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‘MORE JUSTICE, LESS TRUTH’ AT THE STL? DECOUPLING INDIVIDUAL ACCOUNTABILITY FROM COLLECTIVE TRUTH-TELLING IN INTERNATIONAL CRIMINAL LAW
Climate Insecurity
Yuliya Mik*
The Special Tribunal for Lebanon (‘STL’) Trial Judgment in the Ayyash case contained some important comments that emphasised a decoupling of two sets of objectives in international criminal justice: individual criminal accountability and collective truth-telling. This article applauds these important comments as a welcome development in international criminal law. This article seeks to contextualise these important comments in the STL Trial Judgment within decades of international criminal jurisprudence regarding the place of historical truth-telling as a function of international criminal proceedings.
This article will examine how international criminal justice evolved to promote the idea that truth-telling is one of the main objectives of international criminal trials. The article will then examine international criminal jurisprudence regarding balancing the objectives of truth-telling and individualised criminal accountability in international criminal proceedings and how these objectives have evolved over time. The article will also critically evaluate the normative claim regarding the lofty promises of truth-telling as an important tool for the realisation of peace and reconciliation in the context of international criminal proceedings. Against this background, the article will examine the noteworthy comments of the STL that decisively decouple the objectives of truth-telling from individualised criminal accountability in international criminal law.
This article argues that while international criminal courts can certainly contribute to a range of transitional justice processes, international criminal justice alone cannot be regarded as the panacea, and the primary focus of an international court or tribunal must be the administration of individual criminal accountability.
Contents
The Trial Judgment of the Special Tribunal for Lebanon (‘STL’) in Prosecutor v Ayyash (‘Ayyash’) was a momentous feat:[1] the culmination of 15 years of investigations[2] and nearly a decade of legal proceedings.[3] The trial lasted four and a half years,[4] and included 297 witnesses’ testimonies, 3,131 exhibits, 415 court hearing days and the participation of 70 victims.[5] The judgment, the pronouncement of which was postponed twice, ran to 2,682 pages.[6] Lest there be any doubt: this was a formidable task. Reactions to the judgment have been mixed, and no doubt discussions regarding the broader social, legal and political impact of the judgment in Lebanon and in the region will continue for some time.[7] It is not this article’s intention to venture into this dense territory. Rather, this article focuses on the numerous references in the Trial Judgment to what the Tribunal cannot do.
On no fewer than nine separate occasions throughout the judgment, the Trial Chamber reminded the reader of the strict and narrow scope of its task.[8] For example, the Tribunal was at pains to point out that ‘[it] only needs to make findings on the facts that are essential to determining the Accused’s criminal responsibility on a particular count’.[9] Later in the judgment, the Tribunal noted ‘that the scope of the trial is defined by the amended consolidated indictment, the statutory provisions and the evidence heard’.[10] It seems that the STL Trial Chamber is saying something regarding the lofty expectations we once had of what international criminal tribunals can — and should be expected to — achieve.
In the early days of international criminal law, the goals of individual accountability and historical truth-telling were often placed side-by-side as objectives of international criminal justice, and there was an expectation that international criminal courts and tribunals were capable of achieving both, and were indeed mandated to do so. The STL, in its recent Trial Judgment, however, has emphasised a decoupling of these two sets of objectives. This article applauds these important comments as a welcome development in international criminal law. This article argues that while international criminal courts can certainly contribute to a range of transitional justice processes, international criminal justice alone cannot be regarded as the panacea. Rather, among the multitude of objectives of international criminal justice, the primary focus of an international court or tribunal must be the administration of individual criminal accountability.
This article seeks to contextualise these important comments in the STL Trial Judgment by examining the goals of international criminal justice and how they have evolved over the relatively short lifespan of its jurisdiction, in particular focusing on international criminal jurisprudence regarding the place of historical truth-telling as a function of international criminal proceedings. The article seeks to contribute to the discussion of how international criminal justice can contribute to truth-telling in post-conflict and mass atrocity-affected communities as well as, importantly, the limitations of any such possible contributions.
First, the article will examine the legacy of the International Military Tribunal at Nuremberg and how international criminal justice evolved to promote the idea that truth-telling is one of the main objectives of international criminal trials. Secondly, the article will examine international criminal jurisprudence regarding balancing the objectives of truth-telling and individualised criminal accountability in international criminal proceedings. Thirdly, against this background, the article will examine the noteworthy comments of the STL that decisively decouple the objectives of truth-telling from individualised criminal accountability in international criminal law. Lastly, after a discussion of the international criminal jurisprudence on this matter, the article will critically evaluate the normative claim regarding the lofty promises of truth-telling as an important tool for the realisation of peace and reconciliation in the context of international criminal proceedings, before offering some concluding remarks.
This section examines the Nuremberg legacy and how, from its modern-day inception, historical truth-telling was regarded as one of the objectives of international criminal justice. The establishment of the International Military Tribunal ushered in a new era of responding to mass atrocities through criminal judicial proceedings. It was true of the crimes prosecuted at Nuremberg, and it remains true to this day, that international crimes simply cannot be regarded in the same way as domestic crimes. International crimes, by their nature, are of concern to humanity en masse. Their scale, gravity and nature constitute a mass affront to universal values, grounded in the dignity of the human being.
It is no surprise, then, that ‘the assessment of the judgments they produce is not confined to whether they are legally correct but extends to their socio-political implications’.[11] For the same reasons that international crimes offend the conscience of humanity as a whole, international criminal judgments carry meaning beyond the immediate domestic or regional contexts in which the cases originated. At Nuremberg, through the courtroom, the whole world bore witness to the atrocities perpetrated in Europe. United States of America v Göring (‘Nuremberg Trial Judgment’) did not just mete out criminal justice to the individuals on trial; it also recorded the events of the Second World War and the Holocaust for generations to come.[12] In the words of one author, ‘[t]he piles of proof served the immediate purpose as trial exhibits, but they also served as exhibits for history. Judgment matters, and memory matters, too. It matters to future generations who need to know what happened, and how it happened’.[13]
The Nuremberg Trial Judgment thus established the principle that one of the fundamental goals of international criminal justice is setting the historical record straight and telling the truth about mass atrocity.
The trial of Adolf Eichmann for international crimes, including the same crimes against humanity that were prosecuted at Nuremberg, took place in a small courtroom in Jerusalem, but was not — and indeed could not be — solely a matter of domestic concern.[14] The same concerns raised in the Nuremberg Trial Judgment were echoed at the trial of Adolf Eichmann: the concern for both meting out criminal justice to the individual in the dock and for finally bringing the horrors and tragic events being prosecuted into the light and inscribing them into history for the benefit of generations to come.[15]
It is precisely this dual focus of international criminal proceedings that drew heavy criticism from political theorist and philosopher Hannah Arendt in her critique of the trial, Eichmann in Jerusalem: A Report on the Banality of Evil.[16] Arendt pinpointed the tension between these two goals: the international criminal trial functioning as both an instrument of individualised criminal justice and an instrument of generalised history-recording. Arendt did not assert that there is no place for either of these objectives — she did assert, however, that these two objectives do not belong in the same institution:
The purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes — ‘the making of a record of the Hitler regime’ ... can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.[17]
This dual focus on truth-telling and individual accountability came to form an integral part of international criminal law. Writing several decades after the Eichmann trial, Koskenniemi observed that this conception of international criminal justice had become well established:
Nuremberg, Eichmann and the three French trials (as well as more recent processes focusing on torture in Algeria) have each been defended as necessary for didactic purposes, for establishing an impartial account of the past and for teaching younger generations of the dangers involved in particular policies.[18]
Indeed, by the time of the establishment of the two ad hoc tribunals in the early 1990s, the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda (‘ICTR’), this conception of international criminal justice had more or less been cemented: the idea that international criminal justice is both a process for carrying out prosecutions of international crimes and meting out individualised criminal justice, and that it is also a mechanism for recording the tragic histories surrounding the events on trial for the benefit of humanity as a whole.
The following sections will examine how this dual focus on truth-telling and individualised accountability has manifested itself in the post-Nuremberg international criminal courts and tribunals. Specifically, the following sections examine ICTY, ICTR, Special Court for Sierra Leone (‘SCSL’) and International Criminal Court (‘ICC’) jurisprudence on balancing the truth-telling and individualised accountability objectives of international criminal courts and tribunals. As will be demonstrated, there is no coherent case law on the priority afforded to individualised criminal accountability over truth-telling in international criminal justice. Rather, the approaches have varied over the course of the lifetimes of the tribunals. Earlier ICTY case law afforded greater precedence to truth-telling and reconciliation in the multifaceted goals of international criminal justice, an approach that was variously followed and departed from in later ICTY judgments and subsequent judgments of other international courts and tribunals. Most recently, the STL, discussed below, has taken a decisive stance on the matter.
The ICTY was established ‘for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia’.[19] Within a short time, however, the Tribunal’s own view of its mandate had clearly extended beyond merely prosecuting individuals for the commission of international crimes. From the United Nations Security Council resolutions establishing the Tribunal, the first President of the ICTY, Antonio Cassese, in his first report to the UN Security Council and General Assembly, extrapolated the principal objectives of the Tribunal: ‘The purposes of the Tribunal ... are threefold: to do justice, to deter further crimes and to contribute to the restoration and maintenance of peace’.[20] In the Tribunal’s early years, it continued to emphasise its role in ‘restoring and maintaining international peace and security’.[21] President Cassese’s words foreshadowed something that would in fact remain a challenge for years to come in the region.
In the coming years, the Tribunal began to further elaborate on the question of exactly what role the ICTY might play in meeting the objective of a return to peace and creating lasting reconciliation. Echoing Nuremberg, the Tribunal adopted and maintained the view that one of its most important contributions to peace and reconciliation would be to create a historical record of the tragedies that occurred in the former Yugoslavia. Beyond its function of prosecuting and punishing individual perpetrators from the early days of its existence, the Tribunal adopted a view of international criminal justice ‘as an instrument of truth and memory’.[22] This in particular would become a key component of the Tribunal’s own view of its functions.
An early indicator of such a view is President Cassese’s concluding remarks in the Tribunal’s fourth report to the UN Security Council and General Assembly:
The Tribunal’s mission is to hear and record for posterity the stories of those who have suffered in the camps and killing fields of the former Yugoslavia and to dispense justice on that account in the name of the international community. It is worth noting in this context that witnesses who have come to The Hague have commented afterwards that the opportunity to testify before a duly constituted court has brought them great relief. Justice’s cathartic effects may therefore promise hope for recovery and reconciliation in the former Yugoslavia.[23]
This view, that a central function of the Tribunal is to establish, ‘through its judicial proceedings’, a historical record of the events that occurred in the region,[24] was further elaborated on in the Tribunal’s report of the following year:
Ensuring that history listens is a most important function of the Tribunal. Through our proceedings we strive to establish as judicial fact the full details of the madness that transpired in the former Yugoslavia. In the years and decades to come, no one will be able to deny the depths to which their brother and sister human beings sank. And by recording the capacity for evil in all of us, it is hoped to recognise warning signs in the future and to act with sufficient speed and determination to prevent such bloodshed.[25]
In the years that followed, the Tribunal included the objective of compiling a complete and accurate historical record of the conflict among the many objectives emanating from its mandate to prosecute international crimes in the former Yugoslavia.[26] This ‘truth-telling’ function included more than merely recording the facts relevant to a particular individual case but also the events that transpired throughout the protracted conflict.
From an examination of the ICTY’s jurisprudence, it is clear that the ICTY has adopted the dual function conception of international criminal justice first articulated at Nuremberg, which views international criminal proceedings as both a mechanism for dispensing individualised accountability and, at the same time, a mechanism for truth-telling and creating a historical record of events.
The article now turns to an examination of the ICTY’s jurisprudence in order to examine how the Tribunal has balanced its multiple, and sometimes competing, objectives. The discussion of this issue in the ICTY’s jurisprudence can be seen in the context of the Tribunal accepting pleas of guilty.
