Post-Conflict Justice and ‘Local Ownership’
Assessing the Impact of the International Criminal Court
CONFERENCE REPORT
Grotius Centre for International Legal Studies
Leiden University
The Hague, Netherlands
May 5-6, 2011
INTRODUCTION
International criminal justice interventions are increasingly seen as necessary components of a
broader peace-building process. They are conceived not only as a tool for criminal punishment
but also as a means to facilitate the end of hostilities and strengthen domestic legal institutions in
post-conflict societies. Moreover, international criminal justice interventions remain largely
founded on the assumption that pursuing prosecutions and other forms of accountability has
beneficial effects for local constituencies affected by violence and on domestic legal systems
more generally.
But are these assumptions well-founded? To date, studies on the short- and long-term impact of
international criminal justice interventions remain the exception, while those that have been
carried out too often exist in disciplinary isolation. The anticipated closing of the ad hoc and
hybrid tribunals, combined with the expanding jurisdiction and practice of the International
Criminal Court (ICC), offers an important opportunity to step back and critically assess the
social and legal impact of the ICC’s prosecutions and examinations on local populations. More
research is needed as to whether and how ‘local ownership’ of the ICC can be fostered, if indeed
it can. Given that the ICC’s jurisdiction is complementary to that of domestic legal systems,
there is an acute need to revisit the modalities and timing of legal reform and international justice
in light of the priorities and interests of local constituencies and actors.
As part of the Grotius Centre for International Legal Studies’ multi-year project Post-Conflict
Justice and ‘Local Ownership’ led by Professor Carsten Stahn, this conference was designed to
address such topics by bringing together scholars from different disciplines, practitioners within
the tribunal community, and members of civil society organizations. Conference participants
considered the social, political, and legal impact of international criminal justice as well as
broader conceptual questions about defining ‘the local,’ the nature of transitional justice, and the
relationship between domestic and international legal processes. While it would be impossible to
capture the richness of the discussions that ensued, this conference report attempts to document
some of the main points made by conference participants on these topics. We are thankful to all
participants and to attendees from the broader Hague community for sharing their insights.
Support for the conference was provided by the Netherlands Organization for Scientific Research
(NWO). We are grateful to the reporting assistance provided by the following students from the
Leiden LLM programs in public international law: Nadia Galinier, Kelly Mackey, Yulia Mik,
Christine Nam, Ashleigh Shaheen, and Amy Wang.
Christian De Vos (JD, MA) and Sara Kendall (PhD)
Principal Conference Organizers
Project Researchers, Leiden University Faculty of Law
http://www.grotiuscentre.org/postconflictjustice.aspx
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CONFERENCE PROGRAMME
Session I: Conceptualizing ‘Local’ Justice at the International Criminal Court
Chair: Pierre Hazan, Senior Lecturer, Sciences Po
David Koller, Legal Officer, International Criminal Court
Jaya Ramji-Nogales, Associate Professor of Law, Temple University, Beasley School of Law
Stuart Ford, Assistant Professor, The John Marshall Law School
Discussant: Yael Vias Gvirsman, PhD Candidate, Hebrew University; Legal Assistant, ICC
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Session II: Political Implications of ICC Interventions
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Chair/Discussant: Sara Kendall, Grotius Centre for International Legal Studies
Mark Freeman, Chief, External Relations, International Crisis Group
Marieke Wierda, Director, Criminal Justice Program, International Center for Transitional Justice
Phil Clark, Lecturer, School of Oriental and African Studies, University of London
Session III: Social Implications of International Criminal Justice
Chair: Joe Powderly, Assistant Professor, Grotius Centre for International Legal Studies
Madalena Pampalk, Lecturer, University of Vienna
Refik Hodzic, Director of Communications, International Center for Transitional Justice
Solomon Moriba, Outreach and Press Officer, Special Court for Sierra Leone
Discussant: Matias Hellman, Office of the President, International Criminal Court
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Session IV: Civil Society Roundtable
Greta Barbone, No Peace Without Justice
Sunil Pal, Coalition for the International Criminal Court
Stephanie Kueng, Parliamentarians for Global Action
Elizabeth Evenson, Human Rights Watch
Moderated by Quirine Eijkman, Leiden University, ICCT-The Hague and CTC
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Session V: Legal Impact I - Influence and Implementation of the Rome Statute
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Chair/Discussant: Christian M. De Vos, Grotius Centre for International Legal Studies
Jennifer Easterday, Legal and Program Officer, International Criminal Law Services
Edda Kristjansdottir, Researcher, Amsterdam Center for International Law, University of Amsterdam
Ranyta Yusran, Research Associate, Centre for International Law, National University of Singapore
Patryk Labuda, Civilian Justice Expert, European Police Mission in the DRC
Keynote: Conceptualizing ‘the Local’ in Transitional Justice
Ruti Teitel, Ernst C. Steifel Professor of Law, New York Law School
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Session VI: Legal Impact II - Complementarity in Critical Perspective
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Chair: Rod Rastan, Legal Advisor, Office of the Prosecutor, International Criminal Court
Fidelma Donlon, Deputy Registrar, Special Court for Sierra Leone; PhD Candidate, Irish Centre of
Human Rights
Michael Newton, Professor of the Practice of Law, Vanderbilt University Law School
Allan Ngari, Project Officer, Institute for Justice and Reconciliation
Discussant: Martin Mennecke, Assistant Professor, University of Copenhagen
Closing Roundtable
Phil Clark, Mark Freeman, Refik Hodzic, Rod Rastan, Ruti Teitel, Marieke Wierda
Moderated by Pierre Hazan
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DAY ONE
SESSION I / CONCEPTUALIZING ‘LOCAL’ JUSTICE AT THE INTERNATIONAL CRIMINAL COURT
The Global as Local: The Limits and Possibilities of Integrating International and
Transitional Justice
David Koller, Legal Officer, International Criminal Court
Koller’s intervention focused on how international tribunals such as the ICC are not only
instruments of transitional justice but also sites of international politics. Building upon Gerry
Simpson’s conception of ‘juridified diplomacy,’ Koller argued that politics and diplomacy are as
central to the work of international tribunals as matters of law and justice. In light of the theme
of the conference, Koller noted that unlike transitional justice mechanisms – which are designed
to operate within a society and to produce local effects – international courts transcend particular
societies and are relevant to international diplomacy. Although international criminal tribunals
such as the ICC bear some attributes shared by other transitional justice mechanisms, their
political dimensions and implications for international relations should not be overlooked.
