The foundation of justice is good faith.
Marcus Tullius Cicero1. Introduction
Father: “My son, why did you leave me?”
Prodigal son: “I felt too clearly that the House is not the entire Universe.”
Mother: “What were you looking for?”
Prodigal son: “I looked for . . . who I am”.
André Gide, The Return of the Prodigal Son (1907)It is a great honour to contribute an editorial essay to the twenty-fifth volume of this journal. In past decades, an important line of scholarship in this journal has been devoted to the work of international courts and tribunals. In line with this focus, I wish to contribute some thoughts on the question of by what standards one should assess ‘international criminal justice’ – that is, international criminal law as a discipline and the law and policies of international(ized) criminal courts in particular. This issue continues to intrigue scholars and practitioners alike and seems ever more important in light of the growing critical scholarship on international courts and tribunals, and their impact and legacy.
An editorial offers at the same time a tempting opportunity to do something fresh and use a partly different format of discussion. I will do so by addressing the theme through a literary narrative, namely this dialogue from the parable of The Return of the Prodigal Son. The dialogue is part of André Gide's version of Luke's Gospel.Footnote 1 The theme of ‘homecoming’ itself is famously depicted in art history, perhaps most notably in Rembrandt's work.Footnote 2 Gide's treatment is distinct because it portrays the journey of the son less as a ‘loss’ and more as a ‘quest’ for identity. In this sense, the parable depicts perhaps better than other images the contemporary status quo of international criminal justice. Its form also represents the idea of timelessness – a virtue that I have come to appreciate in scholarship.
Why is this parable so pertinent? International criminal justice is at a turning point. In the first half of the twentieth century, it embarked on its journey. It has been vested with some inherent faith and capital, and some historical heritage.Footnote 3 It has gone through a series of experiments in the first half of the twentieth century. We have seen a multiplication of international justice mechanisms over the past decades, encompassing truly international, hybrid, or internationalized institutions. On this journey, international criminal justice has witnessed a growing emancipation from related branches of lawFootnote 4 or established legal traditions.Footnote 5 Like the ‘prodigal son’, our object of inquiry has made its first trial and errors. It has spent considerable capital, and has lost some initial credit on the way. Now, there is a growing sense that the time of experiments is over.
The ad hoc tribunals for the former Yugoslavia and Rwanda are defining their closure strategy. The Special Court for Sierra Leone (SCSL) is about to close after the Charles Taylor trial. Proceedings in other situations are gradually taken on by specialized entities and states. The International Criminal Court (ICC) is about to complete its long-awaited first trial. Domestic legal systems are gradually facing the burden of investigation and prosecution, by virtue of the principle of complementarity. In a nutshell, international criminal justice is about to return to its normative ‘home’,Footnote 6 which lies in the space between traditional areas of international law (i.e., general public international law, international humanitarian law, and international human rights law) and domestic jurisdiction.
As in the parable, this ‘homecoming’ creates some fear and uncertainty. It causes curiosity, affection, and critical reflection. What should we make of this journey? What was the original cause of the departure? Was it worth it? And, more fundamentally, how can we build a better common ground for understanding, and facilitate dialogue and acceptance in the process of ‘homecoming’ among distinct family members in the house? Views range from loyalty or admiration to scepticism and deception.
The process of ‘homecoming’ is connected to an ongoing search for the identity of international criminal justice and its ‘constituency’. Queries such as ‘What are tribunals here for?’ or ‘How we can assess whether they actually make a difference?’ have largely remained unanswered since the international ‘justice cascade’Footnote 7 of the 1990s and the establishment of the ICC in 2003. In recent years, different working models have been developed by the ICC (developed by the presidency, the prosecutor, and the registrar) to assess capacity. The International Criminal Tribunal for the former Yugoslavia (ICTY) and the SCSL are developing criteria to determine their own ‘legacy’.Footnote 8 There is growing empirical research on the goals and effects of international criminal trials in terms of deterrence, fact-finding, or sentencing.Footnote 9 But there remains a fundamental tension between ‘faith’ (i.e., belief in the value and worthiness of the project) and ‘facts’ (i.e., actual and demonstrable record). In particular, the fundamental question as to how and by what standards one should assess success or failure remains unanswered. International criminal justice is still partly in search of its ‘identity’.Footnote 10
As in the Gospel, there is no space here to provide a comprehensive account of successes or failures of the journey itself – this is primarily a task for historians. I will focus on the process of ‘homecoming’ and reactions to it. As Gide shows in his rendition of the Gospel (which expands Luke's original text), it is not necessarily the unconditional ‘acceptance’ of the return itself or its moral judgement that makes the return a ‘homecoming’, but rather the dialogue and interaction with others and the interplay between ‘faith’ and ‘facts’.
The particularity of Gide's treatment of the theme lies in the fact that he treats the son as a ‘returning’ rather than as a ‘lost’ member of the family, and that he adds additional dialogues to the classical biblical text. He includes conversations with the mother and the youngest brother, in addition to the father and the elder brother. In Gide's version, the younger brother himself is considering departing from ‘home’: ‘I am leaving before the end of the night, Tonight, this night, as soon as it grows pale . . . . I have girded my loins. Tonight I have kept on my sandals’ (p. 233).Footnote 11 The mother seeks to prevent the departure of the younger brother through the conversation with the ‘returning’ son: ‘Tell him what disappointment you met on your way. Spare him’ (p. 221).
Each of these conversations provides a different perspective on the reasons for departure and return. Gide contrasts the biblical dialectic between sin, mercy, and forgiveness by motive analysis and reason. When asked by the younger brother whether he felt that he did wrong, the ‘prodigal son’ explains his return by his physical condition, rather than guilt or remorse. He says that he was duty-bound to leave, that ‘he suffered’, and that this ‘made’ him ‘reflect’ (p. 227). It is this synergetic and non-apologetic treatment of the interplay between reason, faith, and pragmatism that marks the modernity and strength of the text.
This vision reflects the unanswered relationship between ‘faith’ and ‘facts’ in the history of international criminal justice.Footnote 12 In the 1940s and 1990s, the turn to international courts and tribunals started largely as a ‘faith-based’ project.Footnote 13 Although it was officially presented as a product of ‘reason’,Footnote 14 it was born partly out of hope, necessity, and lack of alternatives. ‘Faith’ and ‘morality’ were closely intertwined.Footnote 15 The atrocities committed during the Second World War were seen as attacks on human identity. At Nuremberg, it was predominantly American ‘faith’ in the judicial culture that prevailed over a British plea for summary executions of Nazi leaders.Footnote 16 The US prosecutor at Nuremberg, Justice Robert Jackson, made this point distinctly in his Opening Statement for the Prosecution before the tribunal, noting that ‘[t]he common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people’.
