Tribunals and their importance

Why are tribunals very important among two or more countries?
If a nation is involved in claims with another nation, the question of how far each nation respects the independent sovereignty of the other and the integrity of its own judicial system arises. To this effect, tribunals play a crucial role of arbitrating the claims between the involved countries while at the same time recognizing and respecting the sovereignty and the judicial system of each country (Root, 1909).
For a sovereign country, there is no legal obligation that requires it to make any submission to a rule set up by a superior alien power. In this case, a tribunal plays an important role where a sovereign country can enter into a contract with the private individuals – the tribunal. In these settings, the tribunal is granted the right to redress the claims, but only to the conscience of the sovereign and at the same time be not under an obligation of a compelling force (Root, 1909).
In situations where the internal judicial system of a country can not be trusted to arbitrate a claim in a fair and just manner, tribunals play a crucial role. For example, in the case of crimes against humanity e.g. in Rwanda or when powerful individuals with the ability to sway the administration of justice are involved, e.g. in Sierra Leone, a tribunal is the best option to ensure the effective delivery of justice. The International Criminal Tribunal for Rwanda, 1994 prosecuted those involved in genocide, war crimes and crimes against humanity. The Special Court for Sierra Leone was used for the prosecution of the former president of Liberia, Charles Taylor (Schabas, 2006).
Tribunals are not only in legal criminal law only, but also in among others, the health sector. In healthcare, tribunal plays an integral function either within or across countries. Tribunals in the healthcare sector have oversight, regulatory, and dispute resolution powers and are used to help in the governance and in the making of decisions in the sector (Hoffman & Sossin, 2012). Given the interconnectedness of the healthcare system, a tribunal provides order, uniformity, and peace in the sector while at the same time preventing abuse of human beings.
Tribunals a crucial in that they provide a path to peace in among countries and to the globe in general. For example, the International Criminal Court, which by virtue of its constitution and functioning is a tribunal, is an important entity is ensuring global order (Schabas, 2006). Grave crimes are a threat to security, peace, and the well-being of nations, and especially in the perspective of powerful individuals vs. weak citizen and powerful nations vs. third world countries.
How can the cultural and political differences that exist between nations affect a tribunal?
Culture and local politics within a country are a primary factor in the formation of the tribunal. The effect of culture and politics will determine the entire process from the formation to the functioning of the tribunal. For example, The International Criminal Tribunal for Rwanda was formed and successful in its mandate because of the consensus that existed in Rwanda, as signified by the formation of the Gacaca courts to try local individuals accused of involvement in the 1994 genocide (Clark, 2010). On the other hand, the work of the International Criminal Court (ICC) in Kenya after the 2007/8 Post-Election Violence was greatly and eventually crumbled because of the negative anti-ICC politics in Kenya (Mueller, 2014).
In the case of two or more countries involved in a claim that requires the formation of a tribunal for arbitration or determination of the claim, culture and political differences must be factored in the entire process of the tribunal. According to Werle & Jessberger (2014), it is the role of the involved jurisdiction to factor in the various aspects, including the law, culture, and politics, in the constitution of a tribunal. However, where this is not possible, international law takes precedence. This is possible through the fact that such fundamental aspects of law e.g. human rights are internationally accepted by almost every jurisdiction and guaranteed by the international law.
Culture and political persuasions play an important role in the provision of legitimacy in societies whether in the form of the development of common norms in law, in the making of collective and binding decisions, resolution of conflicts, or in the exercise of a political mandate. In the formation of international tribunals, culture and political sentiments cannot be overlooked as they determine the legitimacy and therefore, the acceptability of the tribunal and subsequently, the determination it makes (Werle & Jessberger, 2014). Culture and politics formulae and impact social meaning, political power, and values to the tribunal.
Political and cultural institutions within a society impact the decision-making process and therefore, the type of complexity that arises at many levels in the context of legitimacy, process, and content must be addressed in the formation, the working, and in the results of a tribunal. Culture and political, as well as technology have helped in the transformation of what is considered to be legitimate, fair, and just and the processes in fact-finding and decision-making that are legitimate and trustworthy (de Sousa Santos & Rodríguez-Garavito, 2005). As a result of this transformation, culture and political climate within a society are a factor taken into consideration in the formation and work of a tribunal, but with the primary goal being to-be-seen to be fair and legitimate.