Koller argued that while the success of international criminal tribunals is increasingly measured
by the extent to which they serve transitional justice objectives, transitional justice may in fact be
a longer-term project for the ICC. Indeed, over-emphasizing transitional justice as the objective
of international criminal courts may threaten their effectiveness as mechanisms of international
politics and diplomacy. Although the ICC should be assessed in terms of its impact on local
populations, Koller argued that in the short term it may be preferable to prioritize transitional
justice objectives at the national level and to allow the ICC to remain a tool of international
diplomacy. The risk inherent in such an approach may be to abandon the ICC to state selfinterest, but demanding too much of the ICC too quickly may stretch the institution beyond its
capacities.
Designing Bespoke Transitional Justice: A Pluralist Process Approach
Jaya Ramji-Nogales, Associate Professor of Law, Temple University, Beasley School of Law
Ramji-Nogales began by claiming that transitional justice and ‘juridified diplomacy’ can in fact
work together. If the goal of transitional justice is to reconstruct social norms after mass
violence, local ownership of transitional justice mechanisms can make these interventions more
effective and can thus foster international peace and security. Echoing Koller, Ramji-Nogales
noted that we should not expect too much of international criminal courts and should instead
regard them as one option in a spectrum of transitional justice mechanisms. Her intervention
focused on the importance of fostering widespread perceptions of legitimacy in any transitional
justice process that intends to reconstruct social norms in the wake of mass atrocity. Referencing
empirical studies conducted in Darfur, the eastern Democratic Republic of Congo and Uganda,
Ramji-Nogales noted that local populations are not convinced of the legitimacy of transitional
justice institutions.
Ramji-Nogales argued that in order to increase local perceptions of legitimacy, we need to
consider the source of normative presumptions, procedure, and the substantive goals of these
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processes. Because victims, perpetrators, and political elites may have competing preferences, as
may other actors at both the international and the local level, the process of establishing
transitional justice institutions must be deliberative. The source of norms must be indigenous to
a society rather than externally imposed, procedure should be as inclusive as possible, and
transitional justice mechanisms should set substantively realistic goals. Local preferences may
be ascertained through empirical population-based surveys, and transitional justice mechanisms
should be tailored to fit within local contexts. Ideally the ICC or an external UN body should
track population preferences throughout transitional processes in order to ensure that they meet
the expectations of affected communities.
A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts
Stuart Ford, Assistant Professor, The John Marshall Law School
Ford noted the large body of literature on perceptions of legitimacy, which has generally argued
that so-called hybrid tribunals are superior to international tribunals from the standpoint of local
populations. This would suggest that the ICC would be perceived as less legitimate in the
countries where it carries out its work due to its institutional structure. Ford contested this
presumption by drawing upon the experience of the Extraordinary Chambers of the Courts of
Cambodia (ECCC), noting that the Cambodian population’s perceptions of the ECCC’s
legitimacy were not related to its hybrid institutional structure. He borrowed the idea of
‘cognitive dissonance’ - a psychological state where an individual’s cognitions are in tension from the field of social psychology to help explain attitudes toward tribunals within affected
communities.
Drawing upon existing attitudinal studies about the ICTY among ethnic Serb communities, Ford
argued that the ICTY efforts to attribute responsibility to Serbs despite the widespread belief
among these communities that they were largely victims of the Balkan conflict produced a kind
of ‘cognitive dissonance’ that affected perceptions of the tribunal’s legitimacy. Serbs typically
found the tribunal to be biased and anti-Serb as a means of resolving this dissonance or tension.
Ford argued that this ‘cognitive dissonance’ explanation was also applicable to Bosnian and
Croat views at the ICTY as well as general attitudes toward the ECCC, and thus perceived
legitimacy should not be used as a basis for evaluating the success of international criminal
courts.
