EDITOR’S NOTE: Publication forthcoming in Impunity Watch’s 2017-2018 Annual Review.
March 10, 2017
THE FUTURE OF THE FIELD OF INTERNATIONAL JUSTICE
by Professor Jennifer Trahan
Project Overview
A Scenarios workshop on the Future of the Field of International Justice was conducted on February 10, 2017, at NYU’s Center for Global Affairs. It consisted of an expert roundtable discussion of potential future scenarios for the field of international justice—the tribunals and other trial mechanisms to prosecute core atrocity crimes, such as genocide, war crimes and crimes against humanity. This document compiles the views expressed during the workshop.
The roundtable symposium assembled experts in the field of international justice, from international justice practitioners, academics, legal advisers from UN Missions, NGO representatives, and other UN officials, to conduct an informed discussion about future challenges to the field and divergent possible paths.
Professor Jennifer Trahan, Associate Clinical Professor, Center for Global Affairs, NYU-SPS, organized, conceptualized and convened this discussion, inspired by past Scenarios workshops conducted at NYU’s Center for Global Affairs by Professor Michael Oppenheimer.
The panel discussions were organized around: (1) the future of the International Criminal Court; (2) the future of hybrid and other tribunals; (3) the future of complementarity; and (4) combining future scenarios. The panels were moderated respectively by: Patrick Luna, Second Secretary and Legal Adviser, Permanent Mission of Brazil to the United Nations; Richard Dicker, Director, International Justice Program, Human Rights Watch; David Tolbert, President, International Center for Transitional Justice; and Dr. Carrie McDougall, Legal Adviser, Permanent Mission of Australia to the United Nations.
Ambassador Christian Wenaweser, Permanent Representative of Liechtenstein to the United Nations, served as keynote speaker for the conference, with former Prosecutors of the Special Court for Sierra Leone Stephen J. Rapp and David M. Crane featured in a special lunch panel discussing highlights of their work. Professor Trahan framed the opening discussion and provided concluding remarks.
A full list of participants can be found in Appendix A hereto.
Background
The field of international justice has evolved dramatically over the last two and a half decades. After an initial start with prosecutions before the International Military Tribunals at Nuremberg, and the International Military Tribunal for the Far East held in Tokyo, the field languished until the early 1990s, when it resurfaced with the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Thereafter, a number of “hybrid” tribunals were created including the Special Court for Sierra Leone, a hybrid State Court in Bosnia-Herzegovina, the Extraordinary Chambers in the Courts of Cambodia (ECCC), as well as hybrid chambers in Kosovo, East Timor, Senegal, and the Special Tribunal for Lebanon (STL). These tribunals have prosecuted primarily high- and/or mid-level perpetrators of crimes committed in their respective situation countries.[1] Meanwhile, the ICC’s Rome Statute[2] created a permanent court to prosecute atrocity crimes. It currently has 124 States Parties,[3] with numerous prosecutions underway, and numerous situations at both the preliminary examination and investigation phases. Increasingly, there are also domestic courts tackling war crimes prosecutions, from trials in Chile, Argentina and Guatemala, to specialized war crimes chambers created, for example, in Serbia and Uganda, to domestic courts conducting prosecutions on a universal jurisdiction basis.
Yet, the field of international justice is at something of a crossroads. Several of these context-specific international and hybrid tribunals are completing or have already completed their mandates. The ICC only issues a few warrants in each situation country, and the goal of universal ratification of the Rome Statute still remains aspirational, with, recently, the first withdrawals from the Statute,[4] and cynicism engendered by the failure of some of the most powerful countries to join the Court. When state actors oppose prosecutions, there is sometimes dramatic “push back” intended to derail the Court’s work. Even when international prosecutions occur, they do not cover all perpetrators (leaving victim communities disappointed), take a lengthy period of time (if charges are at least somewhat comprehensive and fair trial protections rigorously observed), and international and hybrid tribunals are frequently criticized as extremely costly. Despite new work being done to develop specialized war crimes chambers in several countries (and the development of various forms of “hybridization”), domestic prosecutions in the countries where the crimes occur are still susceptible of being thwarted if there is insufficient political will or capacity; for example, they can be selectively targeted towards non-state actors, low-level perpetrators, and/or prior regime members, or there simply may be no accountability at the national level.
How can the positive momentum that has been achieved in this field be maintained in the face of such challenges? What is the best path or paths forward for doing so?
Methodology
Expert participants at the workshop were asked their views of three alternative “scenarios” for the future of the field of International Justice—set forth in detail below. In brief, Scenario 1 assumes the ICC is the central institution in the field of international justice in 20 years. Scenario 2 assumes that additional hybrid and other tribunals continue to be created, including possibly added “ad hoc” or regional tribunals. Scenario 3 assumes that “complementarity” becomes the dominant justice mechanism in 20 years; discussion then focused on how best to strengthen domestic capacity-building. A fourth panel also examined whether there are added scenarios that should be considered, and whether it is better to consider the scenarios as complementing each other and not as alternatives.
All of the scenarios assume that there are additional transitional justice tools—over and above prosecutions—complementing prosecutions (such as truth commissions, vetting, reparations, memorialization and institutional reform), as well as prosecutions using universal jurisdiction.
The discussion from the workshop is summarized below, without attribution to particular participants.
SCENARIO I: THE INTERNATIONAL CRIMINAL COURT AS THE DOMINANT INSTITUTION OF THE FUTURE
In the first scenario, the International Criminal Court (ICC) is the dominant institution, 20 years into the future, in the field of International Justice. The ICC is not necessarily the only institution conducting atrocity crimes prosecutions, as there might be other tribunals (such as a few other hybrid tribunals and/or possibly a regional tribunal), as well as complementarity (national prosecutions in ICC situation countries) or other national court proceedings. Yet, the ICC would be at the “center of the stage” in terms of importance, and, thus, the main judicial institution combatting core atrocity crime prosecutions. The ICC of the future would not necessarily precisely resemble the ICC of today.[5]
As noted above, none of the three scenarios excludes the use of additional transitional justice tools (over and above prosecutions), such as truth commissions, vetting, reparations, memorialization, and institutional reform, as well as prosecutions in domestic courts using universal jurisdiction.
Predominant Themes Discussed
Role of the ICC in 20 years
Capacity/size of the ICC
Expense/cost (and explaining rationale)
Public perceptions/knowledge of the ICC
Political support
The need for ongoing UN Security Council support for referrals
Effective cooperation/ prosecution of state actors
ICC as s centerpiece/model of best practices
Catalytic effect
Complementarity
Additional ICC crimes
Crime of aggression
Tension: prosecute mass crimes or move into new areas?
Peace versus justice
Efficiency/effectiveness
Role of the Assembly of States Parties
Deterrence
Double-standards/need for further ratifications
Backlash
Effective defense/fairness
Summary of Discussion
Participants were asked to envision the ICC in 20 years, discussing both their most optimistic projections for the future of the Court, as well as less successful paths. For example, does the ICC continue to grow in capacity? Will complementarity take the lead, or would that take longer than 20 years? Will we at some point be able to shrink the capacity of the ICC? Will the ICC serve as the “gold standard” of international justice? What will its relationship be with the U.N. Security Council? Patrick Luna moderated this discussion.
Role of the ICC in 20 years
Some initial dismay was expressed that we were even having the conversation of whether or not the ICC will be the “way of the future,” given the energy and resources that have gone into it. Of course it must be the way of the future. Another participant agreed that he certainly did view the ICC as being the dominant, central international justice institution in 20 years, and welcomed that the jurisprudence of the Court will increase.
