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The Failings of Ad Hoc International Tribunals

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... Indeed, this was one of the recommendations of a 2018 report on closing the protection gap for children born of war (Neenan, 2018a), which emphasised the need to acknowledge and repair rights violations against these children; to acknowledge and respect their human rights at all stages of the legal process; take measures to reduce unintended risks of stigmatisation, including at the reparations phase; and strive for the delivery of transformative reparations for these children. While such processes can sometimes seem remote from victims themselves (see e.g., Zacklin, 2004), with the ICC for example being geographically removed from the populations affected by the crimes it is prosecuting (Chazal, 2016, 100), an ecological approach to children born of SGBV requires 'a thorough examination of the protective capacities (and deficits) of key people and systems that surround children' (Boothby, 2008, 502). By drawing on two cases before the ICC where children born of SGBV have featured to varying degrees, the following section will demonstrate how the ICC forms part of these children's ecological environment and can directly or indirectly impact upon their development. ...
Article
Children born of sexual and gender‐based violence in conflict have slowly gained international attention, even featuring in international criminal justice processes, such as those at the International Criminal Court (ICC). These children suffer unique harms due to the circumstances surrounding their birth, with a burgeoning literature documenting the long‐term and multigenerational impact on their development. This article contributes to this existing literature by applying Bronfenbrenner's ecological model of human development to ICC responses to these children, yielding a more nuanced understanding of the ICC as part of the ecological environment in which child development occurs.
... The ICC is, of course, the first permanent international criminal court in the history of humankind. Yet, despite the experiences in the former Yugoslavia and the shortcomings of the ICTY and other international criminal tribunals (Zacklin 2004), the creation of the ICC was heralded as an unqualified triumph of international criminal 8 S/Res/827 (1993) 9 The fact that the ICTY was seen as a tool of conflict resolution is explicitly mentioned in numerous UN Security Council resolutions, including S/Res/808 (1993) and S/Res/827 (1993). A comprehensive overview of the UN international criminal tribunals not only in the former Yugoslavia but also in Rwanda and Sierra Leone gives Schabas (2010); on the ICC exclusively, see Kerr (2004). ...
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The present article discusses the “peace versus justice” dilemma in international criminal justice through the lenses of the respective legal (and political) theories of Judith Shklar and Hannah Arendt—two thinkers who have recently been described as theorists of international criminal law. The article claims that in interventions carried out by the International Criminal Court (ICC), there is an ever-present potentiality for the “peace versus justice” dilemma to occur. Unfortunately, there is no abstract solution to this problem, insofar as ICC interventions will in some cases be conducive while in others, they will be deleterious to peace. If a tension between peace and justice arises in a particular case, the article asserts, the former must be prioritised over the latter. Such a prioritisation, however, requires a vision of the ICC as a flexible actor of world politics which is situated at the intersection of law, ethics and politics, rather than a strictly legalistic view of the court. Ultimately, then, the present article seeks to probe whether the legal and political theories of Shklar and Arendt—in isolation, but ultimately also in combination—support such a flexible vision of the ICC.
... Transitional justice literature contains considerable analysis of the eff ectiveness of certain mechanisms, such as criminal trials, truth commissions, and reparations. For example, criminal prosecutions have been criticized for refl ecting a highly politicized kind of victors' justice (Call 2004(Call -2005Teitel 2005), from the Nuremberg Trials through to the International Criminal Tribunal for the Former Yugoslavia (Peskin 2005;Zacklin 2004). Furthermore, truth commissions have been resisted on the basis that their ability to put the past to rest is illusory (Brahm 2006) and reparations have been considered as "blood money" (Magarrell 2007). ...
Article
Recent decades have seen an explosion of interest in transitional justice. Although much attention has been directed toward measuring the effects of transitional justice mechanisms, discussion of the motivations for and manifestations of resistance to transitional justice processes has been limited. Th is article contributes to this underexamined area through an analysis of the nature of resistance to transitional justice in Bahrain following the February 2011 uprisings. It identifies existing explanations for resistance to and engagement with transitional justice before considering whether Mitchell Dean’s analytics of government approach—with its emphasis on identifying discrepancies between actors’ declared and actual intentions—assists in revealing less obvious manifestations of resistance, such as those seen in Bahrain. It is suggested that adopting the institutional manifestations of transitional justice may, paradoxically, be understood as a strategy for resisting popular demands for accountability and political transformation—the very notions at the core of any transition.
