Maja Sahadzic, Violence and Peace, Leverage Of

BOOK OF PROCEEDINGS

Edited by

Muhidin Mulalić Abdul Serdar Öztürk

Tuba Boz

International University of Sarajevo Faculty of Arts and Social Sciences

Sarajevo, 2013

©International University of Sarajevo. All rights reserved. Published 2013

Book of Proceedings – The International Conference on EDUCATION, CULTURE AND IDENTITY

Edited by Muhidin Mulalić, Abdul Serdar Öztürk and Tuba Boz

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Assist. Prof. Dr. Tuba Boz, IUS

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CIP - Katalogizacija u publikaciji Nacionalna i univerzitetska biblioteka Bosne i Hercegovine, Sarajevo 316.3:316.72](063)(082) MULALIĆ Muhidin, ÖZTÜRK Abdul Serdar, BOZ Tuba INTERNATIONAL Conference on Education, Culture and Identity (2013 ; Sarajevo) Book of proceedings / International Conference on Education, Culture and Identity, Sarajevo, 6-13 July 2013. - Sarajevo : International University of Sarajevo, Faculty of Arts and Social Science, 2013. - 480 str. : graf. prikazi ; 30 cm Bibliografija uz sve radove. ISBN 978-9958-896-16-3 COBISS.BH-ID 20869382

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VIOLENCE AND PEACE: LEVERAGE OF THE INTERNATIONAL JUSTICE MECHANISMS AND INSTRUMENTS? Maja SAHADŽIĆ, Senior Assistant International University of Sarajevo

Abstract Over the last century, world (legal) history testifies of horrific atrocities committed, engendering and causing mayhem to human kind in general by its catastrophic outcomes. As an after effect, there have been established international justice mechanisms and instruments with an aim to institutionally condemn and sentence acts that have been carried out, at the international level. These mechanisms and instruments are often considered as mediating institutions within clashed societies for their role is usually introduced in terms of internationally acknowledged means of reconciliation. Question that rises is how these justice mechanisms and instruments stir process of peace building and peace keeping towards reconciliation, after violence occurred in so called transitional societies. Raising this question also concerns addressing the past events which are the most vexed questions between former parties in conflict. Analysis of post-conflict period in the former Yugoslavia, Rwanda, Sierra Leone, East Timor, Kosovo etc. is of great importance to that effect. Therefore, this paper examines influence, efficacy as well as prospects of international justice mechanisms and instruments (military tribunals, ad hoc tribunals, special courts) in terms of accepting the institutionally recognized past in post-violence period within clashed societies.

Keywords: Atrocity, Tribunals, Past, Violence, Peace.

Introduction After conflict has eventuated, few issues arises: how clashed societies correspond on past events, and (re)trace confidence and reliance in post-violence period. In the course of recent years, different international justice mechanisms and instruments have been established to interfere in judgment of acts that occurred in different regions. Namely, the Nuremberg International Military Tribunal, the International Military Tribunal for the Far East, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, Extraordinary Chambers in courts of Cambodia, East Timor Special Panels for Serious Crimes, Special Tribunal for Lebanon, Kosovo Regulation 64 panels, International Criminal Court, etc. Most of them are hybrid courts and internationalized domestic courts and tribunals. These judicial bodies brought significant decisions that unraveled and explained not just application of (international) law but historical explication that led to essential development of strains in their functioning and settled grounds for apprehension of past events between sides in conflict. In institutional manner, these international justice mechanisms and instruments are often referred as to be considered as institutions that gave contribution to unfolding their direct and indirect goals which is to start process of reconciliation and truth. Therefore they have been considered to be as vibrant nucleus for reflecting on violence and peace through its decisions. But the

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question is if these international justice mechanisms and instruments fulfill its purpose in initiating reconciliation process between clashed sides and transitional societies. International Justice Mechanisms and Instruments – Revisited Different scholars have similar opinion on mechanisms and instruments that can be used in addressing past events. They mostly agree that those include national and international level criminal prosecutions, reform of state institutions, truth commissions and victims’ reparation. Commonly, (international) justice mechanisms and instruments can be classified as military tribunals; ad hoc tribunals; special courts created on agreement basis; the International Criminal Court and the International Court of Justice; national courts that carry out procedures within the scope of their national judicial system, and national courts that carry out procedures in compliance with universal jurisdiction principle (Costi, 2006, pp. 213-239; Fischer, 2007, pp. 22–33). For the purpose of this paper, only first three will be discussed.

