1. Introduction
The re-emergence of international criminal courts in the 1990s has generated considerable hopes for a quantitative and qualitative improvement in the enforcement of international criminal law. Courts such as the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, respectively), the International Criminal Court (ICC), and hybrid or internationalised courts – created in and/or for East Timor, Sierra Leone, Cambodia, Bosnia-Herzegovina, Kosovo and Lebanon – were deemed to represent a focused international effort directed at bringing perpetrators of serious international crimes to justice. Acting on behalf of a putative international community, this array of international and internationalised judicial bodies was not only expected to curb serious international crimes in particularly exceptional situations; it was also expected to convey a general message of universal condemnation of atrocities and a collective determination to end impunity.Footnote 1
Viewed with the hindsight of two decades after the start of operations of the ICTY – the first of the contemporary international criminal courts – it is clear that some of the expectations attendant on the establishment of international criminal courts were exaggerated in scope and unrealistic in nature. The complexity of litigating international criminal casesFootnote 2 and the high expenses associated with the conduct of legal proceedings at the international levelFootnote 3 have constrained the number of cases that each international court has been capable of processing.Footnote 4 Moreover, the courts' ability to detain and prosecute some of the key individuals they indicted has been hampered by the lack of cooperation on the part of some states in which the accused took refuge,Footnote 5 or by the conditions of lawlessness prevailing in those areas in which international criminals roam.Footnote 6 Finally, in more than one context, influential local actors have challenged the legitimacy of international criminal courts and have resisted cooperating with them.Footnote 7 Such challenges have complicated the work of international criminal courts, and limited their ability to affect local norms and actors.Footnote 8
In part as a result of these practical difficulties, and in part because of general concerns about the erosion of national sovereignty which the empowerment of international criminal courts signified,Footnote 9 international actors and observers have afforded greater attention in recent years to the role of national courts in bringing international criminal perpetrators to justice (in parallel with other accountability mechanisms). Not only are national courts typically less expensive to operate (and their costs are not necessarily incurred by the international community but rather by the national legal system);Footnote 10 they also sometimes enjoy more legitimacy in the eyes of local constituencies than their international counterparts,Footnote 11 and could reach deeper into society and cast a wider net than international criminal courts. Put differently, national courts have the potential capacity to prosecute more individuals than international criminal courts, they can expect their orders to be more strictly enforced and can facilitate a more fundamental change of norms and values at the domestic level.
The perception of national criminal procedures as a preferred alternative to international criminal proceedings – from both a material and political perspective – underlines the principle of complementarity found in the Rome Statute of the ICC (ICC Statute),Footnote 12 and is reflected, to some extent, in the ‘completion strategy’ adopted for both the ICTY and ICTR.Footnote 13 This principle of complementary, as it is currently understood by many court officials and commentators, contains both negative and positive features. It regards international criminal courts as judicial mechanisms of a residual nature, which should defer when possible to the jurisdiction of their national counterparts; furthermore, the principle also encourages international courts to conduct their business in ways that will facilitate and foster, as much as possible, the operation of national proceedings.Footnote 14
Indeed, in the 2010 Kampala Resolution on Complementarity, the Assembly of States Parties (ASP)Footnote 15 declared that it:
encourages the Court, States Parties and other stakeholders, including international organizations and civil society, to further explore ways in which to enhance the capacity of national jurisdictions to investigate and prosecute serious crimes of international concern as set out in the Report of the Bureau on complementarity, including its recommendations.
It is against this background that the Project on Studying the Impact of International Courts in Domestic Criminal Procedures in Mass Atrocity Cases (the DOMAC Project) was launched.Footnote 16 The DOMAC Project sought to draw lessons from the experience accumulated by the interactions that took place between national and international courts in the two decades that have passed since the establishment of the ICTY, in the hope that such lessons may guide such interactions in the future. Indeed, specific DOMAC reports that looked at interactions relating to specific legal aspects (applicable laws, prosecution rates, sentencing policies and capacity development) and/or at specific geographical regions (for example, the Balkans, Africa, Latin America, East Timor) provide many interesting stories of success and failure from which valuable lessons can be learned.Footnote 17
The purpose of this article is not to comprehensively catalogue the specific findings of the various DOMAC reports, but rather to offer, on the basis of their findings, some general observations on the impact of international courts on domestic criminal processes (in the aftermath of situations of mass atrocities), and to discuss the structural deficiencies that may have led until now to sub-optimal levels of cooperation and division of labour between international and national criminal procedures. On the basis of these critical observations, a number of general recommendations for future policy planners will be proposed. The article thus proceeds in the following manner. Following these introductory remarks, Section 2 describes some of the main impacts of international courts on domestic courts handling mass atrocity cases. Section 3 then discusses four overarching problems which may have hampered these interactions and might, if left unaddressed, continue to hamper future interactions between national and international criminal courts. These are (i) the lack of a comprehensive legal response to mass atrocities; (ii) inadequate allocation of resources; (iii) the absence of ultimate responsibility over the international response; and (iv) legitimacy deficits. The concluding segment sketches a number of proposals based on the discussion in the two immediately preceding sections.