... Additional restorative mechanisms have to be sought and applied if reconciliation and the reconstituted severed relations are to provide the basis for a sustainable peace both inside as well as between countries in the region. A number of restorative justice scholars have argued that criminal justice proceedings are inherently problematic for the victims of the most serious crimes (Zacklin, 2004). They demonstrate the lack of concern in judicial proceedings for the trauma suffered by these victims. ...
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Purpose: The aim of this paper is to present the situation regarding the detection and prosecution of war crimes in the Western Balkans, as well as to point out the main specifics or, better said, problems encountered by judicial authorities while dealing with these crimes. Design/Methodology/Approach: The article is based on the current work of the judiciary and the prosecutor of the republics of Serbia, Bosnia and Herzegovina, as well as Croatia. We chose these three countries as the spatial framework for our research because during the civil wars in the Western Balkans most war crimes were committed on their territories. Through content analysis of existing domestic literature and our own survey research, the findings were comparatively analysed. In order to obtain further empirical and relevant information regarding the investigation and prosecution of war criminals in the Western Balkans, the methods of direct observation and analysis of the content of the judicial proceedings were applied. Findings: The work on detecting and prosecuting war crimes in attempting to provide evidence for use in criminal war crimes proceedings in the Western Balkans is a daunting task. This is because these crimes are both factually and legally of the most complicated sort, not the least in terms of their severity. Therefore, the research started by presenting the structure of the responsible governmental bodies conducting proceedings against war crime perpetrators in Bosnia and Herzegovina, Croatia, and Serbia. Special attention was paid to legal and practical problems in this field. The authors point to the many challenges making the detection and prosecution ofthese crimes both difficult and complicated. Thus, the aim of this article is to examine the aforementioned problems and, on the basis of analysis, contribute to building more effective legal and criminalistics methods for detecting and prosecuting war crime offenders in the Western Balkans. Research Limitations/Implications: The research results for the analysis of the investigative procedure and prosecution of war criminals in the Republic of Serbia, Bosnia and Herzegovina, and Croatia focus specifically on material collected regarding crimes committed in the period 1991 to 1999 only. Practical Implications: The research results can be used to develop a strategy for detecting and prosecuting war crimesby suggesting improved methods for gathering quality personal and material evidence in the Western Balkans. In addition, the paper provides information for practitioners and theorists outside of the Western Balkanscurrently dealing with issues related to such crimes. By familiarising themselves with the research findings herein, they will be able to expand their knowledge and use it as a basis for new research in this field. Lawmakers can also benefit from the results and make necessary amendments to the legislation and regulations of criminal procedures in the Republic of Serbia, Bosnia and Herzegovina, and Croatia to enhance the efforts in the area of countering war crimes. Further, by identifying the problems of conducting and processing investigations in the region, and by stressing the restricted prosecutorial resources, including the limited number of specialised prosecutors of war crimes, crimes against humanity and genocide, the shortage of prosecutors and support staff, as well as the lack of specialisation and expertise among defence counsel the findings of this research can contribute to the curriculum for the education of future lawyers (prosecutors, investigators, judges etc.) in this field. Originality/Value: The originality of this paper is reflected in the empirical study of procedures related to investigating and prosecuting war criminals inthe Western Balkans. This approach explores the challenges associated with a variety of issues. As such, it may also provide valuable information to be used in creating new methodologies for detecting and gathering evidence in legal and criminalistics practice. Lastly, it can serve as a basis for other research in the field. Keywords: war crimes, investigation, prosecution, proving, legal and practical problems.
... Initially, ad hoc criminal tribunals were instituted but they proved to be expensive, inefficient, and challenging to organise (Smith 2009 (Wippman 2006). Zacklin (2004), who helped in setting up the tribunals, later declared that ad hoc tribunals are no longer politically or financially viable. The International Criminal Court (ICC) was seen as the answer, but it too has proven expensive with an annual budget of US$166 million (Davenport 2014). ...
