| Abstract [eng] |
During the late 1990s and 2000s a “third-generation” of international criminal tribunals emerged, drawing on the heritage of the first generation tribunals at Nuremberg and Tokyo, and the second generation of ad hoc tribunals with the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. These third generation courts have been called mixed and special war tribunals and were applied in the post-conflict countries in order to adjudicate the perpetrators who bear the greatest responsibility for committing war crimes, genocide and crimes against humanity. The model of mixed war tribunals is characterized by a mix of national and international components such as composition of judges, jurisdiction and a process of creation. Whereas special criminal tribunals are purely domestic ones and with the exception of jurisdiction they do not posses any international element. Currently, the term mixed is used to indicate three jurisdictions created between 1999 and 2001 in East Timor (the Serious Crimes Panels of the District Court of Dili), Sierra Leone (the Special Court for Sierra Leone) and Cambodia (the Extraordinary Chambers in the Courts of Cambodia). While the description of the special criminal tribunal could be attributed to the Te Iraqi Higher Criminal Court. Mixed and special war tribunals share two types of jurisdiction – concurrent and exclusive. Special Court for Sierra Leone, which is of pure concurrent jurisdiction, exercise its’ jurisdiction over the same subject matter as the domestic courts, but in case of conflict of jurisdiction it presides over the domestic courts. Whereas, special tribunal as well as the rest mixed tribunals exercise exclusive jurisdiction with a power to exercise subject mater jurisdiction to the exclusion to all other courts. Notwithstanding the merits in regard to domestic courts and ad hoc tribunals the third generation of criminal tribunals faces certain problems. Firstly, unspecified legal foundation of tribunals stipulates the discussion upon the legal obligations of third states deriving from that foundation. For example, the international treaty establishing Special Court for Sierra Leone is usually considered as not binding third states, though the jurisprudence of this mixed tribunal confirms the reverse. Secondly, mixed and special war tribunals are provided with the right to interpret and apply international humanitarian law norms without any supervision of international bodies which might lead to divergent perception of the same norms in mixed and special war tribunals, ad hoc tribunals and International Criminal Court. Equally important is problem of the lack of the universal jurisdiction in mixed and special war tribunals resulting in the growth of impunity in international law. |
