Fairness and the Goals of International Criminal Trials: Finding a Balance 9780367461645, 9781032437309, 9781003027331

Citation preview

Fairness and the Goals of International Criminal Trials

This book presents a ground-breaking, interdisciplinary study into the various goals assigned to international criminal trials. It starts from the proposition that no hierarchy exists amongst the different goals meaning that trials should strive to achieve all of them in equal measure. This is made difficult by the fact that not all of these goals are compatible and the fulfilment of one may lead to others going unmet. Therefore, a balance must be found if the goals of trial are to be achieved at all. The book posits that fairness should serve as the guiding principle when weighing the different trial goals against one another. It is argued that without fairness international and internationalised criminal courts and tribunals lack legitimacy and without legitimacy they lack effectiveness. The book concludes that international criminal trials must adopt procedures that emphasise fairness to all of the parties and trial participants if they wish to accomplish any of the goals set for them. Each chapter is devoted to identifying and explaining a different trial goal, providing analysis of how that particular goal functions in conjunction with the other goals, and discussing the ways in which a fairness-oriented trial model will help achieve those goals. The book provides a dynamic understanding of the different trial goals and the importance of fairness in the trial process by drawing on research from a variety of different legal disciplines while also incorporating scholarship rooted in criminology, political theory, international relations, and psychology. The book will be essential reading for researchers, academics and professionals working in the areas of International Criminal Law, Public International Law and Transitional Justice. Caleb H Wheeler is a lecturer in law at Cardiff University, UK. He has written extensively on international criminal courts and tribunals, international criminal trials and the rights of trial participants. This is his second book.

Fairness and the Goals of International Criminal Trials Finding a Balance

Caleb H Wheeler

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 Caleb H Wheeler The right of Caleb H Wheeler to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library ISBN: 978-0-367-46164-5 (hbk) ISBN: 978-1-032-43730-9 (pbk) ISBN: 978-1-003-02733-1 (ebk) DOI: 10.4324/9781003027331 Typeset in Galliard by Taylor & Francis Books

Contents

Acknowledgments List of Acronyms

vi vii

1

Introduction

1

2

The Role Fairness Plays in Legal Accountability

6

3

International Criminal Trials and Promoting the Rule of Law

29

4

International Criminal Trials and the Search for Truth

51

5

Peace, Justice and International Criminal Trials

76

6

How International Criminal Trials Can Encourage Reconciliation

98

7

Justice for Victims of Atrocity Crimes

119

8

Conclusion

143

Bibliography Index

149 178

Acknowledgments

Thank you to Professor Carsten Stahn, whose editorial in the Leiden Journal of International Law provided me with the first seeds of the idea that became this book. Thank you to Holly Cullen, Phillip Kastner, Sean Richmond and the University of Western Australia for organizing and hosting the 4th Annual International Criminal Law Workshop in 2016. The topic of this book really began to take form in the paper I delivered at the conference. Thanks also to Criminal Law Forum for publishing an early, and very different exploration of this subject in 2019, titled ‘Scales of Justice: Balancing the Goals of International Criminal Trials’. Thank you to my colleagues and the staff at Middlesex University and Cardiff University. There are too many to name you all, but I would like to specially mention Dave Keane, Alan Durant, Erica Howard, Alessandra De Tommaso, Laurent Pech, Elvira Dominguez Redondo, Stewart Field, Jo Hunt, Reece Lewis and PJ Blount. Thank you as well to the library staff at both universities, and at the IALS library, for your help locating difficult to find sources and facilitating my numerous interlibrary loan requests. Thank you to Bill Schabas, whose talk at the Asser Institute in 2012 about his book Unimaginable Atrocities inspired me to specialize in international criminal law. Also, his comments about the importance of writing a second book helped motivate me to write this one. Thank you to all four of my parents, who have always encouraged me to do my best. Particular thanks to my dad, who reads almost everything I write and always provides me with useful feedback that makes my writing better. The biggest thanks of all are for my wife, Michelle. None of this would have been possible without your consistent love and support. Your willingness to discuss new ideas with me, proofread my work and tell me when I’m wrong are an essential part of my scholarship. I couldn’t have written this, or anything else, without you.

List of Acronyms

ASP AUC CNDP/M23 ELN FARC-EP ECCC ICC ICTY

ICTR IR LRA NATO NGO ODM PNU PTSD RPE SCSL STL UN UNGA UNSC UNTAET

Assembly of States Parties Autodefensas Unidas de Colombia National Congress for the Defense of the People/Movement of 23 March Ejército de Liberación Nacional Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo Extraordinary Chambers in the Courts of Cambodia International Criminal Court International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia International Criminal Tribunal for Rwanda Internal Rules Lord’s Resistance Army North Atlantic Treaty Organisation Non-Governmental Organisation Orange Democratic Movement Party of National Unity Post-Traumatic Stress Disorder Rules of Procedure and Evidence Special Court for Sierra Leone Special Tribunal for Lebanon United Nations United Nations General Assembly United Nations Security Council United Nations Transitional Administration in East Timor

1

Introduction

This book was inspired by a question posed by Professor Carsten Stahn when he asked, ‘What are tribunals here for?’1 My initial, and somewhat glib answer was ‘to hold trials’. International criminal justice institutions are, at their core, criminal courts, and the raison d’être of a criminal court is to try people accused of committing crimes. Trials represent the culminating event in most criminal justice processes. They are the point at which the law is applied to the facts to determine whether an accused is guilty of the crimes alleged. It is during trial that the prosecution presents the case against the accused to the finder of fact. Trials then afford the accused with the opportunity to answer the allegations against them and to make alternative arguments to those advanced by the prosecution. The factfinder must then take all of this information and decide whether the evidence presented is sufficient to support a finding that the accused committed the crime or crimes alleged against them. A criminal justice institution that has reached that point would seem to have fulfilled its function and satisfactorily demonstrated the reason for its existence. My response to Professor Stahn’s question is inadequate, however, when considered in the larger context of the purposes of international criminal law. While domestic legal systems are geared towards the lone goal of determining whether the accused can be held criminally responsible for the crimes alleged, the focus of international criminal trials is not so narrowly limited.2 Therefore, it became necessary to push the inquiry further and consider what goals international criminal justice institutions are trying to accomplish by holding trials. International criminal trials are being asked to change the world. Created to hold individuals accountable for certain types of atrocity crimes – genocide, crimes against humanity, war crimes and the crime of aggression – they have also been assigned a number of other far-reaching purposes. These include: developing the history of and establishing the truth about a situation in which atrocity crimes were committed; achieving peace; fostering reconciliation; promoting the rule of 1 Carsten Stahn, ‘Editorial: Between “Faith” and “Facts”: By What Standards Should We Assess International Criminal Justice?’ (2012) 25(2) Leiden J Int’l L 251, 253. 2 Jenia Iontcheva Turner, ‘Defense Perspectives on Law and Politics in International Criminal Trials’ (2008) 48(3) Va J Intl L 529, 535.

DOI: 10.4324/9781003027331-1

2 Introduction law; and providing the victims of atrocity crimes with a sense of justice. These goals extend far beyond what is needed to establish legal accountability. They are broad, and at times they can come into conflict with one another. Asking trials to accomplish so many different goals naturally leads to the question: Is it possible for international criminal trials to achieve all of the goals set out for them? This book will answer that question. It starts with the proposition that because no hierarchy has been established amongst these goals, international criminal trials should attempt to achieve all of them in equal measure. However, it is clear that tension exists between some of these goals and that prioritising the fulfilment of one could lead to others going unmet. Therefore, a balance must be found if the goals of trial are to be achieved at all. The book posits that fairness should serve as the guiding principle when weighing the different trial goals against one another. Without fairness, international and internationalised criminal courts and tribunals lack legitimacy and without legitimacy they lack effectiveness and acceptance. The book concludes that fairness should drive every trial decision made during proceedings at an international criminal justice institution to maximise the likelihood that all of the goals of trial will be accomplished. This book conducts a critical examination of all six of the purposes of international criminal trials. Each chapter will be devoted to identifying and explaining a different goal and providing an analysis of how that particular goal functions in conjunction with the other goals. By looking at each goal individually, and then analysing it in relation to the others, this book provides a dynamic understanding of what international criminal trials are meant to achieve. It does this by taking a broad, interdisciplinary approach to the research. While the book is primarily based in international criminal law, it also considers a variety of other academic perspectives including: international human rights law, international humanitarian law, transitional justice, criminology, psychology, political theory and international relations. Most of the trial goals are initially approached through a consideration of the primary source material, particularly: international and regional human rights treaties and conventions, statutes of the different international and internationalised criminal courts, United Nations General Assembly and Security Council resolutions, other law-making instruments including rules of procedure and evidence, and case law. The statutes, rules and case law of the post-World War II International Military Tribunals, the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Tribunal for Lebanon, the Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia all receive attention. These particular institutions have made the most significant contribution towards understanding the motivations underlying international criminal trials. A 2004 report by the Secretary-General of the United Nations on transitional justice in conflict and post-conflict situations served as a starting point for identifying the goals of international criminal trials discussed in this book. The report

Introduction

3

contained a number of objectives that the United Nations hoped the establishment of international criminal justice institutions would accomplish. They are: [B]ringing to justice those responsible for serious violations of human rights and humanitarian law, putting an end to such violations and preventing their recurrence, securing justice and dignity for victims, establishing a record of past events, promoting national reconciliation, re-establishing the rule of law and contributing to the restoration of peace.3 These goals largely reflected the purposes set out in the foundational documents of the international criminal justice institutions then in existence. The International Criminal Tribunal for the former Yugoslavia was established with three goals in mind: stopping the then ongoing violations of international humanitarian law being committed in the former Yugoslavia; bringing to justice the individuals perpetrating those crimes; and restoring and maintaining peace in the region.4 The International Criminal Tribunal for Rwanda was created by the UN Security Council on a similar basis, while also identifying the need for the Tribunal to contribute to reconciliation within Rwanda.5 The International Criminal Court was designed to accomplish many of the same things as the ad hoc Tribunals, while also specifically recognising the need to deliver justice to the victims of atrocity crimes.6 The Special Court for Sierra Leone and the Extraordinary Chambers in the Courts of Cambodia were also charged with achieving similar goals to those set for their predecessors.7 The Special Tribunal for Lebanon was founded on the basis of the need for accountability, particularly to the extent that the assassination of the Rafik Hariri constituted a threat to international peace and security, and also to assist Lebanon ‘in the search for the truth’ about the incident.8 Taken together, these different sources indicate that international criminal trials are meant to accomplish six goals during trial. They are: 1 2 3 4 5 6

determining the individual accountability of the accused; promoting the rule of law; establishing the truth about the incident at issue; achieving long-term peace; fostering reconciliation in the affected region; and providing the victims with a sense of justice.

Recent qualitative research done at the International Criminal Court was also used to identify the goals of international criminal trials discussed in this book. In 2020, 3 The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (24 August 2004), para. 38. 4 UNSC Res. 808 (22 February 1993), 2; UNSC Res. 827 (25 May 1993), 1. 5 UNSC Res. 955 (8 November 1994), 1. 6 Rome Statute of the International Criminal Court (17 July 1998) Preamble, Art 54 (2), Art 68(1). 7 Resolution, 1315; GA resolution 57/228 A/RES/57/228 (27 February 2003) 8 Ibid.

4 Introduction Samaria Muhammad, Barbara Holá and Anja Dirkzwager surveyed individuals working in different capacities at the International Criminal Court about what they felt were the purposes of trials.9 The respondents identified a myriad of goals, including: fighting impunity; prosecuting the people responsible for committing atrocity crimes; providing justice to the victims; rule of law concepts like capacity building and supplementing the work of domestic jurisdictions; conducting fair and impartial trials; and contributing to peace and stability.10 These goals mostly overlap with those previously identified in the Secretary-General’s report and the foundational documents of the different international criminal courts and tribunals. The one main omission from the list of trial goals discussed in this book is the oft-cited desire to end impunity. Ending impunity is not discussed because it is an aspirational goal that cannot be achieved within the context of a particular trial. Further, it is also not a goal that can be accomplished in isolation from the other goals of trial. Rather, international criminal trials can only play a role in ending impunity if they are successful in achieving the six identified goals. Therefore, it should not be considered a goal of trial, but rather an outcome resulting from the successful realisation of the six stated trial goals. Identifying the goals of international criminal trials is only the first step. Each goal is exceedingly ambitious and has its own requirements about how it can be accomplished.11 In some cases the different ways the goals can be fulfilled may conflict with one another.12 Additionally, not all of the goals of international criminal trials are easily achieved during an international criminal trial.13 These challenges make it tempting to dismiss those goals that are difficult or in conflict and to instead focus on the ones that trials are best equipped to satisfy. However, the lack of a hierarchy amongst the different trial goals means that they are all equally important and must each be given the same effect.14 As a result, some fulcrum is needed to allow for the balancing of these different requirements if there is to be any hope that international criminal trials will achieve all of the different goals set for them. This book proposes that fairness fills that role. Fairness has been chosen for this task because of the indispensable role it plays in 9 Samaria Muhammad, Barbara Holá and Anja Dirkzwager, ‘Reimagining the ICC: Exploring Practitioners’ Perspectives on the Effectiveness of the International Criminal Court’ (2021) 21(1) International Criminal Law Review 126, 130. 10 Ibid 132. 11 Kai Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (OUP 2016) 52; Hugo van der Merwe, Victoria Baxter and Audrey R Chapman, ‘Introduction’ in Hugo van der Merwe, Victoria Baxter and Audrey R Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press 2009) 3. 12 van der Merwe, Baxter and Chapman (n 11) 3. 13 Shane Darcy, ‘Imputed Criminal Liability and the Goals of International Criminal Justice’ (2007) Leiden J Int’l L 377, 379–80. 14 Mirjan Damaška, ‘Problematic Features of International Criminal Procedure’ in Antonio Cassese (ed), Oxford Companion to International Criminal Justice (OUP 2009) 179.

Introduction

5

15

producing reliable and truthful trial outcomes. It is believed that trials producing reliable and truthful outcomes are best positioned to achieve all of their stated aims. What this book intends to find out is whether fairness can adequately serve that purpose and whether the various goals of international criminal trials can be simultaneously achieved.

15 Kai Ambos, ‘Fairness and Expediency in International Criminal Procedure’ in John Jackson and Sarah Summers (eds), Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms (Hart 2018) 189.