In the severe cases of culture and political difference between two or more countries, these are as powerful as to hinder the formation of any tribunal. For example, in the case of North Korea before the Trump administration, in religious-oriented claims, it is impossible to put in place a tribunal to arbitrate the claims, but rather, alternative dispute resolution methods are adopted e.g. mediation through third-party or economic nations.
What would happen if tribunals did not exist?
Tribunals play a crucial role in ensuring justice is meet on perpetrators. In this way, tribunals create hope and satisfactory settlement on weighty matters between countries. In the absence of tribunals, the possibility of the affected seeking retribution would be high, and the result would be public strive, the absence of law and order, destitution, and possibly full-blown war between countries.
Over the years, tribunals have contributed greatly to reforming the international justice system. So as to ensure that claims are arbitrated in a fair and just manner that is seen to be fair by all counties involved, tribunals have emphasized on the need for law system that is common, universal, and consistent. Without tribunals, each country would have a different and unique law that addresses its own specific and probably selfish concerns. If tribunals didn’t exist, the western law system and specific attributes of the same, e.g. the bill of right, wouldn’t only be limited to the American and European jurisdictions.
With reference to the war crime tribunals of Tokyo and Nuremberg where upper echelons of the military in Japan and German respectively where held accountable and punished after the world war II, tribunals have helped in the creation of democratic societies that believe in the rule of law, even if internal judicial system isn’t possible to hold accountable those responsible (Root, 1909; de Sousa Santos & Rodríguez-Garavito, 2005). Without these tribunals, numerous countries would be under a dictatorship and many lost their lives through autocratic leaderships without the rule of law.
While the significance of tribunals among nations is important, what are the limitations of tribunals? Explain
One of the main limitations of tribunals is that they lack the mandate to ensure their determination of the ‘guilty’ country. Given the sovereignty clause on which each and every nation-state in independent from external influence, tribunals normally lack political mandate, legal backing, or military force to enforce their determinations. Therefore, after a tribunal concludes its work and produces its report, it is upon the countries involved to implement the recommendations made. If these recommendations are against a country, if there is no cultural or political will to implement them, they only remain on paper, for example, the indictment of the President of Sudan, Omar al-Bashir in the ICC, which has not been implemented to date.
Another limitation of tribunals is that, contrary to what was the expectation, tribunals do not deter potential criminals. One of the reasons for the formation of the ICC – which is an international tribunal – was to deter strong men from perpetuating or supporting war crimes and crimes against humanity. However, there has been no indication to show that this has been realized. Despite the success of such tribunals like the Tribunal of Rwanda and Yugoslavia, perpetrators still continue to carry out crimes against humanity, with the most recent case being the crimes against the Rohingya in Myanmar (Zarni & Cowley, 2014).
Lastly, the jurisdiction of tribunals is limited even within the involved countries. For example, in the United States, the Supreme Court of the United States is superior to any tribunal and any treaty that may form any tribunal. Even though any treaty to which the United States is binding (Root, 1909), the Supreme Court has the legal power to overturn any decisions made by a tribunal concerning the United States. This is a major limitation to the tribunal as it makes them ‘toothless.’
References
Clark, P. (2010). The Gacaca courts, post-genocide justice and reconciliation in Rwanda: Justice without lawyers. Cambridge University Press.
de Sousa Santos, B., & Rodríguez-Garavito, C. A. (Eds.). (2005). Law and globalization from below: towards a cosmopolitan legality. Cambridge University Press.
Hoffman, S. J., & Sossin, L. (2012). Empirically evaluating the impact of adjudicative tribunals in the health sector: context, challenges and opportunities. Health Economics, Policy and Law, 7(2), 147-174.
Mueller, S. D. (2014). Kenya and the International Criminal Court (ICC): politics, the election and the law. Journal of Eastern African Studies, 8(1), 25-42.
Root, E. (1909). The Relations Between International Tribunals of Arbitration and the Jurisdiction of National Courts 1. American Journal of International Law, 3(3), 529-536.
Schabas, W. A. (2006). The UN international criminal tribunals: the former Yugoslavia, Rwanda and Sierra Leone. Cambridge University Press.
Werle, G., & Jessberger, F. (2014). Principles of international criminal law. OUP Oxford.
Zarni, M., & Cowley, A. (2014). The slow-burning genocide of Myanmar's Rohingya. Pac. Rim L. & Pol'y J., 23, 683.