SESSION II / POLITICAL IMPLICATIONS OF ICC INTERVENTIONS
Amnesties and the International Criminal Court
Mark Freeman, Chief, External Relations, International Crisis Group
Freeman’s intervention attempted to return the topic of amnesty to transitional justice debates.
Claiming that amnesty seems to have lost relevance in contemporary discussions of post-conflict
responses largely due to the ICC, Freeman noted that amnesty had been historically regarded as a
possible mechanism of peace-making, particularly in the South African context with its truth
commission. With the rise of international criminal accountability, Freeman argued, the
paradigm of formal legal justice embodied in the ICC framework displaced the truth commission
paradigm and the possibility of amnesty provisions. Nevertheless, the ICC’s Statute is silent
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regarding the issue of amnesty, and aspects of Article 17 may reflect a ‘creative ambiguity’ to
allow for the existence of future institutions similar to the South African TRC.
Freeman argued that the ICC’s form of retributive justice through legal accountability has
crowded out other ways of thinking about post-conflict responses. Amnesties are now regarded
as the antithesis of accountability, yet conditional - as opposed to blanket - amnesties may in fact
contribute toward the criminal justice objective of deterrence. According to Freeman, some
forms of amnesty may be complementary to transitional justice objectives as long as they
exclude the possibility of amnesty for grave crimes under the ICC Statute. The cost of excluding
all forms of amnesty from the contemporary debate is evident in the growing importance of
political asylum deals, which appear to be the current non-ICC solution favoured by some states.
Assessing the Impact of the ICC in Uganda
Marieke Wierda, Director, Criminal Justice Program, International Center for Transitional
Justice
In response to Freeman, Wierda began by arguing that amnesties still exist and that they remain a
political issue. Despite its role as a state party to the ICC, Afghanistan had passed a law in 2009
covering all crimes that occurred during the Afghan conflict; furthermore, Wierda noted that the
state’s seat remained empty at the 2010 review conference in Kampala. Wierda explained that
by contrast there was substantial pressure not to consider amnesty at the 2006 Ugandan peace
talks at Juba because they dealt with an ICC state party under investigation. She then presented
two competing narratives of the impact of the ICC in northern Uganda, arguing that the ICC
intervention ultimately enriched the debate on what constitutes justice in the Ugandan context.
According to Wierda, the pro-ICC narrative claims that intervention by the Court brought greater
global awareness to the situation in northern Uganda. It catalysed domestic developments, such
as the establishment of the War Crimes Division (now known as the International Crimes
Division) in the domestic judiciary as well as the hosting of the ICC review conference. The
counter-narrative claims that the ICC intervention was not oriented toward a Ugandan
constituency. Many Ugandans were unaware that their state was a party to the ICC, and many
felt that justice should be dispensed at a local level through more traditional mechanisms. Others
felt that the ICC lacked independence from the Ugandan government. After sketching these two
competing narratives, Wierda concluded by highlighting the importance of the domestic context
for understanding the impact of the ICC. In particular, she noted that issues of social and
economic rights were of greater importance to affected communities than the ICC intervention
and its emphasis on retributive justice.
Changing the Game on the Ground: the ICC’s Impact on Party Politics, Elections, and
Domestic Justice in Africa
Phil Clark, Lecturer, Department of Politics and International Studies, School of Oriental and
African Studies; Convenor, Oxford Transitional Justice Research
Clark’s intervention began with a challenge to the view that law is above or independent from
politics. According to Clark, international criminal law is an inherently political field and the
ICC is a political institution that must make calculations in volatile contexts, particularly in
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situations of ongoing conflict. He first noted that the criticism that the Court has focused too
heavily on African states may be overstated, as it misses the Court’s own dependence on state
cooperation. This is particularly notable in instances of state self-referral. Self-referring states
such as Uganda and the Democratic Republic of Congo have their own political agendas that
play out within the forum offered by the ICC. Furthermore, the ICC may be used to certain
domestic ends, such as preventing political opponents from contesting the government by
removing them from power.
Clark gave specific accounts based on his fieldwork in Uganda and the Democratic Republic of
Congo (DRC). He began by interrogating the claims of self-referral in these two situations,
noting that the Office of the Prosecutor may have been actively ‘chasing cases’ and may have
thus made political compromises in order to ensure state cooperation. In virtually all instances,
Clark noted, no state officials were indicted – Kenya is a notable exception, but it was not a selfreferred situation. States have grown less amenable to ICC intervention as their domestic
political gains have lessened. Clark argued that the ICC was originally a useful tool for the
Ugandan president during domestic elections as a means of combating the Lord’s Resistance
Army (LRA), but the government optimism about the ICC waned and domestic remedies gained
in popularity. In the DRC, Clark claimed, the Congolese president knew that the trial of Jean
Pierre Bemba, a political opponent, would lead to an easier election victory. Clark concluded by
noting that although many commentators assume that states will tend to prefer domestic
proceedings over ICC interventions, it may actually be easier for states to manipulate the ICC
system toward their own political ends.