2

The Role Fairness Plays in Legal Accountability

Accountability is the goal most commonly associated with international criminal trials. It is a term that is used broadly to describe any process whereby responsibility is apportioned for criminal acts.1 Common types of accountability mechanisms include trials, truth and reconciliation commissions, the memorialisation of victims, commissions of inquiry and other ‘guarantees of non-repetition’.2 In the criminal law context, accountability is pursued through a good faith investigation into the alleged actions of a suspect that, should the investigation so warrant, results in the suspect being prosecuted for those actions at trial.3 This form of accountability, often called legal accountability, is accomplished when a nexus is established during trial between the factual guilt and the legal guilt of the accused resulting in a guilty verdict.4 This conclusion is reached on the basis of the factfinder’s assessment of the evidence presented against the accused.5 Legal accountability does not mean that every person charged with a crime must be convicted.6 Legal accountability, when properly realised, requires the acquittal of an accused when the applicable rules so dictate.7 Further, not all criminal 1 Anja Matwijkiw and Bronik Matwijkiw, ‘A Modern Perspective on International Criminal Law: Accountability as a Meta-Right’ in Leila N Sadat and Michael P Scharf (eds), The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Martinus Nijhoff Publishers 2008) 42; Caroline Fournet, ‘Mass Atrocity: Theories and Concepts of Accountability – On The Schizophrenia of Accountability’ in Ralph Henham and Mark Findlay (eds), Exploring the Boundaries of International Criminal Justice (Routledge 2011) 27. 2 Fournet (n 1) 27. 3 Prosecutor v Bemba (Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo Against Trial Chamber III’s ‘Judgment Pursuant to Article 74 of the Statute: Concurring Separate Opinion of Judge Eboe-Osuji) No ICC-01/05–01/08, App Ch (8 June 2018) [27]. 4 Michelle Coleman, The Presumption of Innocence in International Human Rights and Criminal Law (Routledge 2021) 14. 5 Jenia Iontcheva Turner, ‘Defense Perspectives on Law and Politics in International Criminal Trials’ (2008) 48 Va J Int’l L 529, 534; Jens David Ohlin, ‘A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law’ (2009) 14 UCLA J Int’l L & Foreign Aff 77, 92. 6 Judge Eboe-Osuji Separate Opinion (n 3) [28]. 7 Ibid.

DOI: 10.4324/9781003027331-2

The Role Fairness Plays in Legal Accountability

7

convictions produce accountability; it only results when the person who actually committed the crimes alleged is found to be responsible for them.8 There are several important issues to address when considering how accountability can be established during international criminal trials. The first is procedural and includes a consideration of the role fairness plays in accountability. Whether a trial accomplishes accountability is often dependent on the procedure used when conducting the trial. Trial courts that make arbitrary or capricious decisions are more likely to reach a judgment decided on an improper basis. For this reason, international criminal trials should place fairness at the centre of the process. A process focused on procedural fairness for all of the parties is more likely to result in a just outcome because it guarantees that safeguards are in place to ensure that the accused will not be convicted or acquitted on an impermissible basis. This leads to the second issue under review in this chapter, relating to how a fairnessfocused trial process can create positive perceptions about the legitimacy of the international criminal justice institution holding the trial. International criminal courts and tribunals lack the legitimacy that domestic courts derive from being established by the government. Demonstrating that trials are fair to all parties can be a good way of building the legitimacy needed to have the decisions of the court or tribunal respected. Having discussed the importance of fairness in the trial process, the chapter will then contemplate what outcome is needed for different interested parties to conclude that the trial has properly held the accused accountable for their actions. Within that context, it contends with the role punishment plays in accountability and particularly how different interested groups view the necessity of punishment. It concludes that fairness and appropriate punishment should be prioritised to maximise accountability, which in turn will increase the legitimacy of the trials and the institutions holding them. Greater legitimacy will bring greater acceptance of international criminal judgments, which will help to facilitate the other goals of international criminal trials.

The Importance of Fairness when Determining Accountability Fairness, in the context of a criminal trial, should be understood as the principle that trials must be conducted in a way that ensures that justice is properly administered. This can be accomplished by guaranteeing that the trial participants have access to rights that, when given full effect, will result in the proceeding ending in a just outcome.9 Doubt is cast on the validity of the trial as a whole when these rights are not properly observed. An unfair trial can increase the possibility that someone other than the actual perpetrator of the crimes alleged is being held 8 Prosecutor v Bemba (Separate Opinion Judge Christine van den Wyngaert and Judge Howard Morrison) No ICC-01/05–01/08, App Ch (8 June 2018) [78]. 9 Mark Klamberg, ‘What are the Objectives of International Criminal Procedure? – Reflections on the Fragmentation of a Legal Regime’ (2010) 79 Nordic J Int’l L 279, 286.

8 The Role Fairness Plays in Legal Accountability responsible for them. As a result, an unfair process is more likely to fail to meet the requirements of accountability. The connection between fairness and accountability raises the question of how fair a trial must be to ensure that it is meeting the accountability goal. Put differently, does it require the trial court to strictly protect the rights of the parties or can a lesser standard of fairness suffice to ensure that the right person is held accountable? Several arguments have been advanced in favour of the need for full compliance. Antonio Cassese asserted that the purpose of trials is to ‘defend and protect human rights’.10 With that as a starting point it would appear axiomatic that trials must fully comply with all relevant human rights standards. If the very purpose of international criminal trials is to protect human rights, what legitimate purpose could they serve if they fail to protect the rights of the parties? The appropriate answer to human rights abuses cannot possibly be the infringement of the human rights of others. This would do nothing more than create an endless cycle of violations rendering the trials for these abuses meaningless. Cassese also suggested that international criminal trials must strive for a high standard of fairness so as to create an example for future trials.11 He was speaking in the particular context of the International Criminal Tribunal for the former Yugoslavia when he made this observation, and his views were based on the fact that as the first modern international criminal justice institution it had a responsibility to act as a model for those that came after it. This illustrative function of international criminal trials is also one that has application in the domestic sphere, and can particularly impact rule of law building efforts in post-conflict and transitional states. As will be discussed in greater detail in subsequent chapters, when international criminal justice institutions exhibit a firm commitment to human rights it can demonstrate to states the importance of those concepts, which in turn can help strengthen the rule of law in those states. Further, it can also illustrate the central importance of human rights in society and reenforce the notion the criminal process should not be misused to gratify the ‘vengeful and retributivist’ demands of the collective.12 The ways in which international criminal courts and tribunals came into being also should encourage them to prioritise fairness during trials. These organisations are the product of political agreements, and as such, they lack the inherent legitimacy of domestic courts that operate as a part of the national government.13 This means that international criminal justice institutions must construct their own legitimacy, which is best achieved by delivering a high quality of justice.14 10 Antonio Cassese, ‘The International Criminal Tribunal for the Former Yugoslavia and Human Rights’ [1997] (4) EHRLR 329, 329. 11 Ibid. 12 Yvonne McDermott, Fairness in International Criminal Trials (OUP 2016) 146. 13 David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 579, 588. 14 Ibid.

The Role Fairness Plays in Legal Accountability

9

Conducting fair trials is a key part of this as it demonstrates that the court will make its decisions fairly, without bias or favour.15 Judge Christine van den Wyngaert reinforced the importance of this idea in her minority opinion to the Katanga Judgment delivered at the International Criminal Court. In it, she asserts that a court’s legal and moral authority to pass judgment on an accused, i.e. its ability to legitimately exercise its judicial function, is dependent on whether the trial has been fair in its entirety.16 For her, whether a trial has been fair largely hinges on whether it was fair to the accused.17 Yvonne McDermott extends this point by suggesting that anything less than ‘scrupulous fairness’ to the accused not only diminishes the legitimacy of the trial and undermines the goal of accountability, it also violates the presumption of innocence and acts as a form of pre-determination punishment.18 When viewed in this way, a trial that fails to fully adhere to the accused’s right to a fair trial is a human rights violation. It is not universally accepted that international criminal trials need to provide the accused with the highest possible standard of fairness. Colin Warbrick unambiguously rejects the highest standard approach by asserting that trials need only be ‘fair enough’ to all of the participants ‘rather than aspiring to an exemplary or superior level of “fairest of all”’.19 He argues that few of the rights that make up the accused’s right to a fair trial are absolute, and to understand them as such would create an impossible standard to meet.20 Instead, trial courts should ensure that the trial results in the correct outcome – i.e. one that produces accountability – without impermissibly infringing on the fair trial rights of the accused.21 Approaching fairness in this way could alleviate one of the main concerns victims of atrocity crimes have about international criminal trials. Victims have often expressed the opinion that trials are overly concerned with protecting the rights of the accused, which they have understood as an indication of bias against their own interests.22 This has led many of them to become disillusioned with international criminal justice, undermining its ability to accomplish any of its goals. Therefore, if international criminal trials take a more balanced approach to protecting the rights of all parties it could inspire more victims to work cooperatively with international criminal justice institutions. 15 Ibid. 16 Prosecutor v Katanga (Minority Opinion of Judge Christine Van den Wyngaert) No ICC-01/04–01/07, T Ch II (7 March 2014) [311]. 17 Ibid. 18 Yvonne McDermott, Fairness in International Criminal Trials (OUP 2016) 146. 19 Colin Warbrick, ‘International Criminal Courts and Fair Trial’ (1998) 3 J Armed Conflict L 45, 54. 20 Ibid. 21 Ibid. 22 Jaya Ramji-Nogales, ‘Designing Bespoke Transitional Justice: A Pluralist Process Approach’ (2010) 32 Mich J Int’l L 1, 17.

10 The Role Fairness Plays in Legal Accountability Trial fairness cannot be the exclusive domain of the accused if international criminal law institutions wish to accomplish the goals set out for them. Victims of atrocity crimes also have certain rights that must be respected by the trial court for trial to be considered fair that must be balanced against the rights of the accused.23 This is most evident in the Rome Statute of the International Criminal Court, which contains a provision granting victims the right to directly participate in trial proceedings.24 The right to participate is considered one of the major innovations of the International Criminal Court, and one that exceeds what is allowed in most domestic jurisdictions.25 The existence of the victims’ right to participate does not mean that victims are entitled to the same level of fairness as the accused. In fact, when the rights of the accused and the victims come into conflict, Article 68(3) of the Rome Statute makes clear that the victims may not participate in a way that is ‘prejudicial to or inconsistent with’ the rights of the accused.26 Other parts of the Rome Statute support the conclusion that fairness to the accused must be the overriding concern of a trial court. Article 64(2) mandates that Trial Chambers at the International Criminal Court have a responsibility to ensure that ‘trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses’.27 Similar obligations can be found in the Statutes for the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.28 There is an obvious semantic difference between the trial court’s duty to give full respect for the rights of the accused and its responsibility to give due regard to the protection of victims. This instruction has been interpreted to mean that the interests of the accused are paramount to those of the victims, and that they must take precedence when the two are in conflict.29 23 Mirjan Damaška, ‘The International Criminal Court between Aspiration and Achievement’ (2009) 14 UCLA J Int’l L Foreign Aff 19, 28. 24 Rome Statute of the International Criminal Court (17 July 1998) Art 68. 25 Lucia Catani, ‘Victims at the International Criminal Court: Some Lessons Learned from the Lubanga Case’ (2012) 10 JICJ 905, 906; Ohlin (n 5) 77; Sergey Vasiliev, ‘Article 68(3) and Personal Interests of Victims in the Emerging Practice of the ICC’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) 635; Emily Haslam, ‘Victim Participation at the International Criminal Court: A Triumph of Hope over Experience’ in Dominick McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court (Hart 2004) 315. 26 Anni Pues, ‘A Victim’s Right to a Fair Trial at the International Criminal Court: Reflections on Article 68(3)’ (2015) 13 JICJ 951, 958; see also Rome Statute (n 24) Art 68(3). 27 Rome Statute (n 24) Art 64(2). 28 UN Security Council, Statute of the International Criminal Tribunal for the former Yugoslavia (25 May 1993) Art 20(1); UN Security Council, Statute of the International Criminal Tribunal for Rwanda (8 November 1994) Art 19(1). 29 Joanne Williams, ‘Slobodan Milosevic and the Guarantee of Self-Representation’ (2007) 32 Brooklyn J Int’l L 553, 574; citing Joseph L Falvey Jr, ‘United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia’ (1995) 19 Fordham Int’l L J 475, 487.

The Role Fairness Plays in Legal Accountability

11

Van den Wyngaert suggests this is because during trial the accused is the only participant risking their liberty and property, meaning that they have the most to lose if the trial is unfair.30 This view is somewhat reductive, to the extent that it undervalues the loss victims have already experienced and the sense of justice they can experience following a conviction. Despite this, the victim’s interest in trial fairness is still generally considered subsidiary to that of the accused and it must give way when it is thought to threaten the accused’s fair trial rights. Fairness also dictates that the Prosecution is given a fair chance to present their case in order to prove the guilt of the accused.31 In aid of this, the Prosecution can introduce any evidence relevant to the crimes alleged, limited only to the extent that evidence thought to be unreliable or unfairly prejudicial can be excluded.32 The issue of fairness to the prosecution was raised by the International Criminal Tribunal for the former Yugoslavia’s prosecutor in the Haradinaj et al. case. There, the prosecutor claimed that the Trial Chamber violated their right to a fair trial by failing to allow them to exhaust all reasonable steps in securing the testimony of two witnesses.33 This was due, in part to the expiration of a pre-determined amount of time afforded to the prosecution to present its case.34 The Appeals Chamber determined that the Trial Chamber’s decision to prioritise procedural concerns over ensuring the introduction of all of the prosecution’s evidence was an error that undermined the fairness of the proceedings resulting in a miscarriage of justice.35 Interestingly, the original judgment refers to the prosecutor’s right to a fair trial, a reference that was later removed from the judgment and replaced by a more general statement about the fairness of the proceedings.36 Accountability is dependent on a belief that the trial resulted in the right person being convicted for the crimes they committed. Without fairness, trials will struggle to achieve adequate accountability. An unfair trial process calls into question whether the right outcome was reached as it makes it more likely that the case has been decided on a flawed basis. Therefore, fairness must be prioritised to better 30 Prosecutor v Katanga (Minority Opinion of Judge Christine Van den Wyngaert) No ICC-01/04–01/07, T Ch (7 March 2014) [311]. 31 Situation in Uganda (Decision on Prosecutor’s Applications for Leave to Appeal Dated the 15th Day of May 2006 and to Suspend or Stay Consideration of Leave to Appeal Dated the 11th Day of May 2006) No ICC-02/04–01/05, PT Ch (10 July 2006) [24]. 32 Patrick Matthew Hassan-Morlai, ‘Evidence in International Criminal Trials: Lessons and Contributions from the Special Court for Sierra Leone’ (2009) 3 Afr J Leg Studies 96, 101; Lisa Dufraimont, ‘Evidence Law and the Jury: A Reassessment’ (2008) 53 McGill L J 199, 205. 33 Prosecutor v Haradinaj et al. (Judgement) No IT-04–84-A, A Ch (19 July 2010) [14]. 34 Ibid [28]. 35 Ibid [49]. 36 Prosecutor v Haradinaj et al. (Corrigendum to Judgement of 19 July 2010) No IT04–84-A, A Ch (23 July 2010) [2].

