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EDITORIAL: Between ‘Faith’ and ‘Facts’: By What Standards Should We Assess International Criminal Justice?

Abstract
Abstract

The traditional vision that international courts and tribunals do ‘good’ or create a better world through law is increasingly under question. International criminal justice started largely as a ‘faith’-based project, but is increasingly criticized in light of its actual record and impact. This essay examines this journey and, in particular, the role of ‘faith’ and ‘fact’ in the treatment and assessment of international criminal courts, through four core themes (‘effectiveness’, ‘fairness’, ‘fact-finding’, and legacy’) addressed in André Gide's version of the parable of The Return of the Prodigal Son. It argues that, in its ‘homecoming’, international criminal justice would benefit from a greater degree of realism by openly accepting its limitations and embracing its expressivist function. It cautions at the same time against exclusively quantitative understandings of impact, arguing that the power of international courts and tribunals lies not so much in their quantitative record as in their role in setting a moral or legal example or shaping discourse. It concludes that a better match between ‘idealism’ and ‘realism’ requires greater attention to the interplay between ‘international’, ‘domestic’, and ‘local’ responses to conflict, as well as recognition of their legitimate differences.

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1 See Gide A., ‘Le Retour de l'enfant prodigue’ [‘Return of the Prodigal Son’] (1907), in Fowlie W. (ed.), French Stories (1993), 199. For a different treatment, see also Nouwen H. J. M., The Return of the Prodigal Son: A Story of Homecoming (1992).

2 See Rembrandt , Return of the Prodigal Son (1668), St Petersburg, Hermitage.

3 On the human rights foundations of international criminal justice, see, e.g., Bassiouni C., ‘The Proscribing Function of International Criminal Law in the Process of Human Rights’, (1982) 9 Yale Journal of World Public Order 1456.

4 See, generally, Greenawalt A., ‘The Pluralism of International Criminal Law’, (2011) 86 Indiana Law Journal 1063. On the relationship to international humanitarian law, see, e.g., Meron T., ‘The Humanization of Humanitarian Law’, (2000) 94 AJIL 239; on the relationship with public international law, see Anderson K., ‘The Rise and Fall of International Criminal Law: Intended and Unintended Consequences’, (2009) 20 EJIL 331, arguing that international criminal law has ‘supplanted or even crowded other aspects and institutions of public international law’. For a bird's-eye view of international criminal law, human rights, and public international law, see, e.g., Clapham A., ‘Three Tribes Engage on the Future of International Criminal Law’, (2011) 9 JICJ 689.

5 On the ‘sui generis’ nature, see, e.g., Kress C., ‘The Procedural Law of the International Criminal Court in Outline: Anatomy of a Unique Compromise’, (2003) 1 JICJ 603; Ambos K., ‘The Structure of International Criminal Procedure: “Adversarial”, “Inquisitorial” or Mixed?’, in Bohlander M. (ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures (2007), 429.

6 For a treatment from the perspective of norm implementation, see Werle G. and Jessberger F., ‘International Criminal Justice Is Coming Home: The New German Code of Crimes against International Law’, (2002) 13 Criminal Law Forum 191. On the dialectics between international and domestic jurisdiction more generally, see C. Stahn and M. El Zeidy, The International Criminal Court and Complementarity: From Theory to Practice (2011).

7 For this imagery, see K. Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (2011).

8 See B. Swart, A. Zahar, and G. Sluiter, The Legacy of the International Criminal Tribunal for the Former Yugoslavia (2010); R. H. Steinberg, Assessing the Legacy of the ICTY (2011).

9 See, e.g., S. K. Ivaković and J. Hagan, Reclaiming Justice: The International Tribunal for the Former Yugoslavia and Local Courts (2011); Clark J. L., ‘The Limits of Retributive Justice: Findings of an Empirical Study in Bosnia and Herzegovina’, (2009) 7 JICJ 463; D. Orentlicher, ‘Shrinking the Space for Denial: The Impact of the ICTY in Serbia’, Open Society Justice Initiative (2008); McMahon P. and Forsythe D., ‘The ICTY's Impact on Serbia: Judicial Romanticism Meets Network Politics’, (2008) 30 HRQ 412; H. van der Merwe, V. Baxter, and A. Chapman, Assessing the Impact of Transitional Justice: Challenges for Empirical Research (2010). See also Saxon D., ‘Exporting Justice: Perceptions of the ICTY among the Serbian, Croatian and Muslim Communities’, (2005) 4 Journal of Human Rights 559. On the impact of the ICC, see E. Stover et al., ‘The Impact of the Rome Statute System on Victims and Affected Communities’, RC/ST/V/INF.4, 30 May 2010, available at www.icc-cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/RC-ST-V-INF.4-ENG.pdf. On transitional justice more broadly, see O. N. T. Thoms, J. Ron, and R. Paris, The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners (2008).

10 On the ‘identity crisis’, see Robinson D., ‘The Identity Crisis of International Criminal Law’, (2008) 21 LJIL 925. See also Ratner S., ‘The Schizophrenias of International Criminal Law’, (1998) 33 Texas ILJ 237.

11 Citations and page numbers in the text are from the translation in note 1, supra.

12 For a treatment, see Koller D., ‘The Faith of the International Criminal Lawyer’, (2008) 40 NYUJILP 1019; Tallgren I., ‘The Sensibility and Sense of International Criminal Law’, (2002) 13 EJIL 561. For a study of the role of ‘religion’ and ‘faith’ in transitional justice, see, generally, D. Philpott, Religion, Reconciliation, and Transitional Justice: The State of the Field (2007); T. Brudholm and T. Cushman, The Religious in Responses to Mass Atrocity (2009); M. Duffy Toft, D. Philpott, and T. S. Shah, God's Century: Resurgent Religion and Global Politics (2011).

