PRINCIPLES OF JUDICIAL IMPARTIALITY & INDEPENDENCE

Principles of Judicial Impartiality & Independence

Principles of Judicial Impartiality & Independence in International Courts

Introduction

The aftermath of human rights atrocities have long necessitated difficult and often, international, responses. The twentieth century ushered in an era of human rights abuses to be witnessed by all in the global community. The responses have been varied, but the goals of bringing justice to victims and healing the past have been vital to addressing and preventing future violations during times of war, political transition, or peace.

Human Rights Watch characterizes two phases of political transition: the truth phase and the justice phase. The activities of international criminal courts and the like are characterized as moments of the justice phase in that they focus on punishment or retribution for specific perpetrators of human rights abuses to bring justice to victims and to deter future violations. In contrast, the activities of truth and reconciliation commissions are characterized as the truth phase of political transition in that they are convened for the purpose of establishing accurate records of past human rights abuses (i.e., determining the 'truth') and making recommendations that both redress past abuses and aid in the prevention of future abuses.

Truth and reconciliation commissions (TRCs) in general do not have prosecutorial powers nor can they dispense punishments while international criminal courts are interested in handing out indictments and prosecuting criminals under international and humanitarian law. Like international criminal courts, TRCs are allowed privileged access to government documents and personnel; however, unlike criminal courts, they are unable to subpoena witnesses, compel disclosure of information, or bring cases to trial. Further, in most cases, recommendations that emanate from TRC proceedings are not obligatory; in other words, governments are not required to implement all or any of the TRC's recommendations.

Below we elaborate more fully on the basic structures of international criminal courts and TRC models. In addition, we highlight several case studies to demonstrate how the two models have been used to address human rights abuses in several different contexts. Finally, we offer a brief discussion on countries that have utilized both models (or have implemented a blended model) to address human rights violations and the challenges inherent in such approaches.

International Criminal Court Models

The customs of war have long involved the 'laws of war' delineating just actions during wartime from those out of the accepted norm, even during times of conflict. Since the nineteenth century, international law has codified these customs, with a particular focus on the human aspect of war, directly addressing the treatment of combatants and civilians. Despite the codification of international law to protect human rights in times of war and peace, the twentieth century has been host to some of the worst human rights atrocities to ever be witnessed by the global community.

Making peace a global priority, the international community has long set out to codify a set of rules to govern the relations of nations. As early as the 1814 Congress of Vienna, the Hague Peace Conferences of 1899 and ...