In 1998, Secretary-General Annan spoke of the ICC as a ‘gift of hope’ when the Rome Statute was adopted in that year.Footnote 17 This reflected a common sentiment that international courts ‘do good’ and the strong ‘faith’ of civil society in the project that was fundamental for its development. In the absence of better information, international criminal courts were assessed on the basis of the ‘values’ and preferences that they represent.Footnote 18 It was popular to rely on ‘fictions’ that embody a ‘shared identity’. International criminal courts comfortably accepted rendering decisions on behalf of the ‘international community’ as a whole.Footnote 19 There was strong support for the idea of the jus cogens nature of international crime prohibitions.Footnote 20 Several of the first judgements (Tadić, Akayesu, and Blaškić) received almost unanimous blessing and acceptance by states. Some of the more problematic aspects of the practice of international tribunals (i.e., concerns regarding the principle of legality, legal certainty, evidence, and the presumption of innocence or equality of arms)Footnote 21 were sidelined by the enthusiasm of the victim-centred and prosecution-driven human rights movement, which saw – to borrow the imagery of Judge Christine van den Wyngaert – its traditional (human rights) ‘shield’ reinforced by a new ‘sword’ (of criminal justice).Footnote 22 During this ‘honeymoon period’, international criminal courts became the symbols of a secular ‘culture of faith’Footnote 23 in a similar way to human rights becoming ‘yardsticks’ of the progress of humanity.Footnote 24
Today, we are witnessing a shift in a different direction. We are used to the presence of international criminal courts. The idea of ‘faith’ (i.e., trust that does not rest on proof or evidence) has become unpopular in international discourse and the ‘DNA’ of The Hague. International justice is increasingly treated as a rational and fact-driven project, with a strong sense of agnosticism. One is reminded of the words of the ‘doubting’ Apostle Thomas in the face of resurrection (‘Except I shall see . . . I will not believe’Footnote 25). ‘Idealism’ has been partly overtaken by ‘realism’.Footnote 26 There is often an obsession with numbers, be it as part of conflict statistics (e.g., on contextual elements of crimes, victim numbers) or court evidence. The strength of international tribunals (i.e., their role as agents of global justice) has partly turned into a weakness. With growing budgets and increasing interference of international tribunals with sovereignty interests and domestic jurisdiction, the very process of criminal adjudication has taken on ‘transactional’ features.
In today's judicial landscape, courts are no longer exclusively legal agents, but are also employers,Footnote 27 service providers, negotiators, and communicative agencies. International criminal justice has, to some extent, become a justice ‘industry’Footnote 28 – some speak of the ‘business’ of international justice. With this, new methods, technologies, and models of accountability have entered the field. It is common to assess the performance and validity of courts against quantitative or technical criteria, such as economic cost–benefit analysis and rational resource allocation.Footnote 29 Institutions face burdensome budgetary control and audit procedures. They are bound to ‘quantify’ and validate their performance in numbers, even in areas in which results are difficult to quantify or measure.Footnote 30 At the same time, many of the facts gathered in investigations are never used at trial.
This move towards facts and quantification is partly a natural phenomenon. It is a logical consequence of the extension of the mandate of international jurisdictions, which encompasses a diversity of functions: the ‘core judicial’ mandate (i.e., trial and prosecution), administrative duties, as well outreach and diplomacy (e.g., negotiation, co-operation).Footnote 31 But it poses at the same time novel risks for the international judiciary. It imposes on institutions onerous and expensive duties of data collection and analysis, as well as heavy reporting obligations. When taken to the extreme, such scrutiny may actually impede the actual problem-solving capacity of courts. The most evident example is the impact of budgetary control on the selection of cases and number of proceedings.Footnote 32 It is thus critical to take a fresh look at the use and organization of factual knowledge in international justice.
2. Beyond ‘faith’ versus ‘facts’
I would argue that the assessment of the ‘homecoming’ of international criminal justice may require greater differentiation in the use of ‘faith’ and ‘facts’. The assumption of ‘faith’ appears to go against the very nature and the rational foundation of the legal process. But the two concepts are in fact complementary, rather than competing, factors, not only in the history of ideas, but also in actual practice. I would like to make a threefold argument:
1. First, there may be a need for a greater degree of realism (i.e., a better factual understanding of international criminal justice) in order to assess its strengths and weaknesses. It is fundamental to move from a ‘faith’-based to a ‘fact’-based vision, and to refine methods of assessment in order to achieve a better scientific grounding of the discipline. This will reduce unrealistic expectations.
2. At the same time, it is necessary to acknowledge the limitations of facts and empirical assessment. Not all outcomes of international criminal justice can be reliably assessed or quantified. Any investigation or prosecution carries a certain degree of uncertainty.Footnote 33 To require ‘absolute certainty’ is neither always necessaryFootnote 34 nor always desirable.Footnote 35 In fact, one of the most important virtues of international criminal justice may actually lie in the fact that it upholds normative values and idealism.
3. The key to solving contemporary dilemmas is thus not always a drive for ultimate clarity, predictability, or measurable outcomes. Rather, the main challenge is to define acceptable limits (e.g., ‘tolerable doubt’) and to develop techniques to manage these limitations in a way that is best compatible with the goals of international criminal justice. This requires a fresh perspective on the interplay between different levels: the ‘international’, the ‘national’, and the ‘local’.
I will illustrate this argument in several steps. I will start with an analysis of the ‘identity’ of international courts and tribunals (section 2.1). Then, I will move towards an assessment of the benefits and limits of ‘faith’-based and ‘fact’-based approaches in four core areas that form part of its current justification (section 2.2). I will then offer some thoughts as to how the dichotomy between ‘faith’ and ‘fact’ can be approached in order to facilitate ‘homecoming’ (section 3).
2.1. ‘Homecoming’ and ‘identity’
Let us start with a stocktaking of ‘identity’ and return to our plot. In the parable, this issue is taken up by the returning son in his answer to the question of why he left and what distinguishes him from family members who stayed in the house. In Gide's treatment, the answer of the son differs in relation to the respective interlocutor. The answer to the father and the law-abiding brother is rather short, and focused on differentiation. The returning son answers the father: ‘Because the House shut me in’ (p. 205). He tells the elder brother, who lived by the traditional ‘order’: ‘[W]e aren't very much alike’ (p. 209); ‘It was exaltation which I also sought and found in the desert’ (p. 211); ‘I could not help imagining other cultures, other lands and roads’ (p. 211). The most honest explanation is given to the inquiring mother's ‘What were you looking for?’: ‘I looked for . . . who I am’ (p. 217).
This situation bears some resemblance to the contemporary reality of international judicial institutions. Institutionally, international courts are comparatively new entities. As in the case of our returning son, there are impediments to full ‘domestic acceptance’. International criminal courts often enjoy a lesser degree of acceptance, due to their detachment from domestic constituencies and their partial deviation from domestic traditions and legal cultures. Even more than domestic courts, which can look back at a grown ‘judicial’ tradition, they have to conquer recognition and acceptance.Footnote 36
Moreover, their raison d’être is not static, but developed through dialogue with, and in distinction from, other entities. There is no common agreement across tribunals on a cluster of primary and secondary ‘goals’ of international criminal justice. The determination of goals and priorities depends on the mandate and varies even inside the same institution according to the respective stage of existence. In scientific literature, there are as many opinions as voices on the selection, definition (e.g., direct/indirect), or distinction (e.g., primary/secondary) of specific goals.Footnote 37 In his 2004 report on the ‘Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies’, the UN Secretary-General outlined a list of broadly defined goals. These include: retribution (i.e., bringing responsible perpetrators to justice), ending violations and preventing their recurrence, ‘securing justice and dignity for victims’, establishing ‘a record of past events’, promoting national ‘reconciliation’, ‘re-establishing the rule of law’, and contributing to the ‘restoration of peace’.Footnote 38 The first two goals are common to domestic legal systems, while the other goals (i.e., fact-finding and ‘social transformation’) are more particular to international criminal justice as a discipline.Footnote 39
But both the selection and the practical application of these goals remain highly controversial. For instance, some suggest that the mandate of international courts should remain restricted to classical criminal justice aims.Footnote 40 Others concede that domestic criminal-law goals may require adjustment in an international context and that there might be modest space for broader ‘transformative’ goals, even as secondary goals. In most situations, individual goals conflict with each other.Footnote 41 The debate of arrest warrants against acting heads of state (e.g., Omar Al Bashir, Muammar Gaddafi)Footnote 42 shows that the most immediate challenge is to prioritize among competing prerogatives, to manage a proper sequencing of proceedings (e.g., timing), or to determine accountability forums in a way that takes into account context and conflicting interests. There is, in particular, a deeper friction between a security-oriented, a human rights-based, and a more traditional criminal justice-oriented reading of mandates.Footnote 43 For instance, some argue that ‘incapacitation’ of perpetrators or extremist elements might form part of the retributive or ‘peace-building’-related functions of international criminal courts,Footnote 44 whilst others express doubts about whether extra-juridical motives could be part of the legitimate or primary goals of criminal justice.Footnote 45 Moreover, the prioritization of goals may shift gradually over time in line with the progression of the mandate of the relevant institution.Footnote 46
International criminal justice is thus, to some extent, founded on a paradox. It is grounded partly in classical domestic and partly in international objectives. It may have to deal even more than other branches of law with a functional problem of ‘goal variety’ and ‘goal ambiguity’.Footnote 47
2.2. The ‘assessment’ paradox
What, then, are valid parameters of assessment? Does it mean there can be no valid standards of assessment, since the respective outcomes cannot be reliably related to concrete goals or since there are hardly any viable projects with which international criminal justice can be easily compared?