No one openly disputed that the ICC would play a role in 20 years, although a few participants suggested it would not be “dominant” as in “dominating” other mechanisms; rather, it would be more of a “centerpiece” of the system of international justice.
Capacity/size of the ICC
As to the basic size of the ICC, the view was expressed that, in 20 years, there will likely still be great demand for the ICC.
While some suggested added initiatives that the ICC could undertake (discussed below), it was also suggested that the ICC is first and foremost a judicial institution, and that its main focus must always remain on being a court and not necessarily engaging in other tasks—such as human rights advocacy or acting as a “watchdog.” In the view of one participant, the Court simply “cannot do everything” and should not be asked to do so.
This was echoed with the comment that this is a long-term project, and that the ICC is still a young institution. To be successful, the ICC must focus on its work as a court (investigating and prosecuting crimes), and not make its task harder by doing other tasks. States should help the Court to make sure it is performing well before adding other tasks. We must have reasonable expectations for it, and clarity as to its core mission.
A question was posed whether the ICC will always prosecute more and more individuals, or whether it will become too overstretched, and need to be more selective.
Various participants suggested that, ideally (although probably unrealistically), the ICC will be successful enough in its function to the point that it will have no work to do. Thus, in a very optimistic scenario, at some point, it will be possible to decrease the size of the ICC, as there could become less need for it, for instance, if deterrence starts to obviate the need for ICC prosecutions, and/or complementarity takes hold in a much more robust way. None of the participants suggested that in 20 years there would be no need for the ICC.
Expense/cost (and explaining rationale)
As to the future size of the ICC in 20 years, it was suggested that the fundamental question is: how much money does the international community want to invest in international criminal justice?
This was then rebutted by an alternative view that the ICC’s budget must be a “needs-driven” calculation. The ICC must be given the funding it requires. Its work should not be determined by how much States Parties are willing to pay.
As to the high cost of tribunals, in general, it was suggested that there needs to be a better job done of explaining that the cost of tribunals pales in comparison, for example, to the cost of ongoing armed conflict. Seen in these terms, tribunals are well-worth their investment if they are able to contribute, even indirectly, to the maintenance of peace. Here, in particular, the ICTY’s contributions were cited. Another participant cited the cost of impunity in Yemen as fueling the conflict there, and agreed that there needs to be greater acknowledgment that impunity leads to conflict. It was also suggested that one could conduct more studies to show that injustice hampers economic/human development.
It was also suggested that, from a state’s perspective, there must be “political value” shown for the Court. Ministers need to be convinced that the Court is acting as a deterrent, and that, in the long-run, prosecutions can also help with reconciliation. They want to see that kind of “value for the money.”
Public perceptions/knowledge of the ICC
Concern was expressed that, in the media, there is the image of an ICC that does not work well. This is in fact not the case. Therefore, a better image of the ICC needs to be projected more effectively to the media.
Another participant agreed that one of the things that needs to change is the overall perception of the ICC. It was suggested that the use of the veto regarding U.N. Security Council referrals to the ICC is problematic—as the public, for example, does not understand why the ICC is not prosecuting crimes in Syria (when referral of the Syria situation was vetoed).[6] States need to adhere to the Accountability, Coherence and Transparency Group (ACT Group) Code of Conduct.[7] There was also a call for “out of the box” thinking on how to limit the use of the veto.
One participant noted that, even among states, there is still insufficient knowledge about the ICC because colleagues are too often in “silos” and do not engage with the ICC unless it is directly within their mandates.
It was suggested that perhaps the ICC could do more outreach education to inform the public about it work, become more decentralized so that it is not just present in The Hague, and even have offices on different continents to facilitate outreach.
Public engagement with victims and affected communities was also noted as key outreach for the ICC. The Court must capture the “justice narrative” in a way that is engaging to states and individuals.
Political support
It was emphasized that political support for the ICC needs to increase. This would then help to minimize double-standards (discussed below). There could also be political ramifications for a lack of cooperation.
It was also noted that having a new Secretary-General who is focused on conflict prevention could be helpful for the ICC, if one focuses the narrative on the potential contributions of justice to reconciliation and sustainable peace, and the cost to human and economic development where these are not achieved.
Another participant noted that the ICC still suffers from limited political support. For instance, there are government ministers who do not know about the ICC. With increased knowledge, more can be done to assist the Court.
(See also “public perceptions/knowledge of the ICC” above.)
The need for ongoing UN Security Council support for referrals
One participant noted that we have learned that UN Security Council referrals to the ICC without ongoing support of the process do not work. The Security Council seems to use referrals to “move the problem” to the ICC.
Another participant noted that if the Security Council is to make future ICC referrals, the Council will need to permit U.N. funding of them.[8]
Effective cooperation/ prosecution of state actors
Twenty years into the future, the ICC must be a model of fair justice, credible enough to prosecute state officials, so that powerful perpetrators are seen as not above the law. The ICC must create a “track record” to convey this ideal. In particular, Parliamentarians see that there is a group of people that do not want to be investigated or within the ICC’s jurisdiction.
The number of outstanding arrest warrants was also acknowledged as a problem for the Court’s effective functioning. One participant stated that it should not be the case that heads of state freely travel the world while there are warrants out for their arrest, with nothing happening to them.
Another participant noted that the field has a model for achieving 100% success on arrests—that of the ICTY. With the policy of “conditionality,” the US conditioned financial assistance to countries in the region, and the European Union (EU) conditioned progress towards EU accession, on cooperation by countries in the region with the ICTY, particularly as to arrests and surrenders. This suggests that if States Parties are serious about making cooperation work (ensuring all ICC warrants are executed), a similar model could be utilized. And, of course, there is, to a certain extent, peace in the Balkans.
Another participant put it that cooperation needs to be “incentivized.”
However, another participant suggested that while the ICTY’s conditionality policy did work in exerting leverage on counties such as Bosnia, Serbia, and Croatia, it would be a different matter entirely to attempt to exert analogous pressure on non-States Parties whose nationals could be covered by some of the ICC’s current preliminary examinations and investigations.
It was also observed that we have to be wary of states selectively joining the ICC to “get” at their political opponents, and not being truly committed to justice. Palestine and Gabon were mentioned.
(See also “Political support” (suggesting there could be political ramifications for non-cooperation.)
ICC as a centerpiece/model of best practices
It was suggested that the ICC in 20 years could serve as the centerpiece of the field of international justice, without necessarily undertaking that many prosecutions itself. It could in this way be a model of best practices.
The ICC could be the model of what fair, credible, and effective prosecutions should look like, and thereby set the model of best practices for other justice mechanisms, including all sorts of domestic innovations, including hybrid tribunals.
Catalytic effect
In serving as a model of best practices, it was suggested that the ICC could have something of a “catalytic effect” in motivating complementarity—but also motivating regional and hybrid tribunal prosecutions. Participants on several occasions suggested that “complementarity” could be viewed in this broader sense to include regional and hybrid tribunals, not solely domestic prosecutions.
The ICC’s work could also serve as an inspiration to local NGOs by demonstrating that prosecutions are possible.
The ICC could thus be the centerpiece of the system of international justice in 20 years, and catalyze other actors, with complementarity supplementing the ICC’s work.
However, another participant was not so optimistic that the ICC would only be needed for “catalytic” effect, suggesting that in 20 years—while the hope is that the ICC will have no work to do—she believed that the ICC will still have many crimes to prosecute.
Complementarity
It was observed that there needs to be more “buy-in” by states meaning they have the primary responsibility for investigating and prosecuting atrocity crimes at the national level.
(See also “Catalytic effect,” as to having a broader understanding of complementarity.)
