"The first and more famous example of ad hoc International Criminal Court is the Nuremberg Trial, which was held between the 1945 and 1949, to prosecute some of the most relevant members of the Nazis leadership.
During the same period, between 1946 and 1948, a similar trial took place in Tokyo for the same reasons, prosecuting the Japanese Empire military and political leadership.
The International Court was created by United States, Great Britain and Soviet Union the countries who were victorious after World War II and had the purpose of punishing crimes against peace, crimes against humanity, genocide and more generally war crimes.
Similar examples of those International Courts took place also in more recent years.
In 1993 ICTY was created after the war in Yugoslavia, with the 827 Resolution of the UN Security Council.
The trial can try only individuals and not governments for committing crimes against humanity, crimes of war and genocide; among the others also Serbian leader Slobodan Milosevic was prosecuted.
The maximum sentence imposable by this Tribunal is life imprisonment.
In 1994 ICTR was created in Rwanda after the 100 days of genocide which started on April 6 1994.
The tribunal was created by UN Security Council through Resolutions number 955, 978, 1165 and prosecutes the commission of genocide crimes and various violations of international law, committed in Rwanda territory or by Rwanda citizens in nearby territories.
What all those International Courts have in common is that they are ad hoc tribunals.
That means that they are not permanent tribunals and that their jurisdiction is limited to the issues for which they were created after the commission of certain crimes.
It is clear that those Courts are a very useful instrument to prosecute crimes that can’t be prosecuted by the Nations involved themselves; that’s as true in the case of Rwanda and Yugoslavia as in the case of World War II, were more Nations were involved.
An International Court is the only way to build up an immediate trial, held by Judges not directly involved in the issues discussed.
We can see how this happens in the ITCY and ITCR, were judges come from USA, Europe, Africa and Australia; this should guarantee a fair process by legally competent individuals.
Someone can argue that those tribunals violate the principle according to which a court and the judge must be identified before the crime is being committed, and that’s a fact, it’s undeniable.
But the point here is not saying that is right to have ad hoc tribunals generally speaking.
The point here is if it’s possible in some exceptional circumstances to behave in exceptional ways…also regarding trials procedures.
We can do doctrinal and moral evaluations of what we think it’s right and what we think should be done, but when we talk about real and extremely difficult problems we have to understand which solutions a real problem may require.
For example regarding the Nuremberg Trials someone may argue that since the judges were appointed by the victors, the Tribunal could not be regarded as a court in the true sense; someone also argued that those judges were politically motivated and consequently not impartial.
Now just think at this example written by Oxford professor A.L. Goodhart.
If a spy is captured in a foreign country, he obviously will be processed by that country’s tribunal. That’s normal.
None has anything to argue about it.
So why? Why none asks for a neutral judge for his trial?
The reality is that we can’t have neutral judges.
If a thief is under trial how can the judge (if he’s an honest person) be “neutral”?
What everyone has the right to demand and expect is that the judges shall be fair, not that they shall be neutral.
If you have French and Americans and Russians judges in a Rwanda trial, you can suppose they are neutral but you can’t say that just because they are from different countries or at least you can’t say it without a reasonable doubt.
Everyone has a political vision of things.
Judges must be fair not neutral.
Having said that, in Nuremberg, Yugoslavia and Rwanda cases, we have to consider we are talking about extremely horrifying and unexpected situations.
We are talking about genocide, people killed without a reason except by their race or religion.
We are talking about dictators, war crimes of aggression and invasion of nearby countries.
Can someone be impartial about this?
Can someone see this things without having a deep feeling of horror and sadness?
Should we just look at the “written” aspect of law, to written principles…or should we balance this principles with this horrifying reality and find an appropriate solution?
The reality is that International Courts ad hoc like Nuremberg were necessary at the time, for a proper and immediate prosecution of the accused.
The reality is that almost every law has some exceptions, and most of the laws are modified following the changes of this world we live in.
The reality is that, by the way, those ad hoc tribunals like Nuremberg were a great help for the consequent creations of documents like the Geneva Convention or the Universal Declaration of Human Rights.
They were also important for the starting works to create the permanent International Criminal Court which was born in 2002.
We can not say that ad hoc tribunals are a model to adopt every time and everywhere but we can neither say that they are not useful and appropriate under certain circumstances.
The laws are written on papers, but before they were written they came from people minds and hearts.
When you talk about genocide, and crimes against humanity, papers matter but reason and heart should matter as well."
Ieri sera ho letto questo articolo di un mio caro amico, invogliata dalla sua richiesta di un parere. Mi ha spiazzato, in quanto incalzante e logico, al di là dell'inglese perfetto che tu, Matteo, hai come dono. Lo posto di mia iniziativa perchè meritevole di essere letto, anche più volte, e stimolante riflessioni non "da tutti i giorni". Bravo Atos!!!
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