I would argue that international criminal justice cannot be properly assessed without a better understanding of the interplay between ‘faith’Footnote 48 and ‘fact’.Footnote 49 There are some general denominators against which performance can be assessed. But a proper evaluation requires factual and normative judgement that is partly grounded in moral argument. I will illustrate this argument with respect to four themes that form part of the contemporary framework of assessing ‘success’ and ‘failure’ of international criminal courts: ‘effectiveness’, ‘fairness’, ‘fact-finding’, and ‘legacy’.
These themes reflect roughly the different perspectives that the returning son faces in the questions and encounters with different family members upon his return. As in the parable, existing deficiencies may not necessarily reflect individual institutional failure, but rather illustrate broader limitations of the discipline.
2.2.1. Effectiveness
Let us first examine effectiveness. This theme is of cardinal importance in the parable. The argument of ‘effectiveness’ is brought up in the conversation between the son and the father. The father seeks to understand the rationality of the journey and to assess it in terms of economic viability. He asks: ‘Why did you, the heir, the son, escape from the house?’; ‘All that fortune you took away, you have spent recklessly?’ (p. 205); ‘Then, what made you come back, tell me?’ (p. 207). The ‘prodigal son’ replies: ‘At the cost of all my goods, I bought fervor’ (p. 207). The father accepts him back at the house despite his spending.
How about international criminal justice? Should we also continue to accept it despite its apparent flaws related to the cost, selectivity, and pace of proceedings? Perhaps because there are no better alternatives?
Today, it is almost a ‘cliché that international justice moves too slowly, and is too costly’.Footnote 50 Proceedings before international criminal courts count without doubt among the most expensive cases in terms of costs per defendant.Footnote 51 The United Nations, the Assembly of States Parties, and even individual judges have criticized the ‘glacial’ speed of some proceedings, and the significant delays in bringing suspects to trial.Footnote 52 The ICTY, the International Criminal Tribunal for Rwanda (ICTR), and the SCSL have faced deadlines for completion, but went on to revise their schedule on an annual basis. The ICC has had to adjust its anticipated number of investigations and trials almost routinely since its inception. Despite various amendments to the Rules of Procedure and Evidence, and different expert recommendations to expedite proceedings,Footnote 53 cases such as the Milošević or the Lubanga trials have become reminders of the downsides of the typical pace of international criminal courts.
Doubts and criticisms about the ‘pace’ of proceedings (e.g., fears that ‘justice delayed’ means ‘justice denied’) are partly justified. There are a number of areas in which the institutional architecture of international criminal justice may be in need of procedural reform: these include, inter alia, the relationship between pre-trial and trial, the scopeFootnote 54 and useFootnote 55 of live testimony, the timing of disclosure,Footnote 56 the use of interlocutory appeals,Footnote 57 judicial management (e.g., assignment of judges, length of decisions),Footnote 58 or interpretation/translation. In the context of the ICC, the Assembly of States Parties even went so far as to establish a study group on governance, which quickly turned to the theme of ‘efficiency and effectiveness of the Court’.Footnote 59 But there is at the same time a need to reflect more fundamentally on the standards by which international criminal courts are assessed. Only a refined methodology allows a differentiated assessment of ‘myths’ and facts.
2.2.1.1. The dilemma of comparison. There is, first of all, a need to specify adequate objects of comparison. The cost and speed of international proceedings are often assessed against the benchmark of ‘domestic’ proceedings. Mark Drumbl, for instance, has argued that the best way to ‘move from faith to science’ is to ‘treat the institutions that enforce international criminal law as subjects of study in the same way that domestic scholars treat domestic courts’.Footnote 60 The domestic analogy, however, is partly misleading.Footnote 61 Similarly to our returning son, international criminal proceedings share specific features that distinguish them from domestic members of the judicial family. A mere numeric assessment (i.e., of the number of defendants or cases, the defendant-cost ratio, or the length of investigations or trials) is too simplistic. A comparative survey of the length of proceedings shows that timing is influenced by a number of factors that are partly particular to international criminal justice. The factors include, inter alia, the scope and complexity of the charges, the level of responsibility of the defendant, the number of suspects, and the number of motions filed.Footnote 62 It is thus misguided to compare the length of investigations or the trial statistics with traditional domestic cases. In fact, a more appropriate comparative may be transnational crime cases. In this context, it is not unusual that proceedings take between five and eight years from investigation to completion, due to their complexity.Footnote 63
2.2.1.2. Goal relevance. More fundamentally, the assessment of the pace of proceedings needs to be placed in perspective in relation to the distinct goals of international criminal justice. This context sheds a different light on the assessment of time frames and performance.
This is shown by a recent comparative empirical study on the length of proceedings, based on a record of 307 cases adjudicated by international and hybrid courts by mid-2009. The study (undertaken by a former ICTY staff member) takes into account the pre-trial phase, the trial phase, and possible appeals. It comes to the astonishing conclusion that the actual pace of proceedings is less dramatic from a comparative perspective than conventional wisdom suggests, and that international cases are only ‘modestly slower’ that complex cases in domestic settings.Footnote 64 The study shows that cases at the ICTY or the SCSL have, in general, progressed at a ‘reasonable pace’ once defendants were in custody, namely in a time frame of ‘four to five years per defendant from custody to completion’ – a period that is ‘on par with the timeframes for complex criminal cases in developed Western countries’.Footnote 65 The only exception is the ICTR, where the period from custody to completion has taken significantly longer, namely ‘5.9 years’ on average.Footnote 66 Delays have been influenced by a number of factors, including those that are only partly attributable to international courts, such as the delays in arrest and the subsequent need for amendment of indictments/charges or long periods of detention prior to transfer/surrender.Footnote 67
Of course, this record is deplorable and in need of perfection. Delays in investigation often impede the collection and quality of evidence, cause disillusion among victims, or contribute to prolongation of human suffering. Delays in prosecution (e.g., pre-trial detention without charge) compromise the rights of defendants and may actually cause detainees to be perceived as martyrsFootnote 68 – as evidenced by the ‘show trial’ character of some proceedings.Footnote 69 But the study shows that the overall record of international criminal courts cannot be reliably assessed from the point of view of effectiveness without taking surrounding factors into account. Operational mechanics, such as the difficulty in obtaining evidence, the time between commission of offence and apprehension, the establishment of context, and crime linkage are crucial in the consideration of the relevant object of comparison.