(See also “Considerations of Sequencing” in Panel 4 below.)
Additional ICC crimes
It was suggested—perhaps more as a hypothetical for discussion rather than a serious proposal— that terrorism could be added as an ICC crime. Another participant also mentioned that terrorism could be added.[9]
Others mentioned that “corruption” could become an ICC crime, welcomed activation of the crime of aggression amendment, and noted that environmental crimes could be prosecuted as crimes against humanity.
Others were doubtful about adding more crimes to the ICC’s book at this stage.
It was noted that by further harmonizing the list of war crimes committed in international armed conflict with the list of war crimes committed in non-international armed conflict that would strengthen the existing framework of the Rome Statute.
Crime of aggression
One participant noted that the crime of aggression was the type of prosecution that was particularly well-suited for prosecution by the ICC as opposed to prosecution at the national level, as the crime necessarily involves the conduct of at least two states.
Another noted that when the ICC does prosecute the crime of aggression, it will be very important to minimize the appearance of any politicization, and adjudicate the crime based on a solid jurisprudential foundation.
There was also expression of the need to clarify how jurisdiction will work for the crime of aggression.
Tension: prosecute mass crimes or move into new areas?
One participant suggested that it would be helpful to discuss the mission of the Court, as it has limited resources, so will need to prioritize. Is it a surrogate for badly functioning national courts and exists to prosecute crimes committed on a mass scale? Or, does it not limit itself to the worst atrocity crimes but set a vision of the crimes the global community wants to emphasize as also important, such as the use of child soldiers and environmental crimes? There is a tension here between setting new global norms and being a surrogate for non-functioning domestic courts.
Peace versus justice
It was noted that there still is a tension between “peace versus justice” in that peace negotiators rarely incorporate justice as a necessary component of a peace process. It could be helpful in this respect when drafting resolutions addressing peacekeeping or peace-negotiations to make sure to mention the need to ensure justice, as a reminder that it must be included. At least, however, criticism of the ICC is more a matter of “when” and “how” to achieve accountability, rather than “whether” to do so.
Others agreed that the acceptance of justice as key for peace has really not been fully accepted by those who work in the peacebuilding area, and that nearly every situation that the ICC has encountered has involved some issues of peace versus justice.
It was also suggested that increased knowledge about how the ICC works might help for people to understand the peace versus justice issue.
Additionally, it was suggested that the U.N. Security Council could view the ICC as a tool for international peace and security, and that the alternative of not having a well-functioning ICC might in fact prove more costly.
(See also “Expense/cost (and explaining rationale)” above.)
Efficiency/effectiveness
It was stressed that the ICC in 20 years needs to be an efficient court. Here, it was noted that the ICC has been undertaking a number of different initiatives to ensure that its operations become more efficient, and that it is important that the ICC be self-critical.
Another participant similarly recognized that the Court will never have an “unlimited pot of money,” and will probably always need more resources. It is important that the Court use its funding efficiently.
It was suggested that in terms of capacity, the ICC in the future may learn how to conduct higher quality investigations, with stronger forensic analysis, stronger victim protection, and better engagement with constituencies around the world (both better communications and a better process for interaction). This will strengthen institutional capacity, without necessarily increasing institutional size.
In terms of effectiveness, the Court can improve its efficiency and fairness by obtaining stronger access to evidence, custody over persons, access to witnesses, and publicly and consistently discussing its core mission.
As to legitimacy, effectiveness and capacity alone will not be solved without legitimacy. The Court must be more of “a court”—applying consistently its rules, equally engaging with actors, providing effective defense, and thereby applying equality of arms. There is a sensitive balance between the Court acting as a court, and wading into politics.
It was stressed that if States Parties undertake to nominate only expertly qualified judges, having a strong judiciary will help to eliminate perceptions of politics as having a role in the Court’s work.
Role of the Assembly of States Parties
It was questioned whether what the Assembly of States Parties (ASP) does is always helpful to improving the Court’s functioning. Here it was suggested that perhaps the ASP could actually undertake to do less. It is costly to produce so many different reports, and it is not clear they contribute to improvements.
The independence of the ICC from political actions of the ASP must be zealously protected.
It was further noted that the political element of the ASP’s work must be minimized in terms of its impact on the ICC.
It was also noted that the ASP must not “micromanage” the ICC. It must “let the ICC do its work.”
Deterrence
It was suggested that one should be careful about making claims that the ICC is having a deterrent effect on crimes. While there is in fact some evidence of deterrence, it is not easy to prove, and may set up undue expectations if one emphasizes the impact on deterrence.
Another participant suggested that international criminal justice could over time increase what might be called “personal deterrence,” by awakening or strengthening the individual conscience. The trials of atrocity crimes lead us to question human nature and to search for the roots of the crime. The proceedings increase understanding about the hurt inflicted by the crime. Ultimately they are about everyone’s accountability as they prompt one to ask: Would I have resisted evil? Would I have submitted to this evil?
Double-standards/need for further ratifications
To be an effective institution in 20 years, it was noted that double-standards will need to be eliminated, showing that even perpetrators in powerful countries, including current and former leaders, are subject to justice. The ICC cannot be a court that prosecutes crimes in weaker and poorer states only.
In order to move beyond double-standards, and bring non-States Parties to join the Court, there needs to be a “change of mindset.” One needs to convince non-States Parties that prosecuting atrocity crimes actually serves their long-term interests, and therefore they should join the ICC.
It is possible that in the current right-leaning political climate, there could be a move against the Court, which then backfires, and we will emerge with stronger support for the ICC after this time-period passes.
Another participant observed that double-standards become more painful when states that are non-States Parties and beyond the reach of the Court are nevertheless able to help trigger the Court’s jurisdiction by a Security Council referral. But being beyond the reach of the Court should not be treated as an advantage of power. It is a disadvantage for a state to lack the protection afforded by international criminal jurisdiction against atrocity crimes by the state’s own leaders.
Another way to increase ratifications is that victims around the globe must demand it from their governments.
It was also noted that by doing good work, the ICC will increase perceptions of legitimacy, which can lead to increased universality.
One participant stated that in 20 years hopefully the Court will function in a way that it will not be driven by political agendas.
Another participant took the view that one cannot directly address double-standards (lack of universality) in 20 years, and the best the ICC can do is “just do good work,” by increasing its effectiveness, legitimacy, and acting as a model of fair justice by making solid jurisprudential contributions.
Backlash
It was noted that if the ICC pursues some of the preliminary examinations and investigations that it has and which do not involve situations in Africa, one can anticipate dramatic push-back, for example, from countries such as Russia, but other countries as well. It will be a challenge for the ICC to be able to navigate these preliminary examinations and investigations involving powerful states.
Others also agreed that if the ICC proceeds vis-a-vis crimes in Afghanistan, Palestine, Iraq (UK), or Georgia, there will be challenges to face.
It was noted that human rights courts also suffer from “pushback,” and that pushback is to be somewhat anticipated.
Effective Defense/fairness
For the ICC to be an effective and fair institution, it needs to ensure adequate defense resources, equal to those of the Prosecution (equality of arms).
In addition, it was noted that under Article 54.1, the Office of the Prosecutor (OTP) is obligated to investigate equally incriminating and exonerating evidence. This is essential for fair trials.
SCENARIO II: ADDITIONAL TRIBUNALS AS THE DOMINANT APPROACH OF THE FUTURE
In the second scenario, the international community continues to create a number of additional tribunals. These might take the form of hybrid tribunals (either freestanding new tribunals or ones created within existing national judicial systems). There might even be future ad hoc tribunals, with capacities similar to the ICTY and ICTR, although perhaps not created through the UN Security Council. Perhaps one or more regional criminal tribunal would also be created. While the ICC would also exist, it would not be the dominant institution—rather, it would be one of many institutions. Similarly, national courts would also continue with some domestic atrocity crimes prosecutions, although they too would not be the central feature of the system.
