To prevent automated spam submissions leave this field empty.
Jim Goldstone (Open Society Justice Initiative) introduced a timely panel evaluating the future of the international criminal justice system. He noted that despite its significant achievements, the field has come under attack, both in the form of predictable political backlash and the criticism of the ICC’s focus on Africa.
Judge Theodore Meron (United Nations Mechanism on International Criminal Tribunals, MICT) spoke from his extensive experience in the field and brought a positive message to the stage, recalling earlier achievements and warning that it is no time to be pessimistic. Still, he acknowledged that the abstract aspirations of the 1990’s face numerous practical challenges today, which have been particularly hard to overcome due to a heavily politicized context. The field is under pressure mainly due to the discrepancy between what is expected from international criminal institutions and the results they can achieve considering their mandate; the selectivity of justice due to limited jurisdiction and resources; and the political manoeuvring at the level of the United Nations (Security Council). Recently, both the general distrust for international global endeavours and the recent winding down of the work of international criminal tribunals have resulted in a moment of intense scrutiny of the field. Nevertheless, international justice depends on the investment and engagement of states and national institutions. Hence, looking at the future, Judge Meron urged the audience to reflect on how justice at the international level can be rendered more effective and cost-efficient, providing useful examples from the MICT, such as the utilization of single judges for various tasks, the possibility of judges working remotely from their home countries, or the payment of judges per day. Furthermore, he reminded the audience of the central role of the principle of complementarity (hence, the importance of national capacity-building and grassroots approaches), and the function of regional institutions in ensuring accountability.
Fatou Bensouda (Office of the Prosecutor, International Criminal Court) also voiced her belief that the era of impunity is over – despite many challenges, international criminal justice is “alive and well and here to stay”. She praised the field as more than just a hopeful aspiration but rather as a powerful idea. She noted that challenges and backlashes faced by international institutions (be it the EU, UN or ICC) should not cast a shadow over their achievements. More specifically, she listed the ICC’s recent convictions of Jean-Pierre Bemba (as the leader of the Mouvement de Libération du Congo (MLC) on account of rape, murder and pillaging under his command and control) and Ahmad al-Mahdi (for the war crime of intentionally directing attacks against religious/historical buildings), and the advancement in the ICC’s prosecution of sexual and gender-based crimes, protection of children and protection of monuments. Additionally, Ms. Bensouda emphasized that ending impunity is not the preserve of one single institution, noting that one of her office’s key strategic goals is to promote the presentation of the ICC as a role model for national institutions to address atrocity crimes. Indeed, the demands for international criminal justice are high, but the ICC itself is challenged by limited financial capacity. In that regard, Ms. Bensouda argued that the ICC is a court of law, not just any other institution with membership dues: “the cost of delivering justice is small in comparison to the cost of injustice”. She concluded that we should remain optimistic and commit to greater support for the ICC, its international mandate and respect for the rule of law.
Stephen Mathias (United Nations Office of Legal Affairs) addressed the existential crisis of international criminal justice by considering three possible scenarios for its future:
First, what he called “the status quo + 20”, in which the ICC remains the centrepiece of the field alongside ad hoc or hybrid tribunals (such as the proposed Hybrid Court for South Sudan) and non-judicial accountability mechanisms, such as international commissions of inquiry, set up to preserve/analyse evidence for future prosecutions. However, Mr. Mathias called into question the effectiveness of the latter, noting that some states might only support inquiry commissions as delay tactics or alternatives to prosecution. Another issue in this scenario would be the challenge of continued funding: the involvement of the United Nations General Assembly and voluntary contribution have covered such shortfalls in the past, but no long-term solutions exist as of yet.
The second scenario envisions international criminal institutions whose functioning has improved in four areas: (i) financial management, in line with the innovative approaches to cost-efficiency employed by the MICT; (ii) efficiency, for instance through limiting the accounts of crime for which an accused is tried; (iii) productivity, through an increased use of ad hoc or hybrid tribunals, the appointment of presiding judges who exercise effective oversight and leadership over international institutions, and the improvement of judicial accountability; and (iv) a significant improvement in the treatment of victims.
The last scenario turns around increased accountability at the national level, as witnessed in CAR and Colombia (Colombian Special Jurisdiction for Peace). International institutions will have an important role in building domestic capacity.
Susana SaCouto (American University Washington College of Law) focused her remarks on the critical role of victims in the advancement of international criminal justice. She identified the absence of available accountability mechanisms for certain victims (such as in Syria) as the main gap in the current system. To the extent that mechanisms are available, she noted that these still face jurisdictional, resource, security and cooperation constraints. Ms. SaCouto argued that participation of victims is meaningful to achieve restorative justice and rehabilitation, and on a structural level for the fair administration of justice, although issues remain. In that regard, Ms. SaCouto referred to the recent non-compliance proceedings against South Africa before the ICC, in which the appeals chamber rejected a request for participation by the victims – despite the profound impact of the conduct of South Africa on the psychological well-being of victims. For the future, Ms. SaCouto envisioned the use of a victim-centred approach and the exploration of alternative mechanisms to direct participation that give victims voice. She noted the importance of a significant commitment by the international community to achieve a strong and sustained international justice framework. Ms. SaCouto concluded with an example, praising the creativity of the Guatemalan Court for High Risk Crimes – which has special competency to hear cases involving inter alia crimes against humanity, but does not list sexual violence – in finding that it could hear charges of sexual and domestic slavery as international crimes (a first). On the other hand, she criticized the Court’s decision not to hear from victims of sexual and gender-based crimes.
During the Q&A, a remarkable member of the audience stood up to address the panel: Ben Ferencz, prosecutor at the Nuremberg trials, brought his perspective to the fore as he presented a fervent defense of international criminal justice. He noted that “the future depends on a change in hearts and minds – until the world is prepared to recognize that crimes against humanity are truly crimes against humanity and should be punished accordingly, it will continue to happen.” For him, there are three rules that will ensure the primacy of “law over war”: (1) Never give up; (2) Never give up; and (3) … (the audience chanted the answer).
Jasmine Rayée, LL.M. Candidate (Columbia Law School).