SESSION III / SOCIAL IMPLICATIONS OF INTERNATIONAL CRIMINAL JUSTICE
Positive Complementarity: The Role of the ICC and its Field Offices
Madalena Pampalk, Lecturer, University of Vienna
Pampalk’s presentation focused on the concept of ‘positive complementarity,’ a strategy of
cooperation between states, the ICC, and other actors to foster domestic prosecutions. Although
positive complementarity was discussed at the 2010 Kampala review conference, the role of the
ICC in supporting domestic prosecutions remains unclear. The ICC’s ability to build domestic
capacity is limited by budgetary constraints, and arguably such activity falls outside the Court’s
mandate. The ICC is further challenged by its physical distance from the situation countries in
which it works. The Court’s field offices thus play a key role in attempting to build relationships
between the ICC and the local contexts in which it operates.
Pampalk noted that despite the significant tasks that field offices are charged with, the Court’s
budget for field operations is quite limited. With a current budget of 34 million euro, including
office management and field missions, the field offices are tasked with engaging the local
community by fostering cooperation with the ICC, sharing knowledge with local actors, and
providing information to the Court’s headquarters in The Hague. According to Pampalk, these
objectives are not being met due to the limited budget for the Court’s field operations. Pampalk
concluded by arguing that ICC field offices need to be considered an integral part of the Court’s
work. They serve as points of contact between the Court and conflict-affected communities, and
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as such they need to be regarded as playing a fundamental role in the ICC’s legacy in the
countries where it intervenes.
Outreach and Perceptions of International Criminal Tribunals in Affected Communities
Refik Hodzic, Director of Communications, International Center for Transitional Justice
Hodzic began by interrogating some of the terms and presumptions used in speaking about
international criminal tribunals. He defined ‘affected community’ as a community whose
structuring social norms have been lost, and ‘transformative justice’ as a form of redress that
seeks to reconstruct these norms in a new, post-conflict reality. Hodzic noted that there is both
hope for and resistance to transformative justice processes, and understanding this tension
requires grasping the political dimensions of judicial interventions within affected communities.
Hodzic then drew upon examples from his work for the International Criminal Tribunal for the
former Yugoslavia to illustrate these tensions in Prijedor, the city with the largest number of
individuals prosecuted before the ICTY. Hodzic argued that the ICTY intervention catalysed
enthusiasm for accountability in Prijedor as well as a high rate of return for displaced people.
Yet some members of the affected community grew disillusioned with the ICTY process due to
the low sentences resulting from plea agreements, and this led to an increased need for court
outreach. Hodzic concluded by noting that while outreach efforts may prove unable to combat
hostility to transformative justice efforts due to the internal political narratives of affected
communities, courts nevertheless need to clearly communicate their values and limits to these
communities, who they should regard as their primary constituents.
Lessons Learned from Outreach at the Special Court for Sierra Leone
Solomon Moriba, Outreach and Press Officer, Special Court for Sierra Leone
Moriba drew upon his experience coordinating outreach efforts at the Special Court for Sierra
Leone (SCSL) to explain the objectives and strategies of outreach for international criminal
courts. He noted that there is now an established structure for outreach programs that fosters
dialogue by linking the court with affected communities.
Outreach programs phase their
operations to align with the information needs produced by the court’s timeline, with different
strategies during the pre-indictment, pre-trial and trial phases. The SCSL also tailored its
outreach program to address different target audiences, including both victims and excombatants.
Moriba’s presentation detailed some of the techniques employed at the SCSL for disseminating
information about the Court’s work. In particular, he noted how the Court employed radio
broadcasts, video screenings, and town hall meetings to reach as broad a cross-section of the
Sierra Leonean population as possible. According to Moriba, the town hall meetings were
notably successful in fostering dialogue, and thousands were held during key years of the Court’s
operations. The SCSL outreach section has also attempted to evaluate the effectiveness of its
impact by conducting nationwide surveys on perceptions of the Court, and findings indicated that
over half of the surveyed population believed that the justice process had been effective.
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SESSION IV / CIVIL SOCIETY ROUNDTABLE ON THE ICC
No Peace Without Justice, Coalition for the International Criminal Court, Parliamentarians
for Global Action, Human Rights Watch
Representing No Peace Without Justice (NPWJ), Greta Barbone based her remarks on findings
from a NPWJ project undertaken with Ugandan partners that sought to bring delegates from
states parties at the 2010 Kampala review conference to meet victims, affected communities,
parliamentarians, and members of civil society organizations in Uganda. The objective of these
meetings was to foster greater understanding of the contexts in which the ICC was acting and to
encourage states parties to be more directly involved in ICC field activity. Barbone addressed
the development of the War Crimes Division in the Ugandan High Courts, the impact of the ICC
intervention on the domestic peace process, and the ICC field presence in Uganda. She stressed
the interrelationship between the Court’s core mandate and the work of the field office, and she
concluded by emphasizing the importance of greater state party support for ICC field operations.
Sunil Pal spoke on behalf of the Coalition for the International Criminal Court (CICC), an
independent network of 2500 NGOs based in 150 countries that works to strengthen international
cooperation with the ICC. Pal’s presentation focused on the issue of complementarity, and in
particular on the implementation of Rome Statute crimes in domestic law and the enactment of
ICC cooperation provisions. Pal noted that the CICC has worked closely with NGOs and other
organizations to advance these objectives, and he explained some of the challenges faced in
implementing the Rome Statute in domestic jurisdictions. Implementation laws have not been
uniform in quality; some are incomplete and fall short of international criminal law and human
rights law standards. Nevertheless, Pal concluded, the Rome Statute system has contributed
considerably to advancing international criminal legislation.