Predominant Themes Discussed
What qualifies as a hybrid?
Need for hybrids
Need for the hybrid in Central African Republic
Hybrid complementing the ICC
Flexibility of design
Future forms of hybrids
Regional tribunals
The Syria mechanism
Advantages of hybrids
Flexibility
Capacity-building
Access to affected communities
Legitimacy
Efficiency
Outreach
Working in complement to a truth commission
Contribution to peace
Prosecuting all sides
Showing respect for local customs and traditional mechanisms
Proposal for a freestanding registry
Funding of future hybrids
Problems associated with voluntary funding
Problems of arbitrary timelines
Whether there is sufficient oversight of hybrids
State opposition to creation
State attempts at control
International versus local norms/standards
Concern about regional tribunals
Concern about due process
Concern about re-inventing the wheel
Summary of Discussion
Discussion commenced with noting the variety of hybrid tribunals that have existed. It was then asked whether it would be good to have more hybrid tribunals 20 years in the future. What makes these institutions particularly viable? Is it their “mixed” nature and proximity to the crimes? Are they helpful in domestic capacity-building and norm promulgation? What lessons have we learned from experiences to date, regarding: (a) the composition of hybrid tribunals in terms of their judges, prosecutors, and registrars; (b) their relationship to the nation court system, and (c) the funding of hybrid tribunals? Are there concerns about hybrid tribunals? Richard Dicker moderated the discussion.
The panel did not have sufficient time to fully explore the potential role of regional tribunals, and/or whether one might have a future ad hoc tribunal the size of the ICTY or ICTR, although not necessarily created through the U.N. Security Council.[10]
What qualifies as a hybrid?
Discussion commenced with one of the participants posing the question: “what makes a tribunal a ‘hybrid tribunal’”? The participant noted that there are many different forms of hybrid tribunals. Particularly, how much “hybridity” is needed to qualify as a hybrid tribunal? If a hybrid tribunal is seen as capable of overriding components of the domestic system (such as a domestic amnesty), this becomes a salient question.
Another noted that because there are so many different forms of “hybrid tribunals,” it makes it difficult to have a discussion about all of them without making differentiations. They are “situation-specific.”
A concern was expressed that we may need a standard as to what constitutes a hybrid tribunal. If there is only a very small international component, that may be too minimal a commitment to hybridization. It was observed that dropping in a few international judges into a national judicial system will not fix all the problems of the domestic system.
(See also “Concern with international involvement seeming to provide a ‘veneer’ of legitimacy,” in Scenario 3 below.)
Need for hybrids
One participant opined that we “absolutely” will have a need for hybrid tribunals in the future. He noted that the ICC’s new building is already full, so there will need to be other tribunals prosecuting atrocity crimes.
Another participant took the view that we will indeed have a substantial number of hybrid and comparable tribunals in the future, and the ICC needs to examine what it wants to do to support this reality going forward. The ICC can also be the “exemplar” for these tribunals.
Another participant noted that hybrid tribunals are a political reality, and could be very positive politically. They provide flexibility and can restore confidence in judicial processes, and are good at dialogue with the local community, although there is sometimes a risk of their legitimacy being compromised.
Another participant suggested that hybrids, including innovative hybrids, could be the dominant model of the future in 20 years, with the ICC more as a “standard setter.” (The contrary view was also expressed, as noted above, that the ICC can’t just be a “standard setter” or “centerpiece,” but international or regional courts will be especially needed when more than one state is involved.)
Another suggested we will see more mixed chambers at the national level.
A contrary view was also expressed that hybrid tribunals are not the dominant mechanism for the future of the field of international justice.
Need for the hybrid in Central African Republic
A case was made for the hybrid tribunal being created in Central African Republic (CAR), the hybrid Special Criminal Court (SCC). The ICC is only trying 2-3 cases from the CAR; therefore the local communities really need this Court that will also help build up national capacity. The participant also noted the enormous political support for the Court within CAR. The budget being invested in the SCC—$7-8 million for the first 14 months—is a mere ¼ of the budget of the Special Court for Sierra Leone. It will be an innovative institution in that it will be civil law based, with an international prosecutor and majority of international judges in the appeals chamber.
Another participant also noted that it is important for a hybrid tribunal to give the local country a sense of ownership over the tribunal’s work, and, here, one of the useful feature of the SCC being created in CAR is that it will use civil law.
Another participant noted that the SCC is more of a national court than a hybrid court such as the Special Court for Sierra Leone and ECCC.
Hybrid complementing the ICC
It was noted that a hybrid tribunal could complement the ICC’s work, rather than supplant it.
Another participant observed that a hybrid could be a form of “complementarity,” although more so when the hybrid is created within the domestic system, rather than a freestanding hybrid tribunal.[11]
Here, it was noted that the ICC needs the capacity to interrelate with other courts and hybrid tribunals. Also, if the ICC were to catalogue the decisions of hybrid tribunals, it could help minimize the problem of fragmentation of the law.
Flexibility of design
It was noted that the international community does not need to rigidly adhere to one certain model for a hybrid tribunal; rather, there is flexibility in terms of what can be created. We see the new Mechanism being established to investigate crimes in Syria.[12] A hybrid tribunal can be molded to “do what needs to be achieved.”
Another participant noted that we can imagine new forms of hybrid tribunals in terms of both their mechanisms and their funding.
(See also “Funding of future hybrids,” below.)
Future forms of hybrids
Regional tribunals. It was noted that one could have a regional tribunal that is a hybrid tribunal. Also, there is a great deal of legal talent in Arusha with the ICTR having entered its Residual Mechanism phase, and this could be tapped into.
Regional jurisdiction may include crimes that are not addressed in the Rome Statute. Such crimes could be, for example, of special significance in a particular region and they may be difficult to tackle by a state on its own.
(See also “Concern about regional tribunals” below.)
(See also n. 12 & accompanying text discussing the Malabo Protocol.)
(See also discussion of regional tribunals in “Scenarios 1, 2 and 3 complementing each other” in Panel 4 below.)
The Syria mechanism. One participant noted that the new Syria mechanism[13] shows the potential to create an investigative mechanism that could someday feed into a hybrid tribunal.
Another stated that the new Syria mechanism is also significant because most of the evidence coming out of Syria is useless, in that it is not verifiable or reliable.
Another participant noted that we don’t know where and when a Syria tribunal will happen, but it will.
Another participant also noted that the Syrian crisis will require “a lot of justice,” and this is not occurring. There must be accountability for the crimes in Syria.
Advantages of hybrids
Flexibility. Hybrid tribunals can be molded to address unique needs and circumstances of the situation, given the particular challenges facing the local judiciary.
Capacity-building. Hybrid tribunals have more potential for capacity-building because they are (usually) in the affected country; however, it was noted that capacity-building is still expensive, takes a lot of thought, and there is sometimes resistance from the local judiciary.
It was noted that strengthening the national system should be a key focus, and hybrids may be better positioned to work on restoring rule of law, for instance, than the ICC, because of its location in The Hague.
It was observed that, at one point, 60% of the staff of the Special Court for Sierra Leone were Sierra Leonean nationals. This exposure to the Court’s work helped leave a legacy for rule of law development in the country.
A cautionary note, however was expressed, that there can be a danger of a “spaceship effect,” with a hybrid coming to a country, engaging in work, and then leaving. There needs to be sustained capacity-building to avoid this.