12 The Role Fairness Plays in Legal Accountability ensure that trials are holding the right people accountable. The challenge lies in determining how fair trial must be to meet the needs of accountability and whose interests should be prioritised when determining fairness issues. The danger of prioritising one participant over another is that it can undermine perceptions of legitimacy calling into doubt the extent to which international criminal trials can help accomplish the other goals they are meant to achieve.

Fairness and its Relationship to Legitimacy It is not enough for a trial to be fair to be considered legitimate; it must also be perceived as being fair by those observing it. This is particularly important in the international context as perceptions of fairness can be vital to establishing the overall legitimacy of an international criminal trial. David Luban argues that because international and internationalised criminal courts and tribunals are the product of political agreements they lack the inherent authority of domestic criminal courts that derive their power from the sovereignty of the state.37 In Luban’s view, this lack of authority means that international criminal justice institutions must then build their legitimacy ‘from the bottom up’, a process best achieved through the quality of the justice they deliver.38 Justice of sufficient quality to confer the necessary legitimacy is often derived from the fairness of the overall proceedings and the procedures applied.39 As a result, the relationship between fairness and legitimacy means that international and internationalised criminal courts and tribunals must prioritise fairness if they wish to be considered legitimate. This becomes particularly important if international criminal trials are meant to promote reconciliation, as will be explored in a future chapter. It is thought that when people view the decisions made by a court or tribunal as fair, they will develop a more favourable view of the legitimacy of the entity and the trials they conduct.40 Legitimacy can develop over time into deference to the decisions made by the court or tribunal, regardless of whether the observers agree with the outcome of the decision.41 This is not the only factor necessary for trials to be perceived as being legitimate; however, it may be the most important one.42 The best way to demonstrate that a trial is being conducted fairly is to make sure that the legal process is transparent. Two essential components for fostering the sort of transparency required to develop legitimacy and eventually deference 37 38 39 40

Luban (n 13) 588. Ibid. Ibid. Nancy Amoury Combs, ‘Legitimizing International Criminal Justice: The Importance of Process Control’ (2012) 33 Mich J Int’l L 321, 372; Tom R Tyler, ‘Social Justice: Outcome and Procedure’ (2000) 35 Int’l J Psychology 117, 120. 41 Tyler (n 40) 120. 42 Margaret M deGuzman, ‘Gravity and the Legitimacy of the International Criminal Court’ (2009) 32 Fordham Int’l LJ 1400, 1436; see also Combs (n 40) 372.

The Role Fairness Plays in Legal Accountability

13

43

are: open communication and solid legal reasoning. To accomplish this sort of transparency, a court or tribunal must root its decisions in existing case law and legal scholarship and clearly explain its reasons for relying on or departing from it.44 Once a decision is reached, and its rationale identified, the court or tribunal must also endeavour to explain the decision to the relevant audience so that they can determine whether the approach taken was fair.45 Complicating this issue is the fact that there are four distinct groups of people professing an interest in the fairness of international criminal trials. They are: the accused; affected communities (including witnesses, direct and indirect victims, and other members of a society affected by the crimes alleged); states and their governments; and global society (which encompasses Non-Governmental Organisations, multi-national corporations, social movements, the academic community and informed individuals).46 While all of these groups believe that trials need to be fair, not all of them agree on how fair they need to be to be seen as legitimate.47 How these groups understand the legitimacy of trials can have wide-ranging implications for international criminal justice. When the accused or the victims consider trial to be unfair, and therefore illegitimate, they are less likely to respect the court’s decisions.48 An accused who doubts the legitimacy of the trial may choose not to attend trial or otherwise participate, as was seen during The Media Trial at the International Criminal Tribunal for Rwanda.49 The non-appearance of the accused will make it much harder for the trial to accomplish any of its goals. Many courts and tribunals do not permit trial to continue in the accused’s absence, meaning that accountability cannot be accomplished when the accused refuses to appear. Further, an absent accused is unable to express contrition for their actions, an act which can help encourage reconciliation in post-conflict communities. Even in those situations where trials in absentia are possible, the non-appearance of the accused denies the victims of an important opportunity to confront their victimiser and to testify in front of them. This too can negatively impact reconciliation efforts and make it more difficult to deliver justice to the victims of atrocity crimes. Witnesses that question the legitimacy of the trial may also refuse to participate, depriving the court of important voices needed to adequately determine the truth and create a common narrative about the matter under consideration. This failure to add to the historical record can diminish the 43 Joanna Nicholson, “Too High’, ‘Too Low’, or ‘Just Fair Enough’?: Finding Legitimacy Through the Accused’s Right to a Fair Trial’ (2019) 17 JICJ 351, 366. 44 Ibid. 45 Ibid. 46 de Guzman ‘Gravity and Legitimacy’ (n 42) 1444. 47 Allen Buchanan and Robert O Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20(4) Ethics & Int’l Affairs 405, 425 48 Combs (n 40) 371–2. 49 Prosecutor v Nahimana et al. (Judgement and Sentence) ICTR-99–52-T, T Ch I (3 December 2003); see also Mercedeh Momeni, ‘Why Barayagwiza is Boycotting his Trial at the ICTR: Lessons in Balancing Due Process Rights and Politics’ (2001) 7 Int’l L Stud Assoc J Int’l & Comp L 315, 315–16.

14 The Role Fairness Plays in Legal Accountability trial’s effectiveness at accomplishing some of the other identified trial goals, particularly reconciliation and peace. It is not only the trial participants who need to feel as if the trial is legitimate. States that distrust the legitimacy of international criminal trials can act to undermine the criminal justice institutions in a variety of ways, including by: refusing to subject its citizens to the jurisdiction of the court; preventing the institution from pursuing its stated mission by withdrawing necessary funding and declining to assist the institution with the apprehension of suspects or the gathering of evidence.50 An obvious example of this can be found in the Israeli and American attitudes towards the International Criminal Court and specifically its investigation into the Situation of Palestine. Both nations have repeatedly challenged the legitimacy of the Court, with perhaps the most blistering attack being launched in a 2018 speech by former United States’ national security adviser, John Bolton.51 This perceived lack of legitimacy led Israel to refuse to cooperate with the investigation despite the fact that it would look into alleged crimes committed by Palestinians as well as Israelis.52 While this involved a situation where the legitimacy of the investigation and not the trial was being questioned, it demonstrates how state concerns about legitimacy can undermine the trial process as a whole. It is also important that global society perceives international criminal trials as legitimate. Organisations that are part of the larger global society may refuse to engage with international criminal justice institutions that they feel are illegitimate, thus depriving those institutions of vital sources of assistance.53 Such groups currently play an important role in supporting the work of international criminal justice institutions. In the context of the International Criminal Court, organisations can be consulted by the Prosecutor when deciding whether to initiate a case proprio motu, be involved directly in proceedings through the filing of amicus curiae observations and participate in the Assembly of States Parties.54 Should an organisation ends its involvement with international criminal justice institutions because of concerns over the legitimacy of proceedings, those courts and tribunals could be deprived of an important source of support as well as the particular perspective provided by that organisation.

50 Margaret M deGuzman, ‘Choosing to Prosecute: Expressive Selection at the International Criminal Court’ (2012) 33 Mich J Int’l L 265, 268. 51 John Bolton, ‘Full Text of Speech to the Federalist Society’ (Al Jazeera, 10 September 2018) accessed 4 June 2021; see also Peter Beaumont, ‘ICC Opens Investigation into War Crimes in Palestinian Territories’ (The Guardian, 3 March 2021) accessed 4 June 2021. 52 –, ‘Israel ‘Will Not Cooperate’ with ICC War Crimes Investigation’ (BBC 9 April 2021) < www.bbc.co.uk/news/world-middle-east-56687437> accessed 4 June 2021. 53 de Guzman ‘Choosing to Prosecute’ (n 50) 268. 54 Rome Statute (n 25) Art 15(2); Rules of Procedure and Evidence, International Criminal Court (as amended 2013) Rule 103; Rules of Procedure of the Assembly of States Parties of the ICC (adopted 17 July 1998) Rule 93.

The Role Fairness Plays in Legal Accountability

15

The need to ensure that all of these groups believe in the legitimacy of trials can make it difficult for the trial court to find the correct fairness balance. Mirjan Damaška cautions that if the demands of conducting a fair trial are perceived as being too high, those in charge of applying the rules will find ways to work around those demands.55 This pragmatic approach recognises that setting the procedural bar too high during trial can also threaten perceptions of the trial’s legitimacy. When the rights of the accused are strictly applied, it can create the impression in the other trial participants, and particularly the victims, that the process is designed to protect the accused and produce an outcome in their favour.56 This, in turn, can undermine the legitimacy of trial because the victims become convinced that it is not fair. At a minimum a trial must be fair to the extent that it guarantees that the goal of accountability can be fulfilled. Such a standard will enhance perceptions of legitimacy as the accused can feel confident that they will not be convicted of crime that they did not commit, and the victims can be assured that the procedure is not designed to protect the accused from conviction. Further, a fair trial will also give victims the confidence to believe that the person actually responsible for their victimisation was held accountable for their actions. States are more likely to engage with a court, and subject its citizens to its jurisdiction, if they feel confident that they will be treated fairly during trial. Global society will be more willing to support the work of a court if it believes that its input will be used in a trial process that is fair and that produces just outcomes for all concerned. Therefore, fairness must be the guiding principle for international criminal trials attempting to hold accountable the individuals responsible for committing atrocity crimes.

The Relationship Between Accountability and Punishment It must be accepted that accountability is only considered legitimate when it is determined through a fair procedure designed to ensure that there is a nexus between the factual and legal guilt of the accused. What remains unclear is the point in the trial process at which accountability is accomplished. Are the requirements of accountability met when a guilty verdict is entered against the accused? Or does accountability also require that those found guilty of committing atrocity crimes be punished for their actions? The conventional answer is that both are required. A guilty verdict acts as the formal declaration that the accused is responsible for the alleged criminality, while punishment demonstrates that those who violate the law will face consequences for their actions.57 That being said, the necessity of punishment to accountability is somewhat dependent on the different purposes one hopes to achieve by holding international criminal trials. When 55 Mirjan Damaška, ‘Reflections on Fairness in International Criminal Justice’ (2012) 10 JICJ 611, 614. 56 Ramji-Nogales (n 22) 17. 57 Michael J Struett, ‘Why the International Criminal Court Must Pretend to Ignore Politics’ (2012) 26(1) Ethics & International Affairs 83, 84.

16 The Role Fairness Plays in Legal Accountability building the rule of law is prioritised, it can often be sufficient to stop at condemning the actions of the accused without the need to actually punish them. The same cannot be said of providing the victims of atrocity crimes with justice, a process which may require punishment. Therefore, it is necessary to explore the role fairness plays in accountability processes that result in punishment and those that do not. The Expressive Nature of Punishment and Building the Rule of Law Punishment is considered by many to be an important part of the criminal process because of what it communicates to society-at-large and to the victims of crimes.58 It has been described as ‘the distinctive feature of criminal law’ through which its objectives are realised.59 This suggests that punishment is an inseparable part of the criminal process as it is the vehicle through which society condemns certain types of behaviour. The condemnation process traditionally starts with the criminalisation of particular acts, and becomes operative through efforts to investigate, prosecute and convict the perpetrators of those actions that have been proscribed.60 The process is only considered complete when a sentence is imposed following a conviction.61 Punishment can help build the rule of law through it expressivist function. It is a form of expressivism to the extent that the conviction and punishment of criminal perpetrators demonstrates the importance of the rule of law and strengthens people’s faith in the notion that wrongdoing will not be tolerated.62 By punishing criminal perpetrators, society is signalling its rejection of their actions and demonstrating its recognition of the inherent human dignity and equal worth of all people.63 Jean Hampton expounded on this idea using Kantian philosophy as a starting point. She theorised that all human beings are of equal value and therefore, are entitled to equal respect.64 Certain acts, including those that can be characterised as crimes against humanity, war crimes and genocide, diminish or invalidate the value of individuals rendering them no longer equal to the other members of society.65 It is a fundamental tenet of human rights scholarship that 58 Jeremy Rabkin, ‘Global Criminal Justice: An Idea Whose Time has Passed’ (2005) 38 Cornell Int’l L J 753, 775. 59 Robert D Sloan, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’ (2007) 43 Stanford J Int’l L 39, 39. 60 Eric Blumenson, ‘The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court’ (2006) 44 Columbia J Transnat’l L 801, 862. 61 Ibid. 62 Mark A Drumbl, Atrocity, Punishment and International Law (CUP 2007) 173. 63 Blumenson (n 60) 840; Kai Ambos, Treatise on International Criminal Law: Volume I: Foundations and General Part (OUP 2013) 58–9. 64 Jean Hampton, ‘Correcting Harms Versus Righting Wrongs: The Goal of Retribution’ (1992) 39 UCLA L Rev 1659, 1667–68. 65 Ibid 1677–8; Blumenson (n 60) 837.