Article
The prescription of transitional justice (TJ) has become the norm when societies emerge from violent conflict and/or political repression. Because of the realities of most post-conflict situations, funding and logistical support for TJ comes primarily from international sources. Post-conflict situations vary, but there has developed internationally a template of TJ tailored to attract international support and resources and a self-reinforcing dynamic is emerging: the international community insists that TJ processes must conform to international norms and standards, donors look to invest their monies in trusted mechanisms, a professionalised contingent of scholars and practitioners provides expertise and promises outcomes, and recipient governments, NGOs and other practitioners synchronise their performance with donor expectations and demands. This paper interrogates the ethical dilemmas when TJ is donor driven, points out some of the dangers when TJ is externally defined, de-contextualised, technicised and results oriented, and suggests some alternative ways of approaching transitions.
... They also enjoyed the moral and financial support of the Security Council of the UN. In 2004, the UN Assistant Secretary-General for Legal Affairs shocked his colleagues when he publicly expressed doubts about the ICTR and ICTY; Ralph Zacklin (2004: 545 ...
... 202 This is not a novel idea for international justice, but taking it seriously would be: the major ad hoc international tribunals were tasked with community outreach and education, a component of their mandate that most have not fulfilled. 203 ...
Article
The international criminal regime exhibits many retributive features, but scholars and practitioners rarely defend the regime in purely retributive terms – that is, by reference to the inherent value of punishing the guilty. Instead, they defend it on the consequentialist grounds that it produces the best policy outcomes, such as deterrence, conflict resolution, and reconciliation. These scholars and practitioners implicitly adopt a behavioral theory known as the “utility of desert,” a theory about the usefulness of appealing to people’s retributive intuitions. That theory has been critically examined in domestic criminal scholarship but practically ignored in international criminal law. This Article fills this gap and argues that whatever its merits in the domestic realm, there are special reasons to be skeptical about the “utility of desert” claim in the international context. Moral intuitions as heuristics for moral judgments are error-prone, and the international criminal regime has a number of extraordinary features that may increase the likelihood and cost of these errors. These features include the complexity of the crimes; the diversity of stakeholders who possess heterogeneous intuitions; and the regime’s multiple goals, some of which may be inhibited by moral condemnation. After examining these differences, the Article outlines the implications of the analysis for regime design. Some of these design implications accommodate the international criminal regime’s current retributive approach, and some are fundamentally incompatible with retributivism.
... They also enjoyed the moral and financial support of the Security Council of the UN. In 2004, the UN Assistant Secretary- General for Legal Affairs shocked his colleagues when he publicly expressed doubts about the ICTR and ICTY; Ralph Zacklin (2004: 545), who helped create the tribunals, wrote in the most disparaging terms about them: " the ad hoc tribunals have been too costly, too inefficient and too ineffective. As mechanisms for dealing with justice in postconflict societies, they exemplify an approach that is no longer politically or financially viable. ...
Article
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Reports on the UN criminal tribunals and the related hybrid courts raise grave concerns about their sustainability in terms of costs and their legal standards in respect of evidence. The effectiveness of the current courts is compared to the domestic prosecution of offenders from the Auschwitz concentration camp. Although the Auschwitz court failed to capture the enormity of the crime of genocide, there are nonetheless good reasons to re-visit the use of domestic courts and other remedies for such crimes today, particularly after adoption of the genocide law by nation states. Ideals of cosmopolitan justice behind the UN courts are being exported to societies that are ill-equipped to apply or afford them; and domestic legal development suffers as a consequence. KeywordsCosmopolitan justice–ICC–ICTY–ICTR–Genocide–Joint criminal enterprise
Chapter
Spend time at the International Criminal Court, and you will hear the familiar language of anti-impunity. Spend longer, and you will encounter the less familiar language of management – efficiency, risk, and performance, and tools of strategic planning, audit, and performance appraisal. How have these two languages fused within the primary institution of global justice? This book explores that question through an historical and conceptually layered account of management's effects on the ICC's global justice project. It historicises management, forcing international lawyers to look at the sites of struggle – from the plantation to the United Nations – that have shaped the court's managerial present. It traces the court's macro, micro and meso scales of management, showing how such practices have fashioned a vision of global justice at organisational, professional, and argumentative levels. And it asks how those who care about global justice might engage with managerial justice at an institution animated by forms, reforms, and the promise of optimisation.