Access to affected communities. It is easier for hybrid tribunals that are located in their situation countries to engage with local communities, in that more meaningful outreach can occur, and there can simply be more engagement. However, challenges can arise when different communities have different ideas of who they want to see prosecuted, and how that is handled may impact local perceptions of legitimacy. Also, it was noted that there can be a tension in terms of the community that the hybrid tribunal is seen to serve: is it serving the communities affected by the crimes, or the international community? Another participant put it: make sure to ask, “Is the justice we seek, the justice that they want?”
Legitimacy. A hybrid tribunal can be perceived as more legitimate due to having both international and domestic features. In this way a hybrid may “resonate” more with the local population.
Efficiency. The first hybrid tribunals were created in response to the large budgets of the ICTY and ICTR in an attempt to create more “lean and mean” institutions that would only prosecute “those who bear the greatest responsibility.”
Outreach. The Special Court for Sierra Leone presents a strong model for a well-designed outreach program.
Working in complement to a truth commission. The existence of the Special Court for Sierra Leone and a truth commission in Sierra Leone shows that both institutions can exist in a country simultaneously.
Contribution to peace. An example was given of an election in Freetown while the Special Court was still operational, and the (false) rumors that the Special Court would prosecute anyone who perpetrated violence during the election; the election was peaceful.
Prosecuting all sides. The Special Court for Sierra Leone, which prosecuted all three of the major warring factions during the Civil War in Sierra Leone showed that it is possible to prosecute all sides.
Showing respect for local customs and traditional mechanisms
When internationals are in a situation country, they need to “be humble” in their approach to “dealing with the client.” It is important to show respect for local customs and traditional mechanisms.
Proposal for a freestanding registry
It was noted that the main cost of the STL’s budget is in the Registry, which takes up ¾ of the budget. It might be possible to create a freestanding international registry that would be useful for all future freestanding tribunals (other than the ICC), thereby keeping down costs of creating new registries.
There were some dissenting voices about the idea of an international registry, as possibly being too remote, and not sufficiently in tune with the local problems that individual defense counsel or investigators might have, and why they might need a particular funding request granted for investigations. The fundamental issue is: to whom would this international registry be accountable? Another participant expressed concern that there might be competition between tribunals for the registry’s resources.
Funding of future hybrids
One participant suggested his biggest fear about the future use of hybrid courts is the relatively modest funding they attract.
A suggestion was made that perhaps there could be one overall funding pool for all future hybrid tribunals, a “Global Funding Mechanism.”
However, the contrary suggestion was also made that states prefer to decide specifically where to invest their donor dollars, and like to be known as associated with a particular tribunal. For instance, the UK heavily engaged with the Sierra Leone Special Court due to the UK’s history with the country. Creating an overall funding mechanism might in fact attract less donor funding.
Problems associated with voluntary funding
It was noted that voluntary funding for tribunals is unreliable, as it sometimes falls short, and then a tribunal is in a precarious financial position. Both the ECCC and Special Court for Sierra Leone ran out of funds mid-operation, and the UN had to obtain subventions and fill-in the shortfall. Now the ECCC’s funding has been significantly cut, putting its work in a difficult position. There is also a negative perception that if there are donors from a dominant country, people think (whether true or not) that the donor country is pressing the tribunal to prosecute certain cases. If the international community is going to create tribunals, it needs to be prepared to pay for them.
It was also noted that there is a “long tail” to residual mechanisms, in terms of victim and witness protection, and maintaining archives. These expenses will need to be paid for a considerable number of years after the tribunal is no longer active.
The problem of donor “fatigue” as to funding was also recognized.
Problems of arbitrary timelines
It was noted that hybrid tribunals are long-term investments that need sustained engagement by the international community. When the international community creates arbitrary time-lines for finishing a hybrid tribunal’s work (as was the case with East Timor’s Special Panels for Serious Crimes and the Bosnian State Court’s phase-out of hybridization), that can have negative results. Termination of international support is almost a signal for detractors to come in and undermine the work accomplished.
Whether there is sufficient oversight of hybrids
It was observed that hybrid tribunals often have a management committee or principle donors group, but they mainly address budget issues, and not governance or general oversight. It was raised as a question whether this is sufficient oversight.
State opposition to creation
It was noted that because hybrids are typically (not always) formed by agreement between the UN and the host country, if the host country opposes the creation of a hybrid tribunal, its creation—at least if it is to sit in the host country—will not be possible.
State attempts at control
It was asked: “who controls the hybrid tribunal?” The potential of domestic influence may become problematic vis-à-vis the work of a hybrid tribunal.
A concern was expressed that if a state is pursuing a hybrid tribunal instead of going to the ICC, it might be an attempt by the state to exert control over the work of the hybrid tribunal.
International versus local norms/standards
A question was also raised as to whether the hybrid would be utilizing universal or local norms in terms of both substantive law and due process.
Concern about regional tribunals
It was noted that a regional tribunal would not be obligated to cooperate with the ICC, and one should be wary of this. Some states are trying to create mechanisms to ignore the ICC.
Concern about due process
While one participant agreed that the addition of international judges in hybrid courts can reduce the perception of bias, there was also reason for caution when hybrids are seen as faster and more efficient than the ICC. Similar to ad hoc courts, hybrid courts are set up post-crime, thus the risks of prejudice are greater. There may be overemphasis on efficiency. International human rights standards and even constitutional law standards may be overlooked or neglected.
Having well-qualified judges is required for all types of tribunals, including hybrids, to function well.
Concern about re-inventing the wheel
One participant remind the group that we have the ICC precisely so that we don’t have to create tribunals each time there is a new set of atrocities. Also, there are many lessons already learned about the structure and procedure of hybrids, and we need to use them rather than re-inventing the wheel.
For instance, we should have a standard for a residual mechanism, and not need to create a different one each time.
Additionally, for each ad hoc and hybrid tribunal, as it approaches the completion of its mandate, there is a problem of staff departures which impacts cases.
SCENARIO III: COMPLEMENTARITY/DOMESTIC COURT PROSECUTIONS AS THE DOMINANT APPROACH OF THE FUTURE
In the third scenario, complementarity becomes the most dominant feature of the future of the field of international justice. Complementarity here is shorthand for national court prosecutions, although, within the Rome Statute system, refers to the exercise of jurisdiction in ICC situation countries.[14] In this third scenario, there is less need for the ICC or hybrid tribunals, as there is a shift towards domestic prosecutions—whether through a specialized war crimes chamber or the ordinary court system. Thus, “complementarity is made meaningful,” with national courts having a much stronger capacity (and, possibly, “will”) to fairly conduct domestic atrocity crime prosecutions. If complementarity is to be “made meaningful,” which body should do what in terms of coordinating the strengthening of domestic capacity?
Predominant Themes Discussed
What is included in complementarity
The need for complementarity
Tailoring complementarity to needs
Sustainable Development Goal #16 as a new advocacy approach
Resources with development actors
Coordination needed
Judicial cooperation
Building “will” for domestic trials
“Defensive complementarity”
“Parallel complementarity”
Role of the ICC in capacity-building
Ensuring domestic due process
Prosecuting both/all sides
The work of UN Peacekeeping Operations (DPKO) on complementarity
Concern with international involvement seeming to provide a “veneer” of legitimacy
Insufficient country investment
Reparations
Limitations of complementarity in dictatorial regimes
Summary of Discussion
Participants were asked to envision the future of complementarity, both in terms of what it might look like, but also how one might facilitate the coordination of domestic capacity-building. For example, what are the key partnerships that need to be built to facilitate and fund domestic capacity-building? What are the key organizations to have involved? What kind of facilitation process do we need to build effective coalitions between key states and other actors? David Tolbert moderated the discussion.
