December 13, 2017

The MICT and the Future of International Criminal Justice

By Judge Theodor Meron, President of the Mechanism for International Criminal Tribunals.

The Mechanism for International Criminal Tribunals is an institution that finds itself, in many ways, at a critical juncture in the evolution of international criminal justice.

As the successor to the first international criminal courts of the modern era—the International Criminal Tribunals for Rwanda and for the former Yugoslavia—the Mechanism is responsible for carrying out key residual functions inherited from its predecessors, such as the protection of vulnerable witnesses and the enforcement of sentences of those convicted by the ICTR or the ICTY. It is, in many ways, the guardian of the important legacies of these two pioneering Tribunals in Arusha and The Hague, and the embodiment of the international community’s abiding commitment to accountability and the rule of law, a commitment reflected in the establishment of the ICTR and the ICTY nearly a quarter century ago.

At the same time, the Mechanism is an active court in its own right, with two major appeal cases currently pending, a trial about to commence, and on-going proceedings related to requests for review and other relief. It must find a harmonized, one-institution approach to its operations spanning two continents, an approach that draws in an equitable manner on the traditions and practices of its predecessors while remaining capable of addressing the variable operational needs and constraints at its branches in Africa and Europe.

And it is very much at the vanguard of a new generation of institutions and initiatives aimed at harnessing innovations and identifying best practices with the goal of making international criminal justice more efficient, more cost-effective, and thereby more sustainable in the long-term. Indeed, thanks to the direction given to it by the UN Security Council to be small and efficient, the Mechanism is, in many ways, bound to question existing orthodoxies as to how international criminal courts can and should carry out their work and to seek out new, improved ways of accomplishing its work—so long as it does so without jeopardizing respect for the principle of normative continuity or the rights of those individuals for whom and to whom it is responsible.

The Mechanism’s Statute, for instance, provides for Judges to serve on a roster, to work only when needed and to carry out their functions remotely from their homes and offices in countries around the world unless they are called to one of the seats of the Mechanism’s branches. The Statute also provides for Judges to be paid by days of work (as is the case for the Judges ad hoc of the International Court of Justice), expands the competence of single Judges, and provides for certain matters to be addressed by three-Judge appeal panels. All of this reflects a new approach as compared to the ICTR and the ICTY—and is but one of myriad ways in which the Mechanism, as a matter of institutional design and through evolving practice, exemplifies an effort to address a chorus of criticisms of international criminal justice that has grown in recent years.

The rising tide of these criticisms—criticisms of the cost of international criminal courts’ operations and of the duration and selective nature of their proceedings—raises serious concerns with which all of us who care about this still developing field must grapple. Indeed, if such criticisms are left unaddressed, we risk seeing the important advances made in the fight to end impunity over the past twenty-five years fall away. As a result, it is imperative that our approach to ensuring accountability for violations of international law continue to evolve, that we encourage creative thinking and learn from past mistakes, and that we share these lessons broadly so as to maximize their benefit.

But there is only so much that international courts like the Mechanism can achieve on their own. Our success—as an institution and as a model for a new kind of international court—depends to a great extent on the support of States. Such support can take many forms: sharing ideas and suggestions for innovation; collaborating on and supporting information-sharing activities; providing vital services as a Host State; ensuring the protection of witnesses; enforcing sentences of convicted individuals; cooperating with court orders; facilitating the relocation of individuals who were acquitted or released following service of sentence; and contributing to the on-going efforts to arrest the eight remaining fugitives indicted by the ICTR, three of whom are expected to be tried by the Mechanism.

The support and cooperation of States are all the more vital given the unique structure of the Mechanism, with its operations spanning two continents and its Judges working from countries around the world, as demonstrated by the deeply troubling situation involving Mechanism Judge Aydin Sefa Akay of Turkey. The arrest of Judge Akay in Turkey in September 2016, and his continued detention there notwithstanding the formal assertion of his diplomatic immunity by the United Nations and a judicial order directing his release, has serious implications not just for the Judge himself and for the Mechanism case to which he was assigned at the time of his arrest, but also for the Mechanism’s ability to carry out its core judicial functions in accordance with the remote-judging model established by the Security Council.

Moreover, for all that the Mechanism can and will achieve as it moves forward, it inevitably will remain just one small piece of a much larger puzzle. Alone, it can never address the deeply destructive problem of the selective application of the law. The only way for the fight to end impunity for international crimes to succeed in the long term, and for the problem of selectivity—which is anathema to the rule of law—to be addressed, is for States to take action: to strengthen their own capacity to try cases involving international crimes; to contribute to the strengthening of that capacity in other States; to resist political manoeuvring aimed at shielding selected individuals from accountability; and to explore all possible avenues to ensure accountability, such as through regional courts. By taking such steps now, at this critical moment in the evolution of international justice, States will benefit from the momentum developed in the past twenty-five years in The Hague and elsewhere—and, together with the Mechanism, they will help to ensure that the ground-breaking advances made in accountability over the course of the last quarter century will benefit generations to come.

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The author: Judge and past President of the United Nations International Criminal Tribunal for the former Yugoslavia; former Judge of the United Nations International Criminal Tribunal for Rwanda; Charles L. Denison Professor Emeritus and Judicial Fellow, New York University School of Law; Visiting Professor, University of Oxford, since 2014.

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