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International and internationalized criminal courts and tribunals (ICTs) are mechanisms of accountability with jurisdiction over serious international crimes such as genocide, crimes against humanity, and war crimes. While first generation ICTs required a nexus between crimes against humanity and the existence of an armed conflict, second generation ICTs dispensed with this requirement. ICTs have contributed significantly to developing substantive and procedural international criminal law, to fighting impunity, promoting reconciliation, and establishing historical narratives of conflicts. However, they have also faced significant challenges concerning their legitimacy, politicization, selectivity, bureaucratic structures, and high costs.
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The International Criminal Court is a very controversial institution. It is extensively criticised by both its critics and its supporters. This article examines what steps have been taken to reform the Court. It considers issues such as the need for better communications and messaging by the Court. The paper takes up how and why the Court needs to engage better and in more far-reaching ways with a host of role players that affect the terrain in which the Court operates. It is argued that more reform is needed in how the Court is lead, how it operates, and who the judges and staff are. It is argued that greater diversity is needed at the Court. Also taken up are how the reach of the Court can be increased beyond only prosecutions, how the Court can assist states to prosecute more cases themselves, and how the Court can become more victim centred. A core theme is how state cooperation can be enhanced. A range of suggestions are made so as to enhance the role of the Court in the years to come.
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This article explores how international criminal courts and tribunals (ICCTs) can overcome challenges to efficiency through the recommendations contained in the Paris Declaration on the Effectiveness of International Criminal Justice. It posits that a host of ambiguous expectations placed on ICCTs has contributed to negative perceptions of their pace and cost and overall efficiency. Arguing that, by focussing assessment on core aspects fundamental to criminal justice processes, it is possible to enhance the effectiveness of judiciaries at ICCTs. Against this backdrop, this article assesses how the thirty-one recommendations in the Paris Declaration can serve as a means to this end. The article concludes that, far from being inherently inefficient, ICCTs are capable of self-motivated and self-initiated reform designed at enhancing their efficiency.
Book
In fragile states, domestic and international actors sometimes take the momentous step of sharing sovereign authority to provide basic public services and build the rule of law. While sovereignty sharing can help address gaps in governance, it is inherently difficult, risking redundancy, confusion over roles, and feuds between partners when their interests diverge. In Sovereignty Sharing in Fragile States, John D. Ciorciari sheds light on how and why these extraordinary joint ventures are created, designed, and implemented. Based on extensive field research in several countries and more than 150 interviews with senior figures from governments, the UN, donor states, and civil society, Ciorciari discusses when sovereignty sharing may be justified and when it is most likely to achieve its aims. The two, he argues, are closely related: perceived legitimacy and continued political and popular support are keys to success. This book examines a diverse range of sovereignty-sharing arrangements, including hybrid criminal tribunals, joint policing arrangements, and anti-corruption initiatives, in Sierra Leone, Cambodia, Lebanon, Timor-Leste, Guatemala, and Liberia. Ciorciari provides the first comparative assessment of these remarkable attempts to repair ruptures in the rule of law—the heart of a well-governed state.
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The primary purpose of adopting plea bargaining at the International Criminal Tribunal for the former Yugoslavia (ICTY) was to save judicial resources and promote efficiency. The prosecution could amend the indictment after the defendant pleaded guilty as a result of plea bargaining. Although the accuracy of such a plea was not subject to substantial review, the ICTY having to hold a full trial could be avoided, and a sentencing hearing would follow. From the perspective of conventional procedural theory, this practice impeded the process of establishing the truth. The ICTY jurisprudence shows that the truth is not independent and that different forms of truth serve different purposes. Thus, the truth can be further divided into two forms: case facts and the historical record. Plea bargaining improved the quality of the historical record, which was expected to provide a consensus basis for reconciliation while not undermining case facts regarding individual responsibility. In this sense, truth can be negotiated. However, there is no guarantee that this multifold truth will be widely accepted; thus, the goal of implementing international humanitarian law and promoting reconciliation cannot be fully achieved. The ignorance of some details due to negotiation will not undermine the acceptance of the relevant truth; however, the misinterpretation of sentence reductions and the restricted range of participants in the process of plea bargaining will do so. The truth should be negotiated among a larger group to promote its acceptance. Historians may be in a better position to lead such a negotiation. However, it is much harder to reach a consensus basis than a plea agreement.
