Lilian A. Barria

How effective are international criminal tribunals? An analysis of the ICTY and the ICTR

Abstract The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established by the United Nations in 1993 and 1994 to apprehend and try individuals suspected of committing war crimes including genocide. The crimes that are prosecuted by these courts are the same, and the structure of the tribunals is also similar (indeed, they both share the same appellate court). However, the mandate of the ICTR is much more narrow and is limited both in terms of the period of time under investigation (one calendar year) as well as being limited to crimes that were committed only in Rwanda. Given the mandate and structure of these tribunals, many question their effectiveness. This article examines these tribunals and measures effectiveness by examining not only the number of indictments that have been handed down but the actual number of individuals apprehended. One of the criticisms of both tribunals is that the lack of success in apprehending suspects diminishes the deterrent effect of the tribunals. Based on a case study of the ICTY and the ITCR, we find that the lack of effective apprehension has reduced the deterrent effect of the tribunals and provided one of the primary justifications for the creation of an international criminal court.

Burden Sharing in the Funding of the UNHCR: Refugee Protection as an Impure Public Good

The authors apply the theory of collective action and alliance behavior first developed by Olson and Zeckhauser and later extended by Sandler in a series of studies to test whether the nature of refugee protection influences state motivations to provide contributions. The authors investigate whether refugee protection can be viewed as a pure public good with the concomitant problem of free riding leading to suboptimal outcomes or whether contributions provide states private benefits that transform the nature of the good. Using a Heckman selection model, they test for the determinants of state contributions to the United Nations High Commissioner for Refugees and find that refugee protection offers several private benefits, indicating that it is best understood as an impure public good. They conclude, however, that even when states are able to secure these private benefits, it does not necessarily lead to the optimal provision of refugee protection.

Understanding Variations in Gulf Migration and Labor Practices

This article examines labor and migration in the Gulf and variations in the legal provisions for workers. Since the 1970s, there has been a significant increase in South and Southeast Asian worker migration to the states of the Gulf Cooperation Council or GCC (Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the United Arab Emirates). Over the last four decades, these migrant workers have replaced Arab migrants throughout the Gulf. In order to deal with the massive influx of these workers, Gulf States have instituted a sponsorship system (kafala) which becomes the legal basis for residency and employment. This article analyzes the kafala system used in each Gulf State and explores the factors which account for differences in the structure and legal basis of the sponsor-employee relationship as well as variations in the application of the system to Arab and non-Arab migrant workers. We find that the economy of the GCC country heavily influences the type of kafala system used.

State Co-operation and International Criminal Court Bargaining Influence in the Arrest and the Surrender of Suspects

While much has been written about the formation of the International Criminal Court (ICC), less attention has been focused on the enforcement capability of the Court. As demonstrated by the history of the ad hoc international tribunals, one of the most pressing problems for international criminal courts is the arrest and the surrender of suspects, which often requires substantial bargaining between the court and the state in which the suspect resides. We develop a classification of the issues which have the greatest impact on the bargaining influence of the ICC to secure the arrest of indictees, and apply this classification scheme to a study of the four ongoing situations at the ICC in order to explore the bargaining environment in which the ICC operates. While many of the cases have features which should assist the ICC in bargaining with the state, the situation in Sudan represents the greatest challenge for the Court.

Donor Motivations and Contributions to War Crimes Tribunals

We investigate why states provide a voluntary contribution to war crimes tribunals despite the fact that these tribunals are located in states that offer few economic and strategic advantages. We view tribunal financing as a form of foreign assistance and place the funding of tribunals within the broader foreign assistance literature to explain the motivations of donor states. We examine voluntary contributions to four tribunals, and our analysis shows that there are differences between the gatekeeper stage and the secondary decision to allocate assistance. However, donors generally make no distinction among tribunals for purposes of foreign assistance. As a consequence, purely voluntarily funded tribunals are at a disadvantage, since they are not seen by states as unique and requiring special consideration. Ultimately, the lack of funding calls into question the ability of these tribunals to provide justice to victims as well as serve as a mechanism for national reconciliation.

Assessing the Record of Justice: A Comparison of Mixed International Tribunals versus Domestic Mechanisms for Human Rights Enforcement

The year 2000 marked a turning point in the development of human rights tribunals. Up to that point, so-called war crimes tribunals had been established by the international community, composed of international judges and located in international fora. The International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established as auxiliary organs of the United Nations (UN) under Chapter VII authority to deal with a range of crimes committed under international law. The ICTY was established in 1993 as the conflict raged in the former Yugoslavia, whereas the ICTR was established in 1994 in a postconflict environment. Although there are important differences between these tribunals, they were both established as international institutions to try individuals in countries in which the legal system was unable or unwilling to cope with the legacy of human rights violations. Because these tribunals were authorized under Chapter VII authority, financing was provided as an assessed share of the UN budget. Therefore, these tribunals were financed through required UN general budget contributions. By 2000, the ICTY yearly budget was approximately

The Quest for Justice: Lessons Learned

90 million and the ICTR budget was

Mechanisms of Transitional Justice

80 million.1 In the case of the ICTY, this figure represented almost a 300% increase over 5 years (ICTY Annual Report 1996). Therefore, the financing of these tribunals became a concern for the international community. This concern coupled with the resistance of some states to relinquish sovereignty over individuals to an international process led to the innovation of mixed or so-called hybrid tribunals and even domestic legal institutions. Within the span of eight months in 2000, four tribunals had either been established through a memorandum of understanding or had begun functioning. These tribunals included the Serious Crimes Panel for East Timor2 (SCPET) in March, the Extraordinary Chambers for Cambodia (ECC) in July, the Special Court for

Judicial Capacity Building in Bosnia and Herzegovina: Understanding Legal Reform Beyond the Completion Strategy of the ICTY

Over the past three decades, considerable debate has taken place regarding the strengths and the weaknesses of the various transitional justice mechanisms that have been adopted after a transition to democracy. The mechanisms chosen by states during the cold war period were generally domestic, including trials, amnesties, and truth and reconciliation commissions (TRCs). However, the 1990s witnessed several important innovations including the establishment of international and later hybrid criminal tribunals, culminating in the creation of the International Criminal Court (ICC). The contributors to this volume discuss diverse transitional justice mechanisms implemented following severe human rights violations (often perpetrated by a government). How should we assess these methods of transitional justice? Given the nature of the conflict and the human rights abuses, is any mechanism superior?

Why Do States Commission the Truth? Political Considerations in the Establishment of African Truth and Reconciliation Commissions

How should countries emerging from authoritarian rule or protracted civil war deal with the human rights abuses committed by the previous regime and members of society? This is an important question because how governments address the past human rights abuses affects the present and future relationship between perpetuators and victims, as well as a country’s transition to democracy and the legitimacy of the new political system. Over the last three decades, various mechanisms of transitional justice have been developed with the objectives of uncovering the truth of events, providing accountability for crimes, and promoting individual and societal reconciliation. The study of transitional justice has produced a broad literature that explores under what conditions different accountability mechanisms, whether domestically driven or internationally inspired, are capable of addressing the human rights violations and assisting in the consolidation of democracy.