13 For an exploration of ‘idealism’, see G. Bath, Stay the Hands of Vengeance: The Politics of War Crimes Tribunals (2000), 1, at 147–205; Krasner S., ‘Pitfalls of International Idealism’, (2003) 8 UCLA JILFA 61. On a ‘faith-like’ commitment to human rights, see S. Hopgood, Keepers of the Flame: Understanding Amnesty International (2008).

14 See Justice Robert Jackson's Opening Statement at the Nuremberg Tribunal: ‘That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.’ The text is available at http://law2.umkc.edu/faculty/projects/ftrials/nuremberg/Jackson.html.

15 See, e.g., A. Zahar, ‘Civilizing Civil War: Writing Morality as Law in the ICTY’, in Swart, Zahar, and Sluiter, supra note 8, at 469.

16 See Jackson, supra note 14.

17 See Secretary-General, statement at the opening of the Preparatory Commission for the International Criminal Court New York, 16 February 1999, available at www.ngos.net/un/icc.html.

18 For a similar argument, see Caldeira G. A. and Gibson J. L., ‘The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support’, (1995) 89 APSR 356.

19 See, e.g., ICTY, Prosecutor v. Kupreškić, Judgement, Case No. IT-95–16, 14 January 2000, para. 419 (‘norms of international humanitarian law . . . lay down obligations towards the international community as a whole, with the consequence that each and every member of the international community has a “legal interest” in their observance and consequently a legal entitlement to demand respect for such obligations’).

20 Ibid., para. 520 (‘most norms of international humanitarian law, in particular those prohibiting war crimes, crimes against humanity and genocide, are also peremptory norms of international law or jus cogens, i.e. of a non-derogable and overriding character’). See with respect to torture also ICTY, Prosecutor v. Furundžija, Trial Judgement, Case No. IT-95–17/I-T, 10 December 1998, para. 154 (‘Clearly, the jus cogens nature of the prohibition against torture articulates the notion that the prohibition has now become one of the most fundamental standards of the international community’). On judicial creativity, see S. Darcy and J. Powderly, Judicial Creativity at the International Criminal Tribunals (2010).

21 For a discussion, see Anderson, supra note 4, at 331–58.

22 See C. van den Wyngaert, Award Ceremony Prize Human Rights League, ‘Human Rights between Sword and Shield’, Lecture Antwerp (2006). Ignatieff speaks of the ‘enforcement revolution’ in human rights. See M. Ignatieff, ‘Whose Universal Values? The Crisis in Human Rights’, Stichting Praemium Erasmianum (1999), at 11.

23 For reminiscence in the ICC Statute, see para. 5 of the preamble (‘Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’).

24 For a further-going analogy to ‘religion’, see Tallgren, supra note 12, at 593 (‘International Criminal Law carries this kind of a religious exercise of hope that is stronger than the desire to face everyday life. Focusing on the idea of international criminal justice helps us to forget that an overwhelming majority of the crucial problems of the societies concerned are not adequately addressed by criminal law’).

25 See Gospel of John, 20:24–5 (‘Except I shall see in his hands the print of the nails, and put my finger into the print of the nails, and thrust my hand into his side, I will not believe’) and the reply by Jesus, 20:29 (‘blessed are they that have not seen, and yet have believed’).

26 See Bibas S. and Burke-White W., ‘When Idealism Meets Domestic-Criminal-Procedure Realism’, (2010) 59 Duke Law Journal 637.

27 For some of the downsides, see Baylis E. A., ‘Tribunal Hopping with the Post-Conflict Justice Junkies’, (2008) 10 Oregon RIL 361.

28 See K. L. King and J. D. Meernik, ‘Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia: Balancing International and Local Interests while Doing Justice’, in Swart, Zahar, and Sluiter, supra note 8, at 7, 9.

29 See also Y. Shany, ‘Assessing the Effectiveness of International Courts Can the Unquantifiable be Quantified?’, Hebrew University of Jerusalem, Research Paper No. 03–10, September 2010.

30 See Marry S. Engle, ‘Measuring the World: Indicators, Human Rights and Global Governance’, (2011) 52 Current Anthropology 1. For an account of methodological approaches, see Dancy G., ‘Impact Assessment, Not Evaluation: Defining a Limited Role for Positivism in the Study of Transitional Justice’, (2010) 4 International Journal of Transitional Justice 355.

31 It coincides further with an expanding ‘audit culture’ in human rights practice. See Engle Marry, supra note 30.

32 Budgetary scrutiny may, for instance, restrict universality, judicial independence, and the scope of protection provided.

33 Even the demanding ‘beyond a reasonable doubt’ standard, which applies to questions of guilt and innocence, requires only a high level of certainty.

34 Note, for example, the Daubert test for expert testimony, which requires that a theory or technique must be ‘falsifiable, refutable and testable’ (Popper). The test was developed by the US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 28 June 1993, (1993) 113 S.Ct. 2786.

35 For a thoughtful critique of ‘legal mimicry’ in domestic norm implementation, see M. Drumbl, Atrocity, Punishment and International Law (2007), 123. For an illustration, see S. Nouwen, ‘Complementarity in Uganda: Domestic Diversity or International Imposition?’, in Stahn and El Zeidy, supra note 6, at 1120, 1145–51.

36 See also Klarin M., ‘The Tribunal's Four Battles’, (2004) 2 JICJ 546 (‘battle for hearts and minds’).

37 See Damaska M., ‘What Is the Point of International Criminal Justice?’, (2008) 83 Chicago–Kent Law Review 329.

38 See Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004.616, 23 August 2004, para. 38.

39 See Galbraith J., ‘The Pace of International Justice’, (2009) 79 Mich. JIL 79, at 85.

40 See, e.g., Kwon O-Gon, ‘The Challenge of an International Criminal Trial as Seen from the Bench’, (2007) 7 JICJ 360, at 372–3; Bonomy I., ‘The Reality of Conducting a War Crimes Trial’, (2007) 7 JICJ 348, at 353.

