International Tribunals: Roles, Limits, and Global Justice

The Role of Tribunals Among Nations

When a nation is involved in a claim against another nation, the question of how far each country respects the independent sovereignty of the other — and the integrity of its own judicial system — immediately arises. To this effect, tribunals play a crucial role in arbitrating claims between involved countries while simultaneously recognizing and respecting the sovereignty and the judicial systems of each party (Root, 1909).

For a sovereign country, there is no legal obligation requiring it to submit to rules set by a superior alien power. In this context, a tribunal provides a workable solution: a sovereign country can enter into a voluntary agreement with a private arbitral body — the tribunal. In these arrangements, the tribunal is granted the right to redress claims, but only with the consent of the sovereign and without the backing of any compelling external force (Root, 1909).

In situations where a country's internal judicial system cannot be trusted to arbitrate a claim fairly, tribunals play an especially crucial role. For example, in cases involving crimes against humanity — such as in Rwanda — or when powerful individuals capable of swaying the administration of justice are involved — as in Sierra Leone — a tribunal is the best option for ensuring the effective delivery of justice. The International Criminal Tribunal for Rwanda, established in 1994, prosecuted those responsible for genocide, war crimes, and crimes against humanity. The Special Court for Sierra Leone was used to prosecute the former President of Liberia, Charles Taylor (Schabas, 2006).

Tribunals are not confined to criminal law; they also operate in sectors such as healthcare. In that domain, tribunals perform integral functions both within and across countries, exercising oversight, regulatory, and dispute resolution powers that aid governance and decision-making (Hoffman & Sossin, 2012). Given the interconnectedness of modern healthcare systems, tribunals provide order, uniformity, and stability while preventing the abuse of individuals' rights.

Tribunals are also crucial in providing a path to peace among countries and for the world in general. The International Criminal Court (ICC), which is by constitution and function a tribunal, is an important institution for ensuring global order (Schabas, 2006). Grave crimes threaten the security, peace, and well-being of nations — particularly when viewed through the lens of powerful individuals versus vulnerable citizens, or powerful nations versus developing countries.

How Cultural and Political Differences Affect Tribunals

Culture and local politics within a country are primary factors in the formation of any tribunal, influencing the entire process from establishment to day-to-day functioning. For example, the International Criminal Tribunal for Rwanda succeeded in its mandate in part because of the social consensus that existed within Rwanda, as demonstrated by the formation of the Gacaca courts to try individuals accused of involvement in the 1994 genocide (Clark, 2010). In contrast, the work of the ICC in Kenya following the 2007–2008 post-election violence was greatly hampered and ultimately undermined by negative anti-ICC politics within Kenya (Mueller, 2014).

Where two or more countries are involved in a claim requiring a tribunal, cultural and political differences must be factored into every stage of the tribunal process. According to Werle & Jessberger (2014), it is the responsibility of the involved jurisdictions to account for law, culture, and politics in the constitution of a tribunal. Where this is not possible, international law takes precedence — a workable approach given that fundamental legal principles such as human rights are accepted by almost every jurisdiction and are guaranteed under international law.

Cultural and political persuasions play an important role in conferring legitimacy on institutions within societies, whether through the development of common legal norms, the making of collective and binding decisions, the resolution of conflicts, or the exercise of a political mandate. In the formation of international tribunals, cultural and political sentiments cannot be overlooked, as they determine the legitimacy — and therefore the acceptability — of both the tribunal and the determinations it reaches (Werle & Jessberger, 2014). Culture and politics shape social meaning, political power, and the values that a tribunal is expected to uphold.

Political and cultural institutions within a society impact the decision-making process, and the resulting complexity — at the levels of legitimacy, process, and substance — must be addressed in the formation, operation, and outcomes of a tribunal. Culture, politics, and technology have all contributed to transforming what is considered legitimate, fair, and just, as well as the processes of fact-finding and decision-making that communities regard as trustworthy (de Sousa Santos & Rodríguez-Garavito, 2005). Consequently, cultural and political context is taken into consideration in the formation and work of a tribunal, with the primary goal being to be seen as fair and legitimate by all parties.

In severe cases of cultural and political difference between two or more countries, these forces can be powerful enough to prevent the formation of any tribunal altogether. In such circumstances — for instance, where ideological or political hostility makes arbitration impossible — alternative dispute resolution methods are adopted, such as mediation through third-party or economically influential nations.

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. 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. Pacific Rim Law & Policy Journal, 23, 683.