The Nuremberg International Military Tribunal was established by the 1945 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (so called London Agreement) between four Allied powers (the United Kingdom of Great Britain and Northern Ireland, the United States of America, France and the Union of Soviet Socialist Republics) whose integral part was Charter of the International Military Tribunal. Military Tribunal was a set of different tribunals that were operating in different locations while Nuremberg Trials were a number of different trials held in the Palace of Justice in Nuremberg, Germany. The first trial was the Trial of the major war criminals that started on 20 November 1945. This was also one of the earliest war crimes trials. The other war crimes trials referred to low-level officers and officials that were tried by different military courts in the United States of America, British, Soviet, and French occupation zones. According to the Article 6 of the Charter held jurisdiction over crimes against peace, war crimes, and crimes against humanity. Shaw (2008) for instance suggests that the Nuremberg International Military Tribunal “affirmed in ringing and lasting terms that ‘international law imposes duties and liabilities upon individuals as well as upon states’ as ‘crimes against international law are committed by men, not by abstract entities, and only punishing individuals who commit such crimes can the provisions of international law be enforced.’” The International Military Tribunal for the Far East was established by the 1946 Charter of the International Military Tribunal for the Far East in relation to Japanese war crimes. There was no significant distinction between those two tribunals. Article 5 of the Charter makes the same notion in terms of jurisdiction as the Nuremberg Charter: crimes against peace, war crimes, and crimes against humanity. Aust (2005) notes that the most important issues Tribunal was dealing with were “that persons are individually responsible for international crimes;

aggressive war is a crime against peace; a head of state and other senior officials can be personally responsible for crimes even if they did not actually carry them out; and the plea of superior orders is not a defense. These principles are now part of customary international law even though their precise scope is still not clear” (Ball, 1999; and Bantekas, & Nash, 2003).

The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by the Security Council Resolution 808 (1993) and 827 (1993) under the Chapter VII of the Charter of the United Nations. According to Articles 1–5 of the 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia since 1991, this Tribunal holds jurisdiction over persons accused of serious violations of international humanitarian law committed in the territory of the former Yugoslavia beginning with 1991, namely grave breaches of the 1949 Geneva Conventions, violations of laws or customs of war, genocide and crimes against humanity. The International Criminal Tribunal for Rwanda (ICTR) was established by the Security Council Resolution 955 (1994) with similar aims as


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ICTY. Articles 1–4 of the 1994 Statute of the International Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States between 1 January 1994 and 31 December 1994 define that this Court hold jurisdiction over persons responsible for serious violations of international humanitarian law committed in the territory of Rwanda and Rwandan citizens responsible for such violations committed in the territory of neighbouring States, between 1 January 1994 and 31 December 1994, namely genocide, crimes against humanity and violations of Article 3 Common to the Geneva Convention and of Additional Protocol II.

The Special Court for Sierra Leone was established by the 2002 Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court of Sierra Leone pursuant to the Security Council Resolution 1315 (2000). Although established by the agreement with the United Nations it does not constitute United Nations body (Shaw, 2008,; Tolbert, & Solomon, 2006; and Schabas, 2006). Articles 1– 5 of the 2002 Statute of the Special Court for Sierra Leone defines that this Court holds competence over persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leona since 30 November 1996, namely crimes against humanity, violations of Article 3 common to 1949 Geneva Conventions and of 1977 Additional Protocol II, other serious violations of international humanitarian law and crimes under Sierra Leonean law. Noteworthy specialty of this Court is its notion on personal jurisdiction over persons over 15 years of age defined in Article 7 of the Statute. The Extraordinary Chambers in the courts of Cambodia was established by the 2003 Agreement between the United Nations and the Royal Government of Cambodia concerning the prosecution under Cambodian law of crimes committed during the period of Democratic Kampuchea (Williams, 2005, pp. 447–462). Nevertheless, Agreement represents only contribution for the Court’s functioning for it has been established by the 2004 Law on the Establishment of the Extraordinary Chambers in the Courts of Comabodia for the Prosecution of Crimes Committed during the period of Democratic Kampuchea which is domestic law. According to Articles 2–7 of the Law, this Court holds competence over persons, senior leaders of Democratic Kampuchea and those the most responsible for the crimes and serious violations of Cambodian laws related to crimes, international humanitarian law and custom, and international conventions recognized by Cambodia, committed between 17 April 1975 and 6 January 1979, namely: homicide, torture, religious persecutions, crimes of genocide, crimes against humanity, grave breaches of 1949 Geneva Conventions, destruction of cultural property during armed conflict, crimes against internationally protected persons. The East Timor Special Panels for Serious Crimes (SPSC) was established on a basis of the Security Council Resolution 1272 (1999) under Chapter VII of the United Nations Chapter when the United Nations Security Council established the United Nations Transitional Administration in East Timor (UNTAET) after enduring occupation of the East Timor by Indonesia. Therefore, UNTAET established special panels to trial for serious crimes in the District Court of Dili and the Court of Appeal pursuant to UNTAET Regulation No. 2000/11 on the Organization of Courts in East Timor and Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over serious Criminal Offences. According to the Article 1.3 of the Regulation No. 2000/11 this Court had competence over following serious offences: genocide, war crimes, and crimes against humanity, murder, sexual offences and torture. In 2005, after most of the United Nations infrastructure has been revoked, the Special Panels completed its work more than five years after establishment. The Special Tribunal for Lebanon has been established by the Security Council Resolution 1757 (2007), acting under Chapter VII of the United Nations