What is included in complementarity
In ICC circles, “complementarity” generally refers to national court prosecutions in ICC situation countries. Yet, in earlier discussion, it was noted that hybrid and regional tribunals could also complement the ICC’s work, and might function as “complementarity.” (See discussion of “Complementarity” in Scenario 1 above.)
However, the contrary view was also expressed that article 17 of the Rome Statute seems narrowly worded that it is domestic prosecution that qualify as complementarity.
It was noted that capacity-development is also need in non-Rome Statute States Parties, so it is not only needed in ICC situation countries.
The need for complementarity
The view was expressed that Scenarios 1 and 2 alone will not be sufficient, and that there will be a need for Scenario 3 (complementarity). This did not appear to be disputed.
Another participant propounded that there simply must be domestic justice for atrocity crimes because international tribunals handle a limited number of cases, so having prosecutions at the national level is key.
Another noted that in the US, all administrations have supported complementarity.
It was also noted that it will be important to harness “lessons learned” from experiences in Mali, Cote d’Ivoire, and Guinea as to their domestic prosecutions.
Tailoring complementarity to needs
One participant noted that it is important to conduct needs assessments, and build on what exists in each domestic judiciary, rather than impose solutions on different systems or different societies. One also needs patience, as rebuilding does not occur overnight. We must remember that in developed justice systems, development occurred over centuries.
Sustainable Development Goal #16 as a new advocacy approach
It was noted that Sustainable Development Goal (SDG) #16 may be helpful as a new approach to trying to revitalize the building of complementarity because it specifically references the need for “justice.”[15]
It was noted that the SDGs apply to all countries, not just developing countries, so are much broader than previous development goals.
Another participant noted that the SDGs may be a better “hook” for complementarity particularly in places where the ICC is seen as unpopular.
It was also noted that the new Secretary-General appears interested in focusing on sustainable peace and accountability, and this may provide a window of opportunity for having concrete discussions about capacity-building at the national level (as well as the international level).
Resources with development actors
One of the problems that has been hampering the development of complementarity, is that the significant resources are put into rule of law development. Yet, those working in those areas, are not necessarily interested in focusing on domestic prosecution of atrocity crimes. A “bridge” needs to be built between those working on development, and those working on atrocity crimes prosecutions.
It was lamented that those working on “development” or rule of law in general often don’t even know what “complementarity” is. They may be working on rule of law and institution-building in places like Mali and CAR, and spend huge sums of money, but they are looking at general court capacity-development, and have no particular focus on the prosecution of atrocity crimes.
It was also noted that investment in domestic capacity-building involves sustained long-term, not short-term, funding commitments and coordination.
It was noted that an enormous amount of resources exist in the area of “governance.” In the US, governance aid has risen and fallen depending on the administration in power, whereas with aid programs out of countries in Northern Europe and the Commonwealth countries, governance has remained a strong priority. Significant funding is invested in anti-corruption programs and perhaps that could be “tapped into” for complementarity.
The importance of “building synergies against the silos” was stressed, so that people in divergent programs can come together and realize they have common objectives. One has to lobby one’s colleagues in different areas of the government to build the ties needed.
One participant pondered whether it would be possible to “shame” development actors who won’t work on complementarity.
Coordination needed
It was noted that there are many divergent actors doing capacity-building work, but there is no overall coordination, which is needed. The challenge is to make sure the relevant actors get together and their efforts are going in the right direction. Perhaps it is time to re-launch attempts at this.
It was noted that sometimes donors work against each other. Some will impose restriction on funding, while other donors won’t, so the recipient country will accepting funding from the donor that does not impose conditions.
Another participant stressed the importance of “south-south” cooperation, and more emphasis could be placed on this. It was also noted that Latin America provides a number of important examples of successful domestic prosecutions.
Judicial cooperation
The role of judicial cooperation was stressed, as domestic systems are all different, and domestic actors will need to be involved.
Building “will” for domestic trials
It was noted that building the “will” to conduct domestic trials can prove even more difficult than capacity-building, because political “will” can be fragile and changing, and often very limited. The ICC can provide some leverage to push the national authorities to do what they should be doing.
One can limit foreign assistance if the country is not showing the “will” to live up to its justice commitments. However, this creates challenges, such as whether it results in cuts in humanitarian aid. Also, the best way to build legitimate “will” is if the victims in the country demand justice.
Another participant echoed that civil society demanding accountability is the best way to galvanize local momentum.
“Defensive complementarity”
The use of complementarity to avoid ICC investigation or prosecution was referred to as “defensive complementary.” This will only be generated if there is a credible threat of ICC prosecution. There was some of this dynamic at work regarding the Colombian peace process.
It was also noted that the Colombian peace process and its justice component were achieved under the auspices of the ICC having the situation under preliminary examination, and thus requiring a justice response from national actors.
Comparable synergies are seen with the Hissène Habré trial before the Extraordinary African Chambers in Senegal, which triggered domestic prosecutions in Chad, and the Spanish warrant against former Chilean President Pinochet which led to prosecutions in Chile.
“Parallel complementarity”
The phrase “parallel complementarity” was invoked to refer to a country that is pursuing domestic prosecutions without ICC involvement. It is pursuing justice without any ICC prompting, although perhaps influenced by the norms reflected in the Rome Statute.
Role of the ICC in capacity-building
One participant wondered what more the ICC could do to help domestic capacity-building that doesn’t take that much funding. For instance, one might envision it as an intellectual standing resource, showing fundamental norms for justice, best practices, providing educational programs, modules, and radio broadcasts. Thus it could dispense information via the radio and social media to have an impact.
Ensuring domestic due process
It was noted that it is not always possible to achieve 100% adherence to due process norms, and then the question arises: “what kind of justice is good enough” in terms of ensuring fair trials at the domestic level. One has to at least achieve the best possible version of due process even if it is not perfect.
Another participant noted that there was no “oversight” to “blow the whistle” if domestic prosecutions are “faking complementarity”—making it appear as if countries are doing justice but not conducting credible prosecutions. Bangladesh was mentioned.
A further participant, however, noted that human rights NGOs are doing trial monitoring, and they serve that function.
Prosecuting both/all sides
One participant noted that one has to be wary that the losing side in a conflict will get prosecuted; for the winning side and those affiliated with the government in power, prosecutions are likely to proceed more slowly.
Another participant put it that complementarity faces issues not just of developing capacity but with “victor’s justice.” To help negate this, one might introduce international judges or prosecutors to help show commitment to the neutral application of the rule of law.
The work of UN Peacekeeping Operations (DPKO) on complementarity
It was noted that in CAR, the peacekeeping operation MINUSCA has been explicitly mandated by the Security Council to assist in the establishment and operationalization of the SCC as well as to support ordinary crimes prosecutions.
DPKO (MONUSCO) is also doing work in DRC to support military justice authorities in investigating and prosecuting atrocity crimes through Prosecution Support Cells.
It is necessary to see justice as an integral part of broader efforts to promote peace and security, and if Security Council members can ensure that “justice” is included in peacekeeping mandates, then peacekeeping operations can help to rebuild justice systems and build capacity to address atrocity crimes. Also, peacekeepers can be given arrest powers, and have air and other assets that enable them to reach remote areas where crimes took place. Peacekeeping operations also have significant resources in the form of programmatic funding and personnel.
However, one problem with peacekeepers doing such work is that peacekeeping operations are intended to be transitional, and not long-term. This might mean that staff is not there for the life of the court. Also, there tends to be high staff turnover in peacekeeping operations.
