3. Ad hoc Courts and Hybrid Tribunals in the Post-Cold War Era

This is a translation of a lecture I gave at the Collège de France on 12 June 2019 as part of a series entitled The History and Future of International Criminal Justice. A video of the French-language original of this lecture is available online here.


A. Introduction

Members of the Collège de France, distinguished guests, ladies and gentlemen. Welcome to the third and penultimate lecture on the history of international criminal law.

Before now, we have considered the role of international criminal justice after the First and Second World Wars. Today we focus on the next major iteration of the field, following the end of the next major world war, the Cold War. In particular, I will today discuss just two tribunals that developed after the fall of the Berlin Wall, namely, the United Nations International Criminal Tribunals for Rwanda and that for the former Yugoslavia. I will place particular emphasis on the former, because without my period working for it, I would not be speaking French. In fact, I would not be here at all. 

For those who have not followed the previous lectures, I began them with three theses about this field. I will repeat these theses in more detail in the final lecture next week, but in brief, they were that shifts in international criminal follow major world wars, that each iteration is a response to perceived shortcomings of the former, and that all are encapsulated by a tension between morality and politics. 

As I have done in my previous lectures, I here use six themes to explore the history of ad hoc tribunals in general and the Rwanda Tribunal in particular. Notably, a narrative about the trials, the purposes of the processes, the political dimensions behind the trials, the alternatives to criminal prosecutions, the law, and the consequences of these prosecutions. 

There is, however, one major difference between our previous histories and the ones I recount today. Whereas our previous lectures were based on purely scholarly learning, this history is also informed by personal experience. I worked for both these United Nations War Crimes Tribunals for a number of years almost two decades ago as a young lawyer. That fact is relevant because part of this lecture is about bearing witness to what I have observed, some of which was unspeakable. Moreover, as I mention we would certainly not be here today but for these experiences.

B. Narrative Overview of Ad Hoc Tribunals

Let me begin then with a narrative about the trials. Here I will go into slightly more detail than in previous lectures, because I want to connect this stage of international criminal justice’s history to our previous lectures and to set the scene for our next discussion about the permanent International Criminal Court. I will talk to you about the Cold War, introduce the ad hoc tribunals, discuss their overlap with other courts and tribunals, and share a personal story as an illustration.

First, these ad hoc Tribunals were created by the United Nations Security Council at the end of the Cold War. The term Cold War is, of course, a misnomer. As David Kennedy has remarked, the Cold War was only cold for people in a small percentage of countries. For the vast majority, the Cold War was very hot as superpowers sponsored various armed groups throughout the world based on their ideological commitments, not their respect for basic human rights. There were no shortage of atrocities that would constitute international crimes over this period. Korea, Algeria, Vietnam, Bangladesh, Cambodia, East Timor, Uganda, Angola, the list goes on.

There is something of a myth that nothing happened for international criminal law during the Cold War. The myth is that between Tokyo in 1946 and the Yugoslav Tribunal in 1993, international criminal justice was stagnant. The myth is based on the view that superpower politics created a stalemate for the field. This  meant that the bold but inevitable idea of international criminal justice would have to wait nearly a half century to be implemented after the fall of the Berlin Wall. As historian Joseph Perisco argued: 

“After a hiatus of nearly half a century, Nuremberg is again on people’s lips. After over one hundred wars, insurrections, civil conflicts, and revolutions that have racked the world over the past forty-five years and claimed more than 21 million lives, after hardly a breath of outrage over atrocities committed in the name of ideology, liberation, independence, and religion, people at last have begun to cry our for justice that can penetrate national borders, for a Nuremberg-style prosecution of war criminals.”[1] 

This view is an important reflection of a public perception that would see international criminal trials proliferate like never before after the Cold War, akin to after the Second World War. As the author Kathryn Sikkink has explained, after the Cold War, there was a veritable “Justice Cascade,” where the so-called Nuremberg idea spread like contagion throughout the world.[2] The idea had caught on, and advocates were now motivated to correct its shortcomings at Nuremberg.  

However, there were important inaccuracies in the idea Perisco and so many others entertained about the Cold War period. First, as we have seen in earlier lectures, the idea of international criminal justice pre-dated Nuremberg by at least several decades. The export of the “Nuremberg model” would focus on only one aspect of a much larger history, that included Leipzig, Tokyo, and many other forms. 