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Charter, where annexed to the Resolution the 2007 Statute of Special Tribunal for Lebanon was included. The Council established the Special Tribunal for Lebanon on a basis of 2006 Agreement between the United Nations and the Lebanese Republic on the establishment of a Special Tribunal for Lebanon based on the Security Council Resolution 1664 (2006). According to Articles 1 and 2 of the Statute this Court holds competences over persons responsible for the attack of 14 February 2005 when former Lebanon’s Prime Minister Rafiq Hariri was assassinated, but also over persons responsible for offences that took place between 1 October 2004 and 12 December 2005 in Lebanon, namely acts of terrorism, crimes and offences against life and personal integrity, illicit associations and failure to report crimes and offences related to provision of the Lebanese Criminal Code and 1958 Lebanese Law, section on “Increasing the penalties for sedition, civil war and interfaith struggle”. Kosovo Regulation 64 panels is related to creation of panels and appointment of international judges and prosecutors who would work with domestic judiciary (known as Regulation 64 panels) by the United Nations Interim Administration Mission in Kosovo (UNMIK) for the purpose of reestablishing the rule of law in Kosovo through. This was done on a basis of Regulation No. 2000/6 on the Appointment and Removal from Office of International Judges and International Prosecutors, Regulation No. 2000/34 on Amending UNMIK Regulation No. 2000/6 on the Appointment and Removal from Office of International Judges and International Prosecutors and Regulation No. 2000/64 on Assignment of International Judges/Prosecutors and/or Change of Venue. It holds competences over persons, low profile offenders, responsible for genocide, war crimes and crimes against humanity committed at the territory of former Yugoslavia from 1991. In 2008 this program was transferred to the European Union Rule of Law Mission in Kosovo (EULEX).

Finally, in 1998, The Diplomatic Conference of the United Nations adopted the 1998 Statute of the International Criminal Court that entered into force in 2002. This presented the first step towards permanent international tribunal after processes in Nuremberg and Tokyo, which holds competences over the most serious international crimes. Why National Justice Mechanism do not Hold Leverage on Post-Violence Trial? Franović (2008) notes that “[m]any would argue that it would be much better if those indicted were put on domestic trial, with local prosecutors and judges, here in the region [the author is referring to the former Yugoslavia region]. But from the few cases processed by local courts, and from the great political pressure under which the courts work, one can get the impression that they will never be able to prosecute anyone who held a high position in the atrocity hierarchy, but only the small pawns“. It is comprehensible why certain authors do support following opinion:

The immediate goals of the tribunals were to maintain peace and provide justice to victims. If these are goals of international justice, then they should be the basis upon which we judge the relative success and failure of these tribunals. The difficulty of judging the success of these tribunals involves the counterfactual example of what would be the current peace-building and justice efforts in the former Yugoslavia and Rwanda without the creation of the tribunals. In other words, while the tribunals have not completely fulfilled their mandates, the ICTY and the ICTR have provided more security and justice than the national courts could or have provided (Barria & Roper, 2005). It turns out to be that national justice mechanisms and instruments differ from

international ones in terms that they the most probably, contrary to judicial principles, have political connotations based on prejudices between parties in procedure. Also, they often lack necessary infrastructure, effective justice system, personnel as integral part of administering justice in post-violence period. Therefore, it would the most likely be challenging, but also


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questionable, to enforce trials in post-violence period in domestic justice system, rather than international. In such a way, for domestic level, to be in capacity to administer justice in post-violent period, it needs to „emphasize the domestic/national capacity building, establish criteria to evaluate the existing judicial system, survey and analyze the level of understanding of the judicial system among the population, create a basis for protecting the interests of all parties involved in past conflicts, and the (greater) involvement of domestic courts in past atrocities trial“ (Sahadžić, 2012). Perspective on the Role of International Justice Mechanisms and Instruments in Addressing Post-Violence Period Observing the list of abovementioned international justice mechanisms and instruments it seems obvious that there are many societies in post-violence period. These societies contain different subjects that are whatsoever related to international justice mechanisms and instruments functioning. Also, these mechanisms and instruments differ between each other and therefore address conflict in respective society through different procedures and with various methods. Even though it is popular sentiment that referencing the conflict period has to be condemnation and punishment of perpetrators of atrocities and ensuring justice to victims the matter of concern is not so simple (Tolbert, & Solomon, 2006, pp. 29–62).

