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This program was organized by the International Legal Research Interest Group and discussed the role and impact of international criminal tribunals on domestic and international legal systems. Panelists highlighted selected tribunals (past and present) where legal practitioners were more (and less) effective. Panelists examined the intersection of the international and domestic legal systems and the extent to which they can promote the rule of law and influence the rebuilding of post-conflict communities.
Moderator: Victoria Szymczak, University of Hawai'i School of Law
Jane Stromseth, Georgetown University School of Law
Douglas Irvin-Erickson, The School for Conflict Analysis and Resolution, Georget Mason University
Steven Koh, U.S. Department of Justice
Nicholas Boring, Law Library of Congress
Victoria Szymczak moderated and before introducing the panelists, she provided a helpful overview of the evolution of international criminal tribunals. International criminal tribunals are not all established using the same legal mechanisms and they interact with domestic legal systems in different ways. The International Criminal Tribunal for the former Yugoslavia was established on May 25, 1993, when the UN Security Council passed resolution 827. Alternatively, the Special Court for Sierra Leone was established in 2002 by agreement due to a request from the government to the United Nations to address serious crimes that took place during the country's civil war (1991-2002).
Professor Stromseth began by describing the development of international criminal tribunals leading to a decisive moment in international criminal law that produced dramatic developments in international law more generally. They have provided traumatized communities with convictions -- even heads of state -- which allow for some measure of justice for the victims. In addition, they have provided an official record of the horrendous crimes committed. It is unclear, however, what impact these tribunals have on the daily lives of the societies that have experiences these atrocities firsthand. Are they influencing public perceptions? Contributing to enduring justice or a capacity for justice? She made it clear that the importance of making the work of the tribunal an integrated part of the communities harmed and more invested in the outcome cannot be overstated. Without their involvement and confidence in the process, the work of the tribunal risks divorcing itself from a meaningful result. They are unlikely to turn to it as a source of justice or be committed to the process and eventual outcome. Communities that are an integrated part of the process often experience long term benefits include fostering public trust, which is an essential to spreading justice domestically in a more sustainable manner. Critiques and criticisms will inevitably arise and should be considered in order to ensure the ongoing relevance of tribunals in international criminal law.
International criminal tribunal trials should convey crucial messages to address the deep skepticism of local population. The trials themselves are insufficient. Many community members are critical of the process. They challenge the value of procedural justice and want to know why "distant architects" are being held accountable, but not individuals and neighbors. In Sierra Leone, there were successful efforts to reach out to and engage with local populations by using outreach officers to encourage forthright (and often difficult) conversations. Indeed, based on surveys, addressing these concerns successfully led to a majority of the community not only being aware of the court generally, but they also described the work of the tribunal positively. The ICTY, however, has been criticized for failing to engage with the community early on. This fostered not only skepticism, but also provided an opportunity for self-interested parties to establish alternative narratives to fill the void.
A complicating tension exists between the resources that these international, hybrid courts have compared with their domestic counterparts -- even the architecture of the buildings themselves make clear the deep divide between the capacities and support each system has at its disposal. Capacity building is essential for domestic systems in order to carry on the work and spirit of the hybrid, international courts long after the trial has concluded. It takes thought, care, and time. When tribunals get it right, it can empower societies to insist upon justice from their own domestic institutions. They can be a focal point for local NGOs who can advocate for justice leveraging their resources and networks.
The International Criminal Court has changed the terms of discussion such that there are now broader presumptions of accountability. Civil society groups from around the world to pressure their governments for greater accountability in pursuit of justice. States are repositioning themselves in order to react at the domestic level, which has led to an increase in the prosecution of domestic human rights violations. This pattern of victim driven demand for justice exists even where the ICC does not have jurisdiction (e.g., Extraordinary African Chambers in Senegalese Courts).
Professor Irvin-Erickson, though not a lawyer, has worked around international law for some time. He explained that he is deeply appreciative of complementarity and the importance of flexibility when considering meaningful outcomes for surviving communities. Adhering to strict or narrow definitions can undermine the process both in the short and long term. Flexible justice provides space to reimagine what justice can look like and mean for local populations. This flexibility was lacking and complicated the value of the tribunals in both Cambodia and Argentina. Ultimately, engagement with local communities are successful when they are asked about their experiences and needs. He outlined the contributions of Raphael Lemkin in detail -- from his decades-long feud with Stalin to his work in the United Nations. Though he coined the term genocide and was instrumental in the drafting of the Genocide Convention, he was dissatisfied with the outcome. How can a meaningful convention be drafted when the parties in a position to ratify it will be committed to ensuring they will not be held accountable for ongoing or historical acts of genocide? His focus turned to integrating the Genocide Convention into domestic legal codes (e.g., Egypt, Cambodia, Argentina, Algeria). France was the first to be prosecuted for the role it played in Algeria. He concluded by making clear that it is individuals and leaders who are responsible for atrocities -- not states.
Professor Koh started with a question: how do international criminal tribunals spread justice? He believes there are three essential components: creation, cooperation, and supplementation. CREATION. From the U.S. government perspective, international tribunals play a role on the supply side, while those crying out for justice are on the demand side. The role a country like the United States plays is in many ways unique. It does not require (arguably) the same capacity building of other countries described over the course of the panel. It has also been a leader in establishing the international criminal tribunals. This role is complicated for the ICC, though the United States was still actively involved in its establishment. COOPERATION. There are both formal and informal mechanisms that fortify the work of tribunals (e.g., extradition, minimizing or eliminating hostile rhetoric, attending meetings of assembly state parties, providing expertise and logistical assistance). SUPPLEMENTATION. How can accountability be promoted? Changes must integrate both a bottom up and top down approach (as highlighted by other panelists) in order to address and fill impunity gaps. Domestic prosecution should be at the heart of a functioning system. International courts and tribunals supplement this work by spreading justice, accountability, and filling gaps not otherwise addressed by domestic courts. Mr. Nicolas Boring described the evolution of the EAC as an excellent illustration of the challenges and potential progress outlined by the other panelists. There was only time for one question from the audience, which asked for clarification about the role of amnesty within the context of hybrid tribunals. In short, amnesties cannot be offered for atrocities. However, it can be a useful tool when applied to political rebellion, which may be necessary in some circumstances to achieve peace.
All the panelists agreed that the international and criminal courts are contribution to spreading justice on the ground to varying degrees. Public confidence is crucial to ensuring long term impact. There are many challenges, and both a dose of humility and realism will ensure a more meaningful outcome as the existence and impact of these tribunals continues to evolve. Though the initial (more reactionary) goal is to hold perpetrators accountable, the long term goal is to prevent these atrocities from occurring at all.
Kristina J. Alayan is the Head of Reference & Adjunct Professor of Law at Georgetown Law.