Another challenge encountered is when the country does not have a fully functioning prison system, posing particular challenges for the detention of high-risk and high-profile accused. More broadly, ongoing violence and conflict as well as the existence of other competing priorities (e.g., humanitarian crises, need to demobilize armed elements, etc.) also present challenges to justice efforts.
(See also “Peace versus justice,” in Scenario 1 above.)
Concern with international involvement seeming to provide a “veneer” of legitimacy
A concern was expressed that when international actors (such as the United Nations) are occasionally involved in a domestic process (Central African Republic, Colombia, maybe Sri Lanka in the future), whether that sometimes looks like it provides a “veneer” of legitimacy to what might otherwise be a process not necessarily adhering to international standards.
Insufficient country investment
It was lamented that some countries invest very little in rule of law development. DRC invests only a relatively tiny amount in rule of law. That is palpably insufficient.
Reparations
It was noted that ensuring that victims receive reparations is key to meeting victims’ demands.
Other transitional justice tools were also noted as important.
Limitations of complementarity in dictatorial regimes
One participant noted that as long as there are dictatorships, it will be difficult to rely on national courts as the dominant institutions for international justice. In a dictatorial regime it is typically not possible to prosecute the leaders. Even after a dictatorship ends, prosecutions under a new government may still be difficult due to political tensions. Fair trials may not be feasible due to bias in either direction. Domestic criminal jurisdiction is not just a question of national implementation of the Rome Statute, of putting the atrocity crimes into the criminal code, it is a question of governance. It requires a strong constitution, with options such as the impeachment of criminal leaders. It requires acceptance of the independence of the judicial system.
PANEL 4: ADDITIONAL SCENARIOS, AND SCENARIOS COMPLEMENTING EACH OTHER
The final panel concluded with discussion of whether there are additional scenarios that should be considered for the future of the field of international justice, and whether Scenarios 1-3 are best envisioned as complementing each other, and not as alternatives. The question was asked: what combinations of mechanisms will we be looking at twenty years into the future to try core atrocity crimes? Dr. Carrie McDougall moderated the discussion.
Additional Scenarios
None of the participants suggested additional scenarios. To some extent, the less optimistic versions of Scenarios 1-3 are already reflected in the discussion of those topics.
Scenarios as Complementary
It had already been suggested during prior discussion (for instance, in Professor Trahan’s opening remarks) that while each of the 3 scenarios would be discussed separately, that they were not in fact designed to be mutually exclusive. Each scenario actually assumed elements of the other two scenarios also would be present. Many participants seemed to share this view as they spoke of the role of the ICC in relation to other mechanisms, or how hybrid tribunals might complement the ICC, and, of course, according to the Rome Statute, the ICC has complementary jurisdiction, i.e., it is complementary to the national courts, with domestic jurisdiction having priority. As noted above, all scenarios assume the existence of additional transitional justice tools (beyond prosecutions) as well as universal jurisdiction prosecutions.
Predominant Themes Discussed
Scenarios 1, 2 and 3 complementing each other
Scenarios 1 and 3 complementing each other
Flexible, mutual or “reverse” complementarity
Considerations of sequencing
Other
Summary of Discussion
Scenarios 1, 2 and 3 complementing each other
In 20 years, in terms of the field of international justice as a whole, one participant opined that the ICC will not be “dominant” but the “central” institution in the system. There will be more hybrid tribunals, especially where there are “gaps” in the ICC’s jurisdiction, and there will be domestic prosecutions. Ideally, all these can prosecute “symbiotically,” working together, not cancelling each other out. While there may be less need for the ICC and hybrid tribunals (because of their high expenses and bureaucracies), they will not be eliminated. There will still be the need for the ICC to try people where it is impossible to try them domestically.
In the view of another participant, the Scenarios do not compete with each other. There needs to be more recognition of the existence of political “drivers” of atrocity crimes—it is not the “ethnic groups” on their own that incite the crimes, but the leadership. We have some indicators of the field being a success—for instance, 21,850 victims from Africa have sought to participate in ICC cases. Some of these victims testified in the Bemba trial.
Another participant thought the future would consist of a mixture of Scenarios 1, 2 and 3, but observed that much depends on political “will” to ensure prosecutions. In terms of domestic prosecutions, some will be better and some will be worse. Funding will also continue to be an issue. The international community also needs to put more emphasis on preventing the crimes.
Another participant opined that the field would continue along the present trajectory. The ICC will be the “centerpiece” (not dominant) institution. There has been so much diplomatic and political investment and commitment to the ICC that it will continue. A core of countries will continue pursuing the ICC’s central role. But we need to calibrate expectations of what the ICC can and cannot do. High expectations need to have a reality check. The crime of aggression will be a significant addition. The UN Security Council will continue to play a role and may make deferrals in the name of peace and security, but perhaps not more referrals. Hybrid tribunals will also continue, with the possibility that the ICC might even supervise the development of hybrid tribunals. And we could see the development of regional criminal courts. The Syrian investigative mechanism is new, and we may see other new developments.
Another participant thought that in 20 years, the ICC will be dominant, and we need to expand its reach by focusing on universality. Yet, there will still be gaps in jurisdiction as not all states will become parties. There is an automatic assumption that [participant’s country] supports U.N. Security Council referrals to the ICC; but that is not the case, because they are imposing obligations on countries that are not parties to the Court. And referrals are really just moving the Security Council’s issues to another institution. Because of the gaps in ICC jurisdiction that will still exist, [participant’s country] will continue to support the creation of ad hoc tribunals to ensure that justice is done, for instance, in a country such as Syria. “African solutions to African problems” has resonance. Thus, in the future, regional tribunals may also play a role in complementarity, but not necessarily along the lines of the Malabo Protocol model, which has an overbroad immunity provision.[16]
Another participant succinctly put it: “We don’t care so much about how justice is done as long as it is done.”
(See also “Role of the ICC in 20 years,” in Scenario 1 above.)
(See also “Need for hybrids,” in Scenario 2 above.)
Scenarios 1 and 3 complementing each other
Flexible, mutual or “reverse” complementarity. One participant noted that complementarity may evolve and become more flexible or mutual. Jurisdictional priority may depend on the answers to various questions: Which court will be able to obtain cooperation from states, which court can deliver due process and evade perceptions of bias, which proceedings are most likely to forestall political tension or contribute to the maintenance of peace? Additional criteria can matter and may be worked out. Depending on such criteria, certain situations may even be recognized as being better addressed according to ‘reverse’ complementarity, when the ICC would have primary jurisdiction and domestic courts would step in only when the ICC is unable or unwilling.
Considerations of sequencing. Another participant suggested we need to consider the timing or “sequencing” of complementarity in working out the relationship between the ICC and national jurisdictions. National jurisdictions need time to conduct their work. When the ICC wants to be seen as acting quickly, there is then a tension with waiting for national jurisdictions to act. Yet, sometimes the ICC must act quickly to try to create deterrence; here, for example, had the ICC been able to do something sooner in Syria, that could have been a game-changer. Our hope is to show international actors, that accountability helps to bring peace, which then is beneficial for the economy and development of a country.
Other
Another participant suggested that for justice and rule of law to work better in the future, we need more focus on anti-corruption. Civil society is also playing and can continue to play a role in the documentation of atrocity crimes, for instance, by taking video footage of atrocities. Overall, however, we need to put more emphasis on prevention of crimes, and not just justice after the fact when the atrocities have occurred. For instance, one could do more in instructing militaries on how command responsibility works.
Professor Trahan’s remarks closed the symposium, with a summary of the discussions.