2. Impacts
The research conducted by the DOMAC researchers largely corroborated the two initial hypotheses that underlay the project: that (i) international courts can and do impact on national criminal proceedings in the aftermath of mass atrocity situations, and (ii) that the cooperation between national and international courts involved in criminal proceedings was until now largely unstructured and sub-optimal. These two assertions are in fact interconnected. Once it is shown that international courts possess ‘carrots and sticks’ that may influence the conduct and capacity of domestic courts, one may critically evaluate the manner in which such ‘carrots and sticks’ have been employed in past cases, and consider whether better and more systematic ways to employ them (perhaps also involving other actors) can be identified.
In line with the general structure of the DOMAC Project, I discuss in this section four areas of legal interaction between international and domestic courts where impacts of the former on the latter can be identified: (i) prosecution rates; (ii) sentencing policies; (iii) legal reforms (substantive and procedural law); and (iv) capacity development.
2.1 Prosecution Rates
Obviously the parallel exercise of criminal jurisdiction by international and domestic criminal courts over the same pool of suspects can influence the prosecution rates of both sets of judicial institutions. In theory, if the pool of suspects is finite, then the assumption of jurisdiction by one procedure could remove cases from the jurisdiction of the other, and vice versa. This is, however, an unlikely scenario in mass atrocity situations, where the number of possible suspects typically exceeds by far the capacities of both international and domestic courts.
Instead, one may foresee a number of other ways by which the very possibility of conducting international criminal proceedings, as well as the actual initiation of such proceedings, may encourage the exercise of jurisdiction by domestic courts – leading to higher rates of prosecution before all of the involved judicial bodies. First, the exercise of jurisdiction by international courts may raise awareness of the seriousness of the crimes committed and legitimise a domestic judicial reaction thereto. Second, the information gathered by international investigators and prosecutors can also facilitate, if shared with domestic investigators and prosecutors, the conduct of national proceedings relying on the same evidentiary basis.Footnote 18 Finally, the desire to fend off or pre-empt international proceedings, which may harm the reputation of the state in question, embarrass its judiciary, or adversely affect the interests of influential individuals or organisations, may lead local courts to initiate proceedings with a vigour that would otherwise be absent.Footnote 19 Indeed, assumptions about such an incentive structure seem to underlie the ICC's complementarity rule.Footnote 20
At the same time, the very existence of international jurisdiction may serve as an excuse for inaction, allowing national courts to refrain from addressing mass atrocity situations – a course of action which is often close to prohibitively expensive and fraught with political difficulties. Hence, the fact that international courts introduce some degree of legal accountability for the crimes that occurred may signify the shouldering of some responsibility for prosecution by international actors and reduce the pressure on domestic courts to act.Footnote 21 Indeed, the practice of self-referral to the ICC (sometimes referred to, derisively, as ‘case-dumping’)Footnote 22 illustrates the potential for a decrease in domestic prosecutions as a result of the availability of an alternative international forum.
The DOMAC reports produce examples of both tendencies at play – sometimes in the same geographical context (though at different points in time). When local political interests were aligned against domestic prosecutions, as was the case in Bosnia and Herzegovina in the second half of the 1990s, the existence of the ICTY was used as a pretext for inaction (it was feared, at the time, that cross-ethnic prosecutions – that is, the prosecution of Serbs before Muslim-dominated Entity courts and vice versa – could have led to the destabilisation of the Dayton Agreement and thereby complicate the re-integration of the different entities in the federation of Bosnia and Herzegovina).Footnote 23 In fact, the ICTY was assigned in this particular context with a formal ‘gatekeeping’ role through the 1996 Agreement on the Rules of the Road,Footnote 24 which proscribed war crime prosecutions unless approved by the ICTY Prosecutor. This agreement thus symbolised the shift in responsibility over prosecutions from the domestic to the international plane.
