International intervention, justice and national reconciliation: the role of the ICTY and ICTR in Bosnia and Rwanda

Abstract

International criminal trials have re-emerged as part of the international diplomacy of intervention in the relationship between states and their populations after widespread atrocities. The establishment of these criminal tribunals represents an attempt to apply human rights law in two situations where states have failed to protect their citizens from extreme violence and atrocity and the successor state has had neither the capacity nor the will to fulfil its obligations to investigate and prosecute gross human rights abuse. The various national crises and state atrocities that occurred during the 1980s and 1990s confronted international legal and political institutions with the problem of how best to intervene to stop human rights abuses and reintroduce the rule of law. These international criminal tribunals have sought to undertake what national courts could not and to provide the institutional groundwork for the establishment of a permanent International Criminal Court (ICC). The International Criminal Tribunal on the Former Yugoslavia (ICTY) and the Inter-national Criminal Tribunal on Rwanda (ICTR) were established with the purpose of bringing justice to the victims of mass atrocity that had resulted from the catastrophic failure of their national states to protect them and the likelihood that those states would not prosecute the perpetrators through national trials. In both cases the atrocities involved acts of genocide. In the former Yugoslavia this was referred to as 'ethnic cleansing'. The establishment of the ICTY and ICTR was part of diplomatic and military intervention in Bosnia and Rwanda respectively to prevent the atrocities continuing, to contain their effects from spilling over into neighbouring countries, to challenge legal impunity through the prosecution of those most responsible, to restore the authority of law and to help promote national reconciliation. The ICTY and ICTR were established in The Hague and Arusha (Tanzania) by UN Security Council Resolutions because these 'crimes against humanity' and 'war crimes' were seen to be a 'threat to international peace and security'. 1 They were created with the specific purpose of prosecuting 'crimes against humanity' and 'war crimes' that had occurred during the wars in the former Yugoslavia and the breakdown of the Arusha (1992) peace accords in Rwanda. The inclusion of the Nuremberg concept of 'crimes against humanity' in the articles of both the ICTY and ICTR represented a significant extension of international humanitarian law in internal conflicts. 2 With the break-up of the former Yugoslav Federation the conflicts there became both internal and external whereas in Rwanda the war with the Tutsi-led RPF and the genocide against them took place within the state boundaries. However, even the Rwanda conflict is complicated by the fact that the RPF forces were exiles invading from Uganda. cJHR100091.fm Page 495 Monday, December 8, 2003 11:44 AM