UN-based international criminal tribunals: how they mix and match.

• Author: Johnson, Larry D.

1. INTRODUCTION

   Myres McDougal was a great American lawyer, professor and conceptual engineer, building a bridge between private and public law and constructing the great New Haven school of legal theory based on "public order and values." He was distinctive, even among sociologically oriented colleagues in jurisprudence, in insisting on detailed attention to social and power processes. Although I never had the pleasure of studying under Professor McDougal (or "Mac" as he was known) I was among his many admirers. I am deeply honoured to have been asked by the University of Denver Sturm College of Law and my very good friend, Professor Ved Nanda to deliver this lecture in honour of Mac.

   This lecture is not intended to be on Mac's theories and jurisprudence, a task clearly beyond the time allowed and more to the point, beyond my own capabilities. Rather, I intend to discuss one aspect of international criminal law-the development of United Nations-based international criminal tribunals, to be exact. But before embarking on that, let me mention just a few phrases or concepts which I believe are found in Mac's approach. **

   For Mac, law was not a body of rules but was a process of making decisions about how values--power, wealth, enlightenment, skill, well-being, affection, respect and rectitude--are to be produced and distributed in a given community. The role of the lawyer, as advocate or decision-maker, was to influence the process in order to achieve the desired results. The goals of this process are those of a public order of human dignity. The concept of community needs to be viewed in a globally comprehensive and interdependent manner, with effective power processes incorporated. Law is conceived as processes of authoritative decision by which people clarify and implement their common interests, incorporating both authority and control. In the field of international law, goals should be postulated to guide decision-makers if community responses are to contribute to a public order of human dignity. Perhaps some of these phrases or elements may be instructive as we now proceed to the subject at hand.

   When examining United Nations (UN)-based international criminal tribunals, it is most important from the outset to note how recent this remarkable development has been. Fifteen years ago, no such tribunals existed. The establishment of such institutions has occurred rapidly and is one of the most exciting and hopeful reaffirmations that the progressive development of international law is very much alive and that the search for human dignity as been advanced. It would have been inconceivable just a few years ago that a tribunal of international judges--or mixed international/domestic judges--could by some action under international law (UN resolution or treaty) have the authority to prosecute individuals for crimes and sentence the guilty to imprisonment.

   I will not discuss the International Criminal Court (ICC), the tribunal established by universal multilateral treaty, nor the "Sarajevo War Crimes Chamber," a non-UN domestic court but with international judges. I will also not discuss war crimes prosecutions or courts established as part of a UN temporary administration of territory such as in East Timor and Kosovo. Rather, I will examine the international criminal tribunals established under UN auspices for the former Yugoslavia (1993), Rwanda (1994), Sierra Leone (2002), Cambodia (2003) and Lebanon (2007). Rather than taking them one by one, let us re-group under headings to highlight their similarities and differences: a) broad goals; b) legal basis; c) applicable law/jurisdiction; d) composition and location; e) financing; and f) effectiveness. This presentation, given time and length constraints, can only be somewhat superficial and deal with matters in a "broad stroke" manner.

2. BROAD GOALS

   In terms of broad goals, here all the tribunals share the same community values and goals: accountability for heinous crimes, no impunity for those who commit them and, hopefully, through that process contribute to peace and reconciliation in the community concerned.

3. LEGAL BASIS

   It is on the legal basis of the tribunals that the differences begin. The first two for the former Yugoslavia and Rwanda are subsidiary organs of the Security Council, established by the Council under its Chapter VII enforcement powers. They are thus "imposed" as it were--obligations were created by the Council which bind all States, including that of complying with orders of the Tribunals. The first tribunal, for the former Yugoslavia, was set up during the conflict in 1993, when the...