Still, at a subsequent point in time, after the political conditions in Bosnia and Herzegovina had changed and following the expiration of the Rules of the Road programme in 2004, Bosnian courts at both federal state and entity level have undertaken relatively large numbers of war-related prosecutions with the active assistance of the ICTY. In order to facilitate these trials, the ICTY stayed some of its own prosecutions and transferred pending cases to the Bosnian authorities, as well as unprosecuted case files (inter alia, via its rule 11 bis powers).Footnote 25 The ICTY has also assisted Bosnian courts in the field of capacity development.Footnote 26
An increase in the inclination to prosecute in good faith war-related atrocities can also be identified in Serbia and Croatia following the introduction of the ICTY's ‘completion strategy’, which sought to strengthen local capacities and incentives for domestic courts to prosecute war crimes.Footnote 27 Indeed, interviews conducted by DOMAC researchers in the Balkans support the proposition that fewer genuine prosecutions addressing war-related crimes would have taken place had the ICTY not been in existence.Footnote 28
The study of other situations, falling outside the Balkans, also illustrates the incentivising potential of international criminal courts. DOMAC's Colombian case study shows how the very threat of prosecution before the ICC affected the content and direction of domestic efforts to try perpetrators of atrocities committed during Colombia's prolonged civil war.Footnote 29 This finding conforms with other research work – including other DOMAC reports – that suggests that in some country situations there is a positive correlation between the prospects of intervention by international criminal courts and the number of local investigations and prosecutions.Footnote 30 In the same vein, one DOMAC report suggests that ICC investigations and prosecutions relating to the Democratic Republic of Congo (DRC) have raised local awareness of the applicability of international criminal law standards to the situation of the DRC, and that such heightened consciousness is one of the reasons why military courts have adjudicated atrocities in dozens of cases involving war crimes and crimes against humanity committed by government and militia forces.Footnote 31
Still, the case of Sierra Leone offers a counter-example of the prosecution-depressing potential of international judicial intervention. Interviews conducted by DOMAC researchers in Freetown suggest that the existence of the Special Court for Sierra Leone (SCSL) was invoked by local politicians and lawyers as one reason why the amnesty provisions of the Lomé Agreement that ended the Sierra Leone civil war should not be reopened or reinterpreted.Footnote 32 Arguably, the existence of the SCSL – and the limited measure of accountability it offered – shielded the amnesty from significant criticism and challenges by national and international constituencies. As a result, local courts had almost completely refrained from addressing civil war-related atrocities.Footnote 33 Generally speaking, a similar lack of interest in local follow-up to internationalised prosecutions can be identified in East Timor (following the dissolution of the Dili Special Panels for Serious Crimes)Footnote 34 and in Cambodia (in parallel with the Extraordinary Chambers in the Courts of Cambodia).Footnote 35
Finally, it cannot be ruled out that there are occasions when international adjudicative bodies have had little or no impact on the conduct of the national proceedings. Hence, for example, the DOMAC report on Sudan does not show anything other than a pro forma response to the initiation of proceedings before the ICC;Footnote 36 and the DOMAC report on Uganda does not reveal any impact of the International Court of Justice (ICJ) judgment in Armed Activities in Congo Footnote 37 on domestic criminal proceedings.Footnote 38
2.2 Sentencing
International criminal courts can make an impact on sentencing by their domestic counterparts in a number of ways. First, they may set an example of what constitutes a suitable penal response to a specific international crime. This ‘role-modelling’ function, however, is circumscribed by the different scales of gravity employed by national and international courts: whereas for international criminal courts, isolated war crimes may represent the low end of the international criminal law spectrum (when compared to more systematic crimes against humanity or genocide), for national criminal courts they may represent the high end of the domestic criminal law spectrum (when compared to petty theft or traffic violations). At the same time, international courts often focus their efforts on those who bear the greatest responsibility for atrocity crimes,Footnote 39 while national courts are often left with mid-level and low-level suspects.
In addition, international courts themselves are instructed, at times, to consult local sentencing practices when passing sentence.Footnote 40 As a result, it is less than clear whether national courts are even expected to follow international guidance in this field. In the absence of clear international standards on sentencing considerations, and in light of the reluctance by certain national courts to defer to international courts on criminal law matters, domestic judges still retain considerable discretion to adjudge what constitutes aggravating or mitigating circumstances (for example, what weight to assign to plea agreements, the pre- or post-conviction conditions of imprisonment and the likelihood of post-sentence mitigation). All of these factors account for wide variations in sentencing practices across different domestic jurisdictions, and between national and international judicial bodies.
In light of these differences in role and perspective, it is perhaps not surprising that the DOMAC reports failed to identify a meaningful relationship between the sentences imposed by international and national courts on individuals convicted for international crimes.Footnote 41 Where some relationship does appear to exist in certain geographical contexts, it is with respect to gradations in sentencing across international crimes: for example, in both the ICTY and the courts of Bosnia and Herzegovina heavier sentences have been imposed on average on those convicted of genocide-related crimes than on those convicted of crimes against humanity; similarly, crimes against humanity are punished more harshly than war crimes.Footnote 42 Although the small number of convictions – especially for genocide – renders this trend statistically insignificant, it is consistent nonetheless with the impression that the categories of gravity employed by international courts have some normative impact on their domestic counterparts.
