna Shraga examines the different backgrounds and negotiations preceding the establishment of the internationalized tribunals, and why certain crimes were omitted or added to a tribunal’s jurisdiction. Also, there is discussion of the organizational structure of the courts, their relationship to the law of the host jurisdiction, and effectiveness of prior amnesty or pardons granted to principal perpetrators. Clearly, no single model emerges for internationalized jurisdiction.
John Cerone and Clive Baldwin evaluate the competence and overlap of the Kosovo courts with that of the International Criminal Tribunal for the former Yugoslavia (ICTY), highlighting the features that make these courts unique. The Kosovo internationalized courts are examined by Jean-Christian Cady and Nicholas Booth in Chapter Four from the perspective of the UN Mission in Kosovo. These authors conclude that, without an international judicial presence and international police, those responsible for destabilizing society in the province by ethnic violence or organized crime would not be brought to justice, and they credit the international judiciary with mentoring and institution-building of the local justice system.
Sylvia de Bertodano writes about the sad situation in East Timor. The Special Panels for Serious Crimes established in Dili handed down judgments against 31 defendants (35 cases were either pending or in mid-trial), but these perpetrators represented the small fry. The Jakarta trials provided no real measure of justice, as none of the 18 people put on trial were ever jailed. Indonesia’s lack of cooperation met with no meaningful rebuke from the international community. With the UN order for the Dili Special Panels to close down in the near future, most high profile indictments—e.g., former head of the Indonesia’s armed forces, General Wiranto—will never face charges in East Timor. All of the factors that led to ineptness of the East Timor internationalized experiment are addressed in this chapter. On the other hand, a Commission for Reception, Truth and Reconciliation in East Timor (CAVR) was set up as a parallel institution to the internationalized judicial institution, and its objectives, mandate and composition are addressed by Beth S. Lyon in Chapter Six. By and large, the absence of broad CAVR investigatory powers and the lack of incentives to persuade perpetrators of the serious crimes to come forward shielded those at the highest levels of authority immune from accountability.
Alison Smith, in the seventh chapter, explores the Special Court of Sierra Leone. She points to serious flaws in the current system and considers the rules of procedure and evidence as influenced by the International Criminal Tribunal for Rwanda (ICTR). One learns that politics, policy and practical limitations have minimized the role played by the Special Court. Phakiso Mochochoko and Giorgia Tortora (Chapter Eight) provide insight into the innovative Management Committee for the Special Court for Sierra Leone, whose start-up involved representatives from the UN, the Sierra Leone government, and political and financial supporters. They outline how this novel solution may serve as a model for future institutions and could reform existing ones. William A. Schabas, [*202] in the ninth chapter, compares the Truth and Reconciliation Commission (TRC) with the Sierra Leone Special Court, as both are transitional justice options used to address impunity. The author’s perspective on the relationship of the Special Court and the TRC illustrate a modality of cooperation, complementary and non-confrontational roles that should be contemplated in other contexts.
Chapter Ten, by Craig Etcheson, looks at politics involved in dealing with crimes of the Khmer Rouge regime in Cambodia between 1975 and 1979, when at least 2 million people perished during the days of Democratic Kampuchea. None of the Khmer Rouge leadership has been prosecuted, and the roles of various Cambodian political players and international actors are considered. The compromise that finally led to the Extraordinary Chambers in the Courts of Cambodia is discussed by Ernestine E. Meijer in the next chapter. She takes the reader through the last phase of negotiations that produced this hybrid court, and considers all aspects of its jurisdiction, organization and procedures. Moreover, she provides a “worst case scenario” to illustrate possible obstruction of justice—that is, what happens when there is uncertainty as to procedural matters, and what guidelines will ensure a fair trial. Some thought is also given to the unbridgeable differences remaining.
The next nine chapters deal with matters that cut across all four internationalized tribunals. In Chapter Twelve, Cesare P.R. Romano deals with the myriad of matters that concern judges and prosecutors regarding staffing the various tribunals and qualifications for all participants—e.g., nationality, moral integrity, expertise, and gender. Recruitment of personnel directly impacts the quality of each tribunal, and related issues receive attention. Thordis Ingadottir confronts the funding issues in Chapter Thirteen. When compared to the funding provisions for the ICC, ICTY and ICTR, the budget for each of the four internationalized tribunals is markedly low, and an open question is whether their shoestring funding stream will affect the independence of the judiciary.
Bert Swart is concerned with many issues related to application of substantive law in the internationalized tribunals, with an emphasis on East Timor, Sierra Leone and Cambodia. He addresses a range of interesting questions, such as whether some international crimes by treaty have already evolved into crimes under customary international law, and if so, when did this occur. Good examples are torture in East Timor and destruction of cultural property during internal armed conflict in Cambodia. Other provocative discussions concern general principles of criminal law, juveniles, amnesties and pardons, and statutes of limitations. Hakan Friman, in Chapter Fifteen, writes from a human rights lawyer’s viewpoint on the procedural law as applied in these internationalized tribunals. His focus is on fundamental international human rights standards for a fair criminal process as set primarily in the 1966 International Covenant on Civil and Political Rights, as well as standards relating to juveniles, victims, and witnesses.
Jann K. Kleffner and Andre Nollkaemper consider the relationship between internationalized tribunals and [*203] national courts based on six designated questions. Interaction among these courts does not lead to any general principles common to the four former prototypes, but the contributors show that internationalized tribunals have largely been separated and isolated from national courts. However, the former contribute to rebuilding the national judicial system. Goran Sluiter deals with internationalized tribunals’ reliance on external cooperation to accomplish their purposes. Lack of enforcement powers, arrest, transfer of the accused, cooperation in investigations, production of evidence, and extradition, all influence efficiency and effectiveness of operations.
A collaborative effort by Markus Benzing and Morten Bergsmo presents some tentative insights on the relationship between the internationalized tribunals and the ICC from the viewpoint of law and policy. Specifically, they assess efficacy, viability and independence, the impact of internationalized tribunals on the ICC’s aspiration to be a permanent universal institution, and possible future cooperation among institutions. An extension of this analysis is carried forward in the succeeding chapter by Maria Carmen Colitti in her examination of the ICC’s geographical and jurisdictional reach. After all, the Rome Statute does not cover aggression, drug trafficking and terrorism – to mention three other international crimes – and there is room for future internationalized tribunals to fill these ICC gaps. One message left for readers is that, although the ICC targets high-profile individuals, low-ranking suspects could be handled by internationalized tribunals to impose greater accountability. Luigi Condorelli and Theo Boutruche, in Chapter Twenty, reflect on the Rome Statute, which they believe needs to be revised, and suggest that, in the short term, internationalized tribunals could complement the permanent ICC. In the final chapter, Alain Pellet stresses the dissimilarities of the four internationalized institutions and observes that they operate in small, weak and poor countries, or under a UN de facto trusteeship in the case of Kosovo. An objective is to strengthen the local judiciary, while the international community as a whole moves toward establishing a new judicial system that will fight impunity.
The contributors all display a thorough knowledge of the subject matter, and their discussion is heavily footnoted, leading to a wealth of supporting research. Readers will find considerable information in the tables of cases, treaties, international instruments and domestic laws. The bibliography is more than selective, and there is also a very useful list of websites with direct links to legal documents, case law and news about the internationalized judicial bodies. Finally, the index is comprehensive and will greatly assist the reader in back-tracking.
Anyone interested in international criminal justice will derive much benefit from reading this book.
© Copyright 2005 by the author, Daniel C. Turack.