Second, there were also important trials during the Cold War. For example, Israeli operatives abducted Adolf Eichman from Argentina and brought him to Israel where he stood trial in 1961.[3] In addition, the Frankfurt Auschwitz trials held in West Germany between 1963 and 1965 were also hugely important.[4] Together, these trials exposed the Holocaust, something the Nuremberg Judgement had not emphasized in its focus on aggressive war. In fact, as we will see later in this lecture, these trials helped genocide overtake aggression as the “crime of crimes” in our imaginations. 

Third, Perisco’s statement assumed that international criminal justice was an inevitability waiting to happen. Once Nuremberg had occurred, it was just a matter of time before we perfected its deficiencies and transformed the global order. While that thinking certainly motivated the rise of international criminal law after the Cold War, it unhelpfully assumed that these trials could transcend the tension between morality and politics that has and always will characterise this field in the world as presently constituted. 

As part of this longer narrative introduction, I also want to talk to you about how the two ad hoc Tribunals were established in 1993 and 1994 respectively. The Leipzig trials took place in local German courts, based on legislation that allowed for international crimes within German criminal law. By contrast, the Nuremberg and Tokyo Tribunals were established by treaties then forced upon a vanquished enemy. It is a major distinction that the ad hoc international criminal tribunals were established by the United Nations Security Council, under Chapter VII of the United Nations Charter. 

I will not enter into the technicalities of the United Nations Charter, except to emphasize the very new and creative interpretation of it required to create these international tribunals. Chapter VII of the Charter gave the Security Council power over any “threat to the peace, breach of the peace, or act of aggression.” Once the Security Council is satisfied that one of these criteria is met, Article 41 allows it to take measures not involving the use of armed force in response. Nowhere is it mentioned that the Security Council can create courts, that these courts would be hierarchically superior to local courts, or that States would have to comply with all of the decisions of these courts as if they emanated from the Security Council itself. All of these things were major leaps. 

As part of this narrative overview, I also want to emphasize the network of overlapping courts that would start prosecuting these crimes. At all stages in the history of international criminal justice, international courts have overlapped with national courts. The proposed trial of the Kaiser overlapped with national trials in Germany, France and Belgium. The Nuremberg trials overlapped with national trials in Israel, Poland, Canada, Germany and beyond. In fact, former Nazi guards are still being tried today in Germany in their nineties.[5] There is often a mosaic of courts, national and international, that are able to hear these cases, creating an important degree of complexity. 

I have a personal story which I hope makes these points clear. In the year 2000, I spent time in Rwanda investigating allegations of genocide. Together with other members of a prosecutorial team, I met with several perpetrators within a Rwandan prison, before they testified in our case. At the end of one day, we came to our last interviewee. It was easy to develop empathy for him. He lived in a prison system that was so overcrowded that 80 people occupied a cell built for 6. Epidemics were common. The prisoners rotated the ability to sit down. Food was provided by the International Committee of the Red Cross, not the prison itself. As he was speaking with us, he was given a piece of bread. He was so hungry, he ate it like a wolf. He was also very brave, since there could well be violent recriminations against him for speaking to us, and his evidence was very helpful to our case. At the end of the interview, we clarified what he was in prison for, and he responded that he’d killed 200 people with a machete. Working in international criminal law involves so many jarring experiences like this. 

One of these jarring incongruities was legal. At the time, he faced the death penalty in Rwanda after a very brief legal procedure. And yet, he was only following orders of superiors who were most responsible for devising this genocidal plan, and he would probably have been killed himself if he refused to participate. Even though they were more responsible, the superiors who gave these orders were living very comfortable lives within a spacious United Nations detention facility in Tanzania, enjoying AIDS retrovirals at enormous expense, and eating good food. Apparently, there was one motion before the Rwandan Tribunal, although I have never located it, complaining that the croissants in detention were too rich. Defendants at the Rwanda Tribunal were not subject to the death penalty, and they enjoyed much longer trials. 