Furthermore, the comparisons made in some DOMAC reports between the sentencing practices of domestic and international courts have been, at times, useful in exposing possible political and ethnic biases existing at the domestic level (or the international level). For example, whereas ICTY statistics do not suggest a meaningful correlation between the ethnicity of convicted persons and the severity of the imposed sentence (Serbs, Croats and Bosnians all received, on average, sentences of 14 to 16 years),Footnote 43 trials in Croatia featured – especially in some years – a practice of meting out significantly lower sentences to convicts sharing the forum state's dominant ethnicity.Footnote 44
2.3 Institutional and Legal Reforms
By raising awareness of the importance of responding effectively to mass atrocities and developing clearer legal standards, international criminal courts may encourage and facilitate institutional and legal reforms at the domestic level. It is, however, difficult to isolate the contribution of international courts to this process, given that a parallel set of incentives may have been created by the ratification of international instruments, such as the ICC Statute,Footnote 45 or by regional processes, such as accession to the European Union (EU)Footnote 46 and interaction with the European Court of Human Rights.Footnote 47 At the same time, some of the reforms that may have been encouraged by international criminal courts appertain to the general conditions of the domestic legal system (for example, strengthening the rule of law, better court management facilities, etc), and are not fully captured by a study focusing on the potential impact of international courts on domestic criminal proceedings relating to mass atrocity crimes.
Where the contribution of international criminal courts to the initiation and execution of domestic reforms is perhaps more palpable is in those situations in which domestic legal systems may have felt the need to respond urgently to the prospect of judicial intervention by an international court (such as in the case of Colombia), or where legal reforms were introduced with a view to facilitating specific forms of cooperation between domestic and international criminal courts (as in the case of the transfer of cases to Rwanda and the Balkans pursuant to rule 11 bis).Footnote 48
Hence, the desire to fend off future ICC prosecutions may have contributed to the passage of the Justice and Peace Law in ColombiaFootnote 49 as well as to the establishment of a special war crimes court in Uganda. Similarly, one can perhaps explain certain institutional and legal reforms that took place in Sudan after the commencement of ICC proceedings against some of that country's leaders by reference to its interest in contesting the admissibility of the ICC proceedings on the basis of complementarityFootnote 50 (non-governmental organisations (NGOs) have claimed, however, that domestic proceedings in Sudan are not genuine in nature).Footnote 51
Even more significant impacts may stem from the development of cooperative relations between national and international courts. For example, the interest in receiving cases from the ICTR (and the stamp of approval for the domestic legal system associated with it) appears to have led Rwanda to change some of its punitive practices – abolition of the death penalty and, subsequently, easing the conditions of imprisonment for convicts serving a life sentence.Footnote 52 In the same vein, the desire to receive cases and case files from the ICTY has led a number of Balkan states to undertake important institutional reforms, including the creation of special war crimes chambers (in Serbia, and Bosnia and Herzegovina)Footnote 53 and the designation of certain district courts for war crime trials (in Croatia);Footnote 54 in addition, several Balkan countries have introduced legislation and developed judicial doctrines intended to approximate domestic and international criminal law.Footnote 55
Of course, alongside the list of reforms facilitated or assisted by international criminal courts, one may compose a parallel list of no-impact areas. Significant problems still afflict the substantive and procedural criminal law applied by many of the countries covered by DOMAC reports, which result in the inability of domestic courts to effectively address many atrocity crimes in ways that would meet international procedural and substantive standards.Footnote 56 Similarly, further institutional reforms and infrastructure development may be needed to render the domestic response to mass atrocities more effective in nature.Footnote 57 Nevertheless, the research undertaken by DOMAC clearly establishes the potential capability of international courts to effectuate institutional and normative changes, under certain conditions. In Section 3, I will discuss some of the reasons for the haphazard character of the actual impact of international courts on domestic criminal proceedings.
2.4 Capacity Development
Although international criminal courts are not typically designed to engage in capacity development – nor do they usually have the resources or expertise to do so – their interaction with national criminal justice systems may lead to impacts that could contribute to the domestic capacity development process. Such impacts may be indirect in nature – international criminal courts serving as a model for national courts to follow (as discussed above) – but also other, more direct channels of influence can be identified.