APPENDIX A
THE FUTURE OF THE FIELD OF INTERNATIONAL JUSTICE:
A SCENARIOS WORKSHOP
Expert Participants:
Sina Alavi: Legal and Political Adviser, Permanent Mission of the Principality of Liechtenstein to the United Nations
Jose Alvarez: Herbert and Rose Rubin Professor of International Law, New York University School of Law
Pablo Arrocha Olabuenaga: Legal Adviser, Permanent Mission of Mexico to the United Nations
Jutta Bertram-Nothnagel: Representative to the United Nations and the International Criminal Court, Union Internationale des Avocats
Catherine Boucher: Counsellor (Legal, Social Affairs and Human Rights), Permanent Mission of Canada to the United Nations
Damaris Carnal: Legal Adviser, Mission of Switzerland to the United Nations
David Crane: Former Chief Prosecutor, Special Court for Sierra Leone
Juan Cuellar Torres: Second Secretary, Permanent Mission of Colombia to the United Nations
Margaret M. deGuzman: Associate Professor of Law, Beasley School of Law, Temple University
Richard Dicker: Director of the International Justice Program, Human Rights Watch (HRW)
Dr. David Donat-Cattin: Secretary-General, Parliamentarians for Global Action (PGA); Adjunct Assistant Professor, Center for Global Affairs, NYU-SPS
Johan Eichel-Illum: Assistant attaché, Permanent Mission of Denmark to the United Nations
James A. Goldston: Executive Director, Open Society Justice Initiative
Angel Horna: Legal Adviser, Permanent Mission of Peru to the United Nations
Larry Johnson: Former UN Deputy Legal Counsel
Christian Karstensen: Legal advisor, Permanent Mission of Denmark to the United Nations
Elise Keppler: Associate Director, International Justice Program, Human Rights Watch (HRW)
Naseem Kourosh: Human Rights Officer, Baha’is of the United States; Co-Chair, Washington Working Group on the International Criminal Court
Patrick Luna: Second Secretary (Legal and Counterterrorism), Permanent Mission of Brazil to the United Nations
Beth S. Lyons: Defense Counsel, International Criminal Court/International Criminal Tribunal for Rwanda
Stephen Mathias: Assistant Secretary-General for Legal Affairs, United Nations
Dr. Carrie McDougall: Legal Adviser, Australian Mission to the United Nations
Isaias Medina: Minister-Counsellor, Permanent Mission of the Bolivarian Republic of Venezuela to the United Nations
Antoine Misonne: Legal Adviser, Permanent Mission of Belgium to the United Nations
Karen Mosoti: Head, International Criminal Court Liaison Office to the United Nations
Helen Mulvein: Legal Counsellor, UK Mission to the United Nations
Daryl Mundis: Registrar, Special Tribunal for Lebanon
Michael Oppenheimer: Clinical Professor, Center for Global Affairs, NYU-SPS
Kaoru Okuizumi: Deputy Chief, Justice and Corrections Service, Department of Peacekeeping Operations, United Nations
Bart Paans: First Secretary, Legal Adviser, Permanent Mission of the Kingdom of the Netherlands to the UN
Ana Peyro Llopis: Senior Legal Officer, Office of the Legal Counsel, United Nations
Renzo Pomi: Representative to the United Nations, Amnesty International (AI); Adjunct Professor, Center for Global Affairs, NYU
Stephen J. Rapp: Distinguished Fellow, US Holocaust Memorial Museum and The Hague Institute for Global Justice.
Susana SáCouto: Professorial Lecturer-in-Residence; Director, War Crimes Research Office, American University Washington College of Law
Haruka Sawada: Adviser, Permanent Mission of Japan to the United Nations
Param-Preet Singh: Associate Director, International Justice Program, Human Rights Watch (HRW)
Milena Sterio: Professor of Law & Associate Dean for Academic Enrichment, Cleveland-Marshall College of Law
Jane Stromseth: Professor of Law, Georgetown University
David Tolbert: President of the International Center for Transitional Justice, (ICTJ)
Jennifer Trahan: Associate Clinical Professor, Center for Global Affairs, NYU-SPS
John Washburn: Convener, American Non-Governmental Organizations Coalition for the International Criminal Court, A Program of the Columbia University Institute for the Study of Human Rights
H.E. Christian Wenaweser: Ambassador, Permanent Representative of the Principality of Liechtenstein to the United Nations
[Note: not every participant was present throughout the entirety of all discussions, although many were.] [Thanks to NYU Center for Global Affairs students Sara R. Rosales, Taylor Ackerman, Hannah Barr, Alexander O. Groskinsky, and Yara Sayegh for serving as note-takers during the workshop.]
[1] The hybrid Extraordinary African Chambers in Senegal is prosecuting crime committed in Chad.
[2] Rome Statute of the International Criminal Court, July 18, 1998, U.N. Doc. A/CONF.183/9, 2187 U.N.T.S. 90.
[3] See n. 4.
[4] This past fall, South Africa, The Gambia and Burundi announced their withdrawals. The Gambia has subsequently reversed its withdrawal, and the South African withdrawal has been found unconstitutional. Burundi’s withdrawal will take one year to become effective.
[5] This restates the Scenario as posed to participants; however, during discussions it seemed that participants generally saw the ICC of the future as more the “central” institutional or “centerpiece” of the system of international justice, rather than the “dominant” institution.
[6] See The Guardian, “Russia and China veto UN move to refer Syria to international criminal court,” May 22, 2014, at https://www.theguardian.com/world/2014/may/22/russia-china-veto-un-draft-resolution-refer-syria-international-criminal-court [viewed 12/26/16].
[7] “Code of conduct regarding Security Council action against genocide, crimes against humanity or war crimes,” Annex I to the letter dated 14 December 2015 from the Permanent Representative of Liechtenstein to the United Nations addressed to the Secretary-General, U.N. Doc., A/70/621–S/2015/978, 14 December 2015, at http://www.globalr2p.org/media/files/n1543357.pdf [viewed 2/23/17].
[8] See UNSC res. 1593 (Darfur); UNSC res. 1970 (Libya) purporting to exclude UN funding of the situational referred to the ICC. In fact, under the UN Charter, it is the U.N. General Assembly that makes U.N. funding decisions.
[9] The proposal to add terrorism as an ICC crime has in fact been withdrawn, so that it is not even before the Working Group on Amendments anymore.
[10] Two participants did express the view that ad hoc tribunals like the ICTY and ICTR are not the way of the future. However, there was not further discussion of this topic.
[11] Of course, it may be more significant whether the hybrid has jurisdiction over those who bear the ‘greatest responsibility,” in which case it would seem designed to supplant the ICC’s role, or whether it is designed to prosecute at a slightly lower level, so that it would complement the ICC’s prosecutions.
[12] Last December, the U.N. General Assembly created an “International, Impartial and Independent Mechanism to assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011.” U.N. GA res. A/71/L.48, Dec. 19, 2016.
[13] See n. 12.
[14] This restates the Scenario as posed to participants; however, in discussions, it became clear that some participants embraced a broader notion of “complementarity.” (See discussion of “Complementarity” in Scenario 1.)
[15] SDG 16 is to: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” U.N. GA res. A/69/L.85, 12 August 2015, “Draft outcome document of the United Nations summit for the adoption of the post-2015 development agenda,” at http://www.un.org/ga/search/view_doc.asp?symbol=A/69/L.85&Lang=E.
[16] See Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (adopted in Malabo Equatorial Guinea in June 2014) (Malabo Protocol), art. 46A bis (“No charges shall be commenced or continued before the court against any serving AU Head of State of Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.”).