Chapter
This chapter reconceptualise the ICC as a ‘bulwark against evil’ by demonstrating that the ‘primary purpose’ of the ICC is to combat evil. The chapter starts by portraying the ICC as the culmination of a legal framework that seeks to protect the very idea of humanity. In a subsequent step, I reject legalistic attempts to portray the ICC as an exclusively legal, even anti-political, judicial body and develop a picture of the ICC as a ‘political actor’ that is a tool in the global struggle against evil. In the final section, the chapter probes the pivotal role of the ICC prosecutor in this struggle. Drawing on Aristotle’s conception of phronesis, I argue that it is his/her ability to exercise moral-political judgement that primarily determines whether ICC intervention is conducive or deleterious to the primary purpose of combatting evil.
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The article identifies and analyses the development it labels the “quantitative turn” in international criminal law. Addressing the cumulative effect of the large numbers of witnesses in international processes, the article considers quantity as an integral, and substantively beneficial, component of the law's response to atrocity crimes. The article develops a theorized understanding of the relationship between mass atrocity and mass testimony and provides a taxonomy of the functions that the quantity of testimonies fulfills in international trials: the evidentiary, didactic, epistemic, and restorative functions. Focusing on a recent case before the International Criminal Court in the matter of The Prosecutor v. Bemba, the article demonstrates how the different players in the international justice system—Prosecution, Defense, Victims, and the Court—employ the functions of quantity, while negotiating concerns over manageability and scale. The goal of this article is to prompt a debate and a more careful consideration of the potential benefits of a meaningful participation of witnesses and victims in post‐atrocity proceedings. This is particularly important given the dominance of the efficiency paradigm in international criminal law (ICL) discourse, which directly impacts the quantitative turn. The article forges new ways for ICL institutions to maintain a plurality of voices and their commitment to victims while safeguarding the rights of the accused.
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Within international institutions such as the International Criminal Court (ICC), lawyers increasingly encounter managerial practices which are designed to improve organizational efficiency and cost-effectiveness. Charting this trend, scholars have analyzed these practices with a view to make them more legitimate. However, this scholarly focus overlooks the role of managerial practices in legitimizing and thus sustaining the institutions in which they are embedded. In this article, I ask how managerial practices operate to boost the ICC’s reputation among its global audience. I find the answer in the Court’s use of the juxtaposed images of bureaucracy and management, with all their negative and positive associations. The Court uses these images to narrate a story of its own internal evolution from inefficient bureaucracy to efficient and well-managed organization. This hidden narrative of institutional progress functions rhetorically to frame, focus and distract the attention of the Court’s global constituencies.
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Understood as the need to address state crimes committed under the previous regime, a global norm of transitional justice has emerged since the end of the Cold War. Combined with the postwar resurgence of international law and institutions, this has resulted the increasing use of international criminal tribunals to prosecute state-sponsored human rights violations. I argue that such tribunals are inadequate vehicles for justice because they are divorced from the affected communities and conceive of historical justice too narrowly in legal terms. Building on the discursive cosmopolitanism of Jürgen Habermas and Seyla Benhabib, I contend that respecting local traditions and desires is crucial to achieving justice in local communities. I lay the groundwork for a contextual universalism that respects international legal norms while stimulating discourse in the community where they occurred, so that victims and perpetrators can once again live together as members of the same polity.
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The first part of this paper deals with truth, justice, memory and the role of archives. The record speaks with multiple voices through many intermediaries. Those intermediaries are the subject of the second part of the paper addressing the issue of connecting people's stories with public archives, using technologies for social navigation and ubiquitous computing which can transform archives into social spaces of memory.
Chapter
From the normative perspective of international humanitarian law—laying down the law, punishing its transgressors, and setting new standards—the Arusha tribunal’s impact has been huge. The court’s judges have handed down historic verdicts that have set far-reaching precedents for other international war crimes tribunals and national courts on a global scale. And for the first time in Africa, “big men” that typically held sway in their national political environments, occasionally through genocidal massacres, were held accountable by a court of law. Those verdicts themselves have much political significance as I explained in the Introduction, but of course they do not remove the other political and strategic factors that are also embedded in the framework of the international tribunal.