Indeed, a number of DOMAC reports disclose the building up of strong professional links between some national and international authorities involved in the prosecution of mass atrocity crimes, thus reflecting greater appreciation of the need to learn from each other's experience. In some cases, information on cases investigated and prosecuted is nowadays routinely shared between such authoritiesFootnote 58 and professionals move between the two systems (on both a short-term and long-term basis).Footnote 59 The internship programme at the ICTY is a particularly impressive model of capacity development, as is the increased involvement of local professionals in the work of the SCSL and the latter's outreach to the general population of Sierra Leone. Another area in which an important contribution to capacity development has been identified is in the field of witness protection. Witness protection programmes, which were established through collaboration between domestic and international officials, have the clear potential for being utilised in local war-related proceedings as well.Footnote 60 At the same time, training sessions offered, inter alia, by international court officials have tended to be limited in nature and ephemeral in their impact.Footnote 61
On a more general level, the functioning of hybrid courts and other mixed institutions has offered great potential for local capacity development. By embedding international professionals and norms in a judicial institution functioning alongside the host legal system, auspicious conditions have been created for on-the-job training of local officials, and for a meaningful dialogue between domestic and international judges on how to handle mass atrocity cases that could have generated long-lasting effects. Still, the relevant DOMAC reports reveal a rather limited level of real impact on the local judicial system by internationalised courts in Sierra Leone and East Timor. In particular, the SCSL appears to have alienated the local legal elite, and has been accused of draining precious resources from the national legal system (thus leading to a loss of pre-existing capacity).Footnote 62 In contra-distinction, the War Crimes section of the Court of Bosnia and Herzegovina provides a more positive example of a model of cooperation between national judges and the international judges embedded in the local court system, which is suggestive of a long-lasting effect of the latter on federal state courts (and to a lesser extent on Entity courts).Footnote 63
3. Structural Problems
The picture that emerges from the various DOMAC reports on the impact of international courts on national criminal proceedings in the aftermath of mass atrocity cases is a mixed one. Paraphrasing Louis Henkin somewhat, some international courts appear to impact on some national criminal laws and procedures at some points in time.Footnote 64 This mixed record of influence may be explained in some cases by the prevalence of environmental conditions that render impact unlikely. For example, it may be the case that the post-conflict political circumstances in East Timor and Sierra Leone were such that nothing that the relevant hybrid or internationalised courts could have done would have generated a significant long-lasting impact on the local legal systems. Still, DOMAC reports do reveal some structural problems, which may explain some of the specific difficulties encountered by international courts when attempting to make an impact on national criminal proceedings. Arguably, as long as these structural problems remain unaddressed, the impact of international courts on their domestic counterparts might remain sub-optimal.
3.1 Lack of a Comprehensive Vision by International Courts
The first generation of post-cold war international criminal courts – the ICTY and ICTR – began operating with limited awareness of the untapped potential of national legal systems for addressing international crimes. In both cases, civil wars and grim economic conditions have severely limited the capacity of national courts to handle a significant number of war-related trials; furthermore, those local proceedings that did in fact take place – especially, in Croatia and Rwanda – raised serious due process concerns.Footnote 65 In addition, both in the Balkans and in Rwanda, governments often lacked the political will to bring to justice suspected perpetrators belonging to powerful ethnic groups (such as Croats in Croatia, Serbs in Serbia and Tutsi in Rwanda).Footnote 66 It is against this difficult backdrop that the establishment of ad hoc international criminal courts and their impact on national criminal courts has to be evaluated.
The DOMAC reports on the Balkans and Rwanda suggest that the possibility that national courts would gradually improve their procedures and records, and would become full partners in prosecuting mass atrocity crimes, was internalised by the ad hoc tribunals and other relevant stakeholders (such as the EU) only at a relatively late point in time (about a decade after their establishment). Initially, capacity-related issues received little attention and were accorded low priority in the operation of international criminal courts. Capacity development or even outreach activities (capable of raising local awareness of the need for launching domestic proceedings and maximising the expressive power of international adjudication, and thereby its normative impact) were either excluded altogether from the operations of international courts, or grossly under-budgeted and understaffed.Footnote 67
Furthermore, international courts sometimes failed to consider the possibility that their involvement may create a positive ‘spillover’ for local courts seeking to rely on their work. Hence, for example, they did not always collect evidence by way of procedures that would have rendered them admissible in local proceedings;Footnote 68 they sometimes refrained from employing local experts, who could subsequently have been integrated in the local legal system, and even failed initially to translate some court decisions into the local language (thus rendering it more difficult for local courts to draw lessons from their experience).Footnote 69 In other words, they were physically and mentally removed from the countries in which the mass atrocities occurred.
This sub-optimal state of affairs has changed over time. Gradually, international courts have turned to regard themselves and national courts as involved in a cooperative judicial exercise. This ‘learning curve’ has coincided with the introduction of the ‘completion strategy’,Footnote 70 which encouraged the ad hoc tribunals to refer some of their workload to national courts. As a result, significant improvements can be identified in the second decade of the operation of the ICTY and ICTR in the flow of information between national and international authorities, in their day-to-day collaboration, and in the involvement of international criminal courts in capacity development.Footnote 71
The ICC internalised some of these lessons early on and adopted a policy of ‘positive complementarity’, designed to encourage national authorities to assume a significant part of the burden of investigating and prosecuting mass atrocity crimes.Footnote 72 The policy appears to have been somewhat successful in Colombia,Footnote 73 and has had some positive impacts on normative and institutional reforms in DRC and Uganda.Footnote 74 Still, the ICC's ability to tackle countries hostile to its jurisdiction – such as Sudan – still remains very limited.Footnote 75 As noted below, these partial results do not necessarily suggest a failure by the ICC to implement its vision of ‘positive complementarity’; rather they are more likely to indicate that the legal powers of the ICC and the resources available to it were too limited in order to implement a comprehensive approach to mass atrocity prosecutions.