The Role Fairness Plays in Legal Accountability

17

each person, regardless of their individual characteristics, are equally entitled to all enumerated human rights.66 By committing atrocities that violate the human rights of the victims, the perpetrators of those crimes are indicating that they do not believe that the victims are entitled to a full recognition of their rights. This creates an imbalance between the rights of victims and the rights of everyone else in the community. To redress that inequity, an affirmative duty is placed on global society to repudiate the crimes committed and reaffirm the victim’s equal value in society.67 This responsibility is taken so seriously that it has been described by some as a non-derogable duty, and society’s failure to comply with it is seen as a form of complicity in its commission.68 This duty obligates society to try, convict and punish those people involved in committing atrocity crimes. In so doing, it is felt that impunity is defeated, accountability is accomplished, and justice is achieved.69 Under this approach, punishment serves as a rejection of how the victims were treated, affirms their equal place in society and indicates that the actions of the perpetrators was so egregious that they must be made to suffer for them. When this is properly communicated it should reinforce the importance of the rule of law and demonstrates that the entity conducting the trial is making every effort to strengthen it.70 While punishment can be an important part of expressivism, not everyone agrees that it is a necessary one. Trials that pursue expressivist goals are most concerned with communicating to as large an audience as possible what types of behaviour fall within acceptable boundaries and to normalise those standards.71 Approaching trial in this way suggests that there is an expressive value in bringing charges against alleged perpetrators and in holding trials that do not result in conviction or punishment as doing so helps to define what constitutes acceptable conduct.72 Some expressivists go so far as to assert that the mere existence of a law, even if it no one is ever charged with it, has expressive value to the extent that individuals comply with it out of fear it will be enforced.73 From that perspective, it does not particularly matter how people learn to behave so long as the appropriate lessons are learned. This conception of the role played by international criminal trials understands the value of the criminal process as existing entirely in

66 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) Preamble and Art 2. 67 Blumenson (n 60) 838–9. 68 Ibid; Jeremy Sarkin and Erin Daly, ‘Too Many Questions, Too Few Answers: Reconciliation in Transitional Societies’ (2004) 35 Columbia Hum Rts L Rev 661, 712. 69 George Fletcher, ‘Against Universal Jurisdiction’ (2003) 1 JICJ 580, 581. 70 Drumbl, Atrocity, Punishment (n 62) 173. 71 Kathryn Sikkink, The Justice Cascade (WW Norton & Co 2011) 173. 72 Mark A Drumbl, ‘The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law’ (2007) 35 Geo Wash L Rev 1165, 1170; Diane Marie Amann, ‘Group Mentality, Expressivism and Genocide’ (2002) 2 Int’l Crim L Rev 93, 120. 73 Amann (n 72) 122.

18 The Role Fairness Plays in Legal Accountability the effect it has on societal behaviour. As a result, little or no attention is paid to the benefits the victims may derive from seeing their abusers held accountable. Understanding accountability in this way may serve the purpose of developing the rule of law by providing an exemplar to domestic jurisdictions of what constitutes criminal behaviour, but it is unlikely to provide the victims of atrocity crimes with the sense that justice has been served. This creates a significant problem as it is likely that a victim who considers the outcome of trial to be unjust will also consider it unfair. This calls into question whether a procedure that does not result in punishment would meet the requirements of fairness necessary to help develop the legitimacy of the international criminal justice institution holding the trial. Further, while it may be true that the rule of law can be developed in the absence of punishment, it will also be improved when a trial concludes with punishment. Therefore, international criminal trials resulting in a guilty verdict should also punish the guilty accused for their actions. Proceedings that end with punishment are more likely to be considered fair and are better positioned to achieve more of the goals of international criminal trials. Whether Punishment is Necessary for Victims to Experience Justice International criminal justice institutions have made it clear that delivering justice to the victims is central their mission.74 What constitutes justice for victims of atrocity crimes is a heavily debated concept, although it is generally agreed that accountability plays an important role in providing it. Research suggests that most victims of atrocity crimes want the perpetrators of the crimes committed against them to be held accountable for their actions.75 That being said, there is considerably less agreement as to whether punishment is a necessary part of the sort of accountability being sought by victims. Some commentators believe that punishment is an indispensable component of accountability if victims are to experience a sense of justice following trial.76 Richard Goldstone described this sort of accountability as ‘full justice’, which includes the trial of the alleged perpetrator and adequate punishment following a guilty verdict.77 Unfortunately, this justification for punishment makes no effort to actually understand what needs to happen to allow the victims of atrocity crimes to feel as if the perpetrators of those 74 Caleb H Wheeler, ‘Rights in Conflict: The Clash Between Abolishing the Death Penalty and Delivering Justice to the Victims’ (2018) 18 Int’l Crim L Rev 354, 361– 2. 75 Ernesto Kiza and Holger-C Rohne, ‘Victims’ Expectations Towards Justice in PostConflict Societies: A Bottom-Up Perspective’ in Ralph Henham and Mark Findlay, Exploring the Boundaries of International Criminal Justice (Ashgate 2011) 96. 76 Rabkin (n 58) 775; M Cherif Bassiouni, ‘Searching for Peace and Achieving Justice: The Need for Accountability’ (1996) 59 Law & Contemp Prob 9, 26–27; Ambos (n 64) 59; Laurel E Fletcher and Harvey M Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Hum Rts Q 573, 589. 77 Richard J Goldstone (foreword), in Martha Minow, Between Vengeance and Forgiveness (Beacon Press 1998) ix.

The Role Fairness Plays in Legal Accountability

19

crimes have been held accountable. Instead, it is a response to what society thinks victims need, without making an effort to determine what they actually want. Not everyone agrees that punishment is compulsory for victims to experience a sense of justice. It has been argued that punishment may not be necessary to satisfy the victims’ need for justice; instead it could be sufficient to simply condemn the perpetrators of atrocity crimes for their actions.78 That argument is based on the belief that victims are more interested in formal recognition that they were made to suffer a wrong, and that such acknowledgment is sufficient to affirm their equal value to society.79 When viewed in this way, punishment does not actually represent justice for victims, but instead becomes a way for society to absolve itself of any implied complicity with the crimes that resulted in the victimisation. Neither of these perspectives really take into account what victims have actually said they want accountability to look like and studies on the subject reveal a much more complicated picture. Some victims of atrocity crimes have overwhelmingly linked punishment to accountability. A survey conducted in 2002 of a randomly selected group of Rwandans found that 96.8% of respondents believed it was important to try those responsible for committing crimes during the genocide, and 92.3% felt that the purpose of trials was ‘to punish those who have done wrong’.80 The Rwandan interviewees tremendous support for punishment is only slightly tempered by the fact that the survey allowed the respondees to identify more than one purpose for trial, and for some punishment was a secondary consideration to reparations in the form of compensation and forgiveness.81 Similar findings were produced when individuals affected by atrocity crimes in the Central African Republic were interviewed. They also largely felt that the perpetrators of atrocity crimes should be held accountable for their actions, and advocated in favour of a variety of punishments ranging from the very general ‘punishment’, to imprisonment, summary execution, and the rather oblique statement that the perpetrators of atrocity crimes ‘should confront justice’.82

78 William A Schabas, ‘Sentencing by International Tribunals: A Human Rights Approach’ (1997) 7(2) Duke J Comp & Int’l L 461, 500, 516. 79 Martti Koskenniemi, ‘Between Impunity and Show Trials’ in JA Frowein and R Wolfrum (eds), 2002 Max Planck Yearbook of International Law (Kluwer Law Intl 2002) 11. 80 Timothy Longman, Phuong Pham and Harvey M Weinstein, ‘Connecting Justice to Human Experience: Attitudes Toward Accountability and Reconciliation in Rwanda’ in Eric Stover and Harvey M Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (CUP 2004) 212–13, 219; Timothy Longman and Théonèste Rutagengwa, ‘Memory, Identity, and Community in Rwanda’ in Eric Stover and Harvey M. Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (CUP 2004) 173. 81 Ibid. 82 Patrick Vinck and Phuong Pham, Building Peace Seeking Justice: A Population-Based Survey on Attitudes About Accountability and Social Reconstruction in the Central African Republic (Human Rights Center, UC Berkeley School of Law 2010) 3, 29.

20 The Role Fairness Plays in Legal Accountability In contrast, not all of the research points to such strong support for punishment as a necessary component of accountability. Instead, there is evidence suggesting that reparations may be more important for victims than punishment. A 2015 study conducted in Kenya, Uganda, Côte d’Ivoire and the Democratic Republic of Congo of victim participants in matters under consideration by the International Criminal Court found that victim participants want the accused to be convicted for their alleged crimes.83 However, the support for convictions was less uniform than in other studies. Research done in Kenya suggested that while convictions were important to the respondents, if forced to choose they prioritised compensation over convictions.84 Similar results were found in Uganda. There, it was shown that many interviewees felt that reparations were essential to justice, with less than a quarter of the studies’ participants indicated that they would be satisfied by a process that produced convictions that were unaccompanied by reparations.85 Participants in the Democratic Republic of Congo also drew a strong link between justice and reparations, with one participant stating ‘[if] there are no reparations, we would not accept the outcome’.86 In fact, of the four countries encompassed by the study, only the respondents in Côte d’Ivoire prioritised convictions and punishment over reparations.87 Several other studies have also suggested that punishment may not be a priority of victims when seeking accountability. An examination of witness testimony at the International Criminal Tribunal for Rwanda showed that what the victims in Rwanda wanted most is recognition of their suffering and the opportunity to speak directly to those individuals who caused it.88 Further, Ernesto Kiza and Holger-C Rohne were surprised to find in their study into the attitudes of war victims in eleven countries that many people simply wanted to forget what had happened to them and move on with their lives.89 Kiza and Rohne attempt to explain this apparent anomaly by suggesting that other responses from the participants demonstrate support for prosecutions accompanied by a willingness to sacrifice any demand for reparations.90 This conclusion seems somewhat dubious in light of the fact that other studies have found that many victims, particularly in the African context, have made reparations a priority of accountability.91 The research paints a complicated picture about whether victims prioritise punishment as part of accountability. It is indispensable for some, while others would prefer for their victimisation be addressed in other ways. The lesson to be 83 Human Rights Center, The Victims’ Court?: A Study of 622 Victim Participants at the International Criminal Court (UC Berkeley School of Law 2015) 3. 84 Ibid 58. 85 Ibid 36. 86 Ibid 46. 87 Ibid 68. 88 Francois-Xavier Nsanzuwera, ‘The ICTR Contribution to National Reconciliation’ (2005) 3 JICJ 944, 946–47. 89 Kiza and Rohne (n 75) 99. 90 Ibid. 91 The role reparations play in delivering justice to victims will be discussed at greater length in Chapter 7.

The Role Fairness Plays in Legal Accountability

21

drawn from this is that victims do not represent a cohesive group and that individual victims may have a variety of expectations for international criminal trials. However, for those victims that do feel punishment is important, of which there are many, it is important to consider what motivates them in seeking punishment and whether international criminal trials are able to meet those expectations in such a way that the victims will feel as if justice has been done. The Role Retribution Plays in Constructing Accountability There are dangers in tying punishment too closely to accountability because of the connection many victims make between justice and the need for retributive punishment.92 Retribution has been identified by the Trial and Appeals Chambers of a variety of different international criminal justice institutions as a legitimate rationale for punishing offenders.93 In its purest form, retribution as a justification for punishment is based on the idea that an offender should be punished in proportion to the gravity of the crimes they are found to have committed.94 To meet that demand would require that the perpetrators of atrocity crimes experience exactly the same harm as their victims. In many instances, international criminal trials simply cannot offer that sort of remedy. That inability can leave some victims disappointed with the outcome of trials because they do not feel as if the perpetrators of the crimes against them have received their ‘just desserts’. That belief can, in turn lead to a sense that there has been a failure of accountability. However, that disappointment in the outcome of trials is in some ways a builtin feature of the international criminal law system. The crimes under consideration by international criminal justice institutions are ones that necessarily involve human rights violations. Therefore, to inflict punishment on the perpetrators that is commiserate with that experienced by their victims would also constitute a human rights violation.95 The response to a human rights violation cannot possibly be another human rights violation. Further, even if a strict retributionist approach was taken to punishment it would still be inadequate. The crimes under consideration by international criminal courts and tribunals often involve a large number of victims. For example, Radovan Karadžic´ was convicted of genocide (amongst other crimes) by the International Criminal Tribunal for the former 92 Mengyao Li et al., ‘The Role of Retributive Justice and the use of International Criminal Tribunals in Post-Conflict Reconciliation’ (2018) 48 Eur J Soc Psychol 133, 134. 93 Jens-David Ohlin, ‘Goals of International Criminal Justice and International Criminal Procedure’ in Göran Sluiter, Håkan Friman, Suzannah Linton, Sergey Vasiliev, Salvatore Zappalà (eds), International Criminal Procedure: Principles and Rules (OUP 2013) 59–60. 94 André Mbata Mangu, ‘The International Criminal Court, Justice, Peace and the Fight Against Impunity in Africa: An Overview’ (2015) XL(2) Africa Development 7, 14; Drumbl ‘The Expressive Value’ (n 73) 1182; Alexander KA Greenawalt, ‘International Criminal Law for Retributivists’ (2014) 35 U Pa J Int’l L 969, 978–9. 95 Miriam J Aukerman, ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 Harv Hum Rts J 39, 58.

22 The Role Fairness Plays in Legal Accountability Yugoslavia for his involvement in the Srebrenica genocide. The Tribunal found that at least 5,519 people were killed following the fall of Srebrenica and that Karadžic´ bore criminal responsibility for those killings.96 A strict retributionist approach would fail under these circumstances as Karadžic´ could only give his life once as punishment for his crimes, and not the 5,519 times required for him to experience the same harm as his victims. It might be argued that from a retributionist standpoint that it is sufficient for Karadžic´ to be executed as his death would be equivalent to the harm experienced by each of his victims. This however, leads to a second difficulty in relation to crafting a remedy that matches the maltreatment experienced by the victims. Certain types of punishments, namely the death penalty and torture, are forbidden under international law. However, some victims have indicated that their harm will only be adequately ameliorated through the execution or torture of the relevant perpetrators. A 2014 report prepared by Patrick Vinck and Phuong Pham, discovered that 13% of victims of the war in the Eastern Democratic Republic of Congo believed that the only just way to punish those responsible for the violence was to execute them.97 Similarly, a 2007 study conducted in Northern Uganda established that 10% of victims felt that the leaders of the Lord’s Resistance Army should be executed either with or without a trial.98 Similar beliefs were echoed during a series of focus group interviews conducted in Rwanda in 2002, during which some of the victims expressed support for executing the perpetrators of the genocide.99 As one participant commented, ‘[t]he punishment of life in prison does nothing for genocidiares … it is not enough for this sort of criminal’.100 Victims have expressed similar sentiments about the use of torture as a just punishment. A series of interviews conducted in Iraq after Saddam Hussein was removed from power found that a significant number of people believed that he and his accomplices should be punished by summary execution or torture.101 A resident of Sulaimaniyah said of Hussein, ‘bring him to us – we want to torture him’.102 One victim from Baghdad indicated that Hussein should be tortured ‘in 96 Prosecutor v Karadžic´ (Judgment) IT-95–5/18-T, T Ch (24 March 2016) [5519], [6001]. 97 Patrick Vinck and Phuong N Pham, Searching for Lasting Peace: Population-Based Survey on Perceptions and Attitudes about Peace, Security and Justice in Eastern Democratic Republic of the Congo (Harvard Humanitarian Initiative and United Nations Development Programme 2014) 71. 98 Phuong N Pham, Patrick Vinck, Eric Stover, Andrew Moss, Marieke Wierda and Richard Bailey, When the War Ends: A Population-Based Survey on Attitudes About Peace, Justice, and Social Reconstruction in Northern Uganda (Human Rights Center, UC Berkeley School of Law; Payson Center for International Development Tulane University; International Center for Transitional Justice 2007) 35. 99 Timothy Longman, Memory and Justice in Post-Genocide Rwanda (CUP 2017) 282. 100 Ibid. 101 Nehal Bhuta, Hanny Megally, Harvey M Weinstein, Phuong N. Pham, Eric Stover, Paul van Zyl, Suzana Grego and Sarah Rutledge (eds), Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction (Human Rights Center, UC Berkeley School of Law 2004) 26, 35. 102 Ibid 26.