In fact, the cases at the Rwanda Tribunal took an exceptionally long time. When I arrived at the Tribunal in 2000, one of the accused in the case I worked on, Joseph Kanyabashi, had been in prison for 6 years before the trial started. Seven years later in 2007, when I was working on appellate cases for the prosecutor of the Yugoslav Tribunal in The Hague, I returned to the Rwanda Tribunal in Tanzania for a joint training program. The first thing I saw as I walked into the building was Kanyabashi still in court with his lawyers. Thirteen years is an unacceptably long period of time to be in prison while charged against you are adjudicated. 

By contrast, several cases against Rwandan genocidaire were held in Belgium pursuant to a notion of universal jurisdiction.[6] This form of jurisdiction gives courts the power to hear cases that took place overseas, even when neither the perpetrator nor the victims were citizens of the state carrying out the prosecutions. By contrast, these cases against Rwandan defendants able to flee Africa took significantly less time and involved far greater human rights protections. I hope this illustrates the network of courts that might hear these charges after the Cold War, there differences between them, and how they might affect perceptions of justice.  

Many years ago, I took a course from one of the leading Belgian prosecutors involved in prosecuting these trials. Clearly affected by some of the impossible dilemmas people faced in deciding whether to risk their lives and those of their families to resist participation in the Rwandan genocide, this normally quiet man would occasionally shout very loud “what would you do in the same situation.” Another way of asking that question is, how often do you stand up for what’s obviously humane when everyone else is against you? Friedrich Nietzsche was only partially right. If you stare into the darkness, it not only stares back, it also demands a response.
 

C. The Purposes of Ad Hoc Tribunals

After this long overview, I move to the second of my themes, the purposes of these ad hoc tribunals. No doubt, these tribunals were also inspired by many of the purposes we have discussed in previous lectures about international criminal justice after the first and second world wars. In all likelihood, people were partly motivated by retribution based on moral indignation, by a desire to deter future atrocities, and by the notion of regime change after state-sponsored violence. I will mention one recurrent purpose we have witnessed throughout these lectures and point to an altogether new one. 

First, as we saw in all of the previous lectures moral absurdity is a consistently used argument for pushing against impunity. This was true after both world wars, where advocates argued that it would be perverse for the Kaiser to escape justice because he sent millions of men to commit a crime he’d be arrested for immediately if he had done it himself, and when Robert Jackson talked about little criminals being prosecuted while big ones got away. In the Cold War period, there was an equivalent that I call the Geneva Absurdity. It involves the following series of questions: if you kill a single person, you’re tried for murder; if you kill ten people you’re tried for murder and in many countries subject to the death penalty; but if you kill 10,000 people you’re invited to Geneva for peace talks. The advocates of international criminal justice sought to undermine that moral absurdity after the Cold War.  

Nevertheless, a new, significant and ambitious new purpose emerged with this iteration of international criminal law: reconciliation. When the ICTR was established in 1994, the United Security Council explicitly indicated that the Tribunal would “contribute to the process of national reconciliation and to the restoration and maintenance of peace.” This change is very significant historically, because it reflects a shift in emphasis born of a change in the constitutional structure of international criminal law.  

First, notice how this purpose was not mentioned beforehand. After both the first and second world wars, there was little need for international criminal justice to promote reconciliation in a neutral, explicit way. If there was to be a reconciliation, it would be on the victors’ terms. But by employing the United Nations to establish ad hoc tribunals this time as an apparently neutral party, international criminal justice could boldly seek to use international criminal justice as a means for overcoming longstanding inter-ethnic rivalries and hatred between two warring factions. 

Historically speaking, this aspiration was highly innovative, and more than a little ambitious. What would it take for you to make peace with someone who had tortured your loved ones to death? Here the question was not how courageous you would be within a genocide, it was how forgiving you are after one.  

Second, the idea behind reconciliation had arguments for and against it. On the one hand, these tribunals promised that by focusing on the responsibility of individuals for mass violence, it precluded racialized generalizations. This aspect of the Rwandan genocide resulted from the actions of individuals like Joseph Kanybashi. It is therefore his responsibility, not the Hutu group. Here, the aspiration was to break down stereotypes, treating individuals as such. On the other hand, critics would argue that this missed group responsibility entirely, which was the major causal factor in the violence. In addition, this individualized approach effectively exonerated an enormous number of people who had played an important role without ever being prosecuted. 