In Prosecutor v Erdemović (‘Erdemović’), one of the Tribunal’s early cases and the first case to bring up the issue of a plea of guilty at the Tribunal, the Trial Chamber discussed the value of a guilty plea and its relationship to the multiple objectives contained within the Tribunal’s broad mandate of prosecuting and punishing those responsible for international crimes on the territory of the former Yugoslavia:
The International Tribunal, in addition to its mandate to investigate, prosecute and punish serious violations of international humanitarian law, has a duty, through its judicial functions, to contribute to the settlement of the wider issues of accountability, reconciliation and establishing the truth behind the evils perpetrated in the former Yugoslavia. Discovering the truth is a cornerstone of the rule of law and a fundamental step on the way to reconciliation: for it is the truth that cleanses the ethnic and religious hatreds and begins the healing process. ... [T]he International Tribunal is a vehicle through which the international community expresses its outrage at the atrocities committed in the former Yugoslavia. Upholding values of international human rights means that whilst protecting the rights of the accused, the International Tribunal must not lose sight of the tragedy of the victims and the sufferings of their families.[27]
A couple of years later, in Prosecutor v Todorović (‘Todorović’), the ICTY Trial Chamber, considering another guilty plea, again discussed the value of an admission of guilt in relation to the Trial Chamber’s multiple objectives.[28] Again, in the course of considering the appropriate sanction to hand down to the accused, the Trial Chamber emphasised the Tribunal’s mandate of truth-telling and history-recording: ‘A guilty plea is always important for the purpose of establishing the truth in relation to a crime.’[29]
The Tribunal went on to add: ‘The Trial Chamber recognises the considerable contribution of this guilty plea to the efficiency of the work of the International Tribunal and to its search for the truth, and has taken it into account in determining sentence.’[30]
This was repeated by the ICTY Trial Chamber in Prosecutor v Sikirica (‘Sikirica’): ‘a guilty plea contributes directly to one of the fundamental objectives of the International Tribunal: namely, its truth-finding function’.[31]
This was also repeated in Prosecutor v Nikolić (‘Dragan Nikolić’):
Acting under Chapter VII of the Charter of the United Nations, this Tribunal is not only mandated to search for and record, as far as possible, the truth of what happened in the former Yugoslavia, but also to bring justice to both victims and their relatives and to perpetrators. Truth and justice should also foster a sense of reconciliation between different ethnic groups within the countries and between the new States on the territory of the former Yugoslavia.[32]
The Trial Chamber continued its discussion of the benefits of an admission of guilt to the various objectives of the Tribunal, holding that:
A guilty plea indicates that an accused is admitting the veracity of the charges contained in an indictment. This also means that the accused acknowledges responsibility for his actions. Undoubtedly this tends to further a process of reconciliation. A guilty plea protects victims from having to relive their experiences and re-open old wounds. As a side-effect, albeit not really a significant mitigating factor, it also saves the Tribunal’s resources.[33]
The Trial Chamber went on to discuss whether, given the Tribunal’s truth-telling mandate, the acceptance of a guilty plea is compatible with the Tribunal’s truth-telling function. The Chamber noted that a plea agreement has the ‘negative side [effect]’ of limiting the admission of guilt to the facts contained in the plea agreement, ‘which might not always reflect the entire available factual and legal basis’.[34] The Trial Chamber continued:
[A] plea agreement ... does not allow the Trial Chamber to depart from the mandate of this Tribunal, which is to bring the truth to light and justice to the people of the former Yugoslavia. Neither the public, nor the judges themselves come closer to know the truth beyond what is accepted in the plea agreement. This might create an unfortunate gap in the public and historical record of the concrete case ...[35]
The ICTY Trial Chamber then went on to once again highlight and emphasise the Tribunal’s truth-finding function, differentiating the Tribunal’s mandate of restoring and maintaining peace and reconciliation from that of domestic jurisdictions which, free from the mandate of maintaining international peace and security, can afford to employ ‘pragmatic’ approaches such as applying a sentencing discount to a defendant who has voluntarily aided the efficient administration of criminal justice:
[I]n contrast to national legal systems where the reasons for mitigating a punishment on the basis of a guilty plea are of a more pragmatic nature, the rationale behind the mitigating effect of a guilty plea in this Tribunal is much broader, including the fact that the accused contributes to establishing the truth about the conflict in the former Yugoslavia and contributes to reconciliation in the affected communities.[36]
The discussion regarding whether a guilty plea is compatible with the Tribunal’s truth-telling function continued in parallel in a differently constituted Trial Chamber in Prosecutor v Nikolić (‘Momir Nikolić’).[37] In that case, the Trial Chamber similarly weighed the pragmatic benefits of aiding the efficient administration of justice against the much broader benefits to peace and reconciliation, and came to a similar conclusion: the individualised demands of criminal justice cannot detract from the much further-reaching benefits to the international community:
[T]he Trial Chamber finds that in cases of this magnitude, where the Tribunal has been entrusted by the United Nations Security Council — and by extension, the international community as a whole — to bring justice to the former Yugoslavia through criminal proceedings ... the saving of resources cannot be given undue consideration or importance. The quality of the justice and the fulfilment of the mandate of the Tribunal, including the establishment of a complete and accurate record of the crimes committed in the former Yugoslavia, must not be compromised.[38]
The Trial Chamber went on to consider how a plea of guilty fits within the Tribunal’s objectives. The Chamber’s main concern was that a plea agreement, as a product (in most cases) of a bargaining process between the Prosecution and the Defence, may not record ‘the whole story’ of the accused’s offending, but may only record the parts of the story that have made it into the negotiated outcome that is the plea agreement. While recognising that a guilty plea, which results in a conviction and sentence, ‘leads directly to the fulfilment of a fundamental purpose of this Tribunal’,[39] the Trial Chamber weighed this against the Tribunal’s mandate of establishing the truth,[40] and expressed particular concern that such negotiated outcomes may not reflect the full story and would therefore not establish a ‘complete and detailed historical record’:[41]
[The Tribunal’s] very raison d’être is to have criminal proceedings, such that the persons most responsible for serious violations of international humanitarian law are held accountable for their criminal conduct — not simply a portion thereof.[42]
This view was reiterated in Prosecutor v Obrenović (‘Obrenović’), Prosecutor v Plavšić (‘Plavšić’) and Prosecutor v Deronjić (‘Deronjić’).[43] In the Obrenović case, the Trial Chamber, relying on the Momir Nikolić case, reiterated the view that the creation of an accurate historical record is a consideration that takes precedence over pragmatic concerns such as the efficient administration of criminal justice. Again, this discussion was in the context of the Trial Chamber considering the mitigating factors that result from a guilty plea:
As this Trial Chamber has previously held, the acceptance of a guilty plea pursuant to a plea agreement must follow careful consideration by a trial chamber of numerous factors including inter alia whether the remaining charges reflect the totality of an accused’s criminal conduct, whether an accurate historical record will be created, whether the terms of the agreement fully respect the rights of the accused, and whether due regard is accorded to the interests of victims.[44]
The Trial Chamber went on to reiterate that the ‘pragmatic’ benefits of aiding the efficient administration of justice are secondary to the benefits that aid in peace and reconciliation through ‘establishing a historical record and countering denials of the commission of these crimes’:[45]
[T]he Trial Chamber notes that other accused have been given credit for pleading guilty before the start of trial or at an early stage of the trial because of the savings of Tribunal resources. Both parties have made submissions that this aspect of a guilty plea should be considered as a mitigating factor. Recalling its finding in the Nikolić Sentencing Judgement, the Trial Chamber will allocate little weight to this aspect of the benefits of a guilty plea.[46]
Similarly, in the Plavšić case, while acknowledging ‘the substantial saving of international time and resources as a result of a plea of guilty before trial’,[47] the ICTY Trial Chamber emphasised ‘the role of the guilty plea of the accused in establishing the truth in relation to the crimes and furthering reconciliation in the former Yugoslavia’.[48]
In the Deronjić case, the Trial Chamber acknowledged that a guilty plea, especially one entered before the commencement of the trial, benefits the efficient administration of criminal justice in a number of ways, including avoiding the costs of a trial, and ‘[sparing] the victims and witnesses from being required to come and testify about painful and traumatic events’.[49] However, the Chamber held that this should not be treated as a ‘significant mitigating effect’.[50] More significant, in the Chamber’s view, was that through a guilty plea, ‘the accused contributes to establishing the truth about the conflict in the former Yugoslavia’.[51] Notably, in this case, the Trial Chamber placed particular importance on the objective of establishing an accurate historical record in order to ‘[prevent] historical revisionism’.[52] The Trial Chamber expressly attributed ‘significant weight’ to the guilty plea specifically because ‘it establishes the truth and it undercuts the ability of future revisionists to distort historically what happened’.[53]
Judge Schomburg, in his dissenting opinion, took this principle even further: he disagreed with the majority placing such weight on the mitigating factors of a guilty plea specifically because the guilty plea jeopardised the Tribunal’s ability to establish a full and accurate historical record of events,[54] disparagingly referring to the plea agreement as ‘fragments of facts’.[55] Tellingly, Judge Schomburg opened his dissenting judgment with the following:
‘Da mihi factum, dabo tibi jus’ — give me (all) the facts and I will present you the applicable law (and a just decision) ... there is no peace without justice; there is no justice without truth, meaning the entire truth and nothing but the truth.[56]
The first signs of a slight change of tune were in Prosecutor v Bralo (‘Bralo’).[57] The Trial Chamber, also discussing the benefits that arise from a plea of guilty, made no mention of the Tribunal’s mandate to discover the truth or to produce a full and accurate historical record of events. Rather, the Trial Chamber focused on the benefits to the efficient administration of criminal justice that arise from a plea of guilty:
Substantial human and practical benefits flow from a plea of guilty, particularly one tendered at an early stage in the proceedings. Victims and witnesses who have already suffered enormous psychological and physical harm are not required to travel to the Hague to recount their experiences in court, and potentially re-live their trauma. In addition, scarce legal, judicial and financial resources that would otherwise be expended in preparing for and conducting a lengthy and expensive trial may be redeployed in the interests of securing the wider objectives of the Tribunal.[58]
The Trial Chamber held that the mitigating factors that arise from a plea of guilty are not those that serve the functions of assisting in restoring peace and contributing to reconciliation, but rather are those that serve the Tribunal’s ability to effectively administer individualised criminal justice — these same ‘pragmatic’ benefits were all but dismissed by previous Chambers of the Tribunal. Moreover, the Trial Chamber in this case did not express any discomfort with a plea agreement as a negotiated outcome.[59] In this case, the accused’s plea of guilty was to significantly fewer charges than the indictment originally filed against him.[60] Nonetheless, the Trial Chamber did not express any concern that the plea agreement did not establish a complete and detailed historical record. This marked a significant shift in the Tribunal’s approach, placing more weight on the benefits to the fair and efficient administration of criminal justice and less on the Tribunal’s ability to effect peace and reconciliation in the region.
Following a similar approach, the Trial Chamber in Prosecutor v Stanišić (‘Stanišić’) had the opportunity to wade into the same debate regarding the Tribunal’s multiple objectives.[61] In this case, the discussion was in a different context — namely, case management, where the Trial Chamber had requested the Prosecutor to reduce the number of charges in the indictment. The Prosecution argued against this request, contending, inter alia, that a reduction of the indictment would jeopardise the Tribunal’s ability to ‘find the truth’ and create a full and accurate historical record of events. The Trial Chamber, however, disagreed:
[T]he Prosecution submits that reducing the scope of the Indictment would risk the creation of an inaccurate historical record. ... However, the Tribunal was established to administer justice, and not to create a historical record. The Trial Chamber will therefore not consider this argument as relevant for a decision [to reduce the number of charges in the Indictment].[62]
The Trial Chamber concluded that in the interests of a fair and expeditious trial, and against the Prosecution’s objections, the scope of the indictment should be reduced, and ordered the Prosecutor to do so.[63] The Trial Chamber in this case thus prioritised the Tribunal’s ability to efficiently conduct criminal proceedings over its interest in creating a full and accurate historical record.
Of course, it is not just the ICTY that has had to grapple with the question of striking the appropriate balance between an international criminal tribunal’s individual accountability and truth-telling objectives. During the same period that the ICTY was considering whether a plea of guilty is compatible with the Tribunal’s multifaceted objectives, the ICTR also accepted a number of guilty pleas. However, an examination of the ICTR’s jurisprudence reveals that its discussion of the mitigating factors that flow from a guilty plea noticeably differs from that of the ICTY.
In Prosecutor v Serushago (‘Serushago’), for example, the ICTR Trial Chamber considered the accused’s guilty plea and the associated mitigating factors.[64] In the course of its discussion, the Trial Chamber also referred to the Tribunal’s mandate to contribute to peace and reconciliation in the affected region.[65] However, the Tribunal did not consider that it should fulfil this part of its mandate by ‘finding the truth’ and establishing a full and accurate historical record through its judicial proceedings. Rather, the ICTR Trial Chamber stated that its contribution to peace and reconciliation should be through doing what it was established to do: ‘to prosecute and punish the perpetrators of the atrocities in Rwanda’.[66] Notably, the Trial Chamber in this case made no mention of any objective to establish the truth or create a full and accurate historical record, and expressed no discomfort in accepting a guilty plea that, as a negotiated outcome to proceedings, may not reflect the totality of the accused’s wrongdoing.[67] Rather, the Trial Chamber accepted that a guilty plea may be ‘beneficial to the administration of justice’[68] and credited the accused accordingly.