More fundamentally, the overall assessment of effectiveness shifts if pace is assessed in relation to not only criminal adjudication, but also other contributions of international criminal justice, such as fact-finding, the establishment of a record, or transformative goals. A figure of four to five years may appear long for a trial, but it is less threatening if it is associated with a broader process of clarification of historical facts. In some instances, it may even be wise to postpone charges from an effectiveness point of view, in order to gradually build lines of responsibility or to improve the accuracy of charges or the completeness of justice.Footnote 70 The passage of time may thus, in some circumstances, represent an asset and result in a better pursuit of justice.Footnote 71 Some of the purported ‘transformative’ goals, such as capacity-building or reconciliation, cannot be reached without longer-term engagement, since they are contingent on recovery and stabilization. The weighing of these goals may force international criminal courts to balance the ‘desire for expediency’ with the ‘need for time’, in order to secure an effective impact over time.
In our parable, individual family members and the father, in particular, recognize these observational dilemmas gradually in their conversation. They realize the difficulty of comparison and come to understand the complexity of the goals of the journey. This changes their judgement of the return. A similar picture is emerging in the assessment of the record of international criminal justice. It has become evident that it is too simple to judge effectiveness by statistical trial figures or by the success or failure of individual cases. A proper assessment requires a fuller and more nuanced matrix, which identifies appropriate objects of comparison and relates facts to individual goals and resources.Footnote 72 Researchers are just beginning to develop such frameworks with respect to individual tribunals, such as the ICTY.Footnote 73 They need to be improved and extended to other courts, in order to gain a more realistic and credible account of effectiveness and cost benefit in relation to international criminal justice as a whole.
2.2.1.3. Limits. At the same time, it is evident that not all goals of international criminal justice can be fully quantified or translated into concrete indicators and measurable outcomes. This dilemma is exemplified by the reply of the returning son to the father: ‘I changed your gold into pleasures, your precepts into fantasy, my chastity into poetry, and my austerity into desires’ (p. 207).
Traditional budgetary logic reaches its limits when it comes to the justification of the funding of international criminal courts. Today, many government agencies use cost–benefit analysis to justify public expenditure.Footnote 74 Generally, cost–benefit analysis consists of a comparison of the cost of the investment with the value of the harm avoided (i.e., the intended benefit). This methodology encounters difficulties in the justification of the budget of international criminal courts.Footnote 75 The intended benefits are difficult to quantify. It does injustice to international courts to judge effectiveness merely by a number of visible and quantitative outcomes, such as the number of cases or decisions that they render. In this sense, the by-now famous statement of the first ICC prosecutor Luis Moreno Ocampo that ‘success’ cannot be measured by the ‘number of trials’Footnote 76 carries some wisdom. Some of the most important effects, such as the monitoring and denouncement of violations or the catalytic effect on domestic proceedings, are actually largely independent of the record of cases.
Other contributions, such as norm development or the spin-over effects across international institutions, are qualitative in nature. Budgetary contributions are thus rather an investment into a ‘justice’ system, based on prediction and adherence to a ‘common’ system of goals, or the benefits related to this association,Footnote 77 than a strict comparison of ambitions and outcomes of a specific institution. Bert Röling and the late Judge Antonio Cassese have reminded us of this when arguing that the ‘principal purpose and function of criminal law . . . is not that occasionally a criminal should be sentenced. The very function of criminal law is to strengthen and fortify moral opinions’.Footnote 78 Whether the specific organization or ‘system’ meets its self-proclaimed or externally set goals through outputs (e.g., decisions, outreach) is largely a normative assessment.Footnote 79 It carries with it a large degree of uncertainty and might ultimately not even adequately explain the reasons for adherence/non-adherence.Footnote 80
Perhaps the best illustration of the limits of cost–benefit analysis is the ongoing debate about prevention and deterrence. No institution is actually discarding this rationale in its toolbox of proclaimed goals but, again, none of the existing courts has managed to prove that it has actually created impact. As we know from domestic criminal law, the very argument that international criminal proceedings deter potential abusers is based on speculation. The logic of deterrence relies on a hypothesis. Specific deterrence relies on the fiction that lawyers can ‘read the mind’ of perpetrators and that rational cost benefit determines the behaviour of defendants. General deterrence relies on the broader demonstration effect of criminal justice and changes in the perception of costs/risks more generally. Both theories entail a great degree of uncertainty, namely faith in the logic of the model of deterrence.Footnote 81
There are some indicators of success. International criminal justice may improve the degree of ‘threat’, since it increases the probability of ‘punishment’.Footnote 82 Proponents point towards greater ‘compliance rates’ with human rights decisions/monitoringFootnote 83 or a correlation between ‘justice’ threats and crime statistics in individual situations.Footnote 84 But examples such as Milošević's campaign in Kosovo or Joseph Kony's continuing atrocities in the Great Lakes Region indicate that there are still at least as many counterfactuals. Hardly any empirical study has managed to demonstrate impact credibly and to trace clear patterns of causation and weigh intermediate causes.Footnote 85 There is a thin line between rational criminal policy and moral justification.Footnote 86 The impact of international criminal courts may lie more in contribution to a larger ‘culture in which humanitarian law and human rights law are better integrated in the fabric of society and therefore adhered to more’.Footnote 87 International criminal justice may thus not necessarily stop violations. It rather adds constraints and influences attitudes towards their disapproval or acceptance.
An overambitious reliance on the presumed impact of deterrence can sometimes even be detrimental to the overall goal of effectiveness. A recent example is the increasing opening of preliminary examinations at the ICC, without subsequent investigation. To make an active use of proprio motu powers is a priori desirable from a point of view of prevention. But, if the monitoring of multiple situations is not followed by further action or is unlikely to result in any visible ‘sanction’ (e.g., due to capacity restraints or lack of ‘gravity’), it may actually reduce the impact or threat of the ICC on the long run, since it decreases leverage.Footnote 88
Ultimately, we may thus sometimes be better off if we accept these limitations more openly,Footnote 89 since it would avoid unrealistic expectations – just like the father in our parable, who admits the limits of his comprehension (‘I was waiting for you at the end of the road. If you had called me . . . I was there’ (p. 209)) before accepting the son back at the house (‘Go now. Go back to the room I had prepared for you. Enough for today. Rest’ (p. 209)).
2.2.2. Fairness
Let us now examine fairness (i.e., the second central theme associated with the process of ‘homecoming’) and its assessment.
In the parable, the argument of ‘fairness’ is represented by the elder brother. In contrast to the father, the elder brother is the guardian of order in the house (‘he who makes the law’ (p. 209)). He stresses the importance of rules in the community and confronts the returning son with the question of ‘fair treatment’ in terms of the ‘what-if’ question: ‘Think what could have happened if, like you, I had deserted our Father's House. Servants and thieves would have pillaged all of our goods. My brother, indiscipline is over’ (p. 213). This argument is linked to the call for ‘equal treatment’. It contrasts with the more ‘reconciliatory’ logic of justice applied by the father and the non-material justification offered by the ‘returning son’ (‘the House is not the entire universe’ (p. 211); ‘I was catching sight of other goods’ (p. 213)).