Chapter
The society of states, whether through the United Nations (UN) or alternative arrangements, did not send troops to halt the slaughter in Rwanda. But within the Security Council, a clear dynamic evolved toward international judicial intervention—the establishment of an international war crimes tribunal to hold individuals accountable for the genocide and other violations of international humanitarian law. The road to the international tribunal began in April 1994—the first month of the mass killings. Although, as we have seen, the United States and Britain were reluctant to put the label “genocide” on the killings in Rwanda at that time, the statement issued by the president of the Security Council on April 30, 1994 condemned all breaches of international humanitarian law in Rwanda and noted that the persons who instigated or participated in such acts where individually responsible. The statement referred to the killing of members of an ethnic group with the intention of destroying the group, wholly or partially, as a crime according to international law.
Chapter
The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created by the Security Council in 1993, that is, 47 years after the Nuremberg judgments were rendered. The new Tribunal was first praised as a revival of Nuremberg, a court where perpetrators of war crimes, crimes against humanity and genocide could be tried and sentenced under fair procedures by impartial and independent judges of different nationalities.
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Since the mid-1990s, criminal prosecutions have become an increasingly common international response to the complex and vexed question of how to deal with human rights violations. Whereas amnesia and amnesty were in the past considered acceptable and in some cases necessary as remedies for human rights violations, today the emphasis is very strongly on individual accountability. Criminal trials have thus become a core transitional justice mechanism, to which the steady proliferation of war crimes tribunals attests. The spread of these tribunals, in turn, reflects the growing expectations of retributive justice and its role in post-conflict societies. It must, however, be emphasized that while the virtues of criminal trials have been widely extolled, “seldom are such assertions grounded in empirical data” (Weinstein and Stover 2004, 4). Empirical research in this area is thus essential: The imputed merits of war crimes tribunals cannot be simply assumed.
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The Costs of International Justice - Volume 100 Issue 4 - David Wippman
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La fermeture de la Cour spéciale pour la Sierra Leone a intensifié le débat sur l’impact de la Cour. La question de la portée de son héritage est ainsi d’une actualité brûlante. S’agissant d’un sujet tant juridique que politique, cet article fait le choix d’interroger la notion même d’héritage plutôt que d’évaluer ou de mesurer de manière empirique cet héritage. Une reconceptualisation du processus de legs est proposée pour mieux l’apprécier comme processus de construction continue d’héritages – au pluriel – avec une diversité d’acteurs. La Cour se présentant comme précurseur d’une approche institutionnelle, les héritages sont d’ores et déjà devenus des lieux de contestation sur la signification de la Cour pour la Sierra Leone, l’Afrique et la justice pénale internationale.
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Since 2008 the response to Somali piracy has been highly decentralised. Criticisms have been made of the seemingly low rate of piracy prosecutions and centralised solutions, such as an international piracy court, proposed. This article explores the role of the Contact Group on Piracy off the Coast of Somalia’s Working Group 2 (WG2) as a mechanism involved in coordinating piracy prosecutions. It reviews the applicable international law and available options. It suggests that WG2 has had a discernible influence in promoting the decentralised use of national courts over the creation of a stand-alone international piracy court. It then reflects on WG2 as an example of a ‘new governance’ coordination mechanism.
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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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The first part of this paper deals with truth, justice, memory and the role of archives. The record speaks with multiple voices through many intermediaries. Those intermediaries are the subject of the second part of the paper addressing the issue of connecting people's stories with public archives, using technologies for social navigation and ubiquitous computing which can transform archives into social spaces of memory.
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This article offers an empirically grounded assessment of whether the ICTY has achieved its goals of delivering justice and of contributing to the restoration and maintenance of peace in the former Yugoslavia. This analysis is conducted both from the perspective of Tribunal staff and of 65 victims from Bosnia and Herzegovina (BiH). It is argued that while the ICTY has not realized these two objectives, it is necessary to ask whether any court could do so. It is further contended that the ICTY’s work highlights the limitations of criminal trials. While retributive justice has an important role to play in post‐conflict societies, it is limited and is most effective when combined with restorative justice.
Article
Scholarship on tribunals for mass human rights violations overlooks how the presence or absence of conflict influences its effectiveness. I argue that implementing a tribunal during conflict undermines its ability to effectively pursue justice—as I demonstrate with a case study of the Yugoslav Tribunal. Ongoing conflict makes challenges of transitional justice more acute. The absence of conflict eases a tribunal’s ability to carry out certain necessary activities such as collecting evidence. I demonstrate this using a case study of the Rwanda Tribunal. Examining tribunals in Sierra Leone and Cambodia suggests that hybrid structures influence the effectiveness of these accountability mechanisms.