Endeavors that have been performed so far by and through international justice mechanisms and instruments indicate several queries. International justice mechanisms and instruments that were established after the World War II were considered as, precisely, bodies that would, through fair trials, condemn and punish perpetrators and bring justice to victims thus addressing past violations and restoring peace. Present day, they seem to be considered more like bodies that established victor’s justice. In terms of ad hoc tribunals established for the former Yugoslavia and Rwanda, so far they seem to be sluggish and costly. At the same time, stalling the processes in administering justice in their work, anyhow creates ambience in which peace-building and peacekeeping process in post-violence period is not satisfactory supported by these bodies. Likewise, there is almost no, if any, articulation on how these mechanisms and instruments assist striving with post-conflict consequences of any kind, even though establishment of ICTY and ICTR was to support peace between former sides in conflict. In terms of so called mixed or hybrid courts that were established, for instance, in Sierra Leone, East Timor, etc. it is conceivable that by their nature, application of laws produces varied issues, but still they appear to be less costly and faster. Moreover, they seem to generate outright leverage on bringing justice in post-conflict societies and addressing and confronting the past events between former sides in conflict. This could be the rationale why those mixed or hybrid courts are preferred in addressing violence and building peace in terms of justice mechanisms and instruments. For instance, Costi (2006) indicates that „[s]ome of the potential advantages of hybrid courts include the ability to foster broader public acceptance, build local capacity and disseminate international human rights norms. Collaboration with national and international legal personnel helps bring international law and norms to bear in ways that can be internalized and institutionalized. More generally, hybrid tribunals may go a long way to eliminate definitely the perception that transitional justice mechanisms reflect victors’ justice. Any temptation to standardize hybrid tribunals should be resisted. Their design must reflect the unique circumstances in which they have to operate, the important challenges they face, and the distinctive aims they pursue. The hybrid model is, at least for the foreseeable future, a panacea in addressing international crimes in post-conflict situations.” The question is whether the ICC may stand for efficacious body in future human rights violations prosecutions. In these terms, Tolbert (2006) justifiably concludes that “[d]espite their achievements, it is unlikely that there will be new ad hoc tribunals in the near future. Instead,

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the ICC and hybrid courts will likely come to play the central role in international judicial mechanisms. Because of its limited resources, the ICC will only be able to try the most serious crimes and the leaders of the highest level. Thus, other mechanisms, particularly hybrid courts of various types, will need to be established.“ When International Justice Mechanisms and Instruments Influence Peace-Building in Post-Violence Society? Building the peace after violence occured, in actual perception, is usually related to international justice mechanisms and instruments. Therefore transitional and restorative justice are some of the most significant components of contemporary public international law and therefore intrinsically component in post-violent societies. But, supervening to this, the question is does international justice mechanisms and instruments hold leverage in building peace after violent conflict.

Functioning of international justice mechanisms and instruments must influence not only condemnation and punishment of perpetrators of atrocities and ensuring justice to victims, but also create influence upon generating judicially confirmed evidence of the truth about past violent events that is embraced by all sides in previous violence. Accordingly, this should create and hand down historical legacy of past events through institutional record keeping. May (2010) accurately refers towards conclusion that “[a]lthough reconciliation is also clearly about attitudes, knowledge and understanding are more important yet“.

The matter of concern is whether this contributes to powering up sustainable peace and reintegration contrary to malice and intolerance produced by past (violent) events. It seems that Soloway (2002) correctly notes that „tribunals lack the ability to promote national reconciliation because they are not designed to address victims or communities but rather focus on a few high ranking officials from previous political regimes“. Rationally, some authors do conclude that “[w]hether these tribunals could ever become instruments of peace and security is highly debatable. Moreover, it is difficult to imagine circumstances in which national reconciliation could be created by an international institution. Any institution, no matter how well designed, would have difficulty in providing peace and security as well as reconciliation in these cases“ (Barria & Roper, 2005). But, the answer is manifolded. International justice mechanisms and instruments do not deduce and establish opinion on momentary situation in post-violence societies as they deduce and establish facts of past events. Therefore certain authors do conclude following:

In the end we can see that in the first place there is no direct and clear relationship between crimes trials in international tribunals and reconciliation. It is a personal step between individuals who belong to different ethnic and religious communities. Secondly, the understanding of justice for those who survived or have witnessed war crimes cannot be equaled to procedures and trials that are being held at international tribunals. For every individual in particular, this notion is specific and, at the same time ambiguous. Thirdly, there is no clear relationship between being exposed to traumatic events and the need to try suspects of war crimes. In regards to the readiness for reconciliation, the need for justice is related to numerous intervening factors which moderate their relations to trauma. Fourthly, the reconstruction of a post-war society is a complex and slow process that takes place on many levels: between individuals, on a community level, and at the national and state level (Stover & Weinstein, 2005). Event though relationship between trials and reconciliation is not direct and clear, the

truth has to be determined and mutual agreement of truth has to be inspired for post-violence societies to be able to overcome past issues. But, this is possible only through validation of


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international justice mechanisms and instruments that would have respect from and for all parties involved in former conflict. Therefore it is important to accentuate that “[t]he main goal of truth and reconciliation process is not to establish the ‘truth’ of each of once belligerent sides, but to truth to be accepted and acknowledged in all communities and by all clashed sides” (Kesić, 2002). In addition, this has to be supported by readiness of the post-violence society to involve in truth identification process. Only if we identify and recognize these mechanisms and instruments as form featured to present means of peace establishment after conflict, resilient to manipulation, they would have leverage to constitute peace-building factor in post-violence societies. Therefore, the following paragraph appropriately corresponds to the issues identified above:

If we look back in the history, especially after the Second World War, we can see that Nuremberg International Military Tribunal and International Military Tribunal for the Far East performed a great role when it comes to the individualization of guilt. Judicial proceedings indicated and pointed that individuals are those who are responsible for their behavior. This is why we cannot forget their impact on history, on addressing the past, on dealing with the past, on confronting the past, and ultimately, the way of creating the past. It is reasonable to ask ourselves what would happen if the tribunals in Nuremberg, Tokyo, The Hague, Arusha, etc., were not established. Could we have true cognition about the Holocaust or the genocide in Bosnia-Herzegovina and Rwanda? For example, since they began operating, the ICTY and the ICTR are involved in efforts to factually establish the sequence of events prior to and during the atrocities that were committed. So, the tribunals’ task is not only to impose punishment, but also to identify and assess the truth as a postulate for constructing an objective narrative of the past (Sahadžić, 2012). May (2010) is correct when states that „[r]econciliation is not always consonant with

criminal trials, but there is good reason to think that some criminal trials for genocide will indeed promote rather than hinder reconciliation. (...) It should be admitted, though, that trials by themselves are not likely to achieve full reconciliation“. Even though eventual influence of international justice mechanisms and instruments is valuable and praiseworthy effort related to peace-building, clashed societies also have to deal with violence consequences through resolving suspicion and mistrust issues. Probably the most easiest way is through stressing out significance of economical and social necessities and requirements in terms of employment, education, etc. In the end, leverage of international justice mechanisms and instruments remains major demand but is staggering. They cannot solve all post-violence consequences alone. Decisions they render are relevant, but clashed societies have to confront and deal with past events. This can be continuous, lasting and excruciating process.

Conclusion Addressing the past issues in post-violence period may be considerably scarce if there is lack of credence between clashed societies. International justice mechanisms and instruments can play an important role in promoting and supporting process of reconciliation via addressing past violence. Trials for the prosecution of persons indicted for their involvement in past violence seems necessary to unblock restraints between clashed societies. Even though international justice mechanisms and instruments, same as national justice mechanisms and instruments, are sometimes considered, both by victims and perpetrators, as unreliable and insecure in terms of fair trails due to alleged (political) influences and therefore ineffective. To play relevant role in process of reconciliation, international justice mechanisms and

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instrument have to show that that their legitimacy is exculpatory and that they possess consistency without any trade-offs. In such a way, international justice mechanisms and instruments provide and safeguard decisions that are sensitive towards all sides and acceptable for the most part of clashed societies. But to generate and materialize more efficient impact in clashed societies, it seems that international elements related to international justice mechanisms and instruments processes need to be incorporated in domestic justice mechanisms and instruments processes. Prime examples for this are mixed or hybrid courts. To be able to acquire and withhold leverage, international justice mechanisms and instruments need to be used as accelerators in reconciliation process within clashed societies and facilitate peace building and peace-keeping in post-violence period. References Agreement between the UN and the Royal Government of Cambodia concerning the

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