Similarly, in Prosecutor v Ruggiu (‘Ruggiu’), the Trial Chamber considered that the accused’s guilty plea can contribute to the efficient administration of justice and should be considered as a mitigating factor in sentencing.[69] Elaborating specifically on the latter, the Trial Chamber held:
The guilty plea entered by the accused should be considered as a mitigating circumstance since resorting to such a plea facilitates the administration of justice by expediting proceedings and saving resources. The accused’s guilty plea has spared the Tribunal a lengthy investigation and trial, thus economising time, effort and resources.[70]
Unusually, in this case, the accused’s guilty plea was a plea to all of the charges in the original indictment against him.[71] However, the Trial Chamber did not consider this as a contribution to the Tribunal’s search for the truth or its ability to produce a full and accurate historical record of the tragedy in Rwanda. Rather, the Trial Chamber acknowledged the benefits to the efficient administration of justice as a mitigating factor in deciding on the accused’s sentence.[72]
However, the ICTR has not adopted a uniform approach towards balancing the multiple objectives of international criminal justice. In Prosecutor v Rutaganira (‘Rutaganira’), the Trial Chamber’s discussion more closely resembled that of the early ICTY cases discussed above.[73] In this case, the Trial Chamber specifically referred to the Tribunal’s objective to ‘search for the truth’ and thereby to contribute to peace and reconciliation in the region,[74] and relying on ICTY jurisprudence, the Chamber held that the accused’s guilty plea was a mitigating factor in sentencing because it was ‘an important factor in establishing the truth’.[75]
The same discussion concerning the role of truth telling in international criminal proceedings arose at the SCSL. However, a crucial difference regarding the SCSL was that the Court operated alongside a Truth and Reconciliation Commission (‘TRC’), which had the express mandate of finding the truth and creating a historical record of the conflict.[76] In Prosecutor v Norman (‘Norman’), the Accused requested to appear before the TRC before the conclusion of his trial before the SCSL.[77] In considering the request, the Trial Chamber recognised the same tension that underlies international criminal proceedings that was noted four decades earlier by Hannah Arendt, and that has been considered by international criminal courts and tribunals since — the tension existing between justice owed to the individual accused on trial and that owed to the wider community.
The Trial Chamber declined the Accused’s request. The Trial Chamber’s remarks on the matter are illuminating: the Chamber acknowledged the ‘two competing and conflicting societal interests involved’, namely, individual criminal accountability through a fair trial as well as the broader social interest of ‘developing and establishing the historical record of the decade-long conflict in Sierra Leone’.[78] However, the Trial Chamber ruled that the potential prejudice to the accused in testifying in a live and public session before the TRC before his criminal trial before the SCSL was too great and that ‘the accused’s right to a fair and public trial always prevails’.[79] The Trial Chamber emphasised that ‘it is the duty of International Judges to safeguard the interest of the International Community that persons charged with international crimes are accorded ... “super due process rights”’,[80] including fundamental due process rights[81] and respect for the presumption of innocence as both a ‘cardinal principle of criminal law’ and ‘a fundamental human right’.[82]
On appeal, the Appeals Chamber took the opportunity to discuss the multiple objectives of international criminal justice, particularly in the context of multiple institutions working towards the same goal of peace and reconciliation in the affected region. The Court’s role, however, was to prosecute individuals and to deliver justice in the form of ‘a trial, followed by punishment of those found guilty, in this case of those who bear the greatest responsibility’.[83] While the Appeals Chamber acknowledged the common objectives of the two institutions and expressed a desire for them to work together, the Chamber held that any such cooperation cannot come at the expense of the Court’s obligations to safeguard and uphold the fundamental tenets of individual criminal accountability:
The work of the Special Court and the TRC is complementary ... [T]he Special Court respects the TRC’s work and will assist it so far as is possible and proper, subject only to our overriding duty to serve the interests of justice without which there may not be the whole truth and there is unlikely to be lasting reconciliation.[84]
The Appeals Chamber thus upheld the Trial Chamber’s view of the primacy of criminal justice interests at the SCSL.[85]
The ICC, too, has had cause to weigh into the discussion on the extent to which international criminal proceedings can be relied upon to create an accurate historical record of events, and the relative weight that should be ascribed to the truth-telling objective of international criminal proceedings. This discussion in ICC jurisprudence can be seen in particular in the context of victims’ participation in ICC proceedings. At the ICC, victims play a decidedly greater role in proceedings compared to the post-WWII international military tribunals, the ad hoc tribunals and most international criminal tribunals established to date.[86] The ICC’s victim participation framework is not uncontroversial. Much discussion has been had regarding finding the appropriate balance between, on the one hand, furthering the ICC’s restorative justice objectives and allowing for meaningful victim participation in proceedings, and, on the other hand, safeguarding the integrity of criminal proceedings and protecting the rights of the accused.[87] The issue of balancing the ICC’s truth-telling function has arisen in this context with regard to when victims should be allowed to participate in proceedings ‘[w]here the personal interests of the victims are affected’.[88]
On the one hand, if we accept that creating a historical record of mass atrocities is one of the objectives of international criminal justice and that victims’ voices are a central component of this, it follows that victims’ participation as independent parties to proceedings is an essential part of achieving international criminal justice. On the other hand, it must be asked to what extent these objectives can guide international criminal proceedings in a manner that can still meet the minimum safeguards that criminal justice demands — not least of which is an accused’s right to a fair trial within a reasonable time. The discussion between balancing the ICC’s truth-telling and individualised accountability objectives has arisen at the ICC in this context.
An early example of this debate within the ICC framework is in Prosecutor v Lubanga (‘Lubanga’), where victims, who had been recognised as such in the proceedings, filed an application to participate in an interlocutory appeal that was largely procedural in nature, concerning the admissibility of the Defendant’s appeal.[89] The victims argued that since they have an ‘obvious’ interest in the ultimate outcome of the trial, their personal interests were affected by the proceedings, even at a procedural stage.[90] The Appeals Chamber disagreed, holding that victims are not granted a blanket approval to participate throughout the life of a proceeding[91] and that this procedural stage of proceedings did not affect the victims’ personal interests.[92]
Interestingly, two of the Appeals Chamber judges took quite an expansive view of what might fall within a victim’s ‘personal interests’. Judge Pikis considered that victims’ personal interests are not limited to the trial stage of proceedings but can be affected by any stage of proceedings before the Court.[93] Judge Song took this even further. He considered that victims’ personal interests include their interest in the ultimate outcome of the accused’s prosecution — ‘in other words, the [v]ictims want that justice is done’.[94] Judge Song considered that victims’ personal interests include their right to seek justice: ‘[V]ictims of serious crimes have a special interest that perpetrators responsible for their suffering be brought to justice’[95] and that this may translate into a procedural right of their participation in proceedings.[96]
This reasoning was then reflected in Prosecutor v Bemba, where the Pre-Trial Chamber held that victims’ personal interests in the proceedings include ‘the right to justice’,[97] meaning an interest in seeing the accused’s proceedings continue, giving rise to concrete procedural rights of participation.[98] Notably, while Judge Song in the Lubanga Appeals Chamber decision referred to this as a ‘personal interest’, here, the Pre-Trial Chamber elevated this to the status of a ‘right’.
Other ICC decisions have adopted even more expansive views on the matter. In Prosecutor v Katanga, also considering the question of the scope of victims’ ‘personal interests’, the Pre-Trial Chamber not only accepted that victims have a ‘right to justice’ that may give rise to participatory rights,[99] but further that victims in ICC proceedings have a ‘right to the truth’.[100] Relying on the protection of victims’ interests under international human rights law and what the Pre-Trial Chamber referred to as ‘the well-established right to the truth for the victims of serious violations of human rights’,[101] the Pre-Trial Chamber held that ‘victims’ central interest in the search for the truth’[102] can be satisfied through criminal proceedings through ‘a declaration of the truth by the competent body’.[103] While recognising that criminal proceedings are not necessarily the sole possible mechanism to achieving this right,[104] the Chamber clearly accepted the view that an international criminal court such as the ICC is indeed an appropriate body to establish the truth of what happened. Thus, the Pre-Trial Chamber placed truth-telling at the very forefront within the range of objectives of international criminal justice, such that a victim’s ‘right to truth’ can significantly alter the course of the proceedings.
Subsequent ICC decisions have endorsed this view of the ‘right to truth’ in international criminal justice. In Prosecutor v Abu Garda and Prosecutor v Al-Bashir, when considering the scope of victims’ ‘personal interests’ at the pre-trial stage of proceedings, the Pre-Trial Chamber held that the ‘right to truth’ qualifies.[105] In both cases, the Pre-Trial Chamber held that a victim’s ‘right to truth’, defined by the Court as ‘the desire to have a declaration of truth by a competent body’, falls within a victim’s ‘personal interests’ for the purposes of the Rome Statute of the International Criminal Court (‘Rome Statute’) and can give rise to participatory rights for victims in ICC proceedings.[106] Here too we see the ICC endorsing the view that not only is truth-telling an objective of international criminal justice, it is also a right of victims that gives rise to concrete participatory rights in international criminal proceedings.
The ‘right to truth’ in international criminal justice has also been highlighted in other contexts in ICC jurisprudence. For example, in the long-running Comoros Situation, the Pre-Trial Chamber in two separate Decisions referred to ‘the rights of victims to know the truth’ when discussing the Prosecutor’s obligations in conducting preliminary examinations.[107] Further, the Pre-Trial Chamber, for a second time, requested that the Prosecutor reconsider her decision not to proceed with an investigation; in doing so, the Pre-Trial Chamber based its decision in part on ‘the rights of victims to know the truth’.[108]
However, other decisions of the ICC seemed to have pulled back on the extent to which a victim’s right to truth can translate into procedural rights in ICC proceedings.[109] This evidences the differing attitudes of judges regarding this particular issue.
For example, in the Situation in the Islamic Republic of Afghanistan (‘Afghanistan Situation’), a number of victims filed an application for leave to appeal a decision of the Pre-Trial Chamber not to authorise the commencement of an investigation.[110] The question arose whether victims who had been granted participatory rights in the proceedings could appeal the Pre-Trial Chamber’s decision.[111] The Pre-Trial Chamber refused the victims’ application,[112] but in so doing, considered the discussion regarding victims’ ‘right to truth’. The Majority noted ‘the need for international criminal justice to live up to [the victims’] right to truth and justice’,[113] but nonetheless held that the Rome Statute did not support such extensive participatory rights of victims as those claimed by the victim parties in this case.
One judge disagreed with the majority on this point. Judge Mindua argued for much more expansive victims’ rights in ICC proceedings and held that victims’ rights under international human rights law, including in particular the right to truth, should translate into far greater participatory rights for victims in ICC proceedings:
I am convinced that the fundamental human rights of victims to truth, justice and remedy should be respected by this Court, whose primary purpose is being victim-oriented, which must not be a mere slogan.[114]
For Judge Mindua, the ICC being a ‘victim-oriented’ court means that victims’ interests, including their ‘right to truth’, should be put on equal footing with the procedural rights of the Prosecution and the Defence in the proceedings, meaning that, in this instance, the victims should have been granted the right to appeal the Pre-Trial Chamber’s decision.[115] Such a view would of course have far-reaching consequences for the conduct of international criminal proceedings. This was also the view taken by Judge Alapini-Gansou in her partly dissenting opinion in the Comoros Situation.[116] Judge Alapini-Gansou considered that the Prosecutor should have again been directed to reconsider her decision not to open an investigation.[117] In particular, Judge Alapini-Gansou considered that victims’ rights should be given far greater prominence under the Rome Statute, and that the Rome Statute should be interpreted by reference to ‘the internationally recognised human rights of victims, especially the rights of victims to know the truth’.[118]
However, this view runs contrary to ICC jurisprudence where the Court has taken a far more restrictive view of the extent of victims’ participatory rights in ICC proceedings, including in the DRC Situation (Victim Participation),[119] in the Situation in the Republic of Kenya (‘Kenya Situation’),[120] in Prosecutor v Ruto (‘Ruto’),[121] and in the Situation in the Democratic Republic of the Congo (‘DRC Situation’).[122]
Interestingly, in the Kenya Situation, despite dismissing the victims’ application,[123] the Court nonetheless decided to entertain the merits of the victims’ request on the basis that the victims’ personal interest in seeking justice was affected.[124] This approach is consistent with a now fairly established approach by the ICC regarding victims’ participation, whereby even in instances where the Rome Statue does not allow for victims to participate in proceedings, the ICC should employ ‘a certain margin of discretion’ in considering their requests.[125]
This, then, brings us back to the STL Trial Chamber’s statements in the Ayyash case. Here too, the Trial Chamber had the opportunity to discuss the multiple objectives of international criminal justice, and specifically, an international criminal tribunal’s ability to ‘find the truth’ and establish a full and accurate historical record of events. Rather than shying away from this question, the Trial Chamber confronted it head-on. As mentioned above, the Trial Chamber reminded the reader of the Tribunal’s limitations regarding its ability to ‘find the truth’ or to establish an accurate historical record on no fewer than nine separate occasions.[126]
The Trial Chamber acknowledged the multiple objectives of international criminal justice, including, in the STL’s case, the desire to give a voice to the victims and to the wider affected community in Lebanon. The Trial Chamber also acknowledged the interests of the victims in ‘finding the truth’ and the role of truth-telling in the process of reconciliation:
The reason behind the Special Tribunal’s creation was that ‘all those responsible for the terrorist bombing that killed former Lebanese Prime Minister Rafiq Hariri and others be identified and brought to justice’. Only to determine the issues necessary to find the case proved against the four named Accused would be ‘unforgivable’, especially to the victims. They want to know why they were injured or their loved ones were killed. The judgment must be comprehensive, say the whole truth and embrace the circumstances, ‘the whys and the wherefores’. Lebanese people wait to hear this judgment to break the vicious circle of silence and indifference.[127]
The Chamber also acknowledged that ‘finding the truth’ has been recognised as one of the main objectives of international criminal justice: ‘[A] tribunal can exercise a judicial “truth-finding function” — as an ICTY trial chamber has described one of that tribunal’s objectives.’[128]
However, in contrast to the early ICTY jurisprudence to which it referred, the STL Trial Chamber expressed the view, and reiterated it several times, that as an international criminal tribunal, it is simply unable, by virtue of its core mandate and function as a court of criminal jurisdiction, to ‘find the truth’ through the conduct of proceedings: ‘The Trial Chamber only needs to make findings on the facts that are essential to determining the Accused’s criminal responsibility on a particular count.’[129] ‘“The scope of a trial is fixed by the indictment” and by the statutory provisions on the Tribunal’s jurisdiction.’[130] ‘The “truth” that a trial chamber, within the scope of a trial, can and must establish — and to which the [Special Tribunal’s Rules of Procedure and Evidence] refer — is any that a court can establish from the evidence before it.’[131]
These statements reveal a marked change of direction from the early international criminal jurisprudence, which placed justice owed to the wider community alongside (or at times, seemingly above) justice owed to the individual among the multiple objectives of an international criminal court.
However, the Trial Chamber in this case did not end the discussion there. The Chamber took the discussion further and addressed whether truth-telling objectives should form part of an international criminal tribunal’s functions. While the above statements reflect the Trial Chamber’s view on the limitations of its ability to ‘find the truth’ and establish a full and accurate historical record of events, the statements below reflect the Trial Chamber’s view on whether such an expectation is appropriate to begin with:
The Trial Chamber’s role as a first instance trial court is neither to write nor correct any version of history that witnesses or parties may have urged upon it. Its role is confined to adjudicating whether any of the four Accused are guilty beyond reasonable doubt of any of the charges against them.[132]
The Trial Chamber, however, is neither a fact-finding institution ... nor a truth and reconciliation commission. Its statutory role is to determine, based solely on the evidence on the trial record, whether the Accused have been proved guilty beyond reasonable doubt of any crime charged in the amended consolidated indictment. It is not searching for the ‘truth’ in the manner of, say, a truth and reconciliation commission ...[133]
The Trial Chamber, unlike fact-finding missions or commissions of inquiry, is bound by the Statute and international human rights law, to ensure that the Accused’s rights to a fair trial are respected. It is not therefore equipped to establish an ‘objective truth’ — behind what is pleaded in an indictment and is proved by the evidence before it — if in fact an ‘objective truth’ exists.[134]
While earlier international criminal jurisprudence echoed the lofty aspirations of international criminal justice as a jurisdiction that could do it all — end impunity for international crimes, prosecute individuals in accordance with the highest standards of criminal and human rights law, re-establish peace and the rule of law, contribute to reconciliation in the affected region and create a historical record for the benefit of future generations to learn from — the STL in this recent Trial Judgment took a significantly tempered view of these lofty expectations.
Rather, the STL Trial Judgment reflects the position that notwithstanding the multiple objectives of international criminal justice, the primary focus of international criminal courts and tribunals should be dispensing individual criminal justice by meting out individualised criminal accountability. In this author’s view, in light of decades of jurisprudence expressing contrasting and divergent views on the place of truth-telling in the administration of international criminal justice, the STL Trial Judgment’s statements on this matter are a welcome development.
The article now turns to a discussion of the jurisprudence examined above regarding the objective of ‘finding the truth’ and establishing a full and accurate historical record of events in international criminal justice. The following section also critically examines the lofty promises of truth-telling as an important tool for the realisation of peace and reconciliation in the context of international criminal proceedings.
An examination of the jurisprudence demonstrates that in international criminal courts and tribunals, there is no settled position regarding the objective of truth-telling among the wider array of objectives of international criminal justice.
In the ICTY, the debate regarding the place of truth-telling in international criminal justice was had in the context of accepting plea agreements. Early ICTY judgments, such as the Erdemović, Todorović, Sikirica, Dragan Nikolić and Momir Nikolić cases, expressed great discomfort with accepting a negotiated plea-bargain specifically because it was viewed as a compromise of one of the Tribunal’s key objectives: ‘establishing the truth about the conflict in the former Yugoslavia’.[135] In considering the value of a plea of guilty, the Tribunal’s view was that a guilty plea should be credited as a factor in the mitigation of a sentence only because of the contribution to the Tribunal’s truth-telling function, ‘to search for and record ... the truth of what happened in the former Yugoslavia’,[136] and not because of any contribution to the effective administration of justice.
As a matter of criminal justice, a plea agreement is a desirable outcome that delivers tangible benefits to the Prosecution, who secure a conviction, as well as to the court, which avoids the need for victims and witnesses to relive their experiences — which, in the case of international criminal law, will almost always be horrific — and testify at trial. These benefits are far from incidental ‘side effects’.[137] For these reasons (among others),[138] the accused benefits from the guilty plea being considered as a factor in the mitigation of a sentence.
However, the view adopted in early ICTY jurisprudence was that in international criminal proceedings, any such benefits are relatively insignificant when weighed against the Tribunal’s interest in establishing a full and accurate historical record of the conflict, and that any potential threat to the achievement of the latter ought to be treated with extreme caution. Thus, the Tribunal’s view in its early jurisprudence, including in the Momir Nikolić and Dragan Nikolić cases, was that the creation of an accurate historical record is a consideration that takes precedence over ‘pragmatic’ concerns such as the efficient administration of criminal justice.[139] These same views were reiterated in the Obrenović, Plavšić and Deronjić cases.[140]
This jurisprudence clearly evidences the Tribunal’s view of itself as an institution mandated to do more than mete out individualised criminal justice. The Trial Chamber placed a heavy emphasis on the Tribunal’s ability to ‘establish the truth’ and create a historical record of events as a contribution to a range of objectives, including assisting in the restoration of peace in the region, reconciliation between the different groups in the region, the rule of law, deterring the commission of future crimes, giving a voice to victims and expressing the international community’s condemnation of the crimes committed in the former Yugoslavia.[141]
This view, however, relegates the function of individualised accountability to being of secondary importance. Rather, this array of objectives is outward-looking, aimed at actors outside the courtroom: the victims and their families, the afflicted community that suffered the consequences of the crimes committed, the international community whose condemnation is reflected in the courtroom proceedings and future generations around the world who we hope will benefit from the historical record being created. As a function of individualised criminal justice, however, these objectives are of questionable relevance. In international criminal justice, in the words of Martti Koskenniemi, ‘[r]ecording “the truth” and declaring it to the world through the criminal process has been held important for reasons that have little to do with the punishment of the individual’.[142] Nonetheless, the view adopted by early ICTY jurisprudence was that ‘the fulfilment of the mandate of the Tribunal, including the establishment of a complete and accurate record of the crimes committed in the former Yugoslavia, must not be compromised’.[143]
Other ICTY jurisprudence, however, took a markedly different approach. For example, in the Bralo and Stanišić cases, the Tribunal made no mention of the Tribunal’s mandate to discover the truth or to produce a full and accurate historical record of events, but rather focused on the Tribunal’s mandate of the efficient administration of criminal justice.[144] An examination of the jurisprudence demonstrates that at the ICTY, there was no uniform position on how the Tribunal’s multiple objectives ought to have been served in the course of the Tribunal’s administration of international criminal justice or on the place of truth-telling as one of those objectives.
Nor did the ICTR adopt a uniform approach towards the place of truth-telling within international criminal justice. Some cases, such as the Rutaganira case, emphasised the Tribunal’s mandate to ‘search for the truth’,[145] while others, such as the Ruggiu and Serushago cases, emphasised the Tribunal’s mandate to ensure fair and efficient administration of criminal justice.[146]
The discussion of this matter at the SCSL took on a markedly different tone. Whereas the ICTY in the Momir Nikolić case held that justice to the international community cannot be compromised in the name of the efficiency of criminal proceedings,[147] the SCSL Trial Chamber in the Norman case held that neither can principles of criminal justice be compromised in the name of ‘competing and conflicting societal interests’ such as establishing an accurate historical record of the conflict in order to aid international peace and reconciliation.[148] In fact, the SCSL Trial Chamber held that it is in ‘the interest of the International Community’ and not merely in that of the individual accused, to safeguard and uphold the principles of criminal justice, and that among the multiple objectives of international criminal justice, administering individualised criminal accountability must always take priority: ‘the accused’s right to a fair and public trial always prevails’.[149]
An examination of the jurisprudence shows that the ICC, too, has not taken a consistent position regarding the place of truth-telling in international criminal justice. At the ICC, this discussion has largely been had in the context of discussions regarding the scope of victims’ participatory rights in proceedings, the place of victims’ ‘right to truth’ or the meaning of that right in the context of international criminal proceedings. The ICC’s evolving jurisprudence on this matter has increasingly emphasised victims’ interests in ICC proceedings, specifically the ‘victims’ central interest in the search for the truth’.[150] Other cases, such as the Lubanga case, the Afghanistan Situation, the Kenya Situation, the DRC Situation and the Comoros Situation, have adopted a more measured view, recognising victims’ interests in seeking truth and justice but restricting the extent to which these interests can give rise to participatory rights in proceedings.[151] However, there has been a vocal minority that has continued to advance the view that the victims’ ‘right to truth’ should translate to extensive participatory rights for victims, which can potentially significantly affect the course of proceedings and the efficient administration of international criminal justice at the ICC.[152] The discussion regarding the place for truth-telling in international criminal justice at the ICC thus remains a relevant and evolving one.
The STL Trial Chamber in the Ayyash case, however, took an unequivocal view: the Tribunal regards itself foremost as an international criminal tribunal whose primary responsibility is the administration of individualised criminal justice.[153] Notwithstanding the multiple objectives identified by international criminal tribunals in the decades of international criminal jurisprudence since the Nuremberg legacy was established, the STL Trial Chamber laid down a clear hierarchy of objectives in international criminal law, with individualised accountability unquestionably at the top.
This article’s examination of the case law across international courts and tribunals demonstrates that the STL Trial Chamber’s comments come as the latest in a long-running discussion regarding the appropriate place for truth-telling in international criminal justice, both in international jurisprudence as well as in academic scholarship. This article does not contend that the STL as such is better placed than any of the preceding institutions to render judgment on the matter. Indeed, as noted at the outset of this article, the STL has been plagued by challenges from its inception and throughout its operation, some of which owe to institutional and jurisdictional differences between this institution and other international courts and tribunals. There is no shortage of criticisms regarding the STL’s conduct of in absentia trials, for example, as a serious aberration from the minimum international standards of the rule of law and the right to a fair trial,[154] which casts doubt on the legitimacy of the Tribunal and its proceedings.[155] Some scholars have even specifically expressed concern that this poses a particular problem for the truth-telling aspect of the Tribunal’s outcomes, noting that one-sided proceedings are inherently incomplete and stand to produce results that are ‘unrepresentative, inaccurate and unsafe’.[156] This certainly has implications for the historical value of the judgments produced.[157]
Nonetheless, this article takes note of the Trial Chamber’s statements on this particular matter in the context of the ongoing scholarly and jurisprudential discussion on the matter and agrees with the principles espoused in the STL Trial Judgment regarding the balancing of the multiple objectives of international criminal proceedings. In light of decades of jurisprudence expressing contrasting and divergent views on the place of truth-telling in the administration of international criminal justice, this article applauds the STL’s important statements on this matter as a truly welcome development in international criminal law. While international criminal courts can certainly contribute to a range of transitional justice processes, international criminal justice alone cannot be regarded as the panacea. Rather, among the multitude of objectives of international criminal justice, the focus of an international court or tribunal must be its administration of individualised accountability.
It cannot be denied that truth-telling is an inherent aspect of any criminal justice process as an outcome of the court’s essential function of fact-finding, particularly when held to the highest standard of proof, beyond a reasonable doubt. In the course of determining the criminality of the accused’s actions, the court is required to make findings of fact and apply them to the applicable law, thereby creating a factual record of events that is necessary in order to determine the guilt of the accused. Depending on the scope of the criminality at issue, this fact-finding might apply to not only the individual accused’s conduct but also a range of surrounding matters, including the acts of victims and witnesses and contextual matters such as events that occurred before and after the alleged criminal conduct, all of which (if relevant and in issue in the particular case) will have to be determined as a matter of fact by the court. Creating some sort of factual record of events is thus an inherent outcome of the criminal justice process. This factual record, even if incomplete, will almost always extend beyond the narrow scope of the accused’s specific conduct.
In the context of international criminal law, this fact-finding task also necessarily extends to the contextual elements of international crimes, without which the underlying conduct cannot be found to constitute an international crime. Conduct charged as a war crime will require the court to make factual findings regarding not only the accused’s underlying acts but also the existence of an armed conflict as well as its parameters, including its nature (whether international or non-international), the parties to it, its geographical scope, its temporal scope (specifically whether it existed at the time of the accused’s alleged conduct), and the connection of the accused to the armed conflict.[158] Similarly, conduct charged as a crime against humanity requires the court to factually determine not only the conduct of the accused, but also that that conduct was committed as part of a widespread or systematic attack against a civilian population, together with at least some parameters of such an attack, at least insofar as they relate to the accused’s conduct.[159] At the ICC, the Court must also establish the existence of a governmental or organisational plan or policy to commit such an attack.[160] The same applies to conduct charged as genocide, which requires the Court to determine, as a matter of fact, not only the accused’s individual acts, but also that those acts were committed as part of an attempt to destroy, in whole or part, a national, ethnic, racial or religious group as such.[161] In addition, particular elements of the crime, in particular the mental elements (mens rea) of intent and knowledge (particularly, but not solely, in respect of genocidal intent),[162] will often be nearly impossible to provide directly and will require proof by way of inference from surrounding facts and circumstances, including the broader context in which the accused’s conduct occurred.[163] In this way, the fact-finding required of a proceeding adjudicating an international crime will almost always, by necessity, extend to the broader context in which those crimes were committed.
In addition, international criminal prosecutions frequently charge accused persons under modes of liability that involve other actors, such as superior responsibility, joint criminal enterprise or co-perpetration or with conduct other than committing an international crime, such as planning, ordering or assisting in the commission of an international crime.[164] Such modes of liability inherently require the courts to look at and make factual determinations regarding the conduct of other actors and the events surrounding the conduct of the accused. Therefore, in international criminal proceedings, the fact-finding mandate of courts and tribunals will necessarily extend beyond the narrow scope of the individual accused’s conduct, and the factual record thus created will inevitably create some form of a historical record of events.[165] For these reasons, as noted above, international criminal proceedings cannot be removed from their unique context, and their outcomes are inherently tied to the immediate domestic or regional contexts in which the cases originated. The historical record of events created will carry meaning in the immediate socio-political and historical context in a way that inherently differs from a ‘regular’ domestic criminal judgment.
In international criminal justice, the Nuremberg legacy, discussed above, thus continues, whether as a consciously selected objective of international criminal justice institutions or as an inevitable outcome of the court fulfilling its fact-finding duty in the unique circumstances of adjudicating individual criminal responsibility for international crimes. The factual record left by the Nuremberg trials, the Yugoslavia and Rwanda proceedings and other international criminal proceedings no doubt has provided valuable historical material of potentially significant value for both the affected community and the international community as a whole.[166] Future international criminal trials will no doubt continue to do the same. This article does not seek to dispute such assertions; however, this is not to say that this incidental function of international criminal courts and tribunals should be their objective. This article certainly acknowledges that within the broader framework of transitional justice, the objectives of recording the historical events of mass atrocities, including for the purposes of preventing historical denial or revisionism as well as preventing future recurrences of such events, are crucially important. However, this article examines the question of the degree to which international criminal courts and tribunals in particular can and should be relied upon to fulfil these objectives.
A myriad of goals and aspirations have been put forward for what international criminal justice can be expected to achieve. This includes a range of transitional justice objectives, such as establishing a historical record of events, giving a voice to victims, contributing to re-establishing peace and reconciliation in the affected communities, re-establishing the rule of law, promoting a transition to peace and democracy and preventing historical revisionism, as well as the ‘usual’ criminal justice goals of deterrence, protection of the society from further wrongdoing, rehabilitation and retribution.[167] There has been much discussion of how to balance this array of aspirations.[168]
Many scholars view the function of international criminal justice as extending well beyond the narrow confines of adjudicating individual criminal responsibility and emphasise the responsibilities owed by international criminal justice to the wider international community. Many scholars in particular emphasise the role of truth-telling and recording of historical narratives of mass atrocity events as an important function of international criminal prosecutions. Richard Ashby Wilson, for example, contends that, ‘like it or not, historical discussions are a permanent feature of international criminal justice’,[169] — an inherent and unavoidable aspect of prosecuting international crimes.[170]
Other scholars take this point further, arguing that the historical record produced by international criminal proceedings is not only inevitable but also desirable. Thane Rosenbaum argues that international criminal justice can act as a vehicle for ‘moral justice’, writing that ‘[j]ustice is owed not only to the individual, but also to history’.[171] As an example, Rosenbaum claims that this is precisely what the Nuremberg trials did, serving as a vehicle for criminal justice in the strict, legal sense but also as a vehicle for moral justice for the benefit of the international community as a whole, and for future generations, by demonstrating the possibility of a humane approach to one of the greatest human tragedies in history: ‘It offered a glimpse as to what moral justice might look like, implemented in response to the world’s greatest known atrocity, at a time when humanity had just failed so miserably.’[172] In particular, Rosenbaum also argued that the Nuremberg trials also served an important historical purpose:
Nuremberg was a bloodletting of documentary evidence, meticulously introduced, chronicled, compiled, indexed, and recorded for posterity. The piles of proof served the immediate purpose as trial exhibits, but they also served as exhibits for history.[173]
In a similar vein, Lawrence Douglas argues that it is neither possible nor desirable to separate law and history in trials of international crimes of major significance. Douglas agrees that while the primary purpose of criminal trials is to adjudicate guilt, he argues that in trials of international crimes, this cannot and should not be the sole purpose.[174] In particular, he argues that we cannot overlook the historical significance of trials of major international crimes specifically because of the value of the historical record they leave. As evidence, he points out that many important histories of the Holocaust could not have been written without the massive archive of documentary evidence collected and presented as part of the Nuremberg trials.[175]
Due to their intrinsic historical value, therefore, Douglas argues that prosecutions for mass atrocity events must be aimed at more than merely adjudicating individual criminal responsibility, but must also encompass an element of justice owed to the outside world and to history.[176] The major Holocaust trials, for example, were carried out not only to do justice in the strict, legal sense but also were ‘staged to teach history and shape collective memory’.[177] Douglas argues that it is impossible to separate this extra-legal component from such prosecutions:
After all, that is what these trials were — orchestrations designed to show the world the facts of astonishing crimes and to demonstrate the power of law to reintroduce order into a space evacuated of legal and moral sense.[178]
Similarly, Aldo Zammit Borda contends that the historical narrative-writing aspect of international criminal prosecutions is an inevitable and inseparable aspect of the process: ‘writing historical narratives is an inalienable part of mass atrocity trials’.[179] Borda, too, argues that this is not only an inevitable aspect of the function of international criminal prosecutions but is also desirable. He argues that without engaging in ‘a search for the truth’, neither the strictly legal (ie criminal) objectives nor the broader, multifaceted objectives of international criminal justice can be met.[180] Therefore, ‘[i]n international criminal adjudication ... this broader search for truth is necessary for the proper dispensation of justice’.[181] However, Borda recognises that this broad conception of ‘justice’ in international criminal law must be balanced with the competing goals of justice in the strict, legal sense, adjudicating individual criminal responsibility. He thus puts forward a ‘responsible history’ approach for international criminal tribunals that balances these two objectives by adopting ‘moderate approaches to history-writing in international criminal adjudication’.[182]
Other scholars support a more expansive role for historical narrative-writing and truth-telling in international criminal proceedings. Some support the view that international criminal proceedings can and should uphold victims’ right to an effective remedy in post-conflict and mass human rights abuse situations, including specifically their ‘right to truth’.[183] Scholarship focusing on the right to truth in international law has examined the emergence and expanding scope and application of this concept, including specifically in the field of international criminal justice. Yasmin Naqvi, for example, argues that the right to truth in international law has developed into ‘something approaching a customary right’,[184] and maintains that ‘a right to the truth’ in international criminal law would be compatible with the broader objectives of international criminal justice, including that of creating a historical record.[185] Others agree with the sentiments expressed in some of the judgments examined above that finding the truth and creating an accurate historical record are important functions of the international criminal process.[186] While such a right has not yet solidified in international law, it continues to gain prominence as a concept in international law as well as international legal scholarship, including in the area of international criminal justice, in particular in the form of recording the historical truths of mass atrocity events through international criminal proceedings.[187] This view has certainly been reflected in the jurisprudential discussion examined in this article.
The tensions inherent in balancing the multiple objectives of international criminal justice have been the subject of much debate and discussion, and such a broad-ranging discussion is beyond the scope of this article. Rather, the focus of this article is on the debate regarding the objective of truth-telling and creating an accurate historical record of historical events and its appropriate place within the vehicle of international criminal justice. It is argued here that notwithstanding the multiple objectives of international criminal justice, the primary focus of international criminal courts and tribunals should be dispensing individual criminal justice by meting out individualised criminal accountability. The following section discusses the limitations of this aspect of international criminal justice and asserts that international criminal proceedings are an imperfect tool for truth-telling in the international criminal context.
This article supports the contention that, notwithstanding the pressing desire to meet the myriad of goals and objectives of international criminal justice noted above, international criminal courts and tribunals cannot, and should not, be expected to produce a full and accurate record of the conflicts or mass atrocities that have given rise to their existence. The fact-finding that occurs in the course of an international criminal trial serves a specific and narrowly defined objective — criminal prosecution of an individual or group of individuals — and thus cannot be expected to constitute a full and accurate historical record of events.[188] International criminal courts and tribunals thus cannot serve as ‘thorough or objective historians’.[189]
Just as the STL Trial Chamber was at pains to point out, so too have international criminal practitioners pointed out the practical limitations on an international criminal court’s ability to ‘establish the truth’ and create a full and accurate historical record through criminal proceedings, which are defined by the scope of the indictment against the accused. This means that what is historically relevant to the conflict may not necessarily be relevant to the trial before the court.[190] Indeed, in the words of one international criminal judge:
[T]he paramount role of the judges of the Tribunal is to adjudicate, in as fair and expeditious a manner as possible, the guilt or innocence of the accused before them. The task of determining guilt or innocence must take precedence over other, not strictly judicial, considerations. Ours is first and foremost a criminal court: the successful prosecution of the guilty and the exoneration of the innocent must remain our central concern.[191]
In some cases, international criminal trials have been willing to admit evidence that relates to facts beyond the scope of the indictment for the purposes of establishing the socio-political and historical context of the crimes being prosecuted, while, in other cases, courts have been much more hesitant to do so on the basis that such evidence is not relevant to establishing the facts giving rise to the crimes charged.[192] Understandably, this can lead to tensions, particularly in the context of proceedings before tribunals in which victims have rights of participation. As the STL Trial Chamber acknowledged, ‘[t]he Prosecution is focused on proving the guilt of the Accused, but the victims’ interest goes beyond that’.[193]
There are indeed many practical limitations inherent to criminal proceedings, which are worth reiterating in the context of this discussion. Arguably the most significant practical limitations on an international criminal court are its jurisdictional parameters. The temporal and geographical parameters mean that the court’s jurisdiction will be limited to a particular time frame and geographical area, which may not encompass the entire scope of the relevant conflict. The limitations on personal jurisdiction will mean that the tribunal will have jurisdiction over certain persons only. For example, the ICTY and ICTR only had jurisdiction to prosecute the most senior leaders responsible for serious violations of international humanitarian law, which meant that the tribunals could not exercise jurisdiction over the vast majority of perpetrators of international crimes in relation to the conflicts under their jurisdiction.[194]
In addition, there are limitations on an international court’s subject matter jurisdiction, which may not allow the court to exercise jurisdiction over the full range of events that form part of a conflict situation. For example, the International Military Tribunal held that crimes perpetrated on the territory of Europe before 1939 fell outside the Tribunal’s jurisdictional competence, despite being satisfied of their occurrence:
The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute Crimes Against Humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes Against Humanity within the meaning of the Charter ... [195]
Another set of significant limitations arise from the Prosecutor’s choice in defining the scope of the indictment. Not all aspects of a conflict or mass atrocity situation will see their way into an indictment; in many cases, only a portion of the events will be charged. For example, the crimes for which Saddam Hussein was tried and convicted represent merely a ‘fraction of the totality of his likely criminal conduct’.[196] At the ICTY, some indictments have been intentionally narrowed in their scope for the sake of the efficiency of proceedings.[197] At the ICC, some of the Prosecutor’s decisions regarding the scope of an indictment have been met with strong criticism, including the decision not to include charges of sexual violence in the indictment against Thomas Lubanga, the first accused to be prosecuted before the ICC.[198] There may indeed be good reasons for a prosecutor’s decision to limit the scope of an indictment, including potential evidentiary issues,[199] jurisdictional restrictions[200] or matters affecting the ability to expeditiously conduct proceedings.[201] As discussed above, matters of judicial efficiency, including the court’s ability to manage incredibly large and complex cases and to ensure the accused’s right to a trial within a reasonable time, have at times prompted the Court itself to limit the scope of an indictment against an accused.[202]
In addition to ensuring the accused’s right to a trial within a reasonable time, a criminal judge also has the obligation to ensure that all other fundamental principles of criminal justice are upheld, including a range of fundamental fair trial principles. One of these is the burden of proving the accusations against the accused ‘beyond a reasonable doubt’ — the highest standard of proof in legal proceedings. Truth and reconciliation commissions, on the other hand, often employ an evidentiary standard that more closely resembles the standard of ‘on the balance of probabilities’ or ‘more likely than not’.[203] Thus, evidence that would not satisfy the burden of proof in a criminal trial and thus would not form part of the trial judgment could, however, form a part of the history recorded by a truth and reconciliation commission. A number of other fundamental principles of criminal law, including the rules regarding the admission of evidence,[204] the principles of in dubio pro reo[205] and nullum crimen sine lege,[206] among others, mean that much evidence and testimony that could be heard and recorded before a truth and reconciliation commission would likely not make it into a criminal judgment. This is what the STL Trial Chamber felt the need to reiterate — the fact that an international criminal tribunal is necessarily limited by a range of fundamental principles of criminal justice that simply cannot be dispensed with. Criminal proceedings, therefore, cannot serve as a reliable witness to ‘the truth’ and cannot create a full and accurate historical record.
This is of course not to say that these same objectives cannot be achieved alongside criminal justice proceedings. The SCSL’s model of a criminal court operating alongside a truth and reconciliation commission is one example; others include royal commissions, fact-finding missions and localised truth and reconciliation processes. International criminal proceedings alone, however, cannot serve as the panacea for all of the lofty aspirations that were once expected of international criminal justice.
As noted above, critics such as Hannah Arendt maintain that the individualised accountability function of international criminal justice must remain the overarching priority.[207] As the Trial Chamber in the Dragan Nikolić case itself recognised, adding an important caveat to its discussion: ‘[I]t should be recalled that this Tribunal is not the final arbiter of historical facts. That is for historians.’[208]
In the early days of international criminal law, the goals of individual accountability and historical truth-telling in international criminal law were often placed side-by-side, and there was an expectation that international criminal courts and tribunals can and should strive to achieve both. The STL in its recent Trial Judgment, however, has emphasised a decoupling of these two sets of objectives and has reiterated that among the multitude of objectives of international criminal justice, the focus of an international court or tribunal must be its administration of individualised accountability. This article applauds these important comments as a welcome development in international criminal law. This article supports the contention that international criminal tribunals cannot, and should not be expected to, produce a full and accurate record of the conflicts or mass atrocities that have given rise to their existence.
Through an examination of the jurisprudence of the ICTY, ICTR, SCSL, ICC and STL regarding balancing the objectives of truth-telling with individualised criminal accountability in international criminal trials, this article has sought to trace the goals of international criminal justice and how they have evolved over the relatively short lifespan of its jurisdiction, in particular focusing on the place of historical truth-telling in international criminal proceedings. This question has arisen in various contexts, including accepting guilty pleas and addressing the modalities of victims’ participation in proceedings. An examination of the jurisprudence of the major international criminal courts and tribunals has demonstrated that there is no coherent case law on the priority afforded to individualised criminal accountability over truth-telling in international criminal law.
This article has been particularly critical of earlier ICTY case law that afforded greater precedence to the truth-telling and reconciliation goals of international criminal justice above meting out individualised criminal accountability. By contrast, later jurisprudence from the tribunals has approached this question differently, recognising the limitations of the extent to which international criminal justice can contribute to truth-telling and transitional justice objectives more broadly and rightly emphasising the efficient administration of individualised criminal justice. There are limits on the degree to which international criminal justice can contribute to the process of transitional justice, and international criminal justice alone cannot be regarded as the panacea. The STL, in its Trial Judgment, has sought to draw attention to this reality, and it is this reality that this article has sought to defend.
* PhD candidate, Faculty of Law, Hebrew University of Jerusalem; Barrister, Greens List Barristers, Victorian Bar. YuliyaR[1]s doctoral research focuses on the identification of customary international law by international criminal courts and tribunals. Her practice areas include domestic and international criminal law, public international law and international arbitration. Yuliya’s professional experience in international law includes the Extraordinary Chambers in the Courts of Cambodia and the International Criminal Tribunal for the Former Yugoslavia.
1 Prosecutor v Ayyash (Judgment) (Special Tribunal for Lebanon, Trial Chamber, Case No STL-11-01/T/TC, 18 August 2020) (‘Ayyash’).
[2] Commencing with the United Nations International Independent Investigation Commission, which was established by the UN Security Council on 7 April 2005, and which delivered its Report to the UN Security Council on 20 October 2005: SC Res 1595, UN SCOR, 5160th mtg, UN Doc S/RES/1595 (7 April 2005); Letter Dated 20 October 2005 from the Secretary-General Addressed to the President of the Security Council, UN SCOR, UN Doc S/2005/662 (20 October 2005) 1. Investigations were then continued by the Special Tribunal for Lebanon (‘STL’) Office of the Prosecutor: SC Res 1757, UN SCOR, 5685th mtg, UN Doc S/RES/1757 (30 May 2007).
[3] The original indictment in the Ayyash case was filed by the Prosecutor on 17 January 2011. The indictment was amended on 11 March 2011, 6 May 2011 and 10 June 2011. The STL Pre-Trial Chamber confirmed the amended indictment on 28 June 2011: ‘Key Developments (Case Timeline)’, Special Tribunal for Lebanon (Web Page) <https://web.archive.org/web/20231017193854/https://www.stl-tsl.org/en/the-cases/stl-11-01/key-developments> (‘Case Timeline’). Subsequently, the indictment was amended on 8 November 2012, 17 April 2013, 21 June 2013, 7 March 2014 and 12 July 2016: Ayyash (n 1) [6]–[16].
[4] The trial in the Ayyash case commenced on 16 January 2014 and concluded with closing arguments that concluded on 21 September 2018. The appellate proceedings proceeding with an Appeals Chamber Decision handed down on 29 March 2021, dismissing the Defence appeal, and concluded with an Appeal Judgment handed down on 10 March 2022 upholding the Prosecution appeal and Sentencing Judgment handed down on 16 June 2022: Case Timeline (n 3).
[5] ‘Ayyash et al Trial: A Bird’s Eye View’, Special Tribunal for Lebanon (Information Sheet, March 2021) <https://web.archive.org/web/20221115010553/https://www.stl-tsl.org/sites/default/files/documents/cis/Ayyash_et_al-Case_Info_Sheet-EN.pdf>.
[7] See, eg, Michael Lysander Fremuth, Andreas Sauermoser and Konstantina Stavrou, ‘The Special Tribunal for Lebanon: After the Judgment in Ayyash et al, Justice at Last?’, Opinio Juris (Blog Post, 26 October 2020) <https://opiniojuris.org/2020/10/26/the-special-tribunal-for-lebanon-after-the-judgment-in-ayyash-et-al-justice-at-last/>, archived at <https://perma.cc/3SKX-KNRG>.
[8] Ayyash (n 1) [225], [393], [395], [397], [920], [931], [933], [937]–[938].
[9] Ibid [225] (emphasis added).
[10] Ibid [937] (emphasis added).
[11] Károly Bárd, ‘The Difficulties of Writing the Past through Law: Historical Trials Revisited at the European Court of Human Rights’ (2010) 81(1) Revue Internationale de Droit Pénal 27, 28.
[12] United States of America v Göring (Judgment) (International Military Tribunal, 1 October 1946), reproduced in The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany (His Majesty’s Stationary Office, 1950) vol 22 (‘Nuremberg Trial Judgment’).
[13] Thane Rosenbaum, ‘Essay: The Romance of Nuremberg and the Tease of Moral Justice’ (2006) 27(4) Cardozo Law Review 1731, 1734.
[14] Attorney-General (Israel) v Eichmann (1968) 36 ILR 5 (District Court, Jerusalem).
[15] Ibid [1].
[16] Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin Books, rev ed, 1994).
[17] Ibid 253 (emphasis added) (citations omitted).
[18] Martti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Yearbook of United Nations Law 1, 4–5 (citations omitted).
[19] SC Res 827, UN SCOR, 3217th mtg, UN Doc S/RES/827 (25 May 1993) 2 [2] (emphasis added) (citations omitted).
[20] Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 49th sess, Agenda Item 152, UN Docs A/49/342 and S/1994/1007 (29 August 1994) 11 [11].
[21] Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 51st sess, Agenda Item 50, UN Docs A/51/292 and S/1996/665 (16 August 1996) 48 [205].
[23] Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 52nd sess, Agenda Item 49, UN Docs A/52/375 and S/1997/729 (18 September 1997) 46 [192] (emphasis added).
[24] Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 53rd sess, Agenda Item 48, UN Docs A/53/219 and S/1998/737 (10 August 1998) 45 [202] (‘Fifth Annual Report’).
[25] Ibid 66 [296] (emphasis added).
[26] The many other objectives articulated include: ending impunity for mass atrocities; reaffirming the principle of legality and contributing to re-establishing the rule of law; re-establishing peace in the region; contributing to reconciliation among the various groups in the region; giving a voice to victims; deterrence, or ‘general prevention’ of similar crimes being committed again in the future; retribution, or punishing the perpetrators according to their ‘just desserts’; and expressing the international community’s condemnation of the offending. See, eg, Iain Bonomy, ‘The Reality of Conducting a War Crimes Trial’ (2007) 5(2) Journal of International Criminal Justice 348, 353; Fifth Annual Report (n 24) 45 [202], 66 [296]–[297].
[27] Prosecutor v Erdemović (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-96-22-Tbis, 5 March 1998) [21] (emphasis added).
[28] Prosecutor v Todorović (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-95-9/1-S, 31 July 2001) (‘Todorović’).
[29] Ibid [81].
[30] Ibid [82] (emphasis added).
[31] Prosecutor v Sikirica (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-95-8-S, 13 November 2001) [149] (emphasis added) (‘Sikirica’).
[32] Prosecutor v Nikolić (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-94-2-S, 18 December 2003) 31 [120] (emphasis added) (citations omitted) (‘Dragan Nikolić’).
[33] Ibid [121] (emphasis added).
[34] Ibid [122].
[35] Ibid (emphasis added) (citations omitted).
[36] Ibid [233] (emphasis added) (citations omitted).
[37] Prosecutor v Nikolić (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-02-60/1-S, 2 December 2003) (‘Momir Nikolić’).
[38] Ibid [67] (emphasis altered) (citations omitted).
[39] Ibid [69].
[40] See ibid [76], [149], where the Trial Chamber acknowledged the importance of the Tribunal’s mandate in establishing the truth of events in the former Yugoslavia. The Tribunal considered the accused’s acknowledgement of guilt and its contribution to establishing the truth of what happened as an important factor in deciding to accept the accused’s guilty plea. ‘The Trial Chamber considered Momir Nikolić’s acknowledgment of the crimes committed following the fall of Srebrenica and his role therein, as well as the role of other Bosnian Serbs members of the joint criminal enterprise, to be significant in verifying that these crimes were in fact committed and who was responsible for their commission. Such an acknowledgement may contribute to the establishment of the truth in all areas and communities in the former Yugoslavia. ... [T]he Trial Chamber considered this to be an important factor weighing in favour of accepting the guilty plea’: at [76].
[41] ‘When convictions result from a guilty plea, certain aims of having criminal proceedings are not fully realised, most notably a public trial. A public trial, with the presentation of testimonial and documentary evidence by both parties, creates a more complete and detailed historical record than a guilty plea, which may only establish the bare factual allegations in an indictment or may be supplemented by a statement of facts and acceptance of responsibility by the accused’: ibid [61].
[42] Ibid [67] (emphasis altered).
[43] Prosecutor v Obrenović (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-02-60/2-S, 10 December 2003) (‘Obrenović’); Prosecutor v Plavšić (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-00-39&40/1-S, 27 February 2003) (‘Plavšić’); Prosecutor v Deronjić (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber II, Case No IT-02-61-S, 30 March 2004) (‘Deronjić’).
[44] Obrenović (n 43) [19] (emphasis altered) (citations omitted).
[45] Ibid [111].
[46] Ibid [118] (emphasis added) (citations omitted).
[48] Ibid. See also at [80]: ‘The Trial Chamber accepts that acknowledgement and full disclosure of serious crimes are very important when establishing the truth in relation to such crimes. This, together with acceptance of responsibility for the committed wrongs, will promote reconciliation.’
[50] Ibid.
[51] Ibid [236] (emphasis added) (citations omitted):
The Trial Chamber finds that, in contrast to national legal systems where the reasons for mitigating a punishment on the basis of a guilty plea are of a more pragmatic nature, the rationale behind the mitigating effect of a guilty plea in this Tribunal is much broader, including the fact that the accused contributes to establishing the truth about the conflict in the former Yugoslavia and contributes to reconciliation in the affected communities. The Trial Chamber recalls that the Tribunal has the task to contribute to the ‘restoration and maintenance of peace’ and to ensure that serious violations of international humanitarian law are ‘halted and effectively redressed.’
[52] Ibid [241]: ‘Finally, the Trial Chamber concludes that Miroslav Deronjić’s guilty plea and his readiness to testify in other trials assists the Tribunal in its search for the truth and prevents historical revisionism.’
[53] Ibid [260].
[54] Ibid [4]–[5] (Judge Schomburg).
[55] Ibid [5].
[56] Ibid [6] (emphasis added) (citations omitted).
[57] Prosecutor v Bralo (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-95-17-S, 7 December 2005) (‘Bralo’).
[58] Ibid [64] (emphasis added).
[59] Ibid [63]–[64].
[60] Ibid [63].
[61] Prosecutor v Stanišić (Decision Pursuant to Rule 73 bis(D)) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber III, Case No IT-03-69-PT, 4 February 2008) (‘Stanišić’).
[62] Ibid [21] (emphasis added).
[63] Ibid [21]–[22].
[64] Prosecutor v Serushago (Sentence) (International Criminal Tribunal for Rwanda, Trial Chamber I, Case No ICTR-98-39-S, 5 February 1999) [35] (‘Serushago’).
[65] Ibid [19].
[66] Ibid (emphasis added): ‘In determining the sentence, the Chamber shall be mindful of the fact that this Tribunal was established by the Security Council ... to ensure that violations of international humanitarian law in Rwanda in 1994 were halted and effectively redressed. The objective was to prosecute and punish the perpetrators of the atrocities in Rwanda in such a way as to put an end to impunity and thereby to promote national reconciliation and the restoration of peace’.
[67] In this case, the accused pleaded guilty to 4 out of the 5 charges in the Indictment: ibid [4].
[68] Ibid [41], citing Prosecutor v Erdemović (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-96-22-T, 29 November 1996) [55].
[69] Prosecutor v Ruggiu (Judgement and Sentence) (International Criminal Tribunal for Rwanda, Trial Chamber I, Case No ICTR-97-32-I, 1 June 2000) [53] (‘Ruggiu’).
[70] Ibid (emphasis added).
[71] Ibid [44].
[72] Ibid [53].
[73] Prosecutor v Rutaganira (Judgement and Sentence) (International Criminal Tribunal for Rwanda, Trial Chamber III, Case No ICTR-95-1C-T, 14 March 2005) (‘Rutaganira’).
[74] Ibid [114].
[75] Ibid [150] (citations omitted). See also [152]: ‘The Chamber, recalling that Vincent Rutaganira pleaded guilty before the commencement of the trial, finds that his guilty plea’s contribution to the search for the truth must redound to his benefit. Accordingly, the Chamber will take such guilty plea into account in sentencing.’
[76] The Truth and Reconciliation Commission Act 2000 (Sierra Leone) s 6(1): ‘The object for which the Commission is established is to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone ....’
[77] Prosecutor v Norman (Decision on the Request by the Truth and Reconciliation Commission of Sierra Leone to Conduct a Public Hearing with Samuel Hinga Norman) (Special Court for Sierra Leone, Trial Chamber, Case No SCSL-2003-08-PT, 29 October 2003) (‘Norman’).
[78] Ibid [14].
[79] Ibid (emphasis omitted). See also at [8]–[9].
[80] Ibid [15].
[81] Ibid.
[82] Ibid [10] (emphasis omitted).
[83] Prosecutor v Norman (Decision on Appeal by the Truth and Reconciliation Commission for Sierra Leone (‘TRC’ or ‘The Commission’) and Chief Samuel Hinga Norman JP against the Decision of His Lordship, Mr Justice Bankole Thompson Delivered on 30 October 2003 to Deny the TRC’s Request to Hold a Public Hearing with Chief Samuel Hinga Norman JP) (Special Court for Sierra Leone, Appeals Chamber, Case No SCSL-2003-08-PT, 28 November 2003) [33] (‘Norman Appeal’).
[84] Ibid [44] (emphasis added).
[85] The Appeals Chamber ultimately reached a compromise, rejecting the request for the accused to testify at a live session of the TRC but allowing the accused to give a statement in the form of a sworn affidavit, prepared with the advice and assistance of his lawyers, to the TRC: Norman Appeal (n 83).
[86] See, eg, Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) arts 68(3), 75 (‘Rome Statute’); International Criminal Court, Rules of Procedures and Evidence, Doc No ICC-ASP/1/3 (adopted 9 September 2002) rr 16–19, 85–99.
[87] See, eg, Charles P Trumbull IV, ‘The Victims of Victim Participation in International Criminal Proceedings’ (2008) 29(4) Michigan Journal of International Law 777.
[88] Rome Statute (n 86) art 68(3) (emphasis added).
[89] ‘Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the “Directions and Decision of the Appeals Chamber”, filed on 1 February 2007’, Application in Prosecutor v Lubanga (International Criminal Court, Appeals Chamber, Case No ICC-01/4-01/06, 2 February 2007).
[90] Ibid 4–5.
[91] Prosecutor v Lubanga (Decision of the Appeals Chamber on the Joint Application of Victims a/0001/06 to a/0003/06 and a/0105/06 concerning the ‘Directions and Decision of the Appeals Chamber’ of 2 February 2007) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-01/06 OA8, 13 June 2007) [28] (‘Lubanga’).
[92] Ibid [26].
[93] Ibid [13] (Judge Pikis). The notion that victims’ personal interests can be affected by stages of proceedings other than the trial stage finds support in ICC jurisprudence: see, eg, Situation in Darfur, Sudan (Decision on the Requests of the OPCD on the Production of Relevant Supporting Documentation Pursuant to Regulation 86(2)(e) of the Regulations of the Court and on the Disclosure of Exculpatory Materials by the Prosecutor) (International Criminal Court, Case No ICC-02/05, 3 December 2007) [3]; Situation in the Democratic Republic of the Congo (Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04, 17 January 2006) [63]; Situation in the Republic of Kenya (Decision on Victims’ Participation in Proceedings Related to the Situation in the Republic of Kenya) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/09, 3 November 2010) [10]; Prosecutor v Ntaganda (Decision on Victim Participation) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-02/06 A A2, 8 October 2019) [4]; Prosecutor v Ntaganda (Decision on Victim Participation) (International Criminal Court, Appeals Chamber, Case No ICC-01/04-02/06 A A3, 13 February 2020) [5]. The ICC Appeals Chamber has however clarified that ‘proceedings’ do not extend to investigations: Situation in the Democratic Republic of the Congo (Judgment on Victim Participation in the Investigation Stage of the Proceedings in the Appeal of the OPCD against the Decision of Pre-Trial Chamber I of 7 December 2007 and in the Appeals of the OPCD and the Prosecutor against the Decision of Pre-Trial Chamber I of 24 December 2007) (International Criminal Court, Appeals Chamber, Case No ICC-01/04 OA4 OA5 OA6, 19 December 2008) [45] (‘DRC Situation (Victim Participation)’).
[94] Lubanga (n 91) [10] (Judge Song).
[95] Ibid [16] (Judge Song).
[96] Ibid [10]–[16] (Judge Song).
[97] Prosecutor v Bemba (Fourth Decision on Victims’ Participation) (International Criminal Court, Pre-Trial Chamber III, Case No ICC-01/05-01/08, 12 December 2008) [90].
[98] Ibid [91].
[99] Prosecutor v Katanga (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04-01/07, 13 May 2008) [39], [42] (‘Katanga’).
[100] Ibid [32], [35].
[101] Ibid [32] (citations omitted).
[102] Ibid [36].
[103] Ibid [31] (citations omitted). See also at [34]–[36].
[104] Ibid [33].
[105] Prosecutor v Abu Garda (Decision on the 34 Applications for Participation at the Pre-Trial Stage of the Case) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-02/09, 25 September 2009) [3] (‘Abu Garda’); Prosecutor v Al-Bashir (Decision on Applications a/0011/06 to a/0013/06, a/0015/06 and a/0443/09 to a/0450/09 for Participation in the Proceedings at the Pre-Trial Stage of the Case) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-02/05-01/09, 10 December 2009) [4] (‘Al-Bashir’), citing Abu Garda (n 105) [3].
[106] See Abu Garda (n 105) 5 [3], [4]; Al-Bashir (n 105) [4], [5].
[107] Request under Regulation 46(3) of the Regulations of the Court (Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-RoC46(3)-01/18, 6 September 2018) [88]; Situation of the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (Decision on the ‘Application for Judicial Review by the Government of the Union of the Comoros’) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/13, 15 November 2018) [120] (‘Comoros Situation’).
[108] Comoros Situation (n 107) [120].
[109] See generally William A Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 5th ed, 2017) 348.
[110] Situation in the Islamic Republic of Afghanistan (Decision on the Prosecutor and Victims’ Request for Leave to Appeal the ‘Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan’) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/17, 17 September 2019) [9].
[111] Ibid [17]–[20].
[112] Ibid [20].
[113] Ibid [25].
[114] Ibid annex ICC-02/17-62-Anx, [47] (Judge Mindua) (emphasis added).
[115] Ibid annex ICC-02/17-62-Anx, [48]–[49] (Judge Mindua).
[116] Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (Decision on the Request for Leave to Appeal the ‘Decision on the “Application for Judicial Review by the Government of the Comoros”’) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/13, 21 December 2020) annex ICC-01/13-115-Anx.
[117] Ibid annex ICC-01/13-115-Anx, [29]–[31] (Judge Alapini-Gansou).
[118] Ibid annex ICC-01/13-115-Anx, [17] (Judge Alapini-Gansou). See also at annex ICC-01/13-115-Anx, [29] (Judge Alapini-Gansou).
[119] DRC Situation (Victim Participation) (n 93) [55]–[57].
[120] Situation in the Republic of Kenya (Decision on the ‘Victims’ Request for Review of Prosecution’s Decision to Cease Active Investigation) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/09, 5 November 2015) [28] (‘Kenya Situation’).
[121] Prosecutor v Ruto (Decision on the ‘Request by the Victims’ Representative for Authorisation to Make a Further Written Submission on the Views and Concerns of the Victims’) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/09-01/11, 9 December 2011); Prosecutor v Ruto (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-01/09-01/11, 23 January 2012) [275]–[278].
[122] Situation in the Democratic Republic of the Congo (Decision on the Request of the Legal Representative of Victims VPRS 3 and VPRS 6 to Review an Alleged Decision of the Prosecutor Not to Proceed) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/04, 25 October 2010) 4–5.
[123] Kenya Situation (n 120) [28].
[124] Ibid [8]–[9].
[125] Situation in the Islamic Republic of Afghanistan (Decision on Submissions Received and Order to the Registry regarding the Filing of Documents in the Proceedings Pursuant to Articles 19(2) and 68(3) of the Statute) (International Criminal Court, Pre-Trial Chamber II, Case No ICC-02/17, 8 November 2021) [12].
[126] Ayyash (n 1) [225], [393], [395], [397], [920], [931], [933], [937]–[938].
[127] Ibid [927] (emphasis altered) (citations omitted).
[128] Ibid [934] (citations omitted), citing Sikirica (n 31) [149], quoting Todorović (n 28) [81] (emphasis added): ‘A guilty plea is always important for the purpose of establishing the truth in relation to a crime’.
[129] Ayyash (n 1) [225].
[130] Ibid [920] (citations omitted). ‘The scope of the trial is defined by the amended consolidated indictment and the Special Tribunal’s statutory provisions’: at [931]. ‘The Trial Chamber reiterates that the scope of the trial is defined by the amended consolidated indictment, the statutory provisions and the evidence heard’: at [937].
[131] Ibid [933].
[132] Ibid [393] (emphasis added) (citations omitted).
[133] Ibid [395] (emphasis added) (citations omitted). See also at [938]: ‘The Trial Chamber is not a truth and reconciliation commission or a commission of inquiry. It applies rules of evidence — as expressly provided in the Rules of Procedure and Evidence — to admit evidence, and also to exclude it when required for a fair trial’.
[134] Ibid [938] (emphasis added).
[135] Dragan Nikolić (n 32) [233].
[136] Ibid [120].
[137] Dragan Nikolić (n 32) [122].
[138] The accused’s plea of guilty may at the same time serve other sentencing objectives, such as specific deterrence, rehabilitation, or denunciation: see Yuliya Mik and Mirko Bagaric, ‘The Jurisprudential Wasteland that is International Sentencing Law: Justified Skepticism of International Criminal Law’ (2021) 15(2) Charleston Law Review 291, 354–364.
[139] See above Part III(B) 8–10.
[140] See above Part III(B) 10–12.
[141] See above Part III(B) 8–12.
[143] Momir Nikolić (n 37) [67] (emphasis added).
[144] See above Part III(B), 12–13.
[145] Rutaganira (n 73) [114].
[146] Ruggiu (n 69) [53]; Serushago (n 64) [41].
[147] Momir Nikolić (n 37) [67].
[148] Norman (n 77) [14]–[15].
[149] Ibid (emphasis omitted). See above nn 78–82 and accompanying text.
[151] See above Part VI, 17–22.
[152] See above nn 114–118 and accompanying text.
[153] See above Part VII.
[154] See, eg, Paola Gaeta, ‘To Be (Present) or Not to Be (Present): Trials in Absentia before the Special Tribunal for Lebanon’ (2007) 5(5) Journal of International Criminal Justice 1165, 1169, 1173–4; Wayne Jordash and Tim Parker, ‘Trials in Absentia at the Special Tribunal for Lebanon: Incompatibility with International Human Rights Law’ (2010) 8(2) Journal of International Criminal Justice 487, 489, 495–9, 509; Chris Jenks, ‘Notice Otherwise Given: Will in Absentia Trials at the Special Tribunal for Lebanon Violate Human Rights?’ (2009) 33(1) Fordham International Law Journal 57, 62–3, 74–96.
[155] Jordash and Parker (n 154) 489, 509; Jenks (n 154) 96–7.
[156] Jordash and Parker (n 154) 509. See also Niccolò Pons, ‘Some Remarks on in Absentia Proceedings before the Special Tribunal for Lebanon in Case of a State’s Failure or Refusal to Hand Over the Accused’ (2010) 8(5) Journal of International Criminal Justice 1307, 1310, 1319–21.
[157] Jordash and Parker (n 154) 509.
[158] Rome Statute (n 86) art 8.
[159] Ibid arts 7(1), 7(2)(a).
[160] Ibid art 7(2)(a).
[161] Ibid art 6.
[162] Richard Ashby Wilson, Writing History in International Criminal Trials (Cambridge University Press, 2011) 108–11, specifically discussing the relevance of historical evidence to proving the element of genocidal intent.
[163] Ibid 86–7.
[164] Rome Statute (n 86) arts 25(2)–(3).
[165] This article does not delve into the evidentiary challenges of international criminal tribunals. Many scholars have criticised the evidentiary processes and outcomes of international criminal proceedings and on that basis the reliability of the historical record of events created by international criminal courts and tribunals: see, eg, Nancy Amoury Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (Cambridge University Press, 2010).
[167] Mirjan Damaška, ‘What Is the Point of International Criminal Justice?’ (2008) 83(1) Chicago-Kent Law Review 329, 331.
[168] See, eg, ibid 331–5.
[170] See also Mark Osiel, Mass Atrocity, Collective Memory, and the Law (Transaction Publishers, 1st ed, 1997) 241; Lawrence Douglas, ‘Truth and Justice in Atrocity Trials’ in William A Schabas (ed), The Cambridge Companion to International Criminal Law (Cambridge University Press, 2016) 34, 47; Aldo Zammit Borda, Histories Written by International Criminal Courts and Tribunals: Developing a Responsible History Framework (TMC Asser Press, 2021) 5 (‘Histories Written by International Criminal Courts’).
[172] Ibid 1732.
[173] Ibid 1734.
[174] Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press, 2001) 2.
[175] Ibid 2.
[176] Ibid 3.
[177] Ibid.
[178] Ibid.
[179] Borda, Histories Written by International Criminal Courts (n 170) 5.
[180] Ibid 7. See also at 8.
[181] Ibid 8.
[182] Ibid 7.
[183] See, eg, Yasmin Naqvi, ‘The Right to the Truth in International Law: Fact or Fiction?’ (2006) 88(862) International Review of the Red Cross 245, who argues that a right to the truth could be compatible and intersect with the broader objectives of international criminal law.
[184] Ibid 267. The right to truth has also been considered a general principle of international law: at 268; Juan E Méndez, ‘The Right to Truth’ in Christopher C Joyner and M Cherif Bassiouni (eds), Reining in Impunity for International Crimes and Serious Violations of Fundamental Human Rights: Proceedings of the Siracusa Conference 17–21 September 1998 (Érès, 1998) 255; Juan E Méndez, ‘The Human Right to Truth: Lessons Learnt from Latin American Experiences with Truth Telling’ in Tristan Anne Borer (ed), Telling the Truths: Truth Telling and Peace Building in Post-Conflict Societies (University of Notre Dame Press, 2006) 115, 117. See also Natasha Stamenkovikj, The Right to Know the Truth in Transitional Justice Processes: Perspectives from International Law and European Governance (Brill Nijhoff, 2021) 3, stating that the right to truth can be viewed ‘as a concept that international norms and practices acknowledge without explicitly codifying it as a fundamental right’.
[186] See, eg, United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Question of the Impunity of Perpetrators of Human Rights Violations (Civil and Political): Revised Final Report Prepared by Mr Joinet Pursuant to Sub-Commission Decision 1996/119, 49th sess, Agenda Item 9, UN Doc E/CN.4/Sub.2/1997/20/Rev.1 (2 October 1997) annex II (‘Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity’).
Principle 1. The Inalienable Right to Truth: Every people has the inalienable right to know the truth about past events and about the circumstances and reasons which led, through systematic, gross violations of human rights, to the perpetration of heinous crimes. Full and effective exercise of the right to the truth is essential to avoid any recurrence of violations in the future.
See generally Stamenkovikj (n 184); Naqvi (n 183); Borda, Histories Written by International Criminal Courts (n 170) 64–72.
[187] Borda, Histories Written by International Criminal Courts (n 170) 64–72.
[188] See, eg, Regina E Rauxloh, ‘Negotiated History: The Historical Record in International Criminal Law and Plea Bargaining’ (2010) 10(5) International Criminal Law Review 739, 744–61; Bonomy (n 26); O-Gon Kwon, ‘The Challenge of an International Criminal Trial as Seen from the Bench’ (2007) 5(2) Journal of International Criminal Justice 360; Fergal Gaynor, ‘Uneasy Partners: Evidence, Truth and History in International Trials’ (2012) 10(5) Journal of International Criminal Justice 1257.
[189] Gaynor (n 188) 1271, quoting Robert H Jackson, ‘Full Faith and Credit: The Lawyer’s Clause of the Constitution’ (1945) 45(1) Columbia Law Review 1, 6: ‘Judges often are not thorough or objective historians’.
[192] Aldo Zammit Borda, ‘History in International Criminal Trials: The “Crime-Driven Lens” and Its Blind Spots’ (2020) 18(3) Journal of International Criminal Justice 543, 555–6 (‘History in International Criminal Trials’); Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press, 2005) 210.
[194] SC Res 1534, UN SCOR, 4935th mtg, UN Doc S/RES/1534 (26 March 2004) [5]; SC Res 1329, UN SCOR, 4240th mtg, UN Doc S/RES/1329 (5 December 2000); Statement by the President of the Security Council, UN SCOR, 4582th mtg, UN Doc S/PRST/2002/21 (23 July 2002); SC Res 1503, UN SCOR, 4817th mtg, UN Doc S/RES/1503 (28 August 2003).
[195] Nuremberg Trial Judgment (n 12) vol 22, 468 (emphasis added).
[197] See above nn 61–3 and accompanying text.
[198] Borda, ‘History in International Criminal Trials’ (n 192) 558. See also ‘DRC: ICC Convicts Thomas Lubanga Dyilo for War Crimes’, Women’s Voices eLetter (Web Page, April 2012) <http://www.iccwomen.org/WI-WomVoices4-12-FULL/WomVoices4-12.html#1> , archived at <https://perma.cc/9JTY-DEXL>; Mark Kersten, ‘A Conviction in Question: Lessons from the International Criminal Court’s Inaugural Trial’, Justice in Conflict (Blog Post, 17 January 2018) <https://justiceinconflict.org/2018/01/17/a-conviction-in-question-lessons-from-the-the-international-criminal-courts-inaugural-trial/>, archived at <https://perma.cc/67QT-ASLD>.
[199] See, eg, the ICC Prosecutor’s withdrawal of all charges against the accused: Prosecutor v Kenyatta (Notice of Withdrawal of the Charges against Uhuru Muigai Kenyatta) (International Criminal Court, Trial Chamber V(B), Case No ICC-01/09-02/11, 5 December 2014) [2].
[200] See, eg, the ICC Prosecutor’s decision not to proceed with an investigation into the so-called ‘Gaza flotilla’ incident of 2010: Office of the Prosecutor, Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1) Report (Report, 6 November 2014) 61 [151]; Situation of the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (Notice of Prosecutor’s Final Decision under Rule 108(3): Public with Public Annexes 1, A-C, and E-G, and Confidential Annex D) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/13, 29 November 2017) annex 1, [332]–[334]; Situation of the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia (Notice of Prosecutor’s Final Decision under rule 108(3), as revised and refiled in accordance with the Pre-Trial Chamber’s request of 15 November 2018 and the Appeals Chamber’s judgment of 2 September 2019) (International Criminal Court, Pre-Trial Chamber I, Case No ICC-01/13, 2 December 2019) annex 1, [4]. This was because the potential cases did not meet the ICC’s admissibility requirements under art 17 of the Rome Statute (n 86).
[201] See Gaynor (n 188) 1263–7.
[202] See, eg, Stanišić (n 61) [21]–[22].
[204] Principally, only evidence that is relevant to proving a fact in issue in the case is admissible, and all other evidence should be excluded.
[205] ‘When in doubt, err on the side of the accused’ [tr author]. This means that when there is a doubt as to the interpretation of the scope of a rule of criminal law, it should be construed narrowly in favour of the accused.
[206] ‘No criminality without law’ [tr author]. This means that an act cannot be prosecuted if it was not criminalised at the time of its commission. In international criminal law, when prosecutions are often held many years after the commission of the acts, this is a live issue.
[207] Arendt (n 16). See also Koskenniemi (n 18).
[208] Dragan Nikolić (n 32) [122] (emphasis added).
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