Whatever one’s feelings about reconciliation, it is vital to recognise its emergence here and how it is made possible from the putatively neutral role the United Nations played here.
  

D. Political Implications of these Trials

This brings us to my third theme, the political considerations with these trials. I want to make three main points here. 

First, the establishment of these ad hoc tribunals was meant to cure some of the problems with the Nuremberg Trials. This was equally true of the ICTR.  The US Secretary of State, Madeline Albright, was reported as saying:  

“’The Nuremberg principles have been reaffirmed,” however  “This will be no victors’ tribunal. The only victor that will prevail in this endeavour is the truth.” [7]

Yet, although the ad hoc tribunals was not formally victor’s justice, it still involved imposition without consent. By chance, Rwanda was a member of the Security Council at the time the Tribunal was established. Rwanda voted against its creation. So even if the tribunal was not formally victor’s justice because the United Nations was never a party to the war, the Tribunal was not freely agreed to either, creating a problem the permanent International Criminal Court would attempt to cure.  

Second, there is literature suggesting that, in the end, the ICTR did amount to a form of victor’s justice in practice. The journalist Thierry Cruvellier, who followed the Rwandan Tribunal very closely, concluded that the Rwandan government was able to control the Tribunal quite effectively by threatening to discontinue co-operation with it, either by not allowing witnesses to travel to neighbouring Tanzania to give evidence or by refusing to grant UN investigators security in Rwanda.[8] As Victor Peskin concluded in his excellent study of these courts:

“The international war crimes tribunals that emerged in the early 1990 s sought to distance themselves from the first generation of tribunals established by the victorious Allied powers at Nuremberg and Tokyo nearly half a century earlier… [i]n reality, the ICTY and the ICTR have found themselves dependent on these targeted states to follow through on this obligation to provide cooperation.”[9]

According to Cruvellier, this dynamic influenced concrete cases and precluded the investigation of atrocities allegedly committed by Tutsi during the genocide because they implicated personnel then in government. If true, this makes the Rwandan Tribunal similar to Nuremberg; both Tribunals were instrumental in prosecuting the worst offenders, but other important responsibility went unaddressed because of the way politics interfaced with morality. 

Third, the Rwanda Tribunal did not resolve the political equality problem that was so clear at Leipzig, Nuremberg and Tokyo. My own experience made this very clear to me. When I was investigating genocide in Rwanda in 2000, there were massacres of a similar amplitude taking place less than one hundred kilometres away in neighbour Democratic Republic of the Congo. In may respects, these atrocities were a direct continuation of the Rwandan genocide, just transposed across the border. And yet the same deliberate blindness and moral indifference that had tolerated the Rwandan genocide was again on full display in the Congo. At the time, having worked so closely with perpetrators of genocide and their victims, this inconsistency was not a political anomaly I could process in the abstract, it was a personal problem.
 

E. Alternatives to Prosecutions

This brings us to the fourth theme I hoped to discuss, that is alternatives to prosecution. Here, there were two particular alternatives that were both new. 

First, the Rwandan Tribunal always existed in the shadow of the international community’s decision not to militarily stop the genocide. As is well known, US appetite for humanitarian intervention was very low after the bodies of American soldiers were dragged through the streets of Mogadishu soon beforehand. Internally, the United States would use the “G” word so as not to trigger obligations to prevent that are contained in the Genocide Convention. After the United Nations substantially reduced its troops present during the genocide, Canadian General Romeo Dallaire said “no government had ever betrayed its soldiers like the United Nations did us.” And the New Zealand chairman of the United Nations Security Council at the time described the Council’s decision not to militarily intervene “like asking the Jews to reach a ceasefire with Hitler.”

The Rwanda Tribunal was created out of a sense of remorse for this inaction. That same guilt lead to the famous Responsibility to Protect doctrine, which sought to establish bases to militarily intervene in countries where the Security Council would not do so, in order to prevent human catastrophes like Rwanda. At yet, even those very sympathetic to the cause are very concerned that Responsibility to Protect risks becoming a trojan horse for aggression. As Christine Gray highlights, many if not all of the uses of force since 1945 have been publicly justified, at least in part, on humanitarian grounds.[10] If we make an exception for humanitarian intervention, we might just be permitting more war. Nonetheless, earlier military intervention was a primary alternative to post-hoc prosecutions, which many thought were too little too late. 