This dialectic reflects the both the foundation and the dilemmas of our contemporary system of international criminal justice. Today, fairness is not only one but perhaps the most important justification advanced in support of ‘International Criminal Justice’.Footnote 90 The argument that ‘justice’ and ‘fairness’ are too precious to be traded off against vengeance and effective sanction was at the heart of the creation of the Nuremberg and Tokyo tribunals.Footnote 91 It has become ever more important since then. Richard Goldstone, the first ICTY prosecutor, famously argued that the success of international courts should not be measured by the number of convictions, but by the fairness of the trials.Footnote 92 The thousands of decisions that international criminal courts have rendered on issues of substantive and procedural justice are testimony to this.Footnote 93
At the same time, ‘fairness’ is difficult to measure. There are no clear indicators. The level of ‘fairness’ is predominantly a normative judgement. International criminal courts are struggling to strike a balance between a more ‘retributive’ conception of justice (which emphasizes the vindication of social norms and rules, procedural fairness, and punishment) and a more ‘restorative’ vision of justice (which devotes broader attention to the needs of victims, offenders, and affected communities). Behind this tension lies a deeper conflict behind ‘action’ and ‘perception’.
On a formal level, international criminal justice has gone a long way in improving fairness. In terms of codification and procedure, international criminal law has adopted and developed some of the most advanced and sophisticated due-process and fair-trial protections available to defendants in domestic systems. The list of guarantees enshrined in judicial documents not only represents a ‘minimum degree’ of protection, but also subscribes to the highest available standards, based on international human rights instruments. Some impulses from international criminal law have even come to serve as a model for adjudication and reform in domestic penal systems.Footnote 94
As in the field of ‘effectiveness’, there is room for improvement. With the gradual extension of the case load at the ICTY and the ICC, in fact, both the prosecution and the defence have taken issue with matters such as disclosure duties, managerial powers of judges, questioning and protection of witnesses, standards of evidence, self-representation, and sentencing determinations. In the ICC, the application of victims for participation in proceedings is increasingly perceived as a burden by all organs of the court (including the registry) and their processing is hampered by capacity constraints.Footnote 95 The two subsequent stays of proceedings in the Lubanga trial have made it clear that it remains a delicate choice to determine appropriate remedies for abuses of process, including alleged prosecutorial misconduct.Footnote 96 Allocation of defence resources often remains a bone of contention. Moreover, procedures and judicial choices on core issues often differ among different courts or chambers, in the absence of judicial hierarchy.
But, on a broader historical trajectory, the overall record is encouraging. There is some progress in terms of transparency and on a normative level. Today, every move in the courtroom and outside the courtroom is watched. Alleged violations of procedural fairness and corresponding remedies are subject to intense scrutiny. Hardly any issue escapes the critical eye of the increasing number of trial monitors and NGOs (non-governmental organizations) active in the field.Footnote 97 Rules and procedures are open to amendment and have been adjusted frequently. There is ongoing interaction and cross-fertilization among different courts and tribunals on ‘due-process’ standards and best ‘judicial practices’.Footnote 98 ‘Fairness’ has become the most prominent justification of international justice among courts and institutions, and their distinction from competitive forums (e.g., domestic courts, quasi-judicial mechanisms).
One of the greatest challenges, however, lies in the remaining gap between form and perception, and the broader ‘restorative’ dimension of justice. Inside tribunals, there is a tendency to assess ‘fairness’ predominantly from a ‘normative’ and ‘procedural’ point of view – that is, the fair treatment of participants in the process and the equal and unbiased application of norms and standards. In reality, however, ‘fairness’ is often as much about ‘action’ as it is about ‘perception’. On that front, the record of international criminal courts and tribunals is less convincing.Footnote 99
International criminal justice shares striking parallels with our parable. Like the choice of the father, it often creates paradoxes in the eyes of the ‘affected’ that are difficult to explain from the perspective of equality. In non-Western traditions, the very transfer of defendants to ‘The Hague’ is often perceived as a reward rather than as a punishment by victims, or even defendants, in light of the welfare standards and penalty regimes associated with it (penalties, plea-bargaining). Many states, and even some defendants, prefer proceedings in The Hague over proceedings ‘at home’, due to security and other concerns. This choice comes at the price of lesser proximity and access to justice by victim communities and a more limited ‘therapeutic’ of proceedings. Core witnesses or information providers, including ‘insider’ witnesses (who may have been implicated in violence), often benefit from witness-protection schemes or health treatments. Many of the immediate victims of crimes, particularly those who fall outside the ‘prosecution’ case, are left without benefit or recognition. Often, charges remain focused on specific incidents, crimes, or perpetrators, although others may deserve equal attention.
These inherent contradictions make international criminal justice vulnerable in terms of perception.Footnote 100 There is no easy fix or remedy for these dilemmas. What can be done, however, is to provide a better justification and explanation of these dilemmas, in order to improve perception. One challenge, in particular, runs like a ‘red thread’ through the history of international criminal justice from the beginning of the twentieth century until today: the perception of independence (i.e., freedom from external interference) and impartiality (i.e., lack of bias and investigation of all sides to a conflict). This requirement is a key prerequisite of ‘fairness’. Social- science research indicates that there is a link between the perception of fairness of proceedings and ‘views about the appropriate decision-maker’.Footnote 101 Despite criticism of experiences such as Nuremberg and Tokyo, international criminal courts still struggle to reconcile selectivity with the perception of independence and impartiality. Because of the existing resource constraints, it is particularly important for these courts to demonstrate ‘impartiality’ and to be seen to look at all sides of a conflict equally.
This balance has not always been reached. The practice of the ICC Office of the Prosecutor has been criticized for a lack of sustainability and deficiencies related to even-handedness, coherence (e.g., chain of command), or explanation of decisions not to prosecute in relation to the situations in the Democratic Republic of Congo, Uganda, Central African Republic, and Darfur.Footnote 102 Similar risks arise in the context of the Libyan situation. SC Resolution 1970, which contains the referral of the situation in Libya, was primarily directed towards governmental criminality, by virtue of its reliance on the concept of crimes against humanity and its initial focus on Benghazi.Footnote 103 In this situation, as in any other internal armed conflict, it is evident that only a handful of incidents can be investigated and prosecuted. In such circumstances, the challenge and virtue of the ICC lie not so much in the number of cases, but rather in its approach and in the example that it sets in relation to judicial independence and impartiality, and its ability to withstand political pressure.Footnote 104
A recent empirical study on victims’ attitudes towards the ICTY confirms this dilemma. It comes to the conclusion that the perception of fairness in the delivery of justice remained largely dictated by group identity and inter-group relations – that is, affiliation to ‘defeated’ or ‘defended’ communities – rather than standards of ‘procedural fairness’.Footnote 105 According to the study, the tribunal faced difficulties in discarding perceptions of bias by Croats and Serbs or instilling the idea that each group consists of ‘both offenders and victims’.Footnote 106 This example shows that there is a gap between ‘action’ and ‘perception’. These contradictions cannot be fully resolved by judicial practice alone. But judicial institutions would gain greater credibility, and pay better tribute to their mandate, if they provide greater clarity and transparency in justifying selectivity. It is through this ‘demonstration’ and ‘explanation’, more than through quantitative record, that international criminal courts fulfil their key function: to maintain ‘faith’ in law and institutions.
2.2.3. Fact-finding
For many people, ‘fairness’ is only one among many other factors associated with international criminal justice. It is complemented by a search for facts and a hope to grasp at least a short moment of justice or part of a larger ‘truth’.
This vision is presented by the mother in Gide's version of the parable. The figure of the mother is not included in Luke's Gospel. In Gide's treatment, she combines the process of ‘homecoming’ with an inquiry for a deeper understanding of facts and motives. She wants to know whether the son suffered and turns attention to the experience of the journey. She asks: ‘Why did you leave me for such a long time?’ (p. 215); ‘Never did I give up hoping for you’ (p. 217); ‘Doubtless your bed was not made every evening, nor the table set for all your meals’ (p. 217); ‘At least did you suffer only from hunger?’ (p. 219).
