Treacherous path from UN ad hoc tribunals to hybrid courts – I
Posted on October 28th, 2015

By Dr. Kamal Wickremasinghe Courtesy The Island

Examining the true intentions behind the US- UN imposition of the hybrid court mechanism to investigate the alleged war crimes by the Sri Lankan armed forces is an onerous task indeed. But, the task becomes a fair deal easier when viewed against the context that gave rise to the development of the UN hybrid court mechanism; essentially, the hybrid court system has its origins in the UN infrastructure put in place by the US neocons in the 1990s, during their hectic campaign to become masters of the unipolar world they anticipated following the dissolution of the Soviet Union.

The purpose here is to traverse the path that led to the UN hybrid courts, together with a look into some of the crevices in the rationale for such mechanisms.

The neocon scheme to gain global supremacy was based on a suit of measures aimed at the weakening of nation states as the world new them, and attacks on the almost sacred concept national sovereignty: their efforts were aimed at relegating national governments to the state of useless appendages of poor societies by systematically denigrating the duly elected national governments, especially those led by strong developing country leaders. In parallel, they engaged in promoting the role of the so-called NGOs by lavishly financing a global network of employees operating under different guises.

The appointment of the Ghanaian diplomat, Kofi Annan, who had strong political and marital connections to the international neocon community as UN Secretary General (1997-2007) was a key measure that helped oversee the transition of UN’s institutional infrastructure to serve the neocon agenda.

Like with all such movements throughout history, the push was accompanied by ideological substructures, cynically emotive in this particular instance: the neocons chose to place heavy emphasis on ‘universal human rights protection’, beginning with the creative reinterpretation of the UN Charter as forestalling “peace through justice”. Then came the next logical step of establishing a draconian human rights enforcement mechanisms composed of international tribunals with powers to punish “individual criminal responsibility” couched in clearly disingenuous concerns about the need to “bring justice for victims”.

Kofi Annan set the tone for this “brave new world” when he proclaimed, in his 1999 Annual Report to the UN General Assembly, that “the core challenge to the United Nations Security Council in the next century will be to forge unity behind the principle that massive and systematic violations of human rights must be punished, wherever they may take place”.

This new ideology conveniently ignored the centuries-old definition of international law as the law governing “relations between sovereign states” and that international law did not provide for the prosecution of “individuals”, no matter how horrendous the alleged crimes – a concern expressed by such honourable German anti-Nazi activists of the calibre of Bishop von Galen, who questioned the jurisdiction of the Nuremberg and Tokyo trials of the Nazis on that basis.

A shady INGO collective financed by the neocon hedge fund billionaire George Soros (the International Crisis Group, Human Rights Watch and The Open Society Justice Initiative) propelled the neocon moves. Their strategy seemed to be to focus media and political attention in North America and Europe on selected theatres of domestic unrest, invariably in poor countries, to highlight alleged “human rights abuses” and to clamour for Western government intervention through the UN to penalise the governments fighting to maintain their national and territorial integrity.

The necessary infrastructure was put in place to enforce a reinvigorated UN Human Rights regime through a new mechanism named “Special Procedures of the Human Rights Council” that involved engaging “independent human rights experts” – largely derived from among global NGO vassals- with mandates to report and advise on human rights along “thematic” and country-specific lines. The reformed Human Rights Council enforced the mechanism by emphasising the obligation of States to cooperate with the Special Procedures and vouched for its integrity and independence. (Currently there are 41 thematic and 14 country mandates operational).

The judiciary that formed part of the new regime consisted of ad hoc tribunals established as subsidiary organs of the UN, with specific territorial and temporal jurisdictions. The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), established in 1993 and 1995 respectively, were the first of this kind. The ICTY was asked to prosecute crimes committed on the territory of the former Yugoslavia since 1991 and ICTR the crimes committed in the territory of Rwanda and neighbouring States between 1 January 1994 and 31 December 1994.

Nearly a decade of operation of these two ad hoc Tribunals gave enough reasons for Russia and China at the United Nations Security Council (UNSC) to question the motives behind the establishment and utility of these tribunals. This decline of support at the UNSC led to the adoption of a “completion strategy”for the tribunals by 2010,irrespective of whether they had fulfilled their mandates. Both ICTR and ICTY wound up operations by 31 December 2014, transferring any unfinished work to a newly created UN structure named “International Residual Mechanism for Criminal Tribunals”.