41 See, e.g., Posner E., ‘Political Trials in Domestic and International Law’, (2005) 55 Duke Law Journal 75, at 151–2.

42 See African Union, ‘Decision on the Meeting of African Parties to the Rome Statue of the international Criminal Court (ICC)’, 3 July 2009, Assembly/AU/Dec.245, available at www.africa-union.org/root/au/Conferences/2009/july/summit/decisions/ASSEMBLY%20AU%20DEC%20243%20-%20267%20(XIII)%20_e.pdf. For a discussion, see. e.g., L. Arbour, ‘The Rise and Fall of International Human Rights, 27 April 2011, available at www.crisisgroup.org/en/publication-type/speeches/2011/the-rise-and-fall-of-international-human-rights.aspx; Akande D., ‘The Legal Nature of Security Council Referrals to the ICC and Its Impact on Al Bashir's Immunities’, (2009) 7 JICJ 333; Gaeta P., ‘Does President Al Bashir Enjoy Immunity from Arrest?’, (2009) 7 JICJ 315.

43 See with respect to the ICC, Fletcher G. P. and Ohlin J. D., ‘The ICC – Two Courts in One?’, (2006) 4 JICJ 428, at 428–33.

44 For an application in the ICTY context, see D. Orentlicher, supra note 9, at 16, 41–2.

45 See, e.g., D. Saxon, ‘The Legitimacy and Limits of “Incapacitation”’, Hague Justice Portal, available at www.haguejusticeportal.net/Docs/Commentaries%20PDF/Saxon_The%20Legitimacy%20and%20Limits%20of%20Incapacitation_EN.pdf. For a critical study, see Darley J. M. et al. , ‘Incapacitation and Just Deserts as Motives for Punishment’, (2000) 24 Law & Human Behaviour 659, at 676.

46 The most evident example is the ICTY. It started as a deterrence-based and retributive justice mechanism. In its first annual report to the UN Security Council, the President of the ICTY noted: ‘One of the main aims of the Security Council [in establishing the ICTY] was to establish a judicial process capable of dissuading the parties to the conflict from perpetrating further crimes. It was hoped that, by bringing to justice those accused of massacres and similar egregious violations of international humanitarian law, both belligerents and civilians would be discouraged from committing further atrocities. In short, the Tribunal is intended to act as a powerful deterrent to all parties against continued participation in inhuman acts.’ See ICTY, Annual Report, UN Doc. A/49/342, S/1994/1007, 29 August 1994, at 13. With the adoption of the ‘completion’ strategy, the focus shifted to a greater extent towards local empowerment.

47 On ‘goal ambiguity’ as a problem, see Shany, supra note 29, at 1.2.

48 For a study of the role of ‘faith’ and ‘religion’ in transitional justice processes, see D. Philpott, ‘When Faith Meets History: The Influence of Religion on Transitional Justice’, in Brudholm and Cushman, supra note 12, at 174; Boesenecker A. P. and Vinjamuri L., ‘Lost in Translation? Civil Society, Faith-Based Organizations and the Negotiation of International Norms’, (2011) 5 International Journal of Transitional Justice 345. On the link between conflict and religion, see B. Grim and R. Finke, The Price of Freedom Denied: Religious Persecution and Conflict in the 21st Century (2010).

49 For a similar argument in the context of transitional justice, see Thoms O. N. T., Ron J., and Paris R., ‘State-Level Effects of Transitional Justice: What Do We Know?’, (2010) 4 International Journal of Transitional Justice 329.

50 See, e.g., Zacklin R., ‘The Failings of the Ad Hoc International Tribunals’, (2004) 2 JICJ 541, at 543, 545; Bourgon S., ‘Procedural Problems Hindering Expeditious and Fair Justice’, (2004) 2 JICJ 526, at 527. Rabkin even qualifies international criminal justice as an idea ‘whose time has passed’. See Rabkin J., ‘Global Criminal Justice: An Idea Whose Time Has Passed’, (2005) 38 CILJ 753.

51 For analysis, see Wippman D., ‘The Costs of International Justice’, (2006) 100 AJIL 861; Romano C. P. R., ‘The Price of International Justice’, (2005) 4 The Law and Practice of International Courts and Tribunals 281.

52 See, e.g., Fulford A., ‘Reflections of a Trial Judge’, (2011) 22 Criminal Law Forum 215, at 218; Kwon, supra note 40, at 362.

53 See Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), annexed to UN Doc. A/54/634, 22 November 1999; Informal Expert Paper, ‘Measures Available to the ICC to Reduce the Length of Proceedings’, 2003; War Crimes Research Office, ‘Expediting Proceedings at the International Criminal Court’, June 2011, available at www.wcl.american.edu/warcrimes/icc/documents/1106report.pdf?rd=1; International Bar Association (IBA), ‘Enhancing Efficiency and Effectiveness of ICC Proceedings: A Work in Progress’, January 2011, available at www.ibanet.org/Human_Rights_Institute/ICC_Outreach_Monitoring/ICC_IBA_Publications.aspx.

54 For a greater use of ‘court-appointed experts’, see Fulford, supra note 52, at 219. On the taking of ‘judicial notice’, see Rule 69 of the RPE.

