Justice should be done, but where? The relationship between national and international courts.

Position:Proceedings of the 101st Annual Meeting of the American Society of International Law: The Future of International Law - Discussion

The panel was convened at 10:45 a.m., Friday, March 30, by its moderator, Naomi Roht-Arriaza of the University of California, Hastings College of the Law, who introduced the panelists: Laura Dickinson of the University of Connecticut School of Law; Christopher K. Hall of Amnesty International; Paul Seils of the Office of the Prosecutor, the International Criminal Court; and Kimberly Theidon of Harvard University. *

NAOMI ROHT-ARRIAZA: ([dagger])

It has been 14 years since the UN Security Council first set up the International Criminal Tribunal for the Former Yugoslavia (ICTY), followed the next year by the International Criminal Tribunal for Rwanda (ICTR). Since then there has been an explosion of activity around international justice for the worst crimes: genocide, crimes against humanity, and war crimes. We have now seen the creation of the International Criminal Court (ICC), a range of hybrid, internationalized, and UN-created tribunals, highly publicized prosecutions by national courts other than those of the territorial state under universal jurisdiction, as well as other forms of jurisdiction, and an increasing attention to the role of local processes more or less rooted in traditional dispute resolution. How do these pieces fit together, and how are we to decide which modality will be best in a given situation? That is the subject of our panel this morning.

We have a distinguished group of panelists with us: to my left is Paul Seils, Head of the Situation Analysis Section, Jurisdiction, Cooperation and Complementarity Division, Office of the Prosecutor, International Criminal Court. Next to him is Kimberly Theidon, Assistant Professor of Anthropology at Harvard University. On my right is Laura Dickinson, Professor at the University of Connecticut School of Law and a Visiting Scholar at Princeton this year. Next to her is Christopher Keith Hall, Senior Legal Adviser, International Justice Project, Amnesty International.

Let me start with Paul Seils. The Rome Statute of the International Criminal Court establishes that, unlike the Tribunals for the former Yugoslavia and Rwanda, the ICC's jurisdiction is complementary, as specified in Article 17 of the Rome Statute. How has the Office of the Prosecutor understood what complementarity means?

PAUL SELLS: ([double dagger])

The issue being discussed today concerns the most appropriate place for justice to be done. The phrasing of the question itself is rather daring. It takes as a given the view that justice must be done, asking only where should this happen. I am fully in agreement that this is the correct question to ask, but less sure that we would find unanimous support for our view that justice must be done.

One of the key issues that confronts the International Criminal Court, especially in Uganda, is the so-called debate of peace versus justice. The debate is real enough at a certain level, but it is such a superficial level it beggars belief that it has gained so much credence in relatively sophisticated circles. In its starkest terms it argues that the ICC warrants for the arrest of four commanders of the Lord's Resistance Army (LRA) presents the only significant obstacle to peace. The LRA tell us that if the warrants are withdrawn, a conclusive peace deal will be implemented.

There are almost too many comments that can be made about this proposition that render it less than persuasive, but the focus of this discussion is to consider not the stark trade-off between peace and justice but the concept of complementarity as established by the Rome Statute. Only belatedly has the issue of complementarity become a feature of the debate in northern Uganda, but it is welcome nonetheless. Whether or not any implementation of an accountability process meets the standards suggested by the Rome Statute will, of course, be a matter for the judges of the ICC and no one else.

What has been surprising is the length of time it took for the concept of complementarity to be taken seriously in the discourse in northern Uganda. The Rome Statute makes it clear that states parties can challenge admissibility up until the beginning of a trial and even after that in exceptional circumstances. The fact that the same state referred the case does not in any way appear to bar such a challenge.

The issue of complementarity is one of the keystones of the Rome System. It was born both of principle and experience. States did not want to create a super court with primary jurisdiction over national courts because of long-standing and deeply felt beliefs about sovereignty. Likewise, experience with the ICTY and ICTR had demonstrated clearly that however effective those institutions had been in doing justice, a significant deficit had been the lack of relationship that victims and victim communities felt with the actions of remote institutions in other lands. One of the immediate reactions to this realization was the creation of the hybrid tribunal in Sierra Leone, which Laura Dickinson will discuss. At the same time, the principle of complementarity had been adopted in Rome. The principle sought formally to recognize that, not only were there old issues of sovereignty at sake, but it just made much more sense for justice to be done where the crimes were committed if this is at all possible.

There are many reasons for this. Taking the most prosaic first, it tends to be a lot cheaper to run courts and deal with witness expenses if they are established in the venues where the crimes occurred. More significantly, however, the impact on victims and the country generally will be greater if legitimate trials are carried out in a way that helps both to restore the dignity of the victims that has been violated in some way, but that also restores the confidence of the citizens in the institutions charged with protecting and defending the rule of law.

It is sometimes suggested that the aim of justice in post-conflict settings is to tell the story of what happened. This is understandable, but it mistakes the possibilities of criminal justice. The loftiest ambition of criminal justice in these circumstances should be not to distort history, but not to tell it, either. At the same time the goal should not be reduced to the notion that it is no different than the pursuit of justice in normal times and that it seeks only to do justice. The pursuit of justice in the aftermath of atrocities is not normal: it is exceptional. Its aim cannot be to pretend that we have business as usual. Rather, it must be part of a counter-revolution to those events which overturned the rule of law in the first place. Its role in that counter-revolution is to re-establish the rule of law, and to restore confidence and trust in the system. Such trials may have a deterrent effect on future crimes, and that is certainly to be earnestly desired. It is perhaps more likely that such trials will have a persuasive effect on institutions in creating a sense of confirmed and shared values enunciated formally and socially through the courts rather than deterring individuals otherwise minded to commit atrocities. It is not difficult to see, therefore, why if trials meeting a reasonable standard of legitimacy can be held, they should be held at home.

If it cannot be done there, it does not mean that there is no value in justice being done elsewhere. Justice that restores dignity of individuals and confidence in institutions as well as persuading police forces, armies, and insurgents of core values and deterring individuals from crimes is the ideal that is to be hoped for. If not all can be achieved, it is still worth the pursuit of some of these goals.

The genius of the complementarity principle is that it is a long-term guarantee of all of these goals. While it cannot restore confidence in states that are unwilling or unable to carry out genuine proceedings, the very presence of the Court and its ability to act in such situations serves as the most potent warning, especially to those that are unwilling to act. The Court serves as a constant encouragement to those that are unable but would strive to do justice; that if they fail, the Court will do what it can do to step into the breach to ensure that the days of impunity for serious crimes of international concern are truly over.

PROFESSOR ROHT-ARRIAZA:

Let us make it concrete. Sudan, for example, says it is willing and able to prosecute those individuals involved in killings and ethnic cleansing in Darfur. It has set up courts and actually indicted people. How would you evaluate such a claim?

MR. SEILS:

It is clear that the ICC stands firmly behind the view that if justice can be done at home, so much the better. A more technical matter is how the ICC determines whether or not national authorities are willing and able to carry out genuine proceedings.

The answer to this is relatively straightforward in theory but demanding in practice. The Analysis Section of the Jurisdiction, Cooperation and...

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