Second, a truth and reconciliation commission modeled on the South African experience emerged as another clear alternative to prosecutions after the Rwandan genocide. Many argued that criminal law is intended to address deviant behaviour in a society, not responsibility for wrongdoing that is widespread amongst a majority of a society. Given the demands of international trials, in terms of both time and money, faster more collective processes were a distinct possibility. A truth and reconciliation commission was an obvious option. In the end, Rwanda developed an internal process based on truth-telling called Gacaca along these lines, although this came with its own complexities and created another tier in a complex justice mosaic.[11]

F. The Law at Ad Hoc Tribunals

This brings us to the fifth theme I will discuss today, the law. Here, the ad hoc tribunals had some commonality with earlier manifestations as well as some points of difference. 

First, the problem of retroactive law did not go away at the ad hoc tribunals. In our previous lectures, we saw how this problem became a major political issue after WWI, where the United States and the Netherlands opposed an international tribunal to try the Kaiser because doing so would require applying retroactive law. At Nuremberg and Tokyo, these same states changed their position entirely, concluding that prospective law was merely one principle of justice to be weighed against others. At ad hoc tribunals these problems also presented themselves another time.

Formally, ad hoc tribunals disagreed with the Nuremberg reasoning, promising strict compliance with the prohibition on retroactive law. In practice, realities were  sometimes not so different. Ad hoc tribunals had to use definitions of international criminal law derived from customary international law, which is general practice of states that is accepted as law. 

The difficulty was that litigation raised a whole series of questions that had no precedent in the practice of states, placing these tribunals in a position similar to the Nuremberg and Tokyo Tribunals.  

Deciphering what the customary international law was governing, for example, the responsibility of a superior commander for crimes perpetrated by his subordinates, was exceptionally difficult. This problem would later lead to attempts to codify international criminal law in a binding treaty that states agree to in advance of these trials, which we will discuss in our next lecture when we come to the International Criminal Court. 

Even at the International Criminal Court, however, the long standing problem of retroactive law would not disappear entirely. 

Second, the crime of aggression curiously disappeared from international criminal law after the Cold War. It was literally left out of the statutes of the ad hoc tribunals.  As we saw in our previous lectures, attempts to try the Kaiser after the first world war and Nuremberg and Tokyo trials after the second world war where primarily concerned with responsibility for waging aggressive war.  Aggression was declared the worst evil, in large part because all of the suffering of war flowed from it.  

As Samuel Moyn has helpfully demonstrated, however, after the Cold War, international criminal law suddenly became less concerned about criminal responsibility for waging war and more concerned about genocide, crimes against humanity and war crimes within violent conflict.[12]  Moyn argues that this change marks an important and potentially worrying political shift in Western ideas. Perhaps the rise of international criminal justice since the Cold War overshadows pacifist thinking that predominated in previous eras. 

Third, the cases against businesspeople that featured so prominently after the Second World War have not reappeared before modern ad hoc tribunals. As we saw in our previous lecture, the concern that big business had instigated or facilitated Nazi expansionism led to a major interest in holding Nazi businesspeople responsible. The relative opening of international criminal justice to all actors within the former Yugoslavia and Rwanda over specified timeframes appears to have come at a cost. Businesspeople would not be the subject of investigation and prosecution, despite ample evidence of their role in facilitating atrocity. Although the law would allow for such cases, the ad hoc tribunals shied away from them, again showing how modern international criminal justice could be regressive relative to what came before.

G. Consequences of these Trials

Finally, we come to the sixth principal theme, the consequences of these trials. Again, I will attempt to be balanced, offering a limited set of positive consequences as well as a more critical perspective without being too speculative. 

First, the ICTR held a substantial number of individuals responsible for very serious crimes who would not have been held accountable but for this institution. When it finally closed its doors, the court had sentenced 61 individuals, acquitted 14, referred 10 to national jurisdictions for trial, referred 3 fugitives to a permanent oversight body, and withdrawn indictments against 2 individuals. If one believes in retribution based on moral indignation, which has always animated much of this field and most theorists of criminal responsibility, this record will provide some satisfaction.   