55 See ICC, Prosecutor v. Lubanga, Decision on Practices of Witness Familiarization and Witness Proofing, ICC-01/04-01/06-679, 8 November 2006. On the ‘pros’ and ‘cons’ of witness proofing, see the exchange of views in LJIL: Karemaker R., Taylor B. D., and Pittman T. W., ‘Witness Proofing in International Criminal Tribunals: A Critical Analysis of Widening Procedural Divergence’, (2008) 21 LJIL 683; Ambos K., ‘Witness Proofing in International Criminal Tribunals: A Reply to Karemaker, Taylor, and Pittman’, (2008) 21 LJIL 911. See also Trial Chamber III, Prosecutor v. Bemba, Partly Dissenting Opinion of Judge Kuniko Ozaki on the Decision on the Unified Protocol on Practices Used to Prepare and Familiarize Witnesses for Giving Testimony at Trial, ICC-01-05-01/08-1039, 24 November 2010, para. 21.

56 See, e.g., War Crimes Research Office, supra note 53, at 61–70.

57 See, e.g., International Bar Association, supra note 53, at 20; War Crimes Research Office, supra note 53, at 46–53 (suggesting time limits for the delivery of Appeals Chamber decisions).

58 See, e.g., Tolbert D. and Gaynor F., ‘International Tribunals and the Right to a Speedy Trial: Problems and Possible Remedies’, (2009) 27 Law in Context 33, at 59.

59 See Assembly of States Parties, Resolution on the ‘Establishment of a Study Group on Governance’, ICC-ASP/9/Res.2 (2010). See also Report of the Bureau on the Study Group on Governance, ICC-ASP/10/30, 22 November 2011, available at http://212.159.242.181/iccdocs/asp_docs/ASP10/ICC-ASP-10-30-ENG.pdf.

60 See Drumbl M., ‘International Criminal Law: Taking Stock of a Busy Decade’, (2009) 10 Melb. JIL 38.

61 See on the pitfalls of a plain domestic ‘analogy’ more generally, Tallgren, supra note 12, at 565–7.

62 See King and Meernik, supra note 28, at 44, footnote 13.

63 See European Commission for the Efficiency of Justice, ‘Length of Court Proceedings in the member States of the Council of Europe Based on the Case Law of the European Court of Human Rights’, 6–8 December 2006, available at www.coe.int/t/dghl/cooperation/cepej/delais/Calvez_en.pdf.

64 Galbraith, supra note 39, at 142.

65 Ibid., at 127–8. SCSL: 4.8 years.

66 Ibid., at 128.

67 Ibid., at 142.

68 See Whiting A., ‘In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered’, (2009) 50 Harv. ILJ 323, at 331–3.

69 See, generally, Koskenniemi M., ‘Between Impunity and Show Trials’, (2002) 6 MPYUNL 1.

70 See, e.g., the points made by Human Rights Watch, Unfinished Business: Closing Gaps in the Selection of ICC Cases (2011), 46. The report concludes: ‘In order to complete the work started by the Office of the Prosecutor in DRC, Uganda, CAR, Darfur, and Kenya and to deepen the ICC's prosecutorial strategy, there is a need for additional investigations in each of these situations. Without further investigations or, in some cases, clear explanations of decisions not to prosecute, the ICC will fall short of delivering credible and meaningful justice.’

71 Whiting, supra note 68, at 326, invoking the Karadžić trial as an example.

72 See, inter alia, Shany, supra note 29; King and Meernik, supra note 28, at 52–3.

74 Driesen D. M., ‘Is Cost–Benefit Analysis Neutral?’, (2006) 77 University of Colorado Law Review 335.

75 For an illustration of the problem, see Romano, supra note 51, at 297, who argues that international criminal courts must put ‘an end to impunity for war crimes and gross violations of human rights’ in order to justify their costs.

76 Election of the Prosecutor, Statement by Mr Luis Moreno-Ocampo, New York, 22 April 2003, ICC-OTP-20030502–10: ‘The efficiency of the International Criminal Court should not be measured by the number of cases that reach the Court or by the content of its decisions. Quite on the contrary, because of the exceptional character of this institution, the absence of trials led by this Court as a consequence of the regular functioning of national institutions, would be a major success.’

77 On ‘donor justice’, see Kendall S., ‘Donors’ Justice: Recasting International Criminal Accountability’, (2011) 24 LJIL 585.

78 See Remarks by the Late President Cassese, Hearing of 16 February 2011, available at www.stl-tsl.org/en/media/press-releases/summary-of-president-cassese-s-speech?print=1&tmpl=component. For an analysis of Röling's role, see van den Herik L., ‘The Dutch Engagement with the Project of International Criminal Justice’, (2010) 57 NILR 303, at 311.

79 Similarly, the closure of an institution is not necessarily an indicator of its ineffectiveness in terms of cost–benefit analysis.

80 See also Tallgren, supra note 12, at 591.

81 See J. Silk, ‘International Criminal Justice and the Protection of Human Rights: The Rule of Law or the Hubris of Law’, (2009) unpublished paper, at 6–7, available at www.law.yale.edu/documents/pdf/Silk_International_Criminal_Justice_and_the_Protection_of_Human_Rights.pdf.

82 See, generally, J. Mendez, ‘Justice and Prevention’, in Stahn and El Zeidy, supra note 6, 33, at 35–8. See also King and Meernik, supra note 28, at 44–5.

83 See Sikkink, supra note 7, Chapter 1 (‘[Human rights prosecutions] represent an advance . . . over the complete lack of accountability of the past, and have the potential to prevent future human rights violations through material deterrence and symbolic communication’).

84 See Akhavan P., ‘Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism’, (2009) 31 HRQ 624; Akhavan P., ‘Preventing Genocide: Measuring Success by What Does Not Happen’, (2011) 22 Criminal Law Forum 1.

85 See, e.g., Orentlicher, supra note 9, at 16 (‘the factors contributing to recent patterns are too complex to admit of any facile conclusions’, 17 (‘the ICTY's deterrent effect is unknown’); Meerenik J. and King K. L., ‘The Effectiveness of International Law and the ICTY: Preliminary Results of an Empirical Study’, (2001) 1 International Criminal Law Review 343, at 354.

