chapter  4
The Building of the international rule of law through the work of International Criminal Tribunals
Pages 22

On 20 October 2011, the Libyan dictator Muammar Gaddafi was brutally murdered by enraged rebels in the Libyan town of Sirte. This end may not have come as a surprise, having in mind Gaddafi’s own murderous and torturous rule over 40 years. Still, a question remains as to whether Gaddafi could have escaped such a grisly end. He could have crossed the border to a neighbouring country, or sought refuge on an isolated island, but even there he might not have remained untouchable from the revenge of the angry Libyan people. The only place in the world where Gaddafi would have been safe for life was The Hague. Surrendering to the International Criminal Court (ICC), already tasked by the UN Security Council resolution 1970 to investigate his crimes, would have saved his life. The international rule of law would have protected Gaddafi, even if the ICC may have refused to accept him into its custody, as the Netherlands would have found it impossible to send Gaddafi back to Libya since the European Convention of Human Rights prohibits extradition of a suspect who may face a death penalty in his own country. In a previous volume,1 we deliberated on what the international rule means and what purpose it serves; we compared the rule of law at the national and international levels, and concluded that the rule of law is a well-established concept in domestic systems, but still in its infancy in the international domain. We stated that the international rule of law needs both ethical and institutional supports for the international rule of law to flourish: together they create effective integrity systems. International rule of law can be diminished or ignored by politicians. In 2009, the Prime Minister of Israel Benjamin Netanyahu denounced the Goldstone Inquiry on the conflict in Gaza and the Report of the UN fact-finding commission2 as a ‘distorted report, written by a distorted committee that undermines Israel’s right to defend itself, encourages terrorism and threatens peace’.3 Yet, nothing in the last five years suggests that this report itself encouraged terrorism or endangered peace. Similarly, when the SecretaryGeneral’s panel of experts on accountability in Sri Lanka produced its report on alleged violations of international human rights and humanitarian law during the final stages of the Sri Lankan civil war (Darusman Report),4 the government of Sri Lanka dismissed the Report as flawed.5 The reluctance of states, including great powers, to join the Rome Statute of International Criminal Court can be

seen as jeopardizing the international rule of law. One of the foundational elements of the rule of law is that all persons – no matter of power, wealth and status – are equally entitled to rights and responsibilities. The attempts by the Security Council to play legislative and judicial roles within the international system6 and act in all three branches of powers can also be seen as a deviation from the classical concepts of rule of law, separation of powers and checks-andbalances. Numerous studies indicate the limits of the applicability of the international law in national courts7 and also the challenges that international regimes may face in domestic tribunals. Despite the differences between the rule of law at domestic and international levels,8 the concept of the international rule of law has progressed, particularly since the UN Secretary-General Report in 20049 that emphasized its main principles: supremacy of the law, equality before the law, legal certainty, fairness in application of the law, avoidance of arbitrariness, and procedural and legal transparency. This chapter contributes an analysis of how the international rule of law has been built up through the practice of international criminal tribunals (ICTs), starting with the Nuremberg and Tokyo trials, but particularly in the last 20 years since the establishment of the ad hoc tribunals for the Former Yugoslavia and Rwanda and the development of the scope of jurisdiction of the Rome Statute for the ICC. I argue that, despite the serious challenges and resistance that ICTs have faced, there has been an unprecedented development of the international criminal law that makes all citizens in the world, up to Heads of State, equal before international tribunals. The establishment and the practice of the ICTs has gradually demonstrated the suprematization of law above power internationally and accordingly has bolstered the notion of international rule of law. The fact that no-one, even the Pope10 or Heads of State, can be immune from investigation and prosecution, as was the case in past centuries, makes the international rule of law flourish. Certainly, many shortcomings remain, particularly in implementation, and the chapter is not short of critical analysis on the practice of the ICTs and the selectivity in the application of international norms. The international rule of law is still to be built up, and the process needs continuous supports from both ethical constructs and institutions to achieve a stable and consistent international integrity system.