This conversation reflects the ongoing dilemma between ‘fact-finding’ and ‘truth’ in the assessment of international criminal proceedings.Footnote 107 To what extent can international criminal justice be viably assessed by its contribution to fact-finding?
The expectations are high. In particular, for many victims, concrete factual elements, such as the finding and recovery of bodies or the acknowledgement of specific facts,Footnote 108 are often more important than elaborate procedural or legal assessments. Many core crimes require the showing of a specific context (e.g., systematic or widespread violenceFootnote 109), gravity, or intent to harm a group (e.g., genocide, persecution). This means that – more than in domestic trials – evidence must go beyond the conduct of the defendant and extend to clarification of context.Footnote 110 But the means are limited. There is significant controversy as to whether ‘fact-finding’ and establishment of the ‘truth’ are ‘ends’ in themselves, rather than ‘means to an end’ in rendering justice.Footnote 111
The ability of criminal trials to serve as a foundation for history and memory has formed a bone of contention in international criminal justice since its first experiments.Footnote 112 Robert Storey, the executive trial counsel at Nuremberg, and later Hannah Arendt argued that ‘[t]he purpose of the trial is to render justice, and nothing else; even the noblest ulterior purposes – “the making of a record . . .” can only detract from the law's main business: to weigh the charges brought against the accused, to render judgment and to mete out due punishment’.Footnote 113
Today, this ‘purist’ understanding is contested. As Lawrence Douglas has shown in his study of the Eichmann and Demjanjuk trials (‘Memory of Judgment’), judicial proceedings sometimes actually mark a tribute to history and memory, in light of their specific set-up and orchestration.Footnote 114 The duty to seek the ‘truth’ is inherent in the mandate of judges and sometimes an express prosecutorial duty.Footnote 115 Historical knowledge is often used to support evidence. The factual findings of international courts and tribunals are increasingly presented as a potential basis for restorative purposes (e.g., reconciliation). But, as in our parable (in which the account of the facts and the reasons for departure differ in relation to the protagonist), there is typically not ‘one version’ of facts, or one layer of ‘truth’. Fact-finding is often a judgement of probability in a criminal process, based on competing narratives – and sometimes different layers of ‘truth’.Footnote 116 ‘Historical truth’ and ‘legal truth’ do not always coincide.Footnote 117 This is due to a number of factors that are rooted in the structure and methods of criminal investigations and prosecutions.
Due to the growing focus of contemporary legal proceedings on ‘accountability’, historical facts are often presented selectively.Footnote 118 Investigation or prosecutions typically cover only a part of a specific situation or incident. The selection of facts and circumstances presented in proceedings depends largely on what the prosecution believes it can prove at trial. Experts typically act for a given side. Judges commonly lack a set of predetermined judicial guidelines to assess expert evidence.Footnote 119 Therefore, trials often present only a partial reflection of reality.
Even more importantly, historians and lawyers use different methods when assessing facts (e.g., lines of causation, factual determinations). International criminal law is about individualizing roles and attributing responsibility. Within this context, lawyers are typically inclined to think in terms of hierarchies or ‘vertical’ and ‘horizontal’ lines of authority. They seek to bring ‘order’ into chaos. They ‘systematize’ patterns of conduct and isolate specific events and acts, in order to provide clear answers. Historical and social-science research enjoys greater flexibility. It is open to broader causality models and not necessarily focused on ‘sampled’ facts. This starting point provides greater leeway to admit complexity in reasoning and to deal more openly with uncertainty and limits in determining ‘what actually happened’. These factors distinguish historical and judicial fact-finding.
Recently, international criminal courts have faced increasing criticism in relation to the uncertain evidentiary foundations of their rulings.Footnote 120 Since there is often no documented record of orders or actions, international trials rely heavily on eyewitness testimony. This practice creates practical difficulties. ‘Educational, cultural or linguistic differences’ between witnesses and court staff complicate communication and reliability assessments. Judge Patricia Wald put it nicely when she said, ‘I know no judge in [an international] tribunal who does not acknowledge that he or she is totally at the mercy of the translator in the courtroom’.Footnote 121 Not all testimonial deficiencies are detected or reflected in legal decisions. Nancy Combs, for instance, has reviewed nearly all cases of the SCSL and some ICTY cases. Her study comes to the conclusion that ‘more than 50 percent of prosecution witnesses appearing in these trials testified in a way that was seriously inconsistent with their pre-trial statements’.Footnote 122 This finding does not necessarily call into question the final legal determinations. But it challenges the view that international criminal courts are particularly well equipped to carry out comprehensive fact-finding.
At pre-trial, there is almost a move towards the other extreme. Pre-trial submissions and motions often rely on documentary evidence and supporting material in relation to key points.Footnote 123 Judges have limited fact-finding capacity. Judicial adjudication relies to a large extent on NGO reports, public documents, and summaries of evidence. The reliability and factual accuracy of these materials are often difficult to verify.
In light of these factors, it seems difficult to present historical ‘fact-finding’ as a primary objective of international criminal proceedings.Footnote 124 Incidentally, judicial fact-finding has a highly pragmatic value – that is, an evidentiary use. It is inherent in juridical reasoning, with all its strengths and weaknesses. It also serves a certain pedagogical function. The judicial process may, in particular, reduce the complexity of violence to a ‘manageable narrative’.Footnote 125 Robert Jackson framed it adequately at Nuremberg when he said that a trial might ‘establish incredible events by credible evidence’.Footnote 126 Experience from criminal trials shows that a single videotape, like the film on Nazi concentration camps in Nuremberg or the scorpions footage in the Milošević trial, may have greater impact than an entire judgment, if rightly introduced and tested in court. Ultimately, ‘judicial fact-finding’ might also limit the mystification of acts and perpetrators. Through their ‘evidentiary’ filters and their publicity, international criminal proceedings may render certain facts less contestable. In this way, they may leave less room for the ‘denial’ of atrocity.Footnote 127
But it would go a step too far to equate judicial fact-finding with accurate historiography, or even a broader ‘truth-finding’ procedure aimed at societal reconciliation. The acceptance and internalization of facts are processes that are shaped by other factors, such as media, inter-ethnic contact, or local politics.Footnote 128 This is evidenced by the experience of the ICTY in which the ‘judicial truth’ established in The Hague often remained detached from the ‘local truth’.Footnote 129
This result is not necessarily an institutional failure, but rather an indication of the limitations of international criminal justice. The key is to make ‘best use’ of the virtues of judicial fact-finding. The record of international criminal courts will always remain selective. In recognition of this reality, the main task is to make the best use of selective knowledge and the quality (rather than the quantity) of facts and information. This does not mean that there is no room for improvement.
One possible way to reduce gaps between international and domestic perception is the extension of channels to share evidence. Only a fraction of the evidence gathered by international investigators and prosecutors is currently used in international criminal proceedings. It should be rethought whether and under what conditions this material can be shared more effectively with domestic jurisdiction or other fact-finding bodies.Footnote 130
Second, further progress could be made in the analysis of judicial records. One distinct advantage of witness testimony, documents, and transcripts lies in their recording and availability after completion of the trial. Unfortunately, this record is often so complex that even judges or defence counsel have difficulties in processing it. A useful way to improve impact might be to systematize and order judicial records in a way that makes it more accessible for lawyers and non-lawyers in future research.
2.2.4. Legacy
This leads me to the last theme: if judicial truths remain partial and if judicial fact-finding carries an inevitable degree of uncertainty, what remains? What is the legacy of these tribunals?