Hybrid or internationalised courts offer another model for international judicial intervention in the aftermath of mass atrocities. Such mixed courts were expected to offer an even more promising avenue for developing a coordinated national-international response than the two previous models (ad hoc tribunals and the ICC). This is because hybrid courts (such as the SCSL) or internationalised courts (such as the War Crimes section in the Bosnia and Herzegovina Court or the Special Panels for Serious Crimes in East Timor) offered the promise of a comprehensive response to mass atrocities, harnessing both local and international resources, and marking a path for lasting normative reform and expertise transfer.Footnote 76
The DOMAC reports show, however, that the success of this model in improving prosecution rates, inculcating international norms and building capacity, has been partial at best. Whereas the Bosnia War Crime section appears to have generated an impressive body of case law,Footnote 77 the SCSL has dealt with a meagre number of cases (yet involving major actors).Footnote 78 Disappointingly, it appears as if the impact of both the SCSL and the East Timor Serious Crimes Special Panels on the ordinary local judiciary has been minimal.Footnote 79 Hence, after the dissolution of the East Timor Panels, war crimes prosecutions came to a halt;Footnote 80 similarly, almost no atrocity-related prosecutions took place before the local courts of Sierra Leone.Footnote 81 Even in the field of capacity development, the results produced by mixed courts have not been as good as expected. Local employees have often occupied mostly low-ranking positions, local court officials have complained of a ‘brain drain’ from the ordinary system to the hybrid court (and from the mass atrocity country to other countries where international organisations operate), and the relevance of the experience accumulated in the hybrid or internationalised courts was at times unclear or non-accessible to local legal elites.Footnote 82
The inability of most hybrid courts to register a significant impact on the relevant local national legal systems can be explained, in part, by the low prioritisation of this goal in the eyes of the courts' leadership. Hence, for example, the decision by the SCSL Prosecutor to refrain from indicting suspects for violations of Article 5 of the Statute (which incorporated provisions of the domestic criminal law of Sierra Leone) may have been justified as a method to circumvent the vexing issue of the local amnesty law; still, it resulted in an increased normative distance between the court and the local judiciary.Footnote 83 Similarly, the self-proclamation of the SCSL as an ‘international criminal court’Footnote 84 may have strengthened its international legitimacy at the expense of its local relevance.
3.2 Lack of Resources
Even when the need for a comprehensive approach has been internalised by relevant actors within an international court – such as in the case of the ICC Office of the Prosecutor – DOMAC reports suggest that international courts may lack the necessary resources – manpower and finances – to create meaningful links with national judicial institutions.Footnote 85 The ICC also does not have the resources to credibly threaten to engage in a large number of criminal prosecutions (which may encourage, in turn, domestic legal systems to initiate additional ‘pre-emptive’ prosecutions). Similar resource problems have also haunted the ad hoc courts – during the first years of their operation (when outreach activity, an important aspect of capacity development and norm internalisation, was not undertaken at all or was executed under severe budgetary constraints)Footnote 86– as well as the mixed courts.Footnote 87
While international criminal courts clearly do not have the legal ability to force states to undertake domestic prosecutions, questions have been raised by some DOMAC interviewees as to whether the courts' mandates even allow the allocation of resources for extensive capacity development activities.Footnote 88 Hence, it is really the courts' mandate providers – the member states – who seemed to lack a comprehensive vision: they created international institutions for handling a limited number of high-profile cases, without fully addressing the problem of the accountability gap remaining at the domestic level.
Because of the disconnect between the considerable needs of local legal systems and the scarcity of resources made available to international courts for the purpose of facilitating national-international collaboration, international court officials have sometimes rejected the position that their courts should assume any institutional role in the field of capacity development, or engage in other forms of interaction with the local legal system.Footnote 89 Accordingly, they presented efforts undertaken in this direction as voluntary private initiatives, which naturally come as a low priority for the institution.Footnote 90
3.3 Lack of Ultimate Responsibility
It appears that one root cause of the problems identified above – lack of awareness, insufficient planning and inadequate resources – is the unclear division of responsibility over the international legal response to mass atrocity cases, which may in turn derive from limited political will on the part of influential states and organisations to embrace a comprehensive and probably costly response to complex post-conflict situations. The involvement of numerous actors in international legal interventions (activities seeking to substitute, complement or support the local post-atrocities legal system) – political intergovernmental organizations (IGOs), such as the UN; regional organisations, such as the EU and the Organization for Security and Co-operation in Europe (OSCE)); international, regional and national development agencies; donor countries; NGOs and international courts – each bringing with it distinct sets of interests and capabilities, has injected considerable confusion into the situation in countries rebounding from mass atrocities. In particular, one finds lack of clarity concerning the question of who should take the lead in fostering the local legal response and in coordinating national and international criminal proceedings. The result of this lack of clarity has both positive and negative overlaps: for example, in the field of capacity development, a number of international actors were providing similar training sessions;Footnote 91 at the same time, in most mass atrocity countries no comprehensive need assessments were being undertaken.