Appearing on behalf of Parliamentarians for Global Action (PGA), Stephanie Kueng built upon
Pal’s contribution by considering some of the conceptual aspects of complementarity. She
argued that in order to be effective, the ICC relies upon both ‘intrinsic factors’ internal to the
Court itself as well as ‘systemic factors’ such as states parties and international entities. Two
significant systemic factors are the universality of Rome Statute ratification and the effectiveness
of domestic prosecutions (complementarity). PGA is carrying out a parliamentary campaign
with the dual objectives of universality and effectiveness. Kueng argued that indigenous
ownership of the process is critical, and she described how PGA works on this principle by
providing support to parliamentarians. Kueng noted that the process of incorporating the Rome
Statute competes with other domestic political priorities, and she traced some of the challenges
faced by parliamentarians in the Democratic Republic of Congo in lobbying for implementing
legislation.
Representing Human Rights Watch, Elizabeth Evenson focused her intervention on
complementarity and national prosecutions. Evenson argued that while court officials did not
originally envision positive complementarity as part of the ICC’s work, efforts by civil society
actors and support from state parties have brought it out more clearly as an objective. Evenson
distinguished between the role of the ICC in situations under investigation and situations under
analysis, focusing her remarks on the latter. In situations under analysis, where the ICC Office
of the Prosecutor is still assessing whether or not to open an investigation, Evenson argued that
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the Court gains potential leverage in influencing domestic prosecutions. Maintaining this
leverage over time may prove difficult, particularly when situations have been under analysis for
long periods of time. Evenson argued that the OTP needs to develop a careful and consistent
strategy for maximizing the prospects of domestic prosecutions in situations under analysis,
which could be disseminated through official OTP policy statements and interim progress
reports.
DAY TWO
SESSION V / LEGAL IMPACT I: INFLUENCE AND IMPLEMENTATION OF THE ROME STATUTE
Judging Complementarity: The Case of Rules versus Standards
Jennifer Easterday, PhD Researcher, Grotius Centre for International Legal Studies
Easterday’s comments considered the possibility of the ICC determining admissibility from a
rules or standards-based approach, before considering how such approaches could influence
implementation of the Rome Statute and domestic efforts at prosecuting international crimes.
Easterday noted that a rules-based approach is useful in terms of its potential for consistent and
predictable application, while a standards-based approach can better accommodate the fact that
situations will differ among national jurisdictions and grants states broader discretion in the
implementation of their Rome Statute obligations. There are also consequences for positive
complementarity in this framework: would a rules-based approach detract from local ownership
and domestic prosecutorial discretion?
Easterday argued that the rule versus standards framework necessarily informs interpretations of
Article 17; indeed, these debates are reflected in the preparatory works for the Rome Statute.
During the drafting process, some states favoured a rules-based approach in the interest of state
sovereignty, while others sought to prevent ‘sham’ proceedings. On its face, the Rome Statute
seems to favour a standard-like approach although, thus far, the ICC Appeals Chamber has
demonstrated its preference for a rule-based approach, as the recent decision regarding the
situation in Kenya demonstrates.
Reparations and the Rome Statute
Edda Kristjansdottir, Researcher, Amsterdam Center for International Law
Kristjansdottir focused her remarks on the ICC as an avenue for victims to seek reparations and
argued that, while the Court’s prosecutorial mandate is well-established, the proverbial ‘stick’
has gone missing when it comes to using the complementarity principle to induce states to make
reparations. The reparations problem is aggravated, Kristjansdottir suggested, by the fact that
neither states nor the Court necessarily want to handle it; indeed, reparations may be an area
where states are willing to surrender local ownership to The Hague. To that end, Kristjansdottir
noted that the language of Article 75 does not oblige states to order reparations; it only obliges
the Court to establish principles. This has not occurred as yet, although the Registry has stated
that the principles shall be elaborated on case-by-case basis through jurisprudence. The language
of Article 75 is also permissive – it uses ‘may’ instead of ‘shall’ – so it is unlikely that these
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principles will develop quickly. Ultimately, even though the ICC is tasked with a restorative as
well as punitive function, the state is not obligated to afford reparations to victims. Furthermore,
beyond some implementing legislation that declares that states will cooperate with the ICC and
carry out its orders, there is little evidence of states committing to provide reparations in their
own right.
With respect to complementarity, Kristjansdottir noted that it was difficult to imagine that the
ICC would ever admit a case on the sole basis that a state was actively pursuing prosecution but
was not genuinely willing or able to seek reparations. What, then, is the likely impact of Article
75 on reparations for victims? Could a situation of ‘negative complementarity’ emerge, where
states do less than they can with respect to reparations because of the ICC’s involvement?
Kristjansdottir also highlighted the fact that the ICC reparation stages is victim-focused and civil
in nature and, as such, the field of private international law may be instructive in guiding Court
practice.