In the parable, the younger brother addresses this question to the returning son in the last of his conversations. The younger brother has witnessed the glorious welcome of his brother by the father: ‘I saw you come covered with glory’; ‘And I saw what our father did. He put a ring on your finger, a ring the like of which our brother does not have’ (p. 225). Like his brother, he is eager to depart from home, and wants to learn from his journey. He asks: ‘Did you find nothing but disappointments on your wanderings? Is all that I imagine outside and different from here, only an illusion’? ‘Didn't you mistake the road?’ (p. 229).
The returning son gives an encouraging reply. He admits some of his own failures (‘Yes, I feel it clearly now, I failed’ (p. 231)) but realizes that the journey marked a way to ‘find’ his younger brother (without coming back ‘I would never have known you’ (p. 229)). He then encourages his younger brother to leave against the will of the mother, in order to enable him to make his own experiences (‘It is for me to admire you, and for you to forget me’ (p. 233)).
This dialogue captures the essence of the debate about ‘legacy’ in international criminal justice. What do tribunals leave behind after completion of cases in a specific situation, or even after closing investigations and prosecutions in the entire situation?
Here, again, ‘realism’ contrasts with ‘expectations’ that are difficult to meet. There are increasing efforts to assess the ‘legacy’ and lessons learned from individual tribunals. Different organs within international criminal courts and tribunals (presidency, registry) work on ‘legacy’, in order to provide greater clarity on record and performance. Conferences and volumes are devoted to the theme.Footnote 131 But there are hardly any agreed criteria to establish ‘legacy’Footnote 132 or reliable methods to test it. In fact, the very notion is somewhat daring. ‘Legacy’ is not something that can be unilaterally construed or created. Rather, it depends on external judgement and develops incrementally over time. Emerging scholarship on the theme admits the limits of empirical methods (e.g., the fragility of ‘population surveys’) and the subjectivity of judgement.Footnote 133 A recent study on the impact of the ICTY, for instance, comes to the conclusion that ‘the level of support for the ICTY is lower in recent years than it was at the time the ICTY began its trials’Footnote 134 and that its acceptance ranges from almost ‘non-existent’ in certain parts (Serbia) to overwhelming in others (Kosovo).Footnote 135 Again, this finding is not so much a testimony of individual institutional failure. It rather shows that it is essential to track how attitudes develop over time and to explore the rationales underlying such changeFootnote 136 in order to provide credible results.
Currently, impact is mainly associated with two parameters, which bear resemblance with the main themes of ‘homecoming’ in the parable, namely interaction with domestic entities (e.g., capacity-building) and reconciliation. I will deal with them consecutively.
2.2.4.1. Capacity-building. There is a growing awareness that international justice is only sustainable if it is not only done internationally, but seen to be done in affected communities and followed by consecutive domestic action.Footnote 137 This is a lesson learned from decades of UN experiences in peace-building. It is gradually being implemented in the field of international criminal justice.
In the ad hoc tribunals, this move was born out of necessity. It resulted from the need to deal with a backlog of cases involving lower-level perpetrators. By now, the Yugoslavia Tribunal has referred more than ten cases to the Bosnian War Crimes Chamber.Footnote 138 Rwanda abolished the death penalty in order to be eligible to receive cases.Footnote 139 The ICC Statute contains a more systemic turn towards interaction between international and the domestic legal systems, by application of the principle of complementarity.Footnote 140 The court is developing criteria to translate this imperative into disengagement strategies in individual situations. This reflects a certain paradigm shift: international justice is no longer judged solely by its own investigation, trial, and sentences, but also by its ability and capacity to incentivize genuine domestic proceedings.Footnote 141
But real practice shows that the actual contribution is often difficult to assess. There is a great deal of disparity across situations and untested assumptions about cause and effect (e.g., catalytic effect).Footnote 142 ICC intervention, for instance, has produced a wide range of vastly different effects on domestic communities.Footnote 143 In some situations, such as Darfur or Kenya, it has predominantly shaped political discourse or transformed the political landscape.Footnote 144 In other contexts (such as Colombia or the Democratic Republic of Congo), it has prompted some legal transformation or legal reform.Footnote 145 This has produced very different results for distinct actors.
In some cases, it has led to the disempowerment of armed groups or accepted political elites. In other instances, such as Uganda, it has been followed by the empowerment of political or religious leaders in the local sphere. In other situations, such as Palestine or the Korean U-boat incident, it had hardly any traceable effect.Footnote 146
With the further increase in situations and ongoing budgetary restraints (e.g., zero-growth budgets), there is an even greater risk that attention will shift too quickly from one ‘troubleshot’ to another, without lasting mitigation of the causes that triggered justice intervention in the first placeFootnote 147 – as in decades of UN peace operations.
This challenge may not be solved in the short term. But perhaps a greater degree of modesty might actually produce better results. I will just provide two examples here.
Paul Seils, formerly head of situation analysis in the ICC Office of the Prosecutor, has made this point powerfully with regard to the relationship between the ICC and domestic jurisdictions. He has argued that the ‘most positive thing’ the prosecutor can do at this stage in time to promote national proceedings is to have a clear and consistent line on what he expects national prosecutions to produce within a reasonable time and ‘to act without fear if what he expects does not materialize’.Footnote 148
Similarly, on a normative level, the strength of international criminal courts may rather lie in the persuasive power of ideas and legal obligations than in the imposition of rules and standards. Take the implementation of norms, for instance. Research on norm acceptance in conflict situations (e.g., UgandaFootnote 149) shows that international standards require a certain degree of adaptability and ‘local’ translation in order to fit the specific context.Footnote 150 International criminal courts may thus be best placed to highlight key issues and debates rather than seeking to engage in domestic reform.Footnote 151
2.2.4.2. Reconciliation. A similar logic applies in relation to ‘reconciliation’. Whether and to what extent international criminal justice can successfully contribute to reconciliation is still an open question.Footnote 152 According to statutory texts, reconciliation is not expressly part of the mandate of international criminal courts.Footnote 153 Proponents of restorative justice rightly point to the benefits of broader access to justice and victim participation: victims can overcome trauma if the injustice done to them has been recognized publicly, if they receive an opportunity to make their personal story known, and if they themselves learn about the details of what has happened. International criminal justice deserves to be praised for its progress in this area, which often goes further than in most domestic settings.
But it is again difficult to judge the performance of international criminal courts by their contribution to reconciliation. ‘Judicial fact-finding’ and ‘outreach’ alone do not suffice to bring about ‘reconciliation’. They may sometimes even cause deeper divisions.Footnote 154 Impact relies on other factors, such as media, inter-ethnic contact, positive experiences, etc.Footnote 155 Research on the impact of the ICTY in the Balkans has shown that the attitudes of individuals in conflict or post-conflict settings are largely shaped by ‘group identity’ and perception of ‘victimhood’.Footnote 156 More fundamentally, reconciliation presupposes that each group has a willingness to inquire into the extent to which it bears collective responsibility through the actions of its members and, in particular, its leadership. There is no guarantee that such a process will indeed effectively take place. Examples of Germany or Serbia show that society often takes a very long time to recognize the moral wrong committed and to condemn its own involvement in it.Footnote 157
Therefore, many experts caution rightly against overambitious expectations in relation to international trials’ role in and impact on reconciliation.Footnote 158
3. Reconciling ‘realism’ and ‘idealism’
Where does this lead us? I would argue that the proper ‘homecoming’ of international criminal justice requires differentiated thinking concerning the relationship between ‘faith’ and ‘fact’.