In fact, DOMAC reports suggest that officials working in international courts often cite the existence of other international agencies as an excuse for not getting involved in capacity development.Footnote 92 Such responsibility shifting facilitates the adoption of a ‘tunnel vision’ mentality by international officials – a tendency to examine the situation before them from the exclusive perspective of their idiosyncratic institutional needs and concerns. This, in turn, might lead them to act in ways that could prove to be counter-productive for the local prosecution efforts.Footnote 93
Note that the problems identified here are not primarily of a judicial nature. DOMAC reports suggest that non-judicial international agencies responding to mass atrocity situations also face resource constraints, lack a comprehensive vision on criminal adjudication and shirk responsibility over the judicial response to the crimes committed. Thus, for example, in the first decade following the end of the war in the Balkans, the EU applied considerable pressure on Croatia to cooperate with the ICTY, but almost no pressure to revamp its domestic legal system so as to effectively adjudicate war crimes and to rectify its due process problems and selective prosecution practices.Footnote 94 This approach underscores the limited interest on the part of the EU – at least in the first decade after the war – in accepting overall responsibility for guiding and monitoring the legal accountability process in Croatia.
Another illustration of this problem is the absence of any United Nations (UN) agency responsible for overseeing the criminal response to mass atrocities or coordinating between the different UN bodies involved in mass atrocity situations. For example, the establishment of international criminal courts is facilitated by the UN Office of Legal Affairs; many development efforts are undertaken by the UN Development Programme, or one of the UN regional agencies; the political transformation is accompanied by the Peacebuilding Commission, and the legal transformation by the UN Rule of Law Unit. In practice, there appears to be little coordination between the various efforts employed by these different UN bodies.
To be sure, an optimal state of affairs would be for the mass atrocity state in question to assume overall responsibility over criminal prosecutions. Unfortunately, however, the situation in post-conflict states often compromises their ability to do so in earnest. An exception to this rule may be seen in countries such as Bosnia and Herzegovina and East Timor, where the overall administration of the country has been taken over or has been closely supervised by the international community. Although such international takeovers raise their own host of problems and costs, they do appear to create improved conditions for coordinating the national-international response to mass atrocities.Footnote 95 The East Timor case suggests, however, that even a coordinated response may have only a temporary impact on the local legal system, and may be too limited in scope to outlive the life of the international administration.Footnote 96
3.4 Lack of Legitimacy
The final structural problem which the DOMAC reports suggest may have hampered the ability of international courts to generate an impact upon national legal systems is the limited degree of legitimacy enjoyed by international judicial bodies in the eyes of domestic key players. Such legitimacy concerns may emanate, inter alia, from sovereignty notions (a belief that the application of international criminal law without the consent of the local government is an affront to sovereignty and runs against the principle of non-intervention),Footnote 97 professional pride (a ‘we know better’ attitude) and/or political animosity to the agenda advanced by international criminal courts.Footnote 98
Thus, DOMAC reports indicate, for example, that perceptions of the ICTY in Serbia and Croatia as anti-Serb or anti-Croat may have led to the rejection of the tribunal's case law by some local judges, and could have slowed the pace of cooperation with those institutions by the domestic authorities.Footnote 99 In the same vein, key functionaries in the Sierra Leone judicial system viewed the SCSL with a degree of suspicion – essentially as a form of foreign imposition – and paid little heed to its decisions.Footnote 100 Arguably, the impact of the ICC in Uganda and Sudan suffers from similar problems of non-legitimacy.Footnote 101
While certainly not a panacea to image problems (which are sometimes the product of manipulation by local politicians), the limited awareness and resources allocated by international courts to outreach programmes may have exacerbated some of the tensions between national and international institutions. For example, it is possible that the limited and delayed activities of the ICTR's outreach department (which relied largely upon voluntary contributions) reduced that department's ability to influence perceptions of the legitimacy of the ICTR in Rwanda in the early years following its establishment;Footnote 102 similarly, delays in translating ICTY decisions into Serbo-Croat may have contributed to the alienation felt towards the tribunal by local constituencies.Footnote 103
At a different level, the wisdom of certain court design decisions, which may have had legitimacy implications, can be questioned. Thus, for example, it is not clear whether the decision not to appoint a Rwandan judge to the ICTR was warranted; similarly, it is regrettable that ICTY and ICTR hearings (as well as ICC hearings) never took place in the territory of the countries in which the crimes were committed.Footnote 104 Strengthening the ties between the international criminal courts and local communities could have improved the local degree of acquaintance with the courts and their work, and increase faith in their potential ability to serve the interests of justice. It could have further underscored for judges and other court officials the existence of an important domestic audience for their decisions.
4. Possible Remedies
International courts do seem to have the capacity to impact upon domestic criminal proceedings conducted in the aftermath of mass atrocity situations. The various DOMAC country reports suggest that in some contexts such impacts have occurred (or at least were perceived to have occurred by persons interviewed by DOMAC researchers). Thus, domestic prosecution rates, sentencing, legal standards and procedures, and capacity development all seem to have been influenced at times by the existence and operation of international courts. Still, these impacts also appear to be limited and haphazard in nature – a state of affairs reflective of (i) the absence of a comprehensive vision of national and international courts as engaged in a joint enterprise of responding to mass atrocity crimes through criminal trials, (ii) lack of adequate resources, (iii) an unclear division of responsibility between the different actors involved in the legal response, and (iv) legitimacy deficits hampering the effects of international intervention.
