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This panel, ably moderated by Professor Sasha Greenawalt of Pace Law School, examined the impact of international criminal law in national law systems.
Elizabeth Evenson, Senior Counsel at Human Rights Watch, began the discussion by offering some thoughts on how the International Criminal Court (ICC) might enhance its impact on affected national communities. She discussed two aspects of the Court’s work in this regard: the prosecutor’s case section decisions and interactions of other court actors with affected communities. With regard to case selection, Evenson stated that it is important for the prosecutor to pursue cases that reflect the patterns of criminality of the most serious crimes. It is also important for the prosecutor to be perceived as acting independently in selecting cases. The other court actors that interact with affected communities include those engaged in outreach programs and in promoting victim involvement in cases, both of which are functions of the Registry. It is important for these actors to be effective so that local communities understand the court’s work. Evenson used the situation in Cote d’Ivoire as an example of the challenges the ICC has faced in ensuring a positive impact in affected communities. The ICC has brought only three cases in the situation and all of them concern forces allied to former President Gbagbo. The Court claims to be following a sequenced strategy and says it plans to start proceedings against forces associated with current President Ouattara soon. Evenson asserted that this sequencing approach has been problematic in terms of the Court’s impact on the local population. The population of Cote d’Ivoire remains very polarized and half the population feels the court is not legitimate since it is prosecuting only Gbagbo supporters. Moreover, due to resource constraints, the ICC has prioritized getting information to victims who were directly affected by the cases it has brought. However, since those cases are not reflective of the overall patterns of violence and victimization, this approach reinforces the perception that the ICC’s approach is inappropriately selective. Evenson suggested that the ICC should seek to broaden its investigations and prosecutions to ensure they reflect the overall criminality of the situation. Moreover, she would like to see the court develop a vision of the impact it seeks to achieve in affected populations and work backward to develop its strategies with regards to victim participation, complementarity and so forth.
Sarah Nouwen, Professor at Cambridge University, described the findings of her empirical work on the practical effects of ICC complementarity in Sudan and Uganda. She noted that the ICC’s framers expected the ICC to catalyze national prosecutions based on two assumptions: that states would consider it their primary obligation to prosecute international crimes, and that they would view ICC intervention as costly in terms of their reputations and sovereignty. Her work has tested those assumptions in Sudan and Uganda and found them to be flawed. On the one hand, certain widely expected effects of complementarity have occurred. For instance, states have incorporated international law norms into their national laws and have set up special mechanisms to prosecute international crimes. However, some unanticipated effects of complementarity have also occurred. For instance, one state included adultery as a crime against humanity in its national law. National courts have also looked to international criminal procedures because they are looser than national standards. ICC involvement has in some ways undermined national accountability. To explain these effects, Nouwen suggested that complementarity has developed a “double life.” On the one hand, it is a rather stringent legal standard, requiring national courts to prosecute the same cases as the ICC to avoid ICC action, and on the other it is a “big idea” that incorporates notions of positive complementarity that are not enshrined in law. Some of the effects Nouwen observed in Sudan and Uganda result from complementarity as a “big idea” rather than from the legal norm. States engage in a kind of norm translation. For instance, Sudan tried to convince the Security Council to defer the situation, rather than challenging admissibility at the ICC. Ultimately, she concluded that complementarity cannot eliminate impunity because the cause of impunity is patronage, which cannot be addressed with technical assistance.
Nina Jorgensen, Professor at the Chinese University of Hong Kong, injected an overview of the domestic incorporation of international criminal procedure into the discussion. She first explained why procedure is important, emphasizing that procedures define the relationship between effective enforcement and individual rights. Second, she interrogated which procedures should be incorporated into national laws. She noted that procedures related to due process, judicial independence, and the protection of victims are among the most important. She also flagged the ICC’s admissibility holdings suggesting that there may be a graduation of standards from international to domestic, or at least that the ICC accepts some diversity in procedures. Jorgensen explained that states sometimes incorporate international criminal procedures in an effort to avoid ICC involvement. She concluded that the ICC has had some influence in encouraging states to incorporate international standards into their national laws but that the extent of that influence is difficult to measure.
Makau Mutua, Professor at SUNY Buffalo Law School, explained his view that the ICC has been very disappointing in its performance to date. Indeed, he suggested that it may be time to start thinking about the court’s post mortem. According to Mutua, the ICC has provided “heart break for victims” and has been an “impotent protagonist for offenders.” An institution that was supposed to create a culture of the rule of law has done opposite. He highlighted the failure of the Court’s first prosecutor to create an identity for the ICC as an effective institution and argued that the Court has suffered from the introduction of politics into its work.
An interesting discussion followed the presentations. With regard to case selection, Greenawalt asked whether the prosecution was in a no win situation. Mutua responded that in his view the Court should pursue some “small fry” prosecutions to build up its legitimacy and Evenson noted that more attention should be given to the roles of other court actors in promoting its impact. On the incorporation of international procedures, Nouwen pointed out that national procedures are sometimes better in terms of protecting defendants’ rights than international procedures.
Judge Gabriel Kirk-McDonald asked whether the other panelists share Matua’s view that there should be a post mortem for the ICC. Evenson opined that such a conclusion was not yet warranted but that there are important lessons to be learned from the practice of the court. Nouwen noted that any evaluation of the court must take into account the normative question of whether the court should focus on promoting national justice or on a more global agenda. The panel ended on an optimistic note, with Mutua agreeing with the other panelists.
Margaret deGuzman is an Associate Professor at Temple University Beasley School of Law.