The Limited Impact of Rome Statute in Indonesia and the Southeast Asian Region
Ranyta Yusran, Research Associate, Centre for International Law, National University of
Singapore
Yusran discussed the impact of the Rome Statute on non-state parties to the Rome Statute in
Southeast Asia. Presently, of the 11 Southeast Asian countries, only two (Timor Leste,
Cambodia) are parties. Three members of ASEAN (Cambodia, Philippines, and Thailand) have
signed the Statute, with Cambodia and the Philippines having ratified the Statute. Furthermore,
little is known of the Statute’s impact on the region. However, the trend in Southeast Asia is
beginning to shift and there is a growing regional willingness to both apply the Rome Statute
domestically and to consider joining the Court. Yusran also addressed the case of Indonesia,
which, while not a ICC state party, has a domestic accountability record that has been influenced
in significant ways by the Rome Statute. Law No. 26, passed in 2000, established the Indonesian
human rights court, which remains the cornerstone of the country’s efforts to implement a
domestic regime of post-conflict justice. The law adopted key provisions from Rome Statute,
such as the definitions of crimes against humanity and genocide, neither of which were
previously part of the Indonesian penal code. The law also adopted the concept of command
responsibility as defined by Article 28, as well as partial provisions from Article 75 (1) and (2)
regarding reparations for victims. The timing of the law’s enactment is also noteworthy because
in 2000 the Rome Statute had not yet entered into force.
Apart from the features adopted from the Rome Statute, Yusran noted that there are also unique
and controversial features of Law No. 26, such as the law permitting prosecution of individuals
for crimes against humanity and genocide (war crimes are not included) even if those crimes
took place prior to the law’s enactment. Yusran commented that the adoption of retroactive
jurisdiction is not so much an innovation as it is a reflection of a feature of international criminal
law evident in the post-WWII criminal justice systems. Moreover, the law gives the sole
authority to investigate crimes to the Indonesian Human Rights Commission and excludes the
national police from the preliminary investigation process. Even though the Commission has
found that crimes against humanity did take place during the Suharto regime and identified
hundreds of perpetrators, to date only three cases have proceeded to the human rights court.
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Applying and Misapplying the Rome Statute to Domestic Law in the Democratic Republic
of Congo (DRC)
Patryk Labuda, Civilian Justice Expert, European Police Mission to the DRC
Labuda’s presentation provided an overview of Congolese law, noting that crimes under
international law have been part of DRC domestic law since 1972, when the Code of Military
Justice was promulgated. The regular criminal code, however, does not include such crimes. The
Military Justice Code was revised in 2002 and parliamentary debates are underway to address the
absence of Rome Statute crimes from the civilian legal system through implementing legislation,
although these efforts have as yet been unsuccessful. Owing in part to this lacuna, Labuda also
noted that, to date, DRC military courts retain exclusive jurisdiction over crimes against
humanity, genocide and war crimes. These courts have adjudicated several dozen serious crimes
to date; however, they lack a number of internationally recognised fair trial rights. In addition,
the definitions of crimes are very different from those in the Rome Statute despite the DRC
having codified the definitions just seven months after ratifying the Statute in 2002. Still, there
have been interesting jurisprudential developments of late where, in two decisions, the military
courts looked to the Rome Statute for guidance on crimes against humanity and war crimes
concerning he definition of rape.
Labuda also highlighted the proposed specialized chambers for the DRC, which have been under
discussion for a number of years without much progress. The 2010 UN Mapping Report has
spurred the DRC government to establish specialized chambers but there are many outstanding
questions, which legislators are only beginning to address. In particular, the temporal and
material jurisdiction of the chambers is still undefined. The distinction that the chambers would
have to draw between crimes committed before 2002 and those committed after 2002 raises
another jurisdictional problem in situations where different definitions or elements would apply.
Labuda noted that the main challenge for the DRC courts will be consistency in their
jurisprudence.
KEYNOTE ADDRESS: CONCEPTUALISING ‘THE LOCAL’ IN TRANSITIONAL JUSTICE
Ruti Teitel, Ernst C. Stiefel Professor of Comparative Law, New York Law School
Teitel began the conference’s keynote address by first offering a definition of transitional justice
as ‘a conception of justice associated with periods of radical political change.’ She noted that it
remains a contested term after several decades of scholarly interest, with various conceptions
applicable in different historical periods. She then sought to historicize transitional justice by
elaborating upon key phases of its development. During the first phase, coinciding with the
collapse of the USSR and Latin American transitions, it was associated with a particular moment
of state-centred regime change. The post-cold war transitions gave way to a second phase of
transitional justice characterised by a broader way of thinking about transitional justice,
incorporating aspirations of accountability and including a wider array of actors and institutions.
Teitel argued that we are now in a global phase of transitional justice that is no longer strictly
associated with political transitions. This new phase is marked by increasingly blurred
boundaries between categories such as state and non-state, war and peace, conflict and post-
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conflict, and international and national. Teitel also drew attention to the growing variety of
actors beyond the state, both judicial and political, who now participate in the production of
transitional justice. She noted the increasing ‘judicialisation of politics,’ including the role of the
United Nations and criminal tribunals such as the ICC. Many actors now advance the aims of
transitional justice in conjunction with other aims such as development, advancing the ‘rule of
law,’ and security.