The result of the limited impact of international courts on domestic criminal proceedings is a persistent accountability gap or an excessively slow closing of this gap. While it would be inaccurate and imprudent to attribute the accountability gap to the operation of the international courts, it appears as if addressing the gap through fostering and facilitating the prompt and effective complementary involvement of accountability mechanisms at the local level was not always a high priority for the courts, and other relevant international actors supporting their operations.
Moving forward to future intervention and interaction, one can think of a number of remedial strategies which could be developed by the ICC, any newly established ad hoc or hybrid courts – and, more importantly, by the political organs of the international community supporting the operation of criminal courts at the national, regional and global level (for example, the ICC ASP, the EU, OSCE, donor states, etc.). Naturally, such strategies would need to be adjusted to meet the requirements and contingencies of the different country situations.
(1) Internalising the need for a comprehensive response
It is important that all actors involved in addressing mass atrocity crimes (national and international court officials, IGOs, NGOs, development agencies, states, regional organisations) come to regard national and international accountability proceedings as being closely interconnected – in other words, a truly joint enterprise. While some degree of functional and institutional prioritisation is perhaps inevitable, it is critical that national-international impact assessments should form part of the decision-making process at all policy levels. So, for example, international court officials should consider the impact on their domestic counterparts of specific measures they adopt, such as opening an investigation or summoning witnesses; regional agencies should consider the potential effects of pressure to extradite suspects to international courts on domestic proceedings; national investigators should collect evidence with a view to allowing its subsequent use in international trials (subject to witness protection concerns). In the context of the ICC, it may also be advisable for the ASP to assume a greater responsibility for providing the court with ‘political cover’ for its activities in mass atrocity countries, and for assuming some role in coordinating the national-international judicial response.
Furthermore, given the limited resources made available to international judicial bodies (a problem that afflicts most dramatically a court with a universal mandate, such as the ICC, which can address only meagre numbers of perpetrators for each mass atrocity situation) and their aforementioned legitimacy problems, international courts should strive to fulfil principally a catalytic role – prodding national courts into action and supporting them, to the extent they can, in the adjudicative process before them. Positive complementarity may represent an adequate conceptual framework for such a role perception but it needs to be backed up by a greater commitment of resources.
Similarly, political actors leading international intervention geared towards fostering accountability in the aftermath of mass atrocities (such as capacity development programmes or political pressure on governments to change their accountability policies) should avoid putting excessive emphasis on advancing trials before international criminal courts. Instead, they should try to allocate more attention and resources to fostering local rule of law institutions, and improving local political conditions, with a view to facilitating domestic conflict-related proceedings. Ideally, such interventions should aim to empower local institutions to gradually assume a larger share of the burden of prosecuting international crimes.
(2) Structuring sustainable intervention
Intervention by international courts and other international actors should aspire to generate a long-term impact on the legal systems of mass atrocity states. This requires long-term funding for coordination and capacity development (at both the national and international level, with each court needing to familiarise itself with the procedures and normative expectations of the other) even if it comes at the expense of fewer resources allocated for international adjudication proper (thus entailing a reduced number of cases before the international fora).
In addition, legal intervention should be structured in a manner that involves joint national-international bodies conducting functions of oversight and coordination over the entire judicial response to mass atrocities. The experience of some of the ad hoc and hybrid tribunals in establishing residual mechanisms or legacy projects in cooperation with local stakeholders may present relevant models for such structures.Footnote 105
(3) Improved embeddedness
It appears that international courts could do more to render their work more accessible to local constituencies in those countries where mass atrocities have occurred and reduce suspicions directed towards them. Thus, they need to invest more resources in outreach programmes, as well as make a greater effort to conduct large parts of their business in the mass atrocity countries themselves. The key factor appears to be a willingness to seriously engage national legal actors on an egalitarian basis – to encourage communication among partners in (suppressing) crime.
Furthermore, efforts should continue to embed international judges in local courts (through the creation of hybrid and internationalised courts, as well as lending foreign judges to sit in domestic courts) and to foster local political conditions that would allow local courts to handle sensitive cases in parallel with the international intervention (as well as after its completion). The experience of Bosnia and Herzegovina could serve as a promising model in this regard.
While none of these recommendations – design fixes, reorientation of resources and changing attitudes – offer a guarantee for optimal coordination and cooperation between national and international courts, they may, if adopted together, raise the prospects for a more robust and sustainable international reaction to mass atrocity situations. More half-way and/or belated efforts – such as those that were taken up in many of the contexts studied by DOMAC – are not likely to attain the goal of curbing impunity and facilitating long-term stability and justice.