The Role Fairness Plays in Legal Accountability

23

103

Another Baghdad inhabitant felt that the the public square’ and then executed. appropriate way to punish Hussein was to put him in a cage and allow each of his victims to ‘punish him as he sees fit’.104 The attitudes expressed by some victims about what constitutes adequate punishment raises concerns that what they are really seeking is revenge and not retribution. Revenge has been rejected as a legitimate justification for punishment of atrocity crimes on the basis that it is nothing more than an ‘arbitrary, narcissistic exercise of violence’ that serves only to perpetuate injustice.105 Rather than interrupting the cycle of violence it perpetuates it, resulting in further violence and victimisation and preventing the realisation of peace and reconciliation.106 Because revenge undermines these two other goals of international criminal trials it cannot be a basis for punishment following an international criminal trial. If revenge were accepted as a legitimate reason to punish, and therefore also a component of accountability, it would place accountability in intractable opposition to peace and reconciliation meaning that international criminal trials could never achieve all of their purposes. Trial Chambers at the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia have recognised this problem and made clear that while retribution is a permissible goal of punishment, revenge is not.107 They avoid conflating the two by clarifying that retribution is meant as an expression of the international community’s condemnation and outrage that the crimes were committed, and not a demonstration of what victims believe is an appropriate sentence.108 The International Criminal Court does indicate that victims have an interest in the retributive purpose of punishment, but only to the extent that the sentence should be proportionate to the injury suffered so as to ‘acknowledge the harm to the victims’ and to promote peace and reconciliation.109 This approach represents an attempt to create a form of accountability through ‘just and appropriate’ punishment that will also further other goals of 103 Ibid 26, 35 104 Ibid. 105 Office of the UN High Commissioner for Human Rights Press Release, ‘Zeid urges Maldives to retain long-standing moratorium on death penalty’ (9 August 2017) accessed 13 April 2017; Janine Natalya Clark, ‘The Limits of Retributive Justice’ (2009) 7 JICJ 463, 469; quoting John Borneman, ‘Reconciliation After Ethnic Cleansing: Listening, Retribution, Affiliation’ (2002) 14 Public Culture 281, 288. 106 Anja Matwijkiw, ‘The No Impunity Policy in International Criminal Law: Justice versus Revenge’ (2009) 9 Int’l Crim L Rev 1, 7; Antonio Cassese, ‘Reflections on International Criminal Justice’ (1998) 61(1) MLR 1, 10. 107 Prosecutor v Al Mahdi (Judgment and Sentence) No ICC-01/12–01/15, T Ch VIII (27 September 2016) [67]; Prosecutor v Karadžic´ (Public Redacted Version of Judgement Issued on 24 March 2016) No IT-95–5/18-T, T Ch (24 March 2016) [6026]; Prosecutor v Mladic´ (Judgement) No IT-09–92-T, T Ch (22 November 2017) [5182]. 108 Ibid. 109 Al Mahdi Judgment and Sentence (n 107) [67].

24 The Role Fairness Plays in Legal Accountability international criminal trials.110 Whether it has proven successful, particularly in light of the fact that it is does not truly take into account what the victims may need to feel as if accountability has been accomplished, requires further exploration. Clearly, for some victims the execution or torture of the authors of their victimisation is a necessary part of remediating their suffering. However, both the death penalty and torture are prohibited as punishments in international criminal law, which only allows for the imposition of imprisonment, fines and the forfeiture of assets derived from criminal activity.111 While the use of the death penalty was discussed during the negotiation of the Rome Statute, states that have abolished the death penalty made clear that if it were included in the Statute as a permissible penalty they would be unable to participate in or cooperate with the International Criminal Court.112 The condemnation of torture as a form of punishment is even more firmly entrenched in international law. The prohibition against the use of torture is considered a jus cogens norm and is forbidden in a number of different international conventions, including the International Covenant on Civil and Political Rights, the Convention Against Torture and the Geneva Conventions.113 There is no room for doubt that torture is an unacceptable form of punishment in international criminal law.114 Despite there being sound legal reasons for 110 Mladic´ Judgement (n 106) [5182]. 111 Rome Statute (n 24) Art 77; ICTY Statute (n 28) Art 24; ICTR Statute (n 26) Art 23; UN Security Council, Statute of the Special Court for Sierra Leone (16 January 2002) Art 19; Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution Of Crimes Committed During the Period of Democratic Kampuchea (27 October 2004) arts 38 and 39; UN Security Council, Statute of the Special Tribunal for Lebanon (30 May 2007) Art 24; Statute of the Extraordinary African Chambers within the Senegalese judicial system for the prosecution of international crimes committed on the territory of the Republic of Chad during the period from 7 June 1982 to 1 December 1990 (2013) Art 24. 112 Rolf E Fife, ‘Penalties’ in Roy S Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, Inc 2001) 331. 113 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Art 7; UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) United Nations, Treaty Series, vol 1465, 85; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention) (12 August 1949) 75 UNTS 31, Art 50; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention) (12 August 1949) 75 UNTS 85, Art 51; Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) (12 August 1949) 75 UNTS 135, Art 130; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (12 August 1949) 75 UNTS 287, Art 147; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977) 1125 UNTS 3, Art 85. 114 Questions Relating To The Obligation To Prosecute Or Extradite (Belgium v. Senegal) (Judgment), International Court of Justice, I.C.J. Reports 2012, 422, 458; Prosecutor v Furundžija (Judgement) IT-95–17/1-T, T Ch (10 December 1998) [153].

The Role Fairness Plays in Legal Accountability

25

prohibiting the use of the death penalty or torture as punishment for international crimes, it necessarily means that those victims who feel that their injuries can only be healed through the application of those penalties are more likely to feel that the goal of accountability has not been met. The way in which legitimate forms of punishment are administered can also fail to meet the expectations of victims. This is evident in the disappointment expressed about the length and types of sentences and types of sentences imposed by international criminal justice institutions following a conviction.115 A survey of victims participating in the Duch trial at the Extraordinary Chambers in the Courts of Cambodia identified the adequate punishment of the defendant as one of the overriding goals that motivated them to agree to participate in the trial.116 That goal went unmet as the punishment recommended by the victims exceeded the scope of what the Chambers could lawfully order.117 Similar findings emerged with regard to the attitudes of victims of the war in Yugoslavia and the genocide in Rwanda. In a survey done in the former Yugoslavia, it was concluded that lenient sentencing, constituting any sentence other than the death penalty or life imprisonment, disappointed victims seeking retribution through punishment.118 This dissatisfaction was not only limited to victims that sought severe sentences. Some simply advocated for ‘adequate sentences’, and felt that the perceived short sentences being imposed by the International Criminal Tribunal for the former Yugoslavia served as a denial or failure to acknowledge the full extent of their suffering.119 As one former Serbian soldier living in Bosnia bluntly put it, the sentences meted out by the Tribunal were ‘a joke’ that did not constitute justice for the crimes committed.120 Similar frustration with the punishments delivered by the International Criminal Tribunal for Rwanda can be found amongst the victims of the Rwandan genocide. Some victims interviewed indicated regret that the International Criminal Tribunal for Rwanda lacked the authority to impose the death penalty against certain defendants.121 In response, domestic Rwandan courts applied the death penalty (until its abolition in 2007) against perpetrators of the genocide out of an apparent desire to meet the needs of the victims and their interest in seeing some of the offenders put to death.122 115 Clark (n 106) 471; Mikloš Biro et al., ‘Attitudes Toward Justice and Social Reconstruction in Bosnia and Herzegovina and Croatia’ in Eric Stover and Harvey M Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (CUP 2004) 193. 116 Elisa Hoven and Saskia Scheibel, “Justice for Victims’ in Trials of Mass Crimes: Symbolism or Substance’ (2015) 21(1) Int’l Rev Victimology 161, 169. 117 Ibid. 118 Sanja Kutnjak Ivkovic´, and John Hagan, Reclaiming Justice: The International Tribunal for the Former Yugoslavia and Local Courts (OUP 2011) 151. 119 Diane Orentlichter, Some Kind of Justice (OUP 2018) 134. 120 Goran Basic, ’Conditions for Reconciliation: Narratives of Survivors from the War in Bosnia and Herzegovina’ (2015) 17(2) J Crim Just & Sec 107, 116. 121 Jose E Alvarez, ‘Crimes of Hate/Crimes of State: Lessons from Rwanda’ (1999) 24 (2) Yale J Int’l L 365, 407. 122 Ibid 406.

26 The Role Fairness Plays in Legal Accountability There is also some question as to whether the selective prosecutorial strategies employed by different international criminal courts and tribunals may prevent some victims from feeling as if the appropriate people have been held accountable. These strategies are driven by international criminal justice institutions’ lack of capacity to try everyone alleged to have been involved in committing atrocity crimes.123 In recognition of this, international criminal law is primarily concerned with prosecuting political leaders who plan atrocity crimes and the military commanders who implement those plans.124 This approach has the tendency to hold culpable those individuals that broadly speaking are responsible for the harms experienced by the largest number victims.125 However, it also means that the people being tried and convicted by international criminal justice institutions stand at a remove from the people who directly harmed those who have been victimised. This can be an issue for some victims as they may view the perpetrator of the crimes against them as the person who pulled the trigger or lit the match, not the one who gave the order to do so. For those victims, accountability becomes something of an abstraction. It requires them to shift their perception of who authored their harm from the people who they witnessed committing criminal acts against them to individuals whom they have never met. This can be challenging for some, and that difficulty is further exacerbated when the person who directly committed the crime remains in the same community as the people who they victimised. This was borne out at the Special Court for Sierra Leone. Article 1 of the Special Court’s Statute indicates that Court was established to prosecute those people ‘who bear the greatest responsibility’ for atrocity crimes committed in Sierra Leone.126 The Special Court’s Prosecutor interpreted that mandate narrowly, and only thirteen people were indicted by the Special Court.127 This lead to disappoint amongst many Sierra Leoneans, who understood the perpetrators as the people who actually committed the crimes in question, not the political or military leadership that gave the orders.128 This resulted in people concluding that justice was not done by the Special Court for Sierra Leone and accountability sufficient to promote the other goals of international criminal trials was never realised.129 It is apparent that what victims need to feel that the perpetrators of atrocity crimes have been held accountable is more complicated than what commentators have indicated. It may or may not involve punishment, but to the extent that it 123 Ward Ferdinandusse and Alex Whiting, ‘Prosecute Little Fish at the ICC’ (2021) 19 (4) JICJ 759, 766. 124 Iryna Marchuk, The Fundamental Concept of Crime in International Criminal Law: A Comparative Law Analysis (Springer 2014) 161. 125 Ferdinandusse and Whiting (n 123) 765. 126 SCSL Statute (n 112) Art 1. 127 Charles C Jalloh, ‘Special Court for Sierra Leone: Achieving Justice’ (2011) 32 Mich J Int’l L 395, 413. 128 Lydia A Nkansah, ‘Justice within the Arrangement of the Special Court for Sierra Leone versus Local Perception of Justice: A Contradiction or Harmonious?’ (2014) 22 Afr J Int’l & Comp L 103, 106. 129 Ibid.

The Role Fairness Plays in Legal Accountability

27

does, that punishment typically needs to be seen as adequate to address the crimes committed. Adequacy, when used in this way, is shorthand for saying that the punishment handed down must fairly reflect the suffering of the offenders’ victims. Should that punishment be understood as fair, it is more likely the victim will feel as if justice has been done and the goal of accountability has been met.130 This can also help to facilitate the realisation of some of the other international criminal trial goals, particularly reconciliation.131

Conclusion Accountability is the most purely legal goal of international criminal trials. There are a number of different types of legal processes that can deliver some form of accountability, but it is only during trials that an accused can be found guilty of and punished for the crimes alleged. Holding trial does not automatically produce accountability; it is only accomplished when the right person is convicted of the crimes under consideration and when that conviction is secured through a fair trial process. The absence of either element raises serious questions about whether the trial has actually resulted in accountability. There is a disagreement about how fair a trial needs to be to produce adequate accountability. While some commentators maintain that trials must be of the utmost fairness to the accused to accomplish this goal, others suggest that maintaining such a high standard can cause other groups interested in the outcome of the trial to feel as if their position is being unfairly disadvantaged. Negative perceptions of the trial can lead to the belief that it lacks legitimacy and could discourage future participation in a procedure thought to be unfair. These doubts about the trial’s legitimacy can serve to undermine other goals of international criminal trials, including encouraging reconciliation in divided communities and enhancing the rule of law. Therefore, trials must be fair to the extent that they guarantee the accused will not be convicted on an impermissible basis, while ensuring that members of other groups feel that their own interests are also being adequately protected. Punishment can also play an important role in whether international criminal trials produce sufficient accountability. The importance of punishment to accountability varies depending on the purpose of the trial being addressed. The global community is largely interested in the expressivist potential of international criminal trials and how their outcomes are understood by outside observers. They hope that the trial will communicate the wrongfulness of the accused’s actions and raise awareness about what sort of behaviour is considered acceptable from an international perspective. This is thought to help build the rule of law in domestic jurisdictions. Punishment is not considered necessary to these efforts, but it also does not prevent them from being accomplished.

130 Li et al. (n 92) 148. 131 Ibid.

28 The Role Fairness Plays in Legal Accountability Victims of atrocity crimes are less concerned with how others understand the trial and its outcomes and have often demonstrated a desire to see their victimisers punished for their actions. This is linked to a desire for the accused to be punished in a way that adequately reflects the severity of their actions. This cannot always be done, either because the types of punishments sought by victims are impermissible under international criminal law or because the sentences being imposed by international criminal justice institutions are perceived by victims as being too short to properly hold the accused accountable for their crimes. Fortunately, these different understandings of the role punishment plays in accountability are not mutually exclusive. The expressivist goal of international criminal trials can be accomplished whether or not trials results in punishment. Conversely, many victims have indicated that they cannot experience justice if the accused is not punished for their actions. Therefore, to maximize the likelihood of achieving all the trial goals, trials that result in conviction should conclude with the accused being adequately punished for their crimes. International criminal trials should prioritise fairness and punishment when holding accountable those individuals accused of atrocity crimes. Doing this will facilitate numerous other trial goals and maximise accountability’s positive impact. Fairness is necessary to guarantee that the right person is convicted for the crimes alleged and a fair process can enhance the legitimacy of the institution conducting the trial. This can, in turn improve the rule of law and help to encourage reconciliation processes in post-conflict societies. Punishment can also help accomplish these goals and contribute to providing victims of atrocity crimes with a sense of justice. International criminal trials that fail to properly account for fairness and punishment will produce a diminished form of accountability incapable of effectively facilitating the other identified trial goals.