Teitel observed that in the current global phase of transitional justice there are many complex
interactions between diverse actors, which has produced a tendency to describe transitional
justice dilemmas in dichotomous ways by pitting peace against justice and courts against
political actors. She concluded by arguing that contemporary transitional justice should be seen
in a broader light in order to get beyond these false dichotomies; abandoning a purely statecentric view opens justice, peace, and security to new interpretations.
SESSION VI / LEGAL IMPACT II: COMPLEMENTARITY IN CRITICAL PERSPECTIVE
Complementarity and Transitional Issues: A Comparative Vision
Fidelma Donlon, Doctoral Candidate, Irish Centre for Human Rights, National University of
Ireland, Galway and Acting Registrar of the Special Court for Sierra Leone
Donlon’s comments reflected upon the emerging complementarity relationship among the ICTY,
the ICTR and the SCSL in their completion strategies, and the ICC’s role in its complementary
relationship with domestic courts. The ICC’s Office of the Prosecutor has spoken of ‘positive
complementarity’ or proactive relationships with domestic jurisdictions to enhance national
proceedings. In particular, Donlon focused her comments on how the Court will now fulfil its
core mandate, which involves the two-tiered strategy of prosecuting only the (i) most senior
leaders; and (ii) lower level actors being prosecuted in the domestic courts. In considering the
relationships between the other international tribunals and domestic jurisdictions, Donlon noted
that in the early years of the ICTR, ICTY and Special Court for Sierra Leone, the tribunals used
their inherent deferral mechanisms to assert primacy over national courts. However, now in the
completion strategies for each, there is an evident willingness to work with rule of law actors to
enhance domestic jurisdictions.
From the perspective of local ownership, at the time that the completion strategies were
announced, great willingness was seen in both Bosnia and Rwanda to receive referred cases.
Both of the ad hoc tribunals have taken different approaches in determining whether cases can be
referred. In preparation for the establishment of the war crimes chamber in Bosnia, an audit of
the state criminal justice sector was undertaken in order to ensure fair trial rights would be
accorded. This occurred as part of an overall judicial review programme but the prospect of
ICTY referral acted as a catalyst for the review taking place. To date, 13 cases have been
transferred to the Balkan region, including eight accused to the Bosnian war crimes chamber. In
the ICTR, motions for referral began in recent years by the Prosecutor but had previously failed
to meet the requisite standards. Rwanda has taken many steps to comply with the requisite
standards, such as the abolition of the death penalty, the inclusion in legislation of security for
the safety of defence investigations, and the inclusion of witness and victims’ sections in the
High Court and Supreme Court. In August 2010, the UN and Sierra Leone signed an agreement
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on the residual mechanism for the Special Court. The arrest warrant for Johnny Paul Koroma is
the only outstanding warrant; if the case eventuates, it will be transferred to a national court.
The Principle of Complementarity: The Situation in Kenya
Allan Ngari, Project Officer, Institute for Justice and Reconciliation
Ngari outlined the circumstances giving rise to the opening of the first proprio motu
investigation by the ICC Prosecutor into the situation in Kenya, following the findings of the
Waki Commission, and the challenges to admissibility that the Kenyan government has raised to
the ‘Ocampo Six.’ Ngari noted that there have been no credible investigations or prosecutions
arising from the violence as yet and that the Kenyan government has generally been opposed to
the ICC’s intervention on the basis that it possesses the ability and capacity to undertake
investigations domestically.
The government has adopted two strategies to counter-act the ICC investigation. First, it has
used diplomatic channels to canvas other members of the African Union to seek an Article 16
deferral; however, this initiative ultimately failed before the Security Council. Second, the
government contends that the two cases before the ICC could be fairly tried in Kenya due to
subsequent reform of domestic courts. On that basis, the Government contends that the ICC
cases are inadmissible under Articles 17(1)(a) and 19(2)(b). In particular, it has argued that the
new Constitution promulgated in early 2010 introduces a bill of rights that significantly
strengthens fair trial rights and procedural guarantees within the Kenyan justice system. It also
argued that there is a comprehensive array of judicial reforms that would enable the domestic
courts to be seized of post-election violence cases, along with wide-ranging reforms of the police
service and guarantees of independence of the investigating organs. Ngari queried, however,
whether the Kenyan Parliament, which voted to withdraw from the Rome Statute in December
2010 (despite the executive’s refusal to act upon the vote), could be trusted to enact the relevant
and proper laws required to fulfil Kenya’s obligations under the Rome Statute. Regarding the
role of civil society, Ngari argued that although there is a vibrant NGO community in Kenya, it
failed to positively influence or agitate the 2008 debates concerning the benefits of introducing a
specialised court for the country.
A Synthesis of Community-Based Justice and Complementarity
Michael Newton, Professor of the Practice of Law, Vanderbilt University Law School
Newton’s remarks focused on a comparative analysis of community-based approaches in
Afghanistan and Uganda, as a basis for arguing the need to develop a set of intellectually
consistent and analytically defensible standards towards complementarity.