86 See also Damaska, supra note 37, at 346, who argues that compliance and persuasion rely ultimately on human response to both ‘self-interest’ and ‘moral values’.

87 See Meron T., ‘Does International Criminal Justice Work?’, in Meron T. (ed.), The Making of International Criminal Justice (2011), 138, at 149.

88 See also Human Rights Watch, ‘Course Correction: Recommendations to the ICC Prosecutor for a More Effective Approach to “Situations under Analysis”’, June 2011, at 3–4, 13–27, available at www.hrw.org/sites/default/files/related_material/HRW%20Course%20Correction_0.pdf.

89 See Shany, supra note 29, at 1.4.

90 See, e.g., Meron, supra note 87, at 147 (‘With regard to this criterion, I believe that international criminal tribunals are doing very well indeed’).

91 See, e.g., Jackson, supra note 14: ‘The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two.’

92 See, e.g., R. Goldstone, Address before the Supreme Court of the United States, 1996 CEELI Leadership Award Dinner, 2 October 1996 (‘Whether there are convictions or whether there are acquittals will not be the yardstick. The measure is going to be the fairness of the proceedings’), cited in Ellis M., ‘The Evolution of Defense Counsel Appearing Before the International Criminal Tribunal for the Former Yugoslavia’, (2003) 37 New England Law Review 949; Goldstone R., ‘South-East Asia and International Criminal Law’, (2011) 2 FICHL Occasional Paper Series 1, at 13 (‘The principal advantage of the ICC over its ad hoc predecessors is that, in virtue of its permanence and its political independence, it is able to achieve this fairness and equality more fully’).

93 See Lutz E. and Sikkink K., ‘The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America’, (2001) 2 Chicago JIL 1.

94 See Bibas and Burke-White, supra note 26, at 703–4; see also Sluiter G., ‘The Effects of the Law of International Criminal Procedure on Domestic Proceedings Concerning International Crimes’, in Sluiter G. and Vasiliev S. (eds.), International Criminal Procedure (2009), 459, at 476–83.

95 See, e.g., Chung C., ‘Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?’, (2008) 6 Northwestern Journal of International Human Rights 459; F. McKay, ‘Victim Participation in Proceedings before the International Criminal Court’, American University Human Rights Brief, at 5 (a ‘challenge for the Registry is how to process potentially large numbers of applications from victims’), available at www.wcl.american.edu/hrbrief/15/3mckay.pdf?rd=1. For a fact sheet, see ICC, Registry and Trust Fund: Fact Sheet, RC/ST/V/INF.3, 1 June 2010, available at www.icc-cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/RC-ST-V-INF.3-ENG.pdf.

96 See Decision on Consequences of Non-Disclosure of Exculpatory Materials Covered by Article 54(3)(e) Agreements and the Application to Stay the Prosecution of the Accused, together with Certain Other Issues Raised at the Status Conference on 10 June 2008, ICC-01/04-01/06-1401, 13 June 2008; Decision on the Prosecution's Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU, ICC-01/04-01/06-2517, 8 July 2010. For a discussion of intermediaries, see De Vos C., ‘Someone Who Comes between One Person and Another: Lubanga, Local Cooperation and the Rights to a Fair Trial’, (2011) 12 Melb. JIL 217.

97 See, e.g., International Bar Association, ‘Fairness at the International Criminal Court’, August 2011, available at www.ibanet.org/Human_Rights_Institute/ICC_Outreach_Monitoring/ICC_IBA_Publications.aspx.

98 For an illustration in relation to ‘witness proofing’, see note 55, supra. For a study, see Pati R., ‘Fair Trial Standards under Human Rights Treaty Law and the ICTY: A Process of Cross-Fertilization?’, in Kruessmann T. (ed.), The International Criminal Tribunal for the Former Yugoslavia and Human Rights: Towards a Fair Trial in International Criminal Procedure (2008), 147; Brown C., ‘The Cross-Fertilization of Principles Relating to Procedure and Remedies in the Jurisprudence of International Courts and Tribunals’, (2008) 30 Loyola L.A. International and Comparative Law Review 219; Croquet N., ‘The International Criminal Court and the Treatment of Defence Rights: A Mirror of the European Court of Human Rights' Jurisprudence?’, (2011) 11 Human Rights Law Review 91.

99 See also J. Clark, ‘The Impact Question: The ICTY and the Restoration and Maintenance of Peace’, in Swart, Sluiter, and Zahar, supra note 8, at 70 (‘Based on perceptions, therefore, there is little evidence that the ICTY has contributed to reconciliation via the dispensing of justice’).

100 For a sobering assessment, see Klarin M., ‘The Impact of ICTY Trials on Public Opinion in the Former Yugoslavia’, (2009) 7 JICJ 89 (‘[I]f impact . . . were to be measured exclusively by the poor perception of the Tribunal that prevails, perhaps the best course of action would be to shut its doors without waiting for the end of its mandate’); see also E. Stover, The Witnesses (2005), 103.

101 See, e.g., Ivaković and Hagan, supra note 9, at 157; Damaska, supra note 37, at 345. See also more generally, T. Tyler, Why People Obey the Law (1990), 64.

102 See Human Rights Watch, supra note 70, at 46.

103 See SC Res. 1970, 26 February 2011, preamble, para. 2 (‘Deploringthe gross and systematic violation of human rights, including the repression of peaceful demonstrators, expressing deep concern at the deaths of civilians, and rejecting unequivocally the incitement to hostility and violence against the civilian population made from the highest level of the Libyan government’), para. 6 of the preamble (‘Considering that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity’).

104 The OTP acknowledged, inter alia, in its 2nd Report to the Security Council in November 2011 that ‘allegations have been made against all parties to the conflict regarding the disproportionate use of force that could constitute a war crime in accordance with article 8(2)(b) of the Rome Statute’ and that the ‘Office [would] continue to examine these matters’, depending ‘on the funds available to the Office to conduct the Libya investigation’; see Second Report of the Prosecutor to the Security Council, 2 November 2011, para. 53 (emphasis added).

105 See Ivaković and Hagan, supra note 9, at 83, 159–60.

106 Ibid., at 160.

107 See, generally, R. A. Wilson, Writing History in International Trials (2011); Wilson R. A., ‘Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia’, (2005) 27 HRQ 908; N. Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (2010).

108 See Clark, supra note 99, at 70.

109 See, e.g., with respect to ‘crimes against humanity’ and ‘war crimes’, ICC Statute, Arts. 7(1) and 8(1).

110 See also A. Eser, ‘Procedural Structure and Features of International Criminal Justice: Lessons from the ICTY’, in Swart, Zahar, and Sluiter, supra note 8, 108, at 147 (arguing that ‘an international tribunal's obligation to establish the truth certainly goes well beyond that of an ordinary domestic court’). See Wilson, Writing History in International Trials, supra note 107, at 18–20, 218 (‘History has legal relevance and is not merely a “chapeau” requirement emanating from the florid preamble of an international criminal tribunal statute’).

111 See Eser, supra note 110, at 121.

112 See also Jackson, supra note 14 (‘I should be the last to deny that the case may well suffer from incomplete researches and quite likely will not be the example of professional work which any of the prosecuting nations would normally wish to sponsor. It is, however, a completely adequate case to the judgment we shall ask you to render and its full development we shall be obliged to leave to historians’).

113 See H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1965), 253.

114 See L. Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (2001). Douglas makes a powerful argument that the Eichmann and Demjanjuk trials, as well as the trials of Klaus Barbie and Holocaust denier Ernst Zundel, were aimed to do justice both to the defendants and to the history and memory of the Holocaust. See, with respect to the ICTY, Ivaković and Hagan, supra note 9, at 156 (‘creating a war history for the former Yugoslavia’), 161.

115 See, e.g., ICC Statute, Art. 54.

116 See also Clark, supra note 99, at 73–4, citing the example of Bosnia, ‘where there [was] not one truth about the war, but rather three competing truths’.

117 See Koskenniemi, supra note 69, at 12 (‘[L]egal and historical truth are far from identical. The wider context in which individual guilt has to be understood, and the more such understanding defers to the contingencies of historical interpretation, the more evident the limits of criminal procedure for reaching the “truth”’).

118 See also Drumbl, supra note 35, at 176.

119 See Wilson, Writing History in International Trials, supra note 107, at 221.

120 Wald P., ‘To “Establish Incredible Events by Credible Evidence”: The Use of Affidavit Testimony in Yugoslavia War Crimes Tribunal Proceedings’, (2001) 42 Harvard Journal of International Law 535.

121 Wald P., ‘Running the Trial of the Century: The Nuremberg Legacy’, (2006) 7 Cardozo Law Review 1559, at 1570–1.

122 Combs, supra note 107, at 4.

123 See, e.g., ICC Statute, Art. 58; on documentary evidence, see Nerenberg M. and Timmermann W., ‘Documentary Evidence’, in Khan K., Buisman C., and Gosnell C. (eds.), Principles of Evidence in International Criminal Justice (2010), 443.

124 See also Damaska, supra note 37, at 338 (‘The best that can be expected . . . is to provide fragmentary material as a scaffolding for subsequent historical research’).

125 Akhavan P., ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’, (2001) 95 AJIL 7, at 30.

126 See Jackson, supra note 14.

127 See Clark, supra note 99, at 77.

128 See Klarin, supra note 100, at 90 (‘[P]ublic opinion in the former Yugoslavia is influenced very little by what the prosecution and judges are actually doing in The Hague. Public perception is influenced to a much greater extent by the views of the local political, academic and cultural elites towards the ICTY, and by the manner in which the local media depict proceedings at The Hague’).

129 For Serbia, see Orentlicher, supra note 9, at 18–19. For Bosnia, see Selimović J. M., ‘Victims and Perpetrators: Local Responses to the ICTY in Bosnia–Herzegovina’, (2010) 57 European Journal of Anthropology 50.

130 This process is starting in the context of the ICC. On the ICC Law Enforcement Network, see Gallmetzer R., ‘Prosecuting Persons Doing Business with Armed Groups in Conflict Areas’, (2010) 8 JICJ 947. For the activities of the Registry, see S. Arbia, ‘Proactive Complementarity: A Registrar's Perspective and Plans’, in Stahn and El Zeidy, supra note 6, 52, at 60–6.

131 See ICTY Legacy Conference, ‘Assessing the Legacy of the ICTY’, The Hague, 23–24 February 2010, available at www.icty.org/sid/10293; ‘ICTY Global Legacy’ Conference, 15–16 November 2011, available at www.icty.org/sid/10405.

132 In the ICTY, it is conceptualized as ‘that which the Tribunal will hand down to successors and others’. It ‘includes, but is not limited to the findings of the Tribunal contained in its judgments, its contribution to the development international law, the records and archives of the Tribunal, its contribution to the rule of law in the former Yugoslavia and its advancement of international justice’. See ICTY, ‘Assessing the Legacy of the ICTY’, available at www.icty.org/sid/10293; see also Mégret F., ‘The Legacy of the ICTY as Seen through Some of Its Actors and Observers’, (2011) 3 Goettingen Journal of International Law 1011.

133 See D. Backer, ‘Cross-National Comparative Analysis’, in Van der Merwe, Baxter, and Chapman, supra note 9, 23, at 66 (‘the current wisdom on how different modes of transitional justice influence the attitudes and behaviour of individuals and communities is based primarily on rough assumptions and anecdotal evidence’).

134 See Ivaković and Hagan, supra note 9, at 155.

135 Ibid., at 156.

136 Ibid., at 159.

137 See, e.g., Report of the Secretary-General, supra note 38, para. 17 (‘Ultimately, no rule of law reform, justice reconstruction, or transitional justice initiative imposed from the outside can hope to be successful or sustainable. The role of the United Nations and the international community should be solidarity, not substitution . . . . The most important role we can play is to facilitate the processes through which various stakeholders debate and outline the elements of their country's plan to address the injustices of the past and to secure sustainable justice for the future, in accordance with international standards, domestic legal traditions and national aspirations. In doing so, we must learn better how to respect and support local ownership, local leadership and a local constituency for reform, while at the same time remaining faithful to United Nations norms and standards’).

138 See, generally, D. Tolbert and A Kontić, ‘The International Criminal Tribunal for the Former Yugoslavia and the Transfer of Cases and Materials to National Authorities: Lessons in Complementarity’, in Stahn and El Zeidy, supra note 6, at 888; Bekou O., ‘Rule 11 bis: An Examination of the Process of Referrals to National Courts in ICTY Jurisprudence’, (2009) 33 Fordham ILJ 723. For a critical appraisal, see Chehtman A., ‘Developing Bosnia and Herzegovina's Capacity to Process War Crimes Cases: Critical Notes on a “Success Story”’, (2011) 9 JICJ 547.

139 In June 2011, the ICTR decided for the first time to transfer an indicted genocide suspect for trial in Rwanda. See Prosecutor v. Jean Uwinkindi, Case No. ICTR-2001-75-R11bis, Decision on Prosecutor's Request for Referral to the Republic of Uganda, 28 June 2011.

140 See preamble, ICC Statute, Arts. 1 and 17.

141 For a study, see C. Stahn, ‘Taking Complementarity Seriously: On the Sense and Sensibility of “Classical”, “Positive” and “Negative” Complementarity’, in Stahn and El Zeidy, supra note 6, at 233; Stahn C., ‘Complementarity: A Tale of Two Notions’, (2008) 19 Criminal Law Forum 87.

142 For a critical account, see Snyder J. and Vinjamuri L., ‘Trials and Errors: Principles and Pragmatism in Strategies of International Justice’, (2003) 28 IS 5, at 21–5.

143 For a survey, see E. A. Witte, ‘Putting Complementarity into Practice: Domestic Justice for International Crimes in the Democratic Republic of Congo, Uganda and Kenya’, Open Society Justice Initiative, January 2011, available at www.soros.org/initiatives/justice/articles_publications/publications/complementarity-in-practice-20110119/putting-complementarity-into-practice-20110120.pdf.

144 On Kenya, see International Crisis Group, ‘Kenya: Impact of the ICC Proceedings’, Africa Briefing No. 84, 9 January 2011, available at www.crisisgroup.org/en/regions/africa/horn-of-africa/kenya/b084-kenya-impact-of-the-icc-proceedings.aspx; C. Alai and N. Mue, ‘Complementarity and the Impact of the Rome Statute and the International Criminal Court in Kenya’, in Stahn and El Zeidy, supra note 6, at 1222. On Sudan, see S. Baldo, ‘Sudan: Impact of the Rome Statute and the International Criminal Court’, 31 May 2010, RC/ST/V/M. 6, available at www.icc-cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/RC-ST-V-M.6-ENG.pdf; R. Cryer, ‘Darfur: Complementarity as the Drafters Intended?’, in Stahn and El Zeidy, supra note 6, at 1097.

145 On Colombia, see K. Ambos, ‘The Colombian Peace Process (Law 975 of 2005) and the ICC's Principle of Complementarity’, in Stahn and Zeidy, supra note 6, at 1071; Easterday J., ‘Deciding the Fate of Complementarity: A Colombian Case Study’, (2009) 26 Arizona Journal of International and Comparative Law 46, at 49–111; on the DRC, see M. Adjami and G. Mushiata, ‘Democratic Republic of Congo: Impact of the Rome Statute and the International Criminal Court’, RC/ST/V/M.4, 31 May 2010, available at www.icc-cpi.int/iccdocs/asp_docs/RC2010/Stocktaking/RC-ST-V-M.4-ENG.pdf; P. Clark, ‘Chasing Cases: The ICC and the Politics of State Referral in the Democratic Republic of Congo and Uganda’, in Stahn and El Zeidy, supra note 6, at 1180.

146 For a survey of the status of preliminary examinations, see OTP, Report on Preliminary Examinations, 13 December 2001, available at www.icc-cpi.int/NR/rdonlyres/63682F4E-49C8-445D-8C13-F310A4F3AEC2/284116/OTPReportonPreliminaryExaminations13December2011.pdf.

147 See Human Rights Watch, supra note 70, at 46 (‘The selection of specific cases is not the only determinant of the Court's legacy in a given country . . . . So too is the ability to communicate its activities in a manner that ensures justice is not only done, but seen to be done in affected communities and which permits victims to exercise their right of participation’).

148 P. Seils, ‘Maximizing the Limited Role of the Prosecutor’, in Stahn and El Zeidy, supra note 6, at 1012–13.

149 For a study, see M. Wierda and M. Otim, ‘Courts, Conflict and Complementarity’, in Stahn and El Zeidy, supra note 6, at 1155.

150 See Report of the Secretary-General, supra note 38, paras. 15–17, 25, 35–37. On norm dynamics and internalization, see S. Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (2006); Finnemore M. and Sikkink K., ‘International Norm Dynamics and Political Change’, (1998) 52 IO 887, at 905. On the Ugandan context, see Nouwen, supra note 35, at 1151–4.

151 For a critique of law reform through complementarity, see F. Mégret, ‘Too Much of a Good Thing? Implementation and the Uses of Complementarity’, in Stahn and El Zeidy, supra note 6, at 361; Heller K., ‘A Sentence-Based Theory of Complementarity’, (2012) 53 Harv. ILJ 202.

152 For a study of historical factors underlying the influence and impact of trials, see Fletcher L., Weinstein H., and Rowen J., ‘Context, Timing, and the Dynamics of Transitional Justice: A Historical Perspective’, (2009) 31 HRQ 163

153 See also King and Meernik, supra note 28, at 52.

154 For a critical account, see J. Subotić, Hijacked Justice: Dealing with the Past in the Balkans (2009).

155 Based on experiences in Bosnia, Serbia, and Croatia, Subotić argues that ‘the domestic public is much more likely to support transitional justice if its political opponents (the other guys) are put on trial’; ibid., at 170. For a study of the role of public health, see Pham P. N., Vinck P., and Weinstein H., ‘Human Rights, Transitional Justice, Public Health and Social Reconstruction’, (2010) 70 Social Science and Medicine 98.

156 See Ivaković and Hagan, supra note 9, at 7.

157 Se also Halpern J. and Weinstein H., ‘Rehumanizing the Other: Empathy and Reconciliation’, (2004) 26 HRQ 561.

158 See Fletcher L. E. and Weinstein H. M., ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’, (2002) 24 HRQ 573; V. Peskin, International Justice in Rwanda and the Balkans (2008), 243; Mendelhoff D., ‘Truth-Seeking, Truth-Telling, and Post-Conflict Peacebuilding: Curb the Enthusiasm?’, (2004) 6 International Studies Review 355.

159 See Bibas and Burke-White, supra note 26, at 703–4.

160 For an account of expressivism, see Anderson E. S. and Pildes R. H., ‘Expressive Theories of Law: A General Restatement’, (2000) 148 University of Pennsylvania Law Review 1503; Drumbl M., ‘The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law’, (2007) 75 George Washington Law Review 1165; Drumbl, supra note 35, at 17, 175–6. For a broader application in international law, see Geisinger A. and Stein M. A., ‘A Theory of Expressive International Law’, (2007) 60 Vanderbilt Law Review 77. For a critique of expressivist theory, see Adler M. D., ‘Expressive Theories of Law: A Skeptical Overview’, (2000) 148 University of Pennsylvania Law Review 1363, at 1369–70.

161 See Ivaković and Hagan, supra note 9, at 153; Koskenniemi, supra note 69, at 11.

162 For an argument in relation to the Dutch Supreme Court, see C. J. M. Schuyt, ‘De veranderende plaats van de Hoge Raad in de sameleving’, in De Hoge Raad der Nederlanden, De plaats van de Hoge Raat in het huidige staatsbestel (1988), 297.

163 See Jackson, supra note 14 (‘They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names’).

164 See also Drumbl, supra note 35, at 175–6; Bibas and Burke-White, supra note 26, at 652. A contemporary illustration is the focus of ICC prosecutorial strategy on specific typologies of violence (i.e., child recruitment in the DRC or electoral violence in Kenya).

165 See Damaska, supra note 37, at 363.

166 See Koller, supra note 12, at 1022.

167 See also Damaska, supra note 37, at 362, who argues that it is necessary to ‘show that international criminal justice is desirable despite its presently unavoidable blemish of selectivity’.

168 For an examination, see W. Ferdinandusse, Direct Application of International Criminal Law in Domestic Courts (2006).

169 See, e.g., A. Orie, ‘Accusatorial v. Inquisitorial Approach in International Criminal Proceedings’, in A. Cassese, P. Gaeta, and J. Jones, The Rome Statute of the International Criminal Court: A Commentary, Vol. 2 (2002), 1439; Sluiter G. K., ‘Trends in the Development of a Unified Law of International Criminal Procedure’, in Stahn C. and Herik L. (eds.), Future Perspectives on International Criminal Justice (2010), 585; C. Safferling, Towards an International Criminal Procedure (2001); S. Zappala, Human Rights in International Criminal Proceedings (2003); C. Schuon, International Criminal Procedure: A Clash of Legal Cultures (2010). See also more generally on ideal types, Swart B., ‘Damaska and the Faces of International Criminal Justice’, (2008) 6 JICJ 87.

170 For an account of ‘best practices’ in relation to defence issues, see War Crimes Justice Project, Manual on International Criminal Defence (2011), available at http://wcjp.unicri.it/deliverables/manual.php.

171 See King and Meernik, supra note 28, at 12.

172 Ivaković and Hagan, supra note 9, at 81; Damaska, supra note 37, at 349.

173 See Damaska, supra note 37, at 349 (‘[A] high priority demand on international criminal courts should be to establish effective lines of communication with local audiences’). For a study, see Slaughter A.-M., ‘A Typology of Transjudicial Communication’, (1994–95) 29 URLR 99.

174 For caution regarding the ‘romanticizing’ of ‘local’ justice responses, see T. Allen, Trial Justice: The International Criminal Court and the Lord's Resistance Army (2006).

* Professor of International Criminal Law and Global Justice, Grotius Centre for International Legal Studies []. This essay is a revised and extended version of my Inaugural Address, delivered on 31 October 2011 at Leiden University. It is part of a larger research project entitled ‘Post-Conflict Justice and Local Ownership’, carried out under the auspices of the Netherlands Organisation for Scientific Research. I wish to thank Larissa van den Herik, Joseph Powderly, Dov Jacobs, and Jens Iverson for their comments and input.

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Leiden Journal of International Law
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