3

International Criminal Trials and Promoting the Rule of Law

Promoting and encouraging the application of the rule of law in domestic jurisdictions, particularly in post-conflict societies, is another goal of international criminal trials. One of the reasons for having laws is to provide a framework for stable relationships amongst different members of a society.1 Compliance with that framework, referred to as the rule of law, serves three purposes: to protect people from anarchy; to permit people to organise their activities with confidence because they are aware of the legal consequences of their actions; and to protect people from the arbitrary exercise of power by public authorities.2 When people stop complying with the rule of law it can lead to war or other periods of widespread violence resulting in the commission of the types of crimes that fall under the jurisdiction of international criminal justice institutions.3 As a result, international criminal trials have a vested interest in ensuring the stability of those relationships so as to avoid the development of the conditions that allow atrocity crimes to be committed. International criminal trials would be largely pointless if they occupied themselves with convicting individuals for crimes that were committed as a result of the breakdown of the rule of law but made no effort to address the circumstances underlying their commission. This chapter will examine the different ways international criminal trials can help to improve the domestic rule of law and discuss the role fairness plays in that process. It is important to note at the outset that international criminal trials cannot establish or re-establish the rule of law on their own. Rule of law building is a multifaceted process requiring a variety of different stakeholders working towards improving the rule of law. Although there are various ways to understand the rule of law and how it works, there is relatively little literature discussing how international criminal trials can help foster the rule of law. This leads to the 1 Joseph Raz, The Authority of Law (Clarendon Press 1979) 220. 2 Richard H Fallon, ‘“The Rule of Law” as a Concept in International Discourse’ (1997) 97 Colum L Rev 1, 7; see also Jane Stromseth, David Wippman and Rosa Brooks, Can Might Make Rights: Building the Rule of Law After Military Interventions (CUP 2006) 69–70. 3 Robert D Sloan, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’ (2007) 43 Stanford J Int’l L 39, 41.

DOI: 10.4324/9781003027331-3

30 International Criminal Trials and Promoting the Rule of Law following questions: are there ways in which international criminal trials can have a positive influence on the rule of law? And if so, what are they?

Defining the Rule of Law An initial difficulty with exploring the connection between international criminal trials and rule of law enhancement is the fact that the rule of law is a term often used rhetorically with little attention paid to what it actually means.4 It is seen as an aspirational goal, an ideal that all societies of the world suggest they are working towards, but that none have been able to reach.5 However, what states are actually aspiring to accomplish remains less clearly defined. It is generally understood that states possess sovereignty over their internal affairs, granting them the right to make, adjudicate and enforce laws within their own territory.6 Theoretically, they can do that in any way they choose without external interference from other states.7 The rule of law is meant to provide states with a model for exercising its power to make and enforce laws in such a way that is neither arbitrary nor abusive towards the citizens of the state.8 A state that acts consistently within the rule of law is one that values law and order, ensures the separation of powers between different parts of the government, and guarantees fairness in how the laws are applied.9 Central to this concept is the requirement that all persons and entities within the state, both public and private, are ‘bound by and entitled to’ the same benefits and detriments of the law, regardless of their position.10 When understood in this way, the rule of law is a basic principle of fairness entitling everyone to equal treatment. Another conception of the rule of law, often described as the ‘thin’ rule of law, proposes that at its most basic level the term means that ‘people should obey the law and be ruled by it’.11 This approach to the rule of law removes individual discretion to decide whether one agrees with the law or considers it just; instead every member of society, regardless of their position, is expected to follow the law 4 Brian Tamanaha, On the Rule of Law: History, Politics Theory (CUP 2004) 3. 5 Robert McCorquodale, ‘Defining the International Rule of Law: Defying Gravity?’ (2016) 65(2) Int’l & Comp L Q 277, 278; Tom Bingham, The Rule of Law (Allen Lane 2010) 174. 6 Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (OUP 2002) 52–3. 7 Catherine Dauvergne, ‘Sovereignty, Migration and the Rule of Law in Global Times’ (2004) 67(4) MLR 588, 593. 8 Teresa Almeida Cravo, ‘Post-Conflict Peacebuilding and the Rule of Law’ in Christopher May and Adam Winchester (eds), Handbook on the Rule of Law (Edward Elgar 2018) 476. 9 Rachel Kleinfeld, ‘Competing Definitions of the Rule of Law’ in Thomas Carothers (ed), Promoting the Rule of Law Abroad: In Search of Knowledge (Carnegie Endowment for International Peace 2006) 33–4; Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (OUP 2002) 52–3. 10 Bingham (n 5) 8. 11 Raz (n 1) 212.

International Criminal Trials and Promoting the Rule of Law

31

so long as it has been legally enacted. This narrow definition of the rule of law emphasises conformity to the law while disregarding its content.12 The only requirement is that the government acts in accordance with laws that are fixed and announced in advance of their application, making it possible to predict with a reasonable degree of certainty how the government will behave and enabling people to plan their affairs accordingly.13 In essence, it means that a totalitarian regime can operate within the rule of law so long as its actions are consistent with the laws of the society over which it governs.14 This is clearly not how the international community understands the rule of law. Instead, it relies on a broader formulation of the concept, designed to operate as a principle of governance.15 The United Nations defines the rule of law as: [A] principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.16 This definition is meant to set out the minimum requirements under which a system may be said to operate within the rule of law.17 There are five identifiable components that a system must possess to be considered rule of law compliant. They are that: 1 2 3 4

all members of a society are accountable to the law; laws are made publicly and not in private; laws are equally enforced; the bodies charged with adjudicating laws must be able to do so free from outside influence; and

12 Antoine Buyse, Katherine Fortin, Brianne McGonigle Leyh and Julie Fraser, ‘The Rule of Law From Below – A Concept Under Development’ (2021) Utrecht L Rev 1, 2. 13 Friedrich A Hayek, ‘Planning and the Rule of Law’ in Bruce Caldwell (ed), The Collected Works of F. A. Hayek: Vol 2 – The Road to Serfdom (Routledge 2014) 112. 14 Ibid 211. 15 Peter Rijpkema, ‘The Concept of a Global Rule of Law’ (2013) 4(2) Transnat’l Leg Theory 167, 170. 16 UN Security Council, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (24 August 2004) UN Doc S/ 2004/616 [6]; see also UN Secretary-General, ‘Delivering Justice: Programme of Action to Strengthen the Rule of Law at the National and International Levels’ (16 March 2012) UN Doc A/66/749 [2]. 17 Rijpkema (n 15) 171.

32 International Criminal Trials and Promoting the Rule of Law 5

the law must comply with international human rights norms and standards to be considered legitimate.

This final requirement would seem to exclude those legal systems that seek to limit the human rights of its citizens from being rule of law compliant. This conclusion is borne out by a 2012 UN General Assembly Resolution which proclaims that human rights, the rule of law and democracy are all interlinked and form the indivisible core of the United Nations’ values and principles.18 What the United Nations is attempting to describe in this definition is how the rule of law is meant to function in the domestic context.19 This should not be confused with the international rule of law, a somewhat different concept. While some scholars have sought to simply transpose the domestic rule of law onto international actors, others view doing so as ill-conceived.20 Although the trials under discussion in this chapter are international in nature, and as such must comply with the international rule of law, they are being considered from the perspective of how they can help grow the domestic rule of law. Therefore, the rule of law is being discussed from a domestic perspective.

Expressivism and International Criminal Trials International criminal justice institutions are formed either under the auspices of the United Nations or through the enactment of a multilateral treaty. The nature of their formation gives those institutions a distinctly international character which carries with it the implication that there is some sort of international consensus condemning the acts they choose to criminalise and endorsing the trial procedures they employ. By identifying the illegality of certain types of conduct and demonstrating a fair procedural approach to trials, international criminal trials provide domestic criminal proceedings with a rule of law compliant model to follow. This is especially true when the international community identifies new forms of criminality and prosecutes those accused of it by acting as an expression of the global belief that such crimes are morally repugnant and incompatible with the international legal order.21 The Expressive Effect of International Criminal Trials on Individuals The expressive function of international criminal trials can be particularly important as perceptions about behaviour change over time. It may be that activities that were tolerated in the past are now considered illegal and the modern disapproval of that behaviour can be demonstrated during international criminal 18 UNGA Resolution 67/1 (30 November 2012) UN Doc A/Res/67/1 [5]. 19 Noora Arajärvi, ‘The Core Requirements of the International Rule of Law in the Practice of States’ (2021) 13 HJRL 173, 180. 20 McCorquodale (n 5) 291. 21 Leslie Vinjamuri, ‘Deterrence, Democracy and the Pursuit of International Justice’ (2010) 24(2) Ethics & International Affairs 191, 197.

International Criminal Trials and Promoting the Rule of Law

33

22

trials. International criminal trials can identify contemporary understandings of the legality of behaviour and provide potential actors with an indication of whether they may be exposing themselves to prosecution. This helps further the rule of law as it creates the sort of certainty needed to allow people to make informed decisions about the repercussions of their conduct. There have been instances in which individuals have changed their behaviour upon learning that certain types of behaviour are circumscribed. For example, military leaders in the Democratic Republic of the Congo and the Central African Republic reduced or ended their reliance on child soldiers following Thomas Lubanga’s conviction at the International Criminal Court.23 In both instances, the relevant leaders indicated that they took this step upon learning through the court proceedings that using child soldiers in active combat is illegal under international law.24 Observers on the ground in the Democratic Republic of Congo noted that after the Lubanga verdict militia groups were no longer recruiting child soldiers and that former child soldiers did not appear interested in re-joining those groups.25 This demonstrates that the enhanced visibility international criminal trials can bring to behaviour which is criminalised under international law may increase the tendency of people to comply with those laws, strengthening the rule of law.26 Taken to its extreme, international criminal trials can lead to habitual lawfulness and the belief that committing atrocity crimes is not an alternative to peaceful, multi-ethnic co-existence.27 There are limits to the expressive force international criminal trials can have on individuals. The circumstances under which the types of acts criminalised in international criminal law often take place can have a distorting effect on the decision-making process of the perpetrators of those acts. An individual’s decision-making process can become inverted during periods of conflict, particularly when there is a breakdown in the rule of law and the institutions that uphold it.28 Under these conditions, decisions are sometimes based on gratifying the divisive or violent tendencies that have become the norm in that particular 22 Margaret M deGuzman, ‘Choosing to Prosecute: Expressive Selection at the International Criminal Court’ (2012) 33 Mich J Int’l L 265, 316. 23 Sharanjeet Parmar, ‘Dissuasive or Disappointing? Measuring the Deterrent Effect of the International Criminal Court in the Democratic Republic of the Congo’ in Jennifer Schense and Linda Carter (eds), Two Steps Forward One Step Back: The Deterrence Effect of International Criminal Tribunals (International Nuremberg Principles Academy 2016) 181; Human Rights Watch, Selling Justice Short: Why Accountability Matters (Human Rights Watch 2009) 7. 24 Ibid. 25 Mariana Goetz, ‘Victims’ Experiences of the International Criminal Court’s Reparations Mandate in the Democratic Republic of Congo’ in Carla Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (2nd edn, Brill 2020) 438. 26 Jens David Ohlin, ‘A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law’ (2009) 14 UCLA J Int’l L & Foreign Aff 77, 88. 27 Payam Akhavan, ’Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) 20 Hum Rts Q 737, 749. 28 Ohlin (n 26) 100–1.

34 International Criminal Trials and Promoting the Rule of Law society.29 Behaviour usually considered aberrant becomes acceptable, and in some cases, desirable.30 Decisions made in this sort of environment are motivated by a need to conform to the wishes of the people within the state rather than out of concern for pressures coming from outside of the state. When such a situation takes hold, it is unlikely that the international approbation expressed through international criminal trials will act as much of a deterrent. Emphasising the expressive role of international criminal trials may also help to alleviate concerns about the selective nature of prosecutions at the International Criminal Court.31 The Court has faced significant criticism for its inability to prosecute the alleged perpetrators of most of the international crimes committed in the world.32 It has been suggested, both in this book and elsewhere, that the small number of trials conducted by the International Criminal Court undermine any potential deterrent effect such trials might have. But perhaps the value of international criminal trials does not lie in their potential to deter individuals. Rather, their true worth may be in their ability to raise awareness about the existence of laws designed to punish individuals for the human rights abuses they may commit. An important connection can also be made between holding perpetrators accountable for their actions through international criminal trials and rebuilding the domestic rule of law. As discussed in the previous chapter, victims of atrocity crimes can often feel as if their position is society is diminished as a result of their victimisation.33 These feelings relate to the nature of their victimisation, which typically involve acts that violate their human rights. However, a second victimisation occurs when, during periods of rule of law breakdown, the domestic legal system fails to provide victims with access to justice following their victimisation.34 This deprivation of their legal rights further reinforces to victims that they are not valued by the government who have concluded that they are not entitled to the same legal protections as other citizens. International criminal trials can fill that gap and provide victims with the access to justice that has been denied in the relevant domestic jurisdiction. This can strengthen victims’ faith in the rule of law by demonstrating that they have not been entirely abandoned and that it is 29 Michael Reisman, ‘Legal Responses to Genocide and Other Massive Violations of Human Rights’ (1996) 59(4) Journal of Law & Contemporary Problems 75, 77–8; Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95(7) AJIL 7, 11–12. 30 Akhavan ‘Beyond Impunity’ (n 29) 11–12. 31 de Guzman (n 22) 315. 32 Eric Blumenson, ‘The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court’ (2006) 44 Columbia J Transnat’l L 801, 825; Mark A Drumbl, Atrocity, Punishment and International Law (CUP 2007) 170; Kirsten J Fisher, Moral Accountability and International Criminal Law: Holding Agents of Atrocity Accountable to the World (Routledge 2012) 52. 33 Chandra Lekha Sriram, Globalizing Justice for Mass Atrocities: A Revolution in Accountability (Routledge 2005) 55. 34 Rosario Figari Layús, The Reparative Effects of Human Rights Trials: Lessons From Argentina (Routledge 2018) 129.