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This paper will explore two interwoven themes. Firstly, it will consider the political context that gave rise to the amnesties. In doing this, it will seek initially to evaluate the depth of the international community’s commitment to justice during the conflict by assessing the measures taken by international actors in the response to the violations and the importance given to justice in the various peace initiatives. It will argue that whilst the violence was ongoing, and contrary to the actual crimes being committed within Bosnia-Herzegovina, efforts were made by some international actors and local propagandists to construct a narrative of the violations in which the actions of all sides were described as morally equivalent. The objective of this narrative construction was to lessen demands for justice as it was felt that if the violence was acknowledged as genocide or at least it was widely recognised that Bosnian Serb forces were disproportionately responsible for the commission of war crimes, and the Bosniak civilians suffered disproportionately during the conflict, it would have been more difficult for international mediators to seek to broker a settlement that recognised the ‘facts on the ground’ that had been created by ethnic cleansing. As a result, the international mediators, eager to reach a negotiated settlement, repeatedly prioritised reaching a peace agreement over the pursuit of justice, and even after the ICTY was established, its work was hampered by a lack of funding and cooperation until 1997. The report will also argue that contrary to the behaviour of international actors in other contemporary conflicts, there was, however, a reluctance to agree to an amnesty for war crimes, due to the intense media coverage of the Balkans conflicts and the resultant public outrage. The resultant global awareness and debates on the mass atrocities perpetrated in Bosnia-Herzegovina provided the impetus for the creation by the United Nations of the Commission of Experts and the ICTY. Although the support of international actors for these mechanisms was initially reluctant, the institutions nonetheless gradually gained momentum and the ICTY grew into an effective body commanding significant resources and personnel, and its existence helped to shape the limits of Bosnia’s amnesties. Secondly, this paper will explore the scope and impact of the amnesty laws that were eventually adopted. The report will investigate the objectives of these laws and the extent to which these objectives were realised. In particular, as the exclusion of the most serious crimes from the amnesties was deliberately intended to facilitate prosecutions of these crimes, and provides an example of how amnesties that adhere to the evolving anti-impunity norm articulated in recent years by international human rights activists operate, the report will explore the extent to which excluding these crimes has contributed to truth and justice with Bosnia. Clearly, without the exclusion of the most serious crimes, few trials would have been possible. However, this paper will argue that in the 14 years since the Dayton peace accords, only a small fraction of the total number of offenders have been tried and progress towards improved interethnic relations and stable government within Bosnia-Herzegovina has been minimal. In addition, the report will explore the introduction of plea agreements at the ICTY and in the national legal system in order to consider the extent to which some forms of leniency following conflict and mass atrocity represent an efficient means to prioritise limited prosecutorial resources and incentivise perpetrator testimony. Furthermore, the report will consider whether the pursuit of more holistic forms of transitional justice encompassing both trials and more restorative strategies could help Bosnian society to achieve to peaceful coexistence under domestic democratic government, a status which, as will be explored in the following section, has not featured in Bosnia’s past.
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This Essay takes issue with the standard view among international law and international relations scholars that States have sufficient and effective tools to constrain international courts. Like international organizations generally, international courts have minds and interests of their own. As a result, they can be tempted to expand their powers beyond those provided for in their mandates or by informal expectations. At the same time, international courts are protected from external control because of the principle of judicial independence and because of structural constraints on international lawmaking and institutional reform. This combination of weak external control and imperfect self-control provides international courts with opportunities to exceed their mandates. It also makes States more likely not to consent ex ante to the jurisdiction of international courts, to withdraw from the jurisdiction of courts to which jurisdiction they had previously consented, and to disobey judicial decisions. In other words, weak judicial control mechanisms create weak dispute resolution mechanisms. This is not optimal, as the international system needs greater not fewer opportunities for peaceful dispute settlement. In order to strengthen international courts, we need to think anew about how best to maintain control over them. The answer, though, is not, as some would have it, to decrease judicial independence by increasing direct State control. Instead, this Essay argues that increasing competition among international courts will more effectively constrain international judicial power and, consequently, increase the likelihood that States will recognize and accede to international judicial authority. Competition among courts will also lead to better - and perhaps convergent - decisions. Therefore, in contrast to the received wisdom that international courts, as they proliferate, should be more respectful and deferential to each other, this Essay claims that such system-protective doctrines are counterproductive. Instead of striving for uniformity, we should accept and develop a system of competitive adjudication in international law.