The failure of the ad hoc tribunals, however, did not deter the neocon’s plans to use charges of war crimes and crimes against humanity etc as a tool of gaining control over the developing world under the pretext of pursuing “justice”. The International Criminal Court (ICC)had been founded for this “worthy” objective, in 2002, under the “Rome Statute”negotiated at a global conference.

After a decade of operations, the ICC also became untenable due to a number of factors including the serious undermining by the US administration of George W. Bush, who panicked that their crimes in Iraq and Afghanistan might be investigated. But it was the resistance of the African Union (AU) against the pursuit of African countries exclusively (Uganda, Mali, Ivory Coast, the Central African Republic, and the Democratic Republic of Congo)by the ICC that sealed its fate. The name of the chief prosecutor of the ICC for the first nine years – Luis Moreno-Ocampo of Argentina – who seemed to take delight in issuing arrest warrants against African leaders, without solid evidence,became a dirty word throughout Africa.

The AU had always held the view that the true intention of this new push for transnational criminal justice under universal jurisdiction was an instrument of neo-colonialists. As the Kenyan President Uhuru Kenyatta put it, the ICC “stopped being the home of justice the day it became the toy of declining imperial powers.” In retaliation, the AU adopted a policy of non-enforcing ICC arrest warrants by its member countries. By late 2014, lack of progress on the planned genocide case against the Sudanese President Hassan Ahmad Al Bashir and the dropping of charges against President Kenyatta marked huge setbacks for the authority of the ICC.

Any remaining doubts about the insincerity of the Tribunal and ICC project were removed by their inaction on several well documented cases of war crimes outside Africa: these include the 1999 NATO bombing of the Federal Republic of Yugoslavia, without the approval of the UNSC, during which over 2000 civilians including 88 children were killed, and thousands more injured. The former Prosecutor of the ICTY, Louise Arbour of Canada – a vocal critic of Sri Lanka – decided against a criminal investigation into any aspect of NATO’s 1999 air campaign, on the advice of prosecutor Carla Del Ponte.

Equally flabbergasting was the ICC’s reticence regarding the widely publicised US war crimes in Afghanistan, a signatory to the Rome Statute since 2003. While reports of estimates of more than 10,000 civilian killings since 2011 and widespread human rights abuses by the US and NATO forces in Afghanistan kept accumulating, the ICC failed to initiate a proper investigation; It was only after Ms Fatou Bensouda of Gambia assumed duties as the ICC’s prosecutor in 2012 that a report on Afghanistan finally saw the light of day, in December 2014. The prosecutor’s statement on US detainee abuse was the first explicit ICC reference to possible war crimes by US nationals. However, the report determined that there was no evidence of “intentional” harm to civilians through US airstrikes.

The so-called “hybrid” courts were born out of the neo-colonialists’ plans to use the UNSC to devise other “international criminal justice mechanisms”following the failure of attempts to impose “totally foreign” mechanisms on the developing world: The hybrid courts model anticipates “grafting on” varying degrees of international involvement on to national judicial systems; They are an attempt to sidestep the odiousness of purely international courts such as the ICTY, ICTR and the ICC. The cynicism of the most fervent proponents of the hybrid model, like Laura A. Dickinson of the University of Connecticut Law School, revealed itself with the remark in one of her academic papers that hybrid courts would be better at”norm penetration”- the penetration of acceptance barriers to international norms in traditional societies.

A comparison of the establishment histories of the ad hoc tribunals, the ICC and the hybrid courts show a clear evolution during which the developing country resistance to UNSC imposition of external mechanisms have yielded positive results for the targeted countries: The ICTY and the ICTR were established unilaterally by the UNSC invoking Chapter 7 of the UN Charter (Action with respect to threats to the peace, breaches of the peace, and acts of aggression), setting parameters for the tribunals’ jurisdiction, retaining powers to refer cases and secure compliance of targeted countries,and creating a pool of judges. The next form, the ICC, was established as a multilateral, treaty based, permanent court with the status of an independent international organisation separate from UN. The ICC was given prospective jurisdiction only, to deal with acts occurring after July 2001 without being confined by temporal or geographic jurisdictions.

(Part II will appear tomorrow)

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