International Criminal Trials and Promoting the Rule of Law

35

possible to hold accountable those people who committed crimes against them. While building the rule of law in this way can be quite positive, it will only have a limited effect unless states adopt the lessons of international criminal trials in an effort to improve their domestic rule of law compliance. The Expressive Effect of International Criminals Trials on States International criminal trials also have an expressive effect on states. Trials can demonstrate to states that compliance with basic legal and procedural standards is part of being a respected member of the international community.35 International criminal trials can disrupt existing perceptions held by the political elite that the legal system is something to manipulate or ignore. This can happen through positive and negative reinforcement. International criminal trials can positively reinforce the importance of the rule of law by holding fair trials, the results of which are accepted by the various stakeholders, that act as an archetype of globally accepted understandings of what constitutes moral and lawful behaviour.36 Through this, international criminal trials demonstrate to countries struggling to build the domestic rule of law the importance of holding fair trials delivering a high quality of justice that people can have confidence in. Trust in state-run legal institutions and the procedures they follow creates an atmosphere of fairness that can enable different factions within society to find common ground in the idea that their disputes will be resolved quickly and equitably.37 As will be explored in Chapter 5 and Chapter 6 this can help facilitate inter-party reconciliation and lead to the development of positive peace. States that prioritise the rule of law by emphasising fairness in their criminal trial procedures are also typically considered more legitimate than those that do not.38 Bolstering their reputations for legitimacy is attractive to many states as it can create positive trade and foreign policy benefits.39 Those countries with a strong reputation for legitimacy and obedience to the rule of law are seen as safer partners for international collaboration as they are believed more likely to fulfil their commitments. Building legitimacy is particularly important for new governments or those that have reformed following periods of political instability as they likely lack the requisite perceptions of trustworthiness expected of 35 Oskar NT Thoms, James Ron and Roland Paris, ‘State-Level Effects of Transitional Justice: What Do We Know?’ (2010) 4 Int’l J Transitional Just 329, 333; Blumenson (n 32) 828. 36 Victor Peskin, ‘Battles of Legitimation and the Politics of Noncompliance and African Sovereignty From the Rwanda Tribunal to the ICC’ in Nobuo Hayashi and Cecelia M Bailliet (eds), The Legitimacy of International Criminal Tribunals (CUP 2017) 406. 37 UN Security Council, Provisional Verbatim Record of the Seven Thousand One Hundred Thirteenth Meeting of the United Nations Security Council (19 February 2014) UN Doc S/PV.7113, 2. 38 David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 579, 588. 39 Peskin (n 36) 406.

36 International Criminal Trials and Promoting the Rule of Law international partners.40 States finding themselves in that position can quickly signal their intention to be a productive member of the world community by strengthening their commitment to the rule of law. Reinforcing rule of law principles in the domestic context can also help a newly elected national government demonstrate that it intends to make a clean break from the abuses of earlier regimes. One particular way to do this is to hold trials addressing atrocity crimes committed in the past.41 These sorts of prosecutions can create several advantages for a new regime established following a breakdown in the rule of law. First, they can indicate societal disapproval of certain types of behaviour and a willingness to move forward as a modern international state.42 Next, they can help legitimise the new government in the eyes of the populace by highlighting the negative aspects of the previous regime and juxtaposing them with their own proposals for a better future.43 Additionally, ensuring that these trials are rule of law compliant can help to reinforce certain types of norms about justice which will hopefully result in stigmatising behaviour that fails to fulfil the rule of law.44 Finally, it can also help to legitimise victims of atrocity crimes and enable their full reintegration into society. All of these benefits will contribute to a more secure society that is better equipped to build a stable and lasting peace. While it would be preferable if changes to the enforcement of the rule of law were the result of voluntary efforts by states, often times international criminal trials teach their lessons through negative reinforcement. Negative reinforcement, in this context, will often manifest itself through a demonstration that the failure to comply with rule of law norms can result in criminal prosecution and punishment. This approach is best exemplified in the Rome Statute. As the Preamble to the Statute makes clear, the jurisdiction of the International Criminal Court is complementary to national jurisdiction.45 That means that domestic courts retain primary jurisdiction over crimes that fall under the Rome Statute. Under this system, the International Criminal Court can only exercise its jurisdiction in the absence of meaningful action on the part of state-run justice institutions. This principle is more fully explained in Article 17 of the Statute, which sets out the four grounds for finding that a case is inadmissible at the International Criminal Court because of a lack of complementarity. They are when: 1 2

the case is being investigated or prosecuted by a state with jurisdiction over the alleged conduct; a case has been investigated by a state and it chose not to prosecute;

40 Michael P Scharf, ‘Trading Justice for Peace’ in Edel Hughes, William A Schabas and Ramesh Thakur (eds), Atrocities and International Accountability (UN University Press 2007) 251. 41 Kathryn Sikkink, The Justice Cascade (WW Norton & Co 2011) 173. 42 Ibid. 43 Gerry Simpson, Law, War and Crime (Polity Press 2007) 91. 44 Sikkink (n 41) 173; Akhavan ‘Justice in the Hague’ (n 27) 749. 45 Rome Statute of the International Criminal Court (17 July 1998) Preamble.

International Criminal Trials and Promoting the Rule of Law 3 4

37

the person concerned has already been tried by a state for the same conduct described in the complaint against them; and the case is not of sufficient gravity to justify further action.46

The first two of these grounds are qualified by the proviso that a case may still be admissible before the International Criminal Court if the state investigating or prosecuting the crime is unwilling or unable to genuinely carry out the investigation or prosecution.47 The question of what constitutes unwillingness or inability to investigate or prosecute has a direct connection to rule of law entrenchment in the subject state. A state is considered unwilling to investigate or prosecute if one of three conditions are met. They are: when the domestic proceedings are undertaken to protect individuals from criminal responsibility (i.e. the process is a sham); the proceedings have been delayed in a manner that is inconsistent with an intent to bring the person to justice (i.e. the process is delayed so as to unfairly advantage the accused); or the proceedings are not independent and impartial (i.e. the process is biased).48 All three of these conditions involve providing an accused with unequal treatment designed to help them avoid being held accountable for their actions, a clear violation of the basic tenet of the rule of law that it be applied equally to all members of society. Therefore, what the International Criminal Court has done is indicate that it will step in to ensure that the alleged perpetrators of atrocity crimes will be prosecuted in instances where the state concerned is unwilling to follow the rule of law. This leaves states with a choice, either improve the domestic rule of law by ensuring that the investigation and trial process is fairly applied, or cede control to the International Criminal Court which will try individuals in accordance with the rule of law. A somewhat different rule of law issue is raised when a state is considered unable to investigate or prosecute a crime. Unlike unwillingness, which is largely the result of a state obstructing the fair application of the justice process, inability occurs when national justice institutions have collapsed or are otherwise unavailable.49 This can take the form of courts not being able to sit for trial or investigations that cannot be properly carried out because of conditions on the ground in the relevant state.50 While this is a clear rule of law issue, and the world community has a responsibility to help rebuild rule of law institutions in the affected states, it is not an obligation that can be met very easily by international criminal trials. The role of trials under these circumstances is to step in and supply an alternative venue in which to try individuals responsible for wrongdoing and provide a fair trial model for national justice institutions once they can be restored. This model allows the state to build its rule of law capacity while also ensuring that accountability efforts are continuing. 46 47 48 49 50

Ibid Art 17. Ibid. Ibid Art 17(2). Ibid Art 17(3). Ibid; see also Ohlin (n 26) 101.

38 International Criminal Trials and Promoting the Rule of Law Despite this optimism about what international criminal trials can accomplish, there is little conclusive evidence to suggest that they have had a positive effect on rebuilding or enhancing the domestic rule of law. In fact, there is some indication that the impact has been largely neutral. The rule of law situation in Cambodia presents one interesting case study. The Preamble of the Cambodian Constitution specifically guarantees human rights protections and respect for the law.51 These promises are reiterated in Article 31 of the Constitution, which also indicates that Cambodian citizens are all equal before the law.52 Despite this, the legal system in Cambodia largely eschews these principles in favour of an unequal system designed to promote authoritarianism and benefit political elites.53 In particular, many Cambodian criminal laws suffer from vagueness, leading to the law being interpreted differently depending on who is being prosecuted.54 This has resulted in a system under which ordinary citizens may be dealt with quite harshly while political elites are able to operate with impunity.55 These rule of law abuses have flourished despite the presence of the Extraordinary Chambers in the Courts of Cambodia since 2006. The Extraordinary Chambers are part of the Cambodian legal system with jurisdiction over crimes committed by senior leaders of the Khmer Rouge during the latter half of the 1970s. It is a hybrid court that applies international law to the crimes alleged but operates under Cambodian procedural law.56 In so doing, the law specifically recognises that Cambodia, as a state party to the International Covenant on Civil and Political Rights, is required to comply with international standards of justice, fairness and due process as set out in Article 14 of the Covenant.57 Despite this fairness requirement, observers have concluded that the Cambodian government has been able to subvert due process at the Extraordinary Chambers in much the same way it does in the domestic context.58 This has largely manifested itself through the Cambodian government bringing pressure on Cambodian nationals working at the Extraordinary Chambers to discontinue the prosecution and investigation of the individuals accused in two of the four cases filed.59

51 Constitution of the Kingdom of Cambodia (enacted 1993, revised 2008) accessed 14 February 2022. 52 Ibid Art 31. 53 Stephen McCarthy and Kheang Un, ‘The Evolution of Rule of Law in Cambodia’ (2017) 24 Democratization 100, 103. 54 Randle C DeFalco, ‘The Uncertain Relationship between International Criminal Law Accountability and the Rule of Law in Post-Atrocity States: Lessons from Cambodia’ (2018) 42 Fordham Int’l L J 1, 29. 55 Ibid. 56 Law On The Establishment Of Extraordinary Chambers In The Courts Of Cambodia For The Prosecution Of Crimes Committed During The Period Of Democratic Kampuchea (27 October 2004) Art 10, Art 12. 57 Ibid Art 12. 58 DeFalco (n 54) 39. 59 Ibid 40–1.

International Criminal Trials and Promoting the Rule of Law

39

Those efforts appear to have been successful. Both of the affected cases were plagued by fundamental disagreements between the Cambodian nationals working for the Chambers and their international counterparts. In both instances, the international co-prosecutor, with the support of the international judges, attempted to move the cases forward to trial.60 They were opposed by the Cambodian prosecutor and the Cambodian judges who sought to dismiss the cases.61 It is believed this opposition was directly influenced by governmental policy that trial should only proceed against the initial five individuals indicted, and that the Extraordinary Chambers should hold no additional proceedings once those cases were adjudicated.62 Ultimately, both of the disputed cases were dismissed in December 2021, largely due to the consistently obstructive behaviour of the Cambodian co-prosecutor and judges.63 The impact these dismissals may have on the domestic rule of law in Cambodia can be understood in several different ways. A more cheerful interpretation would be that the dismissals actually reflect respect for the rule of law. The government’s stated reason for opposing these prosecutions was the belief that the accused were not sufficiently senior to come under the jurisdiction of the Extraordinary Chambers.64 When taken at face value, this could be understood as a vindication of the rule of law to the extent that the law is only being used to prosecute the individuals for whom it is intended. That however, is probably an overly generous reading of the situation. While a determination of who qualifies as a senior leader can be subjective, there is evidence to suggest that the accused in the cases that were dismissed were equally, if not more senior than the individuals against whom trials were held.65 This indicates that the Cambodian government may have been intentionally misinterpreting the Statute and the facts in an effort to protect some individuals from prosecution, a clear derogation from the rule of law. Understanding these dismissals cynically, as demonstrating that the government is capable of manipulating the justice system to ensure that only those individuals it wishes to see prosecuted are the subject of court proceedings, represents a clear 60 Kirsten Ainley, ‘Transitional Justice in Cambodia: The Coincidence of Power and Principle’ in Renée Jeffrey and Hun Joon Kim (eds), Transitional Justice in the AsiaPacific (CUP 2013) 136–7. 61 Ibid. 62 Open Societies Justice Initiative, Dead End at Cambodia’s Khmer Rouge Tribunal: Next Steps for the UN (29 April 2020) accessed 15 February 2022. 63 Prosecutor v Meas (Case 003) (Decision on International Co-Prosecutor’s Appeal of the Pre-Trial Chamber’s Failure to Send Case 003 to Trial as Required by the ECCC Legal Framework) No 002/19–09–2007-ECCC/SC, S Ch (17 December 2021) [44]; Prosecutor v Yim (Case 004) (Decision on International Co-Prosecutor’s Appeal of the Pre-Trial Chamber’s Failure to Send Case 004 to Trial as Required by the ECCC Legal Framework) No 004/23–09–2021-ECCC/SC), S Ch (28 December 2021) [32]. 64 DeFalco (n 54) 43. 65 Ibid 44.

40 International Criminal Trials and Promoting the Rule of Law disregard for the rule of law. More worryingly, it also suggests that the government’s disdain for the rule of law extends beyond domestic courts and has pervaded a hybrid justice institution that possesses some international character. Therefore, it could be argued that the Cambodian government has negatively impacted the international rule of law rather than the proceedings at the Extraordinary Chambers having a positive impact on the domestic rule of law. In reality, this is probably too broad a conclusion. The hybrid nature of the Extraordinary Chambers, and the direct applicability of Cambodian procedural law there, means that the approach taken would connect more closely to the domestic rule of law than in other international contexts. In fact, it is probably more appropriate to view this as a domestic proceeding with international involvement rather than as an international proceeding. As a result, the dismissal of these two cases really reflects the dismal state of the domestic rule of law in Cambodia. It also shows the minimal impact international involvement in the Extraordinary Chambers had on improving the rule of law in Cambodia. Cambodia is not the only country where political influence is thought to have negatively impacted the rule of law. Interviews conducted in Uganda and Kenya with victims participating in cases at the International Criminal Court found that, despite the Court’s involvement in situations arising in both countries, widespread distrust remained about their domestic legal institutions. Negative perceptions in both countries about corruption and political interference with the Court’s proceedings underpinned that distrust.66 In Uganda, a majority of victim participants in International Criminal Court prosecutions expressed doubts about the neutrality of the Court, but preferred it to local courts due to a certainty that the latter could not deliver justice.67 One respondent went so far as to say, ‘[w]e still don’t have any hope for convictions in Uganda as there is still a lot of interference from government officials’.68 In a similar vein, few of the Kenyan respondents trusted domestic courts to address the post-election violence due to pervasive corruption in the country.69 Many Kenyan respondents also believed that the government was manipulating the outcome of the International Criminal Court trials and in some instances suggested that President Uhuru Kenyatta was bribing the Court’s then Prosecutor, Fatou Bensouda so as to create a favourable outcome for himself.70 These findings indicate that many victim participants view the absence of a strong domestic rule of law as pervasive in their judicial systems. Further, attitudes are such that some of the people interviewed felt that the weak domestic approach to the rule of law is so entrenched that it will outweigh the efforts made by international criminal trials to improve the rule of law. The extreme pessimism demonstrated by these views is troubling but not entirely surprising. The rule of 66 Human Rights Center, The Victims’ Court?: A Study of 622 Victim Participants at the International Criminal Court (UC Berkeley School of Law 2015) 34, 56. 67 Ibid 34. 68 Ibid. 69 Ibid 56. 70 Ibid 53.