As in our parable, the key appears to lie in a better match between ‘idealism’ and ‘realism’. Like the returning son, who spent part of his heritage on the way, our object of inquiry may require a greater degree of ‘realism’ in order to find its proper place between international law and domestic jurisdictions. At the same time, the ‘domestic’ might benefit from a greater degree of ‘idealism’, as illustrated by the impact of the returning son on the younger brother. Or, to put it more concretely, international criminal justice might benefit from a greater degree of realism, while domestic justice might embrace – as Stephane Bibas and William Burke White put it rightly – a greater dose of ‘idealism’.Footnote 159 Achieving this balance requires a better interplay between ‘international’, ‘domestic’, and ‘local’ responses to conflict.
3.1. International criminal justice and ‘realism’
Let me start with the first argument. In line with the tenor of Gide's treatment of the theme, I would argue that the journey of international criminal justice over the past decades is not a ‘loss’ or ‘failure’, but a process of ‘homecoming’. In order to enable a better embedding (i.e., a successful ‘homecoming’), it is necessary to recognize the limits of the discipline. The number of cases tried will remain limited and charges will remain selective. International criminal justice will not be able to meet all expectations. Tribunals try to individualize guilt. Victims and affected communities have partly contrasting prerogatives, such as the question as to what extent judgements or decision recognize victimhood of a broader group or collectivity, or a specific narrative of conflict. Impact will always be hard to assess in light of the discrepancies between accepted and non-accepted goals and the lack of fully quantifiable indicators or assessment methods. Attitudes and behaviours are shaped by non-controllable factors. These limitations are not necessarily institutional failures, but inherent in the very project.
3.1.1. The role of expressivism
The challenge is to make better use of these limitations. One key element in this process is the improvement in the ‘expressive function’ of international criminal courts.Footnote 160 By this, I do not mean a sheer strengthening of outreach or an increase in the ‘show’ dimensions of trials (which are, in reality, mostly rather dry and technical exercises), but a broader vision of the function of proceedings. International courts have a more ‘attentive public’ than most other judicial entities.Footnote 161 They have a ‘global reach’ and ‘audience’. Like supreme courts or other highest judiciaries in a domestic system, their strength and virtue may lie in their ability to ‘send messages’, shape debates and discourse, and influence the generation and perception of norms.Footnote 162
Expressivism can be partly traced back to the Nuremberg trials, which were associated with the idea that judicial proceedings were a key instrument in transforming society in postwar Germany.Footnote 163 Today, this approach is as relevant as ever in international criminal justice. International criminal courts cannot merely be judged by their quantitative record. They are, most of all, entities that frame controversies and issues, highlight the value of norms, or send signals.Footnote 164 Expressivism places into perspective some of their perceived weaknesses in relation to ‘effectiveness’, ‘fairness’, and ‘impact’ and allows them to make best use of their limitations.
Let us consider ‘selectivity’. Expressive theories do not deny capacity limits or inherent contradictions (i.e., the fact that condemnation does not reach all individual perpetrators). They seek to mitigate existing ‘selectivity’ and ‘enforcement’ problems, by relying on the power of transparency and persuasion of international criminal courts to denounce the wrong and reinforce society's norms. This makes it more difficult for ‘big and powerful actors’ to ignore atrocities.Footnote 165 Expressivism also addresses some fairness dilemmas. It does not ignore ‘fairness’ dilemmas inside international criminal justice, but places emphasis on the importance of the ‘demonstration effect’ – that is, the visibility and perception of independence and impartiality. In this sense, it seeks to enhance conditions under which international proceedings may serve as an example for national or local justice. Expressivism further reduces some of the narrative dilemmas which are inherent in the rendering of international justice. It takes into account that there may be ‘multiple’ stories or version of ‘truth’ in society. Rather than denying this reality, it relies on the pedagogical function of judicial fact-finding and evidence to sharpen perceptions. This moderation is fundamental at a time when international criminal justice is under criticism for failing to meet some of its projected objectives.
3.1.2. ‘Realism’ and ‘faith’
A new ‘realism’ implies at the same time the need to recognize the limits of ‘facts’ and the virtues of ‘faith’. As David Koller put it so aptly: ‘Rather than simply dismissing . . . faith as irrational, we can learn a great deal about international criminal law and its prospects by seeking to understand the motivations for and the tenets of faith.’Footnote 166
There is a need to resist the temptation to measure ‘success’ or ‘failure’ ‘merely by rationalist theories’. Costs and benefits cannot be judged solely by rational-choice theory or empirical facts. As has been shown above, factual and normative judgements are interrelated in international criminal justice, as in hardly any other area. It is thus too simplistic to deny the role of ‘faith’ in this context. In fact, the project still enjoys support precisely because many believe that it is better to live with it than without it.Footnote 167 This should not be ignored, but is part of reality.
3.2. Domestic justice and ‘idealism’
This leads me to my second argument. While international criminal justice might thus merit some greater ‘realism’, domestic justice might, in turn, benefit from greater ‘idealism’.Footnote 168
One of the virtues of international criminal justice lies in its transparency and its highly developed ‘culture’ of informal accountability. Domestic justice differs in this respect. Although some high-level cases receive wide attention, many aspects of investigations and prosecutions receive little public scrutiny. Developing a more elaborate culture of transparency might be one of the incentives being derived from international criminal justice.
Second, domestic procedures might benefit from some of the experiences and approaches in the international context. International criminal justice has been a laboratory of procedural innovation in past decades, due to its need to accommodate diversity and to balance the features of inquisitorial and accusatory traditions.Footnote 169 There is something to learn from this experience, in both the national and the broader European contexts.Footnote 170 I will just provide one example: the approach towards the ‘restorative dimension’ of justice.
International criminal courts have greatly invested in the strengthening restorative features of proceedings, such as increased information and access of victims to justice, outreach to affected communities, the determination of reparation to collectivities, or best practices to deal with gender-related violence or violence against children. Domestic systems might benefit from these experiences, be it in the context of domestic trials of atrocity crimes, which might involve a large number of victims, or in lower-level crimes in which informal social pressure or victim–offender mediation might deserve greater attention.
3.3. Reconciling the two
How can the relationship between ‘idealism’ and ‘realism’ be improved? I would argue that a partial shift in perspective is necessary in order to facilitate a better ‘match’.
First, it is important to reconsider the ‘constituency’ of international criminal justice.Footnote 171 In the past, many choices have been made at the international level, with a focus on ‘international community’ or state interests. A proper ‘homecoming’ requires a pluralist vision – that is, a more systematic turn to individual and people's interests. To be regarded as legitimate, and to increase its persuasion, justice by international courts must also be ‘seen as local justice’.Footnote 172 This shift in perspective (i.e., to treat ‘locals’ as subjects rather than as objects) is essential to counter some of the contemporary criticisms of international criminal courts, such as their ‘neo-imperial’ nature or their detachment from domestic communities.
Second, it is necessary to work towards a better communication between global, national, and local audiences.Footnote 173 International criminal justice is a two-way street: to The Hague and from The Hague. It is necessary to improve the conditions of this dialogue. In order to ensure better communication, it is essential not to seek a mere imitation of international approaches in the domestic sphere, but to work towards a better ‘translation’ into the specific ‘national’ or ‘local’ context.Footnote 174
4. Not a conclusion
In this light, I wish to close these reflections on ‘constituency’ and ‘dialogue’ with the ‘shift of perspective’ reflected in the final conversation between the departing brother and the returning son in our parable: this time, the younger brother says: ‘Do you know why I was expecting you this evening? . . . You opened the way for me’ (p. 233).
The ‘prodigal son’ replies: ‘It is time now. The sky turns pale . . . . Go quietly. I am holding the lamp’ (p. 233).