He began by
cautioning that localized mechanisms are becoming increasingly captive to institutional interests,
and that there lies an inherent danger of romanticising domestic processes; the traditional justice
process is characterised by the instinct to defer. For the ICC, the language of Article 53
(interests of justice provision) is the starting point of such a discussion; however, Article 53’s
language is not intended to be a definitive or exhaustive listing, nor is it to be utilised at the
whim of the Prosecutor; as such, it features highly in the holistic approach of the ICC and speaks
directly to the necessity for the introduction of a rigorous set of standards.
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Regarding the examples of Uganda and Afghanistan, Newton argued that Uganda is the “greatest
lost opportunity on the face of the planet recently.” While states have attempted to either
replicate or domesticate the Rome Statute in their transposing legislation, there has been no
holistic, modern attempt to integrate the Statute with traditional justice mechanisms and local
processes. Uganda had the opportunity to integrate such considerations following the tabling of
its enabling bill in 2006: there was a two-year window in which there was the opportunity to
integrate the language of the Juba Accords, which spoke of restitution, re-integration, and
restoration of a societal order into the bill. Newton further noted that Afghanistan has taken the
opposite approach when it comes to community justice systems, which have been used to subvert
human rights. In conclusion, Newton noted that: (1) there must be an integrated solution, where
community-based dispute mechanisms are clearly integrated within the criminal justice order of
a particular society in specified ways; (2) individual states – prosecutors and community leaders
– must put themselves in the position of articulating specific findings, such as why certain
prosecutions do not occur or why diversionary practice applies; (3) there must be a clear channel
of communication to transmit that message; and (4) a constitutionally mandated amnesty cannot
be unconditional. If an amnesty is available, it must detail the conditions upon which an
individual qualifies for its protection.
SESSION VII / CLOSING ROUNDTABLE
Pierre Hazan (Moderator)
Phil Clark, Rod Rastan, Marieke Wierda, Mark Freeman, Ruti Teitel, Refik Hodzic
The conference’s closing panel involved a wide-ranging discussion from previous panelists, with
questions posed by Pierre Hazan. The following main points were raised by each of the six
panelists:
Phil Clark noted how much more modest he thought the international criminal justice enterprise
has become in the last decade, retreating from earlier grand claims about the ability of trials to
build peace, reconcile communities, etc. Clark welcomed this modesty on the one hand but
cautioned against taking a too narrow approach to international criminal law, where one insists
that it can be either divorced from the political or of losing sight about the people and
communities who these institutions are ostensibly meant to serve. Clark emphasized that
discussions about ‘local ownership’ were therefore crucial, not to reach the dizzy heights of a
decade ago – when there was the idea that we could turn the world upside down by legal means –
but to ask what affected communities make of these tribunals and their work.
Rod Rastan emphasized that the discussion about the purpose of these institutions is multifaceted. On some level, their core focus is the criminal trial itself – securing convictions or
acquittals – and running fair and impartial proceedings. On the other hands, courts like the ICC
are aware that they operate at different levels with different constituencies.
Marieke Wierda recalled in her remarks that, in its early period, transitional justice was firmly
rooted in domestic ownership, particularly with respect to the transitions in Latin America and
Eastern Europe, which were born largely out of victims’ movements and were deeply rooted in
local experiences. Part of the challenge now is to situate the ICC within this transitional justice
landscape because while atrocities continue to generate domestic struggles for justice, the Court
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is by definition an external actor. The tensions that this relationship creates are undeniable but,
at the same time, they present opportunities in using international initiatives to incentivize justice
at the domestic level (e.g., the Goldstone Report, Sri Lanka). Wierda also noted that
complementarity can be the basis for bringing efforts at the national and international level
together but cautioned that justice not be cast as purely retributive. International justice is a part
of transitional justice but there are other tools (and needs) on the table too.
Ruti Teitel’s comments returned to the questions of what is meant by “local” and by
“ownership,” and the need to think critically about complementarity as a dynamic and fluid
concept between the international and the local. She noted that the Rwandan experience and that
of the Balkans – where the international tribunals in both had primary jurisdiction – left a
lingering sense that the UN tribunals were considered superior to domestic systems. By contrast,
greater attention is now being paid to culture and various aspects of local tradition as factors to
consider in the ICC’s approach to complementarity. Teitel also addressed Mark Freeman’s
discussion on whether the ICC was taking up too much ‘space’ in the transitional justice
landscape, stating that she would frame the issue rather as one of fragmentation anxiety.
Mark Freeman returned to his comments about the diminished place for principled amnesties in
discussions over transitional justice; in particular, he noted that there was a false promise and
false hope when the Rome Statute was being negotiated that you could have both full traditional
justice and a full ICC. In fact, the space for transitional justice has been significantly constrained
because of the Court, and in terms of local ownership the reality is that the international context
is really shaping the local context, rather than the other way around. The ICC, the “light” or
“shadow” of the Court creates the frame for what is possible. To that end, Freeman argued that
the ICC should focus on keeping a lower profile as much as possible and to define expectations
better as well as the metrics of its ‘success.’
Refik Hodzik’s remarks drew on his experience working with the ICTY to reflect on the Court’s
incredible trajectory, from being planted in the middle of ongoing conflict to actually acquiring a
life of its own and having an impact that nobody might have imagined: on justice, security, even
development. At the same time, Hodzik reiterated his concern that the souls of these institutions
are too often created without much input from affected communities.
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