Second, together with the Yugoslav Tribunal, this court contributed to what the political scientist Kathryn Sikkink calls a “justice cascade.”[13] Suddenly, international courts and tribunals emerged in Sierra Leone, East Timor, Kosovo, Cambodia and beyond.  States also began prosecuting international crimes nationally, setting up war crimes units within their own prosecutorial services for these purposes.  

For example, Dutch prosecutors brought cases against their own businesspeople for international crimes in Iraq and Liberia, upsetting the victor’s justice model we have discussed throughout these lectures.[14]  Sikkink’s work suggests that these trials have positive effects for human rights within the regions they take place in. 

Third, in keeping with one of my theses, the perceived shortcomings of these ad hoc tribunals inspired a new variety of criminal institutions. While ad hoc tribunals were set up outside conflict zones to preserve their independence, their work was perceived as far too distant from local populations. In addition, ad hoc tribunals were not transferring skills to lawyers and judges in these countries, thereby missing an opportunity to build legal capacity and the rule of law. Hybrid courts in Sierra Leone, Cambodia, Kosovo and East Timor would emerge as half-international half-national institutions within local systems to address these concerns.

Fourth, the ad hoc tribunals gave rise to myriad other difficulties we have discussed: they were excessively costly in terms of both time and money, suggesting that resources might have been better spent elsewhere.  They were sometimes held ransom by threats of non co-operation, which had an impact on their functioning, credibility and legitimacy.  They were legally regressive in important respects, and there is little clear evidence that they ultimately contributed to reconciliation as promised.[15] In some instances, they provided a platform for radical leaders to galvanize support.

But perhaps, as Dianne Orentlicher’s important work suggests, their value in this regard should be measured in generations not years.[16]  As she shows, it was only after a young generation of Germans witnessed the Frankfurt Auschwitz trials in German in 1963 to 1965, which was modeled on the Nuremberg trials, that German contrition for the Holocaust finally emerged.[17]  If you have questions, I would be happy to answer them as best I can.


[1] Joseph E. Persico, Nuremberg: Infamy on Trial ix (1995).

[2] Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (1 ed. 2011).

[3] Hannah Arendt, Eichmann in Jerusalem: a report on the banality of evil (1992).

[4] Devin O. Pendas & Pendas Pendas Devin Owen, The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law (2006).

[5] Agence France-Presse, Former SS guard, 94, weeps at testimony of Holocaust survivors, The Guardian, November 6, 2018, https://www.theguardian.com/world/2018/nov/06/former-ss-guard-trial-holocaust-survivors-germany-stutthof (last visited Nov 30, 2019).

[6] Luc Reydams, Belgium’s First Application of Universal Jurisdiction: the Butare Four Case, 1 J. Int. Crim. Justice 428–436 (2003).

[7] Julia Preston, U.N. Security Council Establishes Yugoslav War Crimes Tribunal, Washington Post, February 23, 1993, https://www.washingtonpost.com/archive/politics/1993/02/23/un-security-council-establishes-yugoslav-war-crimes-tribunal/9e8e74d1-18e4-4998-bb53-f96466dbf4b3/ (last visited Nov 30, 2019).

[8] Thierry Cruvellier, Court of Remorse: Inside the International Criminal Tribunal for Rwanda (2010).

[9] Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation 235 (2008).

[10] Christine Gray, International Law and the Use of Force (3rd edition ed. 2008).

[11] Nicola Frances Palmer, Courts in Conflict: Interpreting the Layers of Justice in Post-genocide Rwanda (2015).

[12] Samuel Moyn, From Aggression to Atrocity: Rethinking the History of International Criminal Law (2016), https://papers.ssrn.com/abstract=2805952 (last visited Nov 30, 2019).

[13] Sikkink, supra note 2.

[14] See, for example, The Historical Importance of the Kouwenhoven Trial |, ,

The Historical Importance of the Kouwenhoven Trial
(last visited Nov 30, 2019).

[15] Janine Natalya Clark, International Trials and Reconciliation: Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia (2014).

[16] Diane Orentlicher, Some Kind of Justice: The ICTY’s Impact in Bosnia and Serbia 441–442 (2018).

[17] Id. at 441–442.