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This chapter provides an overview of what we know about international judicial independence. First, what is international judicial independence? Judicial independence refers to the set of institutional and other factors that to a lesser or greater extents allow judges autonomy from the preferences of other political actors when they issue legal opinions. How judges will use this autonomy is a separate question. Second, why do some international courts have a great deal of independence while others do not? Viable theories of judicial independence should not be based on assumptions that judges are ontologically inclined to favor greater separation from states whereas states have opposite inclinations. Instead, I emphasize the answers offered by two groups of theories: rationalist institutionalist (or principal-agent) and sociological-institutionalist (or neofunctionalist) approaches. Third, what do we know about the degree to which governments can use control mechanisms to influence judges? Here I discuss the various challenges to empirically studying judicial independence. Finally, does judicial independence increase the effectiveness of international courts? This latter section highlights fears that the judicialization of politics is met by an increased politicization of the judiciary.
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Modern international criminal law (ICL) developed in the aftermath of World War II as an alternative to the proposal, espoused by Winston Churchill among others, that major Axis war criminals be summarily executed on sight. Because of this pedigree and the unconscionable nature of the crimes, ICL jurisprudence and scholarship have largely neglected the paramount question fundamental to any criminal justice system: the justifications for and legitimate goals of punishment. Insofar as a coherent jurisprudence of ICL sentencing can be said to exist at all, it remains correspondingly impoverished and unprincipled - comparable in some respects to that of the indeterminate federal sentencing system criticized by Judge Marvin E. Frankel in his famous polemic, Criminal Sentences: Law Without Order (1973). This Article analyzes the extent to which the conventional goals of punishment in national law can or should be transposed to the distinct legal, moral, and institutional context of ICL. It argues that the expressive capacity of punishment best captures both the nature of international sentencing and its realistic institutional capacity to make a difference in view of the legal, political, and resource constraints that will continue, for the foreseeable future, to afflict ICL. The transposition to ICL of the standard justifications for punishment in national law proves deeply problematic in large part because ICL attempts to combine the paradigms of two very different legal fields: (i) classical international law - a profoundly consensual body of law based on broadly shareable norms among states; and (ii) national criminal law - a profoundly coercive body of law often understood to embody the most fundamental, particularistic norms and values of a local polity. ICL therefore differs from national criminal law in several respects relevant to the social institution of punishment, including the nature of (i) the community that authorizes ICL, (ii) the crimes addressed by it, and (iii) the perpetrators judged by it. These differences tend to compromise the coherence or efficacy (or both) of conventional crime-control and retributive justifications for punishment. Insofar as these justifications or penal goals remain plausible, it is largely because of the expressive dimensions of punishment. ICL's ability to contribute to the lofty objectives ascribed to it depends far more on enhancing its value as authoritative expression than on ill-fated efforts to identify "appropriate" punishments for crimes that strain our moral intuitions. For this reason, I urge, among other potential developments in the law and practice of sentencing by international criminal tribunals: (i) the institution of sentencing hearings as an essential component of ICL; (ii) greater attention to social, psychological, and political context and the role of the defendant vis-a-vis collective entities (states, armies, and so forth) as aggravating or mitigating factors; and (iii) a focus on enhancing jurisprudential exchange between national and international criminal justice institutions.
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On April 7, 1975, Khmer Rouge revolutionary forces invaded and took control of the capital city of Phnom Penh, Cambodia. The Khmer Rouge regime remained in power for the next four years, causing destruction, violence, torture, and death to devastate the citizens of Cambodia. Since the revolution, the intentions, motives, and appropriate process of justice regarding the actions of the Khmer Rouge have been the subject of contentious debate among academic scholars. This paper will evaluate the evolution of this debate over the last thirty years, considering how and why the views of various scholars have changed or remained the same and how these views have often conflicted with one another. I will argue that from 1975 to 2009, academic scholars have selected various types of evidence to reach different conclusions about the events of the Khmer Rouge, primarily as a result of their own perceptions of the political situation of Indochina during this time, as well as their willingness to admit that the Khmer Rouge revolution was not improving the situation of Cambodia.
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