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Yet, according to the article, former Yugoslav republics continue in their failure to arrest and hand over inductees, or to investigate and prosecute the war crimes in question. Clearly the counseling provided by the ICTY has been far from adequate, or the countries involved are simply not yet ready to take over the responsibility of prosecution.
The article also cites Amnesty International in a statement that war crime legislation on the domestic level in these countries are frequently not in line with international legislation, and that victim and witness protection programs are far from adequate. Apparently these issues have not been thoroughly investigated before implementing the phases of the completion strategy.
A further flaw in the completion strategy is consensus, or the lack thereof. According to the Security Council Report (2007), the various countries are in disagreement on how to proceed after December 2010. There are also differences regarding the costs and accessibility as these relate to archive materials. Such issues are under discussion by the Council Working Group on Tribunals. The Report emphasizes that it is unlikely that either Tribunal will reach the 2010 deadline because of the number of appeals. It is therefore important, in the interest of justice, that strategies be implemented in order to either extend the target date or find other ways to prosecute those persons still outstanding.
According to the Rwanda Development Gateway (2005), two major issues were facing the ICTR in terms of its completion strategy during the time of writing: the first is the exodus of highly qualified personnel, and the delay in the transfer of some cases to national jurisdictions. This returns to the main issues mentioned above as well: financial constraints and the capacity of national jurisdictions. Specifically, the Gateway notes that the ICTR retention plan for qualified employees in terms of bonuses was not approved by the UN, and has resulted in a high rate of resignation of key personnel.
In terms of transfers to national jurisdictions, only two were accomplished by the ICTR to France, with none completed to other European or African countries. The main reason for this is the specific jurisdiction issues, and it is likely that further transfers will also fail. Four requests have been submitted to Rwanda, the only African country that has agreed to accept transfers. Indeed, this spells great difficulties for the success of the completion strategy of either Tribunal. Currently, transferring cases does not seem like one of the most highly viable strategies in terms of reading the target dates of the completion strategy.
A further problem is the time involved in prosecution and trial. In addition to several of the accused still being at large, those already in custody will take considerable time to complete: individual trails take 10 months. Such extended trial times, in addition to the cost of investigation and incarceration, takes valuable resources. This problem, concomitantly with the lack of experience personnel, results in further inefficiency. Investigating these issues should reveal future strategies that can be followed to remedy the problems identified.
Not all critics are negative towards the Tribunals and their accomplishments. Indeed, Richard Dicker (2004 and 2006) substantiates that many of the factors contributing to the difficulties experienced are beyond the control of the Tribunals themselves. Unfortunately, these factors have also contributed to a loss of respect for these institutions, as well as for the rule of law that they represent. Dicker (2004) however holds that the basis of these difficulties can be found in the lack of cooperation from key UN member states in combination with the already mentioned financial challenges. Indeed, this cooperation relates not only to technical and political support, but also the failure of member states to pay their determined contributions. This, according to the author, contributes significantly to the inability of the ICTY and ICTR to operate at their full capacity and concomitantly in meeting their target dates. As a remedy, Dicker suggests that the Security Council should provide greater flexibility regarding the target dates. Indeed, Dicker notes that the target dates would have presented a much less significant problem if the member state contributions had been forthcoming as mandated.
The lack of member state support does not only extend to the financial aspect. Indeed, the author suggests that Serbia and Montenegro have failed to cooperate with the ICTY in terms of obstructing the arrest and transfer of fugitives, not producing documents, and not providing access to witnesses. At the time of the article, Bosnia and Herzegovina had yet to arrest any persons the ICTY indicted under their jurisdiction. The ICTR experienced similar difficulties with Rwanda, which took months to approve detainees who were in government custody. Kigali authorities were also to provide trial documents, while others have failed to make the required arrests in their jurisdictions.
The author indicates that the rigid deadlines that were implemented at the time might obstruct justice; a factor that has already been mentioned. Indeed, such deadlines could encourage fugitives to remain at large in order to avoid trials altogether. Later developments have however negated this fear.
According to Dicker, the completion strategy is indeed inherently flawed, but not by any fault of the Tribunals. Indeed, the blame of such flaws lies in the basic lack of all forms of cooperation by the member states. In order to remedy the situation, Dicker suggests that the Security Council implement greater flexibility regarding its target dates. Rather than establishing rigid deadlines, it is suggested that the dates receive the status of "goals" that can be adjusted as necessary. The purpose of the tribunals is indeed not to complete everything by a certain time, but to finish prosecuting all those who have committed crimes against humanity.
The author furthermore suggests that measures be taken to ensure cooperation in terms of both financial and other forms of cooperation from member states. It is only with such cooperation that the ICTY and ICTR can fulfill their functions fully and in a targeted manner.
Dicker furthermore emphasizes the merits of the ICTY and ICTR in their contributions towards international justice. He also notes that, despite criticism, the institutions have continued to perform their functions as best they could in the face of the difficulties mentioned above. To enhance and restore public respect, the author therefore suggests that officials and member states provide the Tribunals with the resources they need to fulfill the functions for which they were established.
Dicker (2006) also mentions the importance of collaboration among several entities in order to help both Tribunals and the International Criminal Court to conduct their work effectively. Especially after the closure of the Tribunals, it will be necessary to enlist entities that can continue to ensure that international criminal justice continue to be a priority for the global community.
Possibilities for Action
Specifically, Dicker serves the Human Rights Watch, which works closely with the Office of the Prosecutor (OTP) functions to bring to justice those who are convicted of crimes against humanity in countries that do not have sufficient resources to prosecute them properly. The OTP specifically prosecutes and brings to justice cases of international criminal justice.
Two of the most important elements of this function is that investigations must be carried out efficiently and culminate in fair and orderly trials. Indeed, these are the two main mandates of the ICTY and the ICTR as well. Dicker (2006) emphasizes that the International Criminal Court (ICC) will try only relatively few cases for each country in question, and that the OTP should therefore function as an entity to take those cases that cannot be transferred locally. The communities most affected by crimes should be the focus of this work. From a human rights point-of-view, it is therefore important to work closely with the communities affected in order to make all the elements of the procedure, including the pre-trial proceedings, participation of victims, the trial, verdicts and sentence, understandable and accessible. It is a vital element of the success of the OTP that those affected believe that justice has been served by means of the procedures followed and the sentences handed down.
In addition to material difficulties, the OTP faces several challenges in this regard. It is physically situated far from the countries affected by the crimes being investigated, for example. It also operates in an environment that is filled with controversy and turmoil, not least because of the issue of funding and the applications of such funding. It also operates in a political environment that is deeply affected by issues of state sovereignty, and access to materials, witnesses and indeed criminals themselves can be limited at times. These are the same issues faced on a certain scale by the Tribunals discussed above.
According to Dicker (2006), challenges also include obtaining cooperation from state parties, relevant international organizations, and investigations of atrocities such as mass murder and rape as a weapon of war. Intimidation and forced displacement on the basis of ethnicity are also issues that…[continue]
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