International Criminal Trials and Promoting the Rule of Law

41

71

law is largely a Western ideal developed in politically stable states. Internal stability, however is not the experience of most people in the world. Instead, they are familiar with legal systems designed to favour the elite in which it is expected that justice will be biased.72 In those situations, the legal system is seen as little more than an extension of existing power structures rather than a tool for re-enforcing notions of fairness and due process.73 The rule of law is more likely to take root in societies where the principles it embodies are recognisable to the local population.74 In states where rule of law concepts are alien, it is doubtful that international criminal trials will have much impact. This has proven to be true even in societies with a relatively positive view of international criminal justice institutions. For example, a study of Sierra Leonian and Liberian citizens found that a majority of the people surveyed believed that both countries experienced an overall improvement in their domestic rule of law after the establishment of the Special Court for Sierra Leone.75 Further, the vast majority of people holding this view directly attributed the change in the rule of law to the work done by the Special Court.76 Despite this positive reception to the Special Court, there is little evidence of actual rule of law improvement in either country. The researchers conducting the survey reached this conclusion on the basis that a limited amount of legislation was enacted in either Sierra Leone or Liberia that improved rule of law compliance and the behaviour of law enforcement and the judiciary largely remained the same.77 The perception that the Special Court for Sierra Leone improved the domestic rule of law has been attributed to respondent’s conflating convictions at the Special Court with an overall improvement in the rule of law.78 The fact that the Special Court for Sierra Leone tried and convicted members of the political and military elite, something that was unheard of in Sierra Leone and Liberia, was viewed as a triumph for the rule of law over entrenched impunity. However, the lessons demonstrated by the trials were not adopted by the domestic legal system minimising the long-term impact of the Special Court’s trials. Local unfamiliarity with the rule of law is not the only condition that can reduce the effectiveness of the expressive function of international criminal trials. Local perceptions of the international criminal justice institutions may also be a barrier to international criminal trials having an influence on domestic rule of law compliance. This proved to be the case in both the former Yugoslavia and Rwanda. A 71 Almeida Cravo (n 8) 488. 72 Antoine Garapon, ‘Three Challenges for International Criminal Justice’ (2004) 2 JICJ 716, 721. 73 Ibid. 74 Vinjamuri (n 21) 198. 75 L Alison A Smith and Sara Meli, Making Justice Count: Assessing the Impact and Legacy of the Special Court for Sierra Leone in Sierra Leone and Liberia (No Peace Without Justice 2012) Annex 10 and Annex 33. 76 Ibid. 77 Ibid. 78 Garapon (n 72) 721.

42 International Criminal Trials and Promoting the Rule of Law study done on the impact that international criminal trials had on the rule of law in Rwanda and the former Yugoslavia found that neither of the ad hoc Tribunals contributed to improving the domestic rule of law.79 This failure is largely attributable to the belief in the relevant states that the ad hoc Tribunals lacked legitimacy.80 In fact, some parts of the former Yugoslavia have been so disillusioned by the International Criminal Tribunal for the former Yugoslavia that it has caused an increasing number of people self-identifying as victims to favour prosecution in domestic war crimes courts rather than at the Tribunal.81 In at least one instance this distrust of the Tribunal led to greater efforts to comply with the rule of law. Independent monitoring bodies have found that the war crimes courts established in Bosnia and Herzegovina were meeting international standards of justice in an effort to reinforce the legitimacy of their proceedings.82 Not all of the former Yugoslavian states have achieved similar results. Established in 2003, the Belgrade War Crimes Chamber in Serbia was at one time praised for being the best court in the region at holding war crimes trials.83 That would change over time and the Chamber increasingly found itself facing allegations that its decisions were politically motivated and not rooted in the law.84 Additionally, any rule of law gains made in the Bosnian and Herzegovinian war crimes courts appear to have been temporary. In 2021, Adam Day and Jessica Caus found that the rule of law in Bosnia and Herzegovina has become stagnate, and that rule of law institutions and processes are backsliding away from previous advances.85 When considered as a whole, the available research makes it difficult to conclude that international criminal trials are having a sustained impact on improving the domestic rule of law. They appear to either create short-lived rule of law improvements followed by regression or no benefit at all. There are a number of reasons for this including: political elites rejecting domestic rule of law improvements out of a concern that changes to the legal system could threaten their power; local unfamiliarity with rule of law concepts; and negative perceptions about the legitimacy of the international criminal justice institutions that conduct 79 Stromseth et al. (n 2) 264. 80 Ibid. 81 Sanja Kutnjak Ivkovic´, and John Hagan, Reclaiming Justice: The International Tribunal for the Former Yugoslavia and Local Courts (OUP 2011) 150. 82 Olga Martin-Ortega, ‘Beyond the Hague: Prosecuting War Crimes in Bosnia and Herzegovina’ in James Gow, Rachel Kerr and Zoran Pajic´ (eds), Prosecuting War Crimes: Lessons and Legacies of the International Criminal Tribunal for the former Yugoslavia (Routledge 2014) 125 83 Diane F Orentlicher, Some Kind of Justice (OUP 2018) 407. 84 Ibid; see also Diane F Orentlicher, Shrinking the Space for Denial: The Impact of the ICTY in Serbia (Open Society Justice Initiative 2008) 55–6; Humanitarian Law Center, Press Release: Serbian Supreme Court Obstructs War Crimes Trials (Humanitarian Law Center, 19 September 2008) accessed 18 July 2022. 85 Adam Day and Jessica Caus, Rule of Law and Sustaining Peace: Towards More Impactful, Effective Conflict Prevention (United Nations University 2021) 79.

International Criminal Trials and Promoting the Rule of Law

43

international criminal trials. Until those perceptions are changed it is unlikely that international criminal trials will be able to have their full expressive effect on domestic rule of law compliance.

The Rule of Law and the Right to a Fair Trial From a rule of law perspective, international criminal trials can change perceptions about the legitimacy of international criminal justice institutions by guaranteeing the accused’s right to a fair trial.86 That does not mean that the rights of the accused should predominate over the rights of other trial participants. As discussed in Chapter 2, for a trial to be fair it must account for the needs and interests of all of the parties.87 What it does mean is that within the context of making sure the trial as a whole is fair, the trial court must ensure that the accused’s right to a fair trial is never compromised to give effect to the rights of other participants. This has to do with the rule of law’s responsibility to protect people from arbitrary exercises of governmental power. Criminal defendants are unusually susceptible to governmental arbitrariness because of the relationship between them during criminal proceedings. The government typically assumes responsibility for prosecuting criminal defendants, giving it a direct interest in bringing about the conviction of the accused. This interest in the outcome creates a danger that the government will use its authority in an unjust way to guarantee that the accused is convicted of the crimes alleged. The right to a fair trial ensures that protections exist to guarantee that the government does not use its power to convict the accused on an impermissible basis.88 It does this by acting as a procedural means for protecting rule of law interests by guaranteeing the proper administration of justice.89 As such, the right to a fair trial sits at the heart of the rule of law.90 Although styled as one right, the right to a fair trial is actually made up of a bundle of rights. From an international law perspective, the starting point for identifying the rights that make up the right to a fair trial can be found in Article 14 of the International Covenant on Civil and Political Rights.91 Most subsequent 86 Joanna Nicholson, “Too High’, ‘Too Low’, or ‘Just Fair Enough’?: Finding Legitimacy Through the Accused’s Right to a Fair Trial’ (2019) 17 JICJ 351, 352. 87 Stefan Trechsel, ‘The Character of the Right to a Fair Trial’ in John D Jackson and Sarah Summers (eds), Obstacles to Fairness in Criminal Proceedings (Hart 2018) 33; Nina HB Jørgensen, ‘The Right of the Accused to Self-Representation Before International Criminal Tribunals’ (2004) 98 Am J Int’l L 711, 723. 88 Kristen Campbell, ‘The Making of Global Legal Culture and International Criminal Law’ (2013) 26 Leiden J Int’l L 155, 167. 89 Human Rights Committee, General Comment 32: Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial, UN Doc CCPR/C/GC/32 (23 August 2007) 1. 90 Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984) Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) 14[1]. 91 UN General Assembly, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Art 14.

44 International Criminal Trials and Promoting the Rule of Law expressions of the right to a fair trial in international criminal law are modelled on the International Covenant and in some instances are copied from it almost verbatim. The rights making up the right to a fair trial can generally fall into three different categories: rights concerning the conduct and makeup of the court or tribunal; the right to be presumed innocent; and rights involving how an accused must be treated before, during and after trial.92 Many of the rights contained in the latter category, relating to how a defendant must be treated, are referred to as minimum guarantees. That means that they set out the minimum standard that must be afforded to an accused, and that a legal system can adopt additional unenumerated protections so long as they are rights designed to ensure that the accused is afforded a fair trial.93 Not all of the rights making up the right to a fair trial can be protected during the course of the trial itself as they arise either out of the makeup of the court or tribunal or before or after trial proceedings. Trial courts are only concerned with those aspects of the right to a fair trial that may have an effect on whether the rights asserted during trial can be fairly applied. This often takes the form of limiting or excluding evidence that was improperly obtained or withheld from the suspect during the pre-trial investigation.94 Although the violation takes place outside of the courtroom, admitting that evidence during trial would only legitimise the violation and create the danger of an unsafe conviction. Despite the identified limitations, there are still a number of rights that international criminal trials are required to enforce. They include ensuring that: the trial is fair and public and held without undue delay; the accused’s presumption of innocence is guaranteed; the accused is present and represented by counsel; the accused can understand the proceedings; the accused can examine the witnesses against them, and there is equality of arms amongst the parties during trial.95 When any of these rights are violated it can call into question whether the trial has been fair. That does not mean however, the right to a fair trial or its constituent parts cannot be derogated from under any circumstances. Instead, any departures from the right should only be permitted to ensure the fair outcome of the proceeding as a whole. The right to a fair trial is not included amongst the non-derogable rights identified in the International Covenant on Civil and Political Rights.96 Some consideration has been given to drafting an optional protocol to the International Covenant making the right to a fair trial non-derogable. That option has not been taken up as of yet, at least in part due to the belief that some of the provisions are already non-derogable and introducing an optional protocol making them non92 Ibid. 93 Jadhav Case (India v Pakistan) (Declaration of Judge Robinson) [2019] ICJ Reports [2]; see also Amal Clooney and Philippa Webb, The Right to a Fair Trial in International Law (OUP 2020) 9. 94 Clooney and Webb (n 93) 30. 95 IBA Resolution on the Rule of Law (September 2005) accessed 25 January 2022. 96 ICCPR (n 91) Art 4.

International Criminal Trials and Promoting the Rule of Law

45

97

derogable would somewhat cloud the issue. That means that the right as a whole can be limited in times of public emergency. Despite this, the Human Rights Committee has explained that it is only under fairly narrow circumstances that derogation from the right would be permissible. The right to a fair trial cannot be limited in a way that would also cause a derogation of one of the nonderogable rights.98 For example, the right to a fair trial cannot be departed from so as to permit the conviction of someone accused of performing an act which was not criminalised at the time of its commission.99 Additionally, certain aspects of the right to a fair trial, including the presumption of innocence and fundamental principles of fair trial cannot be deviated from under any circumstances.100 Although it is not entirely clear which Article 14 rights are considered fundamental for the purpose of this principle, it appears to include the accused’s right to challenge the lawfulness of their detention and the right to do so without undue delay.101 The reference to the non-derogability of the fundamental principles of fair trial would also suggest that the trial itself needs to remain fair even if certain aspects of the right to a fair trial are derogated from. It would be absurd to limit derogation of the fundamental principles of a fair trial but to allow the trial itself to be unfair. While the trial itself must always be fair, international criminal justice institutions have found that the flawed application of the accused’s fair trial rights does not necessarily lead to the trial itself being unfair. In its judgment in Prosecutor v Krajišnik, the Appeals Chamber of the ad hoc Tribunals indicated that there were ‘defects’ during the trial that may have created the appearance of unfairness in the proceedings.102 Despite this, the Appeals Chamber determined that a holistic assessment of the trial record, together with additional evidence adduced on appeal, demonstrated that the defects did not result in a miscarriage of justice undermining the fairness of the trial as a whole.103 It used similar language in its Blagojevic´ judgment when it found that limitations put on Mr Blagojevic´’s right to testify did not unreasonably interfere with the right to a fair trial so as to constitute a violation.104 Both of these decisions suggest that the individual rights making up

97 Commission on Human Rights, Report of the Secretary-General Prepared Pursuant to Sub-Commission Resolution 1993/26, UN Doc E/CN.4/Sub.2/1994/26 (13 June 1994) 16; Clémentine Olivier, ‘Revisiting General Comment No. 29 of the United Nations Human Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency’ (2004) 17 Leiden J Int’l L 405, 406. 98 HRC, General Comment 32 Article 14 (n 89) 1. 99 Ibid; The conviction of someone for an act that was not a crime at the time it was performed is prohibited under Article 15 and made non-derogable pursuant to Article 4(2). 100 Ibid. 101 Human Rights Committee, General Comment 29: State of Emergency (article 4) (31 August 2001) UN Doc CCPR/C/21/Rev.1/Add.1 [16]. 102 Prosecutor v Krajišnik (Judgement) No IT-00–39-A, A Ch (17 March 2009) [135]. 103 Ibid. 104 Prosecutor v Blagojevic´ (Judgment) No IT-02–60-A, A Ch (9 March 2007) [29].

46 International Criminal Trials and Promoting the Rule of Law the right to a fair trial may be deviated from so long as the right itself is not compromised. There have even been instances when a violation of the right to a fair trial has been found that did not result in invalidating the trial verdict. In Prosecutor v Krstic´, the Appeals Chamber ruled that the accused’s right to a fