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Background
Criminal tribunals are established to prosecute war criminals where mass violation of international Humanitarian law takes place. The practice of establishing criminal tribunals is to ensure that certain heinous crimes concerning the whole international community are prosecuted jointly at the international level rather than leaving it simply to national courts1.

In the past we had practice of international criminal justice, but either they had limited jurisdiction or they had short lived experiments. The fact is that they were not successful in line with the present performance. For example, the first effort to try perpetrators of crimes against humanity from internationally established courts and tribunals were made during the 19th century2. Between the congress of Vienna3 and the end of the American Civil War, several treaties for the suppression of the African slave trade provided for the establishment of special mixed tribunals to adjudicate upon suspected of slave trading. However the precedent practice does not lay a strong ground for the present establishment of international criminal tribunals.

The devastating effects of World War II, The Nuremberg and Tokyo military trials, established to prosecute German and Japanese war criminals laid a strong background in the history of prosecution under international tribunal. They also had their drawbacks, however. They were criticized for playing fast and loose with principles of criminal law to ensure

1 Cesare P.R. Romano, Associate of the Center on International Cooperation (CIC), New York University, and Assistant Director of CICs Project on International Courts and Tribunals (PICT). In a paper New Dimensions of Multilateralism. www.cic.nyu.edu/peacebuilding/oldpdfs/NDM%20%20Background%20Paper%20International%20Criminal%20 Ibid The Congress of Vienna was a conference of ambassadors of European states chaired by the Austrian statesman Klemens Wenzel von Metternich, and held in Vienna from November, 1814 to June, 1815.
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convictions, for their slanted military character, and because their ultimate legitimacy rested on the victors right to decide the fate of the defeated enemy rather than on a independent judiciary.

After Second World War, in the period of Cold War, international community just played a role of spectator than trying the war criminals of Cold War into international tribunals. Till 1990, no international tribunals were created. To put it simply, the prevailing logic was: your enemies are my allies, however murderous and crazy they may be. Prosecution of violations of international humanitarian law and gross violations of human rights were left to domestic courts in theory, and left unpunished in practice4.

Only after the Cold War, during 1990s, the initiatives to try persons alleged as war criminals in the international tribunals took a concrete shape with the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) by the UN Security Council. The establishment of these two tribunals raised some concerns about ad hoc justice. This concern, together with the momentum created by the creation of ICTY and ICTR, opened the way for the establishment of the International Criminal Court (ICC), a permanent criminal court.

Two ad hoc international criminal tribunals

Mass violation of international humanitarian law in the former Yugoslavia and in Rwanda led the Security Council (SC) of the United Nations to establish two international tribunals to prosecute persons responsible for such violations. Both tribunals were established under Chapter III of the Charter of The UN, which deals with enforcement measures. The
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4 Cesare P.R. Romano in- www.cic.nyu.edu/peacebuilding/oldpdfs/NDM%20%20Background%20Paper %20International%20Criminal%20

Tribunals created by the international community as a new response to intractable conflict and mass violation of human rights and humanitarian law are now in their second decade of existence after years of investigations, trial and sentencing. In Rwandan conflict, the Genocide and ethnic cleansing was the violation of Geneva Conventions Common Article 3 as the conflict was internal in its character. But in Former Yugoslavia, the issue was internal as well as international.

International Criminal Tribunal for Rwanda (ICTR) ICTR was established in November 8, 1994 by the SC resolution 955 for the prosecution of the persons responsible and other serious violations of international humanitarian law in the territory of Rwanda between 1 January 1994 and 31 December 1994.5 It may also deal with the prosecution Rwandan citizens responsible for Genocide and other such violations of international law committed in the territory of neighbouring states during the same period 6. The tribunal is located in Arusha, Tanzania; the Office of the Prosecutor is in Kigali, Rwanda. In 1998, the Tribunal handed down the first ever conviction of genocide by an international court7.

International Criminal Tribunal for the Former Yugoslavia (ICTY) ICTY was established in 1993 as a United Nations court of law dealing with war crimes that took place during the conflicts in the Balkans in the 1990s. Since its establishment, it has irreversibly changed the landscape of international humanitarian law and provided victims an opportunity to voice the horrors they witnessed and experienced8. The Tribunal is composed of four chambers, a

Official Website of ICTRhttp://www.ictr.org/default.htm

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Ibid Basic Facts About the United Nations, 2003, United Nations Department of Public Information New York, NY 1007. 8 http://www.icty.org/sections/AbouttheICTY

prosecutor and a registry, and is located at The Hague the Netherlands. Under its Statute it can prosecute four kinds of offences: grave breaches of the Geneva Conventions; violations of the laws and customs of war; genocide; and crimes against humanity. Advantages of ICTR and ICTY
1. Foundation of International Criminal Prosecution

ICTR and ICTY laid strong foundation of international criminal law. Though the Tokyo Trial and Nuremburg Trial were established after second WW-II to prosecute Japanese and German war criminals but they were too much critical of being victors justice and they were not fair. After that, during Cold War period there were no any legal mechanism to try international crime and crime against humanity. Later on, during 90s with the establishment of these two tribunals, the concrete mechanism of legal remedy has established to try the perpetrators who are responsible for the grave breaches of Geneva Conventions and other international legal mechanisms. These tribunals also laid foundations to establish International Criminal Court (ICC). 2. Justice for Victims As these tribunals are created for prosecuting crimes under international law, the victims can get impartial justice if international impartial body is there. Prosecuting crimes by national courts in such mass violations of IHL and Human rights law can pose two fundamental problems. First, national courts are often far from impartial, especially when they have to adjudicate on international crimes that were directed against, or committed on behalf of, their own state. Secondly, prosecuting international crimes can be a burdensome exercise, politically and economically for a

state. In such a situation the tribunals has become way towards justice for those who are victims. 3. Reconstruction of Ravaged legal system In Rwanda and Former Yugoslavia, war had completely destroyed the judicial as well as entire administration system. The tribunals as part of the reconstruction enterprise of a new judicial and administration system fulfilled the vacuum and help to establish domestic legal system. They also played important roles for the reconciliation process.

Disadvantages of ICTY and ICTR

1. Issue of National Sovereignty Prosecution of nationals of a particular country by international body is regarded against national sovereignty of that country. It can bypass the domestic judicial system and the national interest of such country. These international tribunals are regarded as an expression of the international communitys concerns rather than the domestic mechanism.

2. Domestic Jurisdiction Under Shadow The major drawback of prosecuting and punishing war crimes, crimes against humanity and gross human rights violations has blurred the notion of domestic jurisdiction. This remarkable institutional development at the international level often
overshadows an equally momentous change at the domestic level 9. In Atrocity,

Cesare P.R. Romano.

Punishment, and International Law, Mark Drumbl10 categorically rejects unnecessary faith in international criminal law. He argues that a preference for international trials has prompted a shortfall with regard to the consideration and deployment of other legal, regulatory, and transformative mechanisms in the quest for justice (p. 5). 3. The ICTR and ICTY seating was in remote The ICTY sit in The Hague, the Netherlands, and the ICTR in Arusha, Tanzania. Proceedings take place thousands of miles away from where the crimes were committed. Internationalized courts are located, conversely, in the countries where the crimes they have to prosecute have been committed. The both tribunals lack the advantages of proximity. The direct exposure to the past atrocities and misdeeds could greatly contribute to the process judgment and reconciliation of the then rival community and people. 4. Loose on Prosecuting Sexual Violence Crimes of rape and other forms of sexual violence often occur during times of armed conflict. During the Rwandan genocide, crimes of sexual violence were used to advance military and political goals. ICTR prosecutors have been unable to procure rape convictions due to a lack of evidence.11 Also, rape in Rwanda has been noted as a difficult crime to document because of a dearth of accurate eyewitness testimony, the stigmatization of victims, worries of public shame among victims, and fears of perpetrators still living with the victims.12 However, these two trials were
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Class of 1975 Alumni Professor of Law, Washington & Lee University School of Law.

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See, e.g., Prosecutor v. Musema, Case No. ICTR-96-13-A, Judgment (Nov. 16, 2001); Prosecutor v. Kamuhanda, Case No. ICTR-95-54A-T, Judgment (Jan. 22, 2004); Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Judgment and Sentence, 1079 (Dec. 3, 2003); Prosecutor v. Kajelijeli (Kajelijeli Judgment and Sentence), Case No. ICTR-98-44A-T, Judgment and Sentence (Dec. 1, 2003). 12 Shattered Lives, supra note 1; Richard P. Barrett & Laura E. Little, Lessons of Yugoslav Rape Trials: A Role for Conspiracy Law in International Tribunals, 88 Minn. L. Rev.

comparatively successful on trying sexual violence than the before practiced trials and UNs initiatives. Overall Performance of ICTR and ICTY Despite some disadvantages, the two ad hoc criminal tribunals lay the foundation for international criminal justice mechanism. The gap of such mechanism during Cold War and before contributed impunity. The gross violations of the Geneva conventions, genocide, and certain human rights are serious crimes which need to be prosecuted under international trials. The establishment of ICTR and ICTY tried to materialize the need of international mechanism which carry the principle of universal jurisdiction. The multiplication of ad hoc criminal bodies can be depicted only as a stopgap solution but in 2002, International Criminal Court (ICC) has established as a permanent court. The move towards international criminal justice has just begun. We havent seen much yet but these both tribunals contributed on the Implementation of IHL into practice. The war criminals involved in genocide, crime against humanity and breach of IHL were tried under international trial. Under ICTY, the Judges rendered 180 decisions in addition to the final judgement. The Tribunal's case law has evolved significantly and taken a definitive shape on essential points of international humanitarian law.13 In ICTR till date 44 cases has met their decisions while other several cases are on progress. In Sum, the tribunals succeeded to establish a foundation to prosecute international crimes.

30, 54 (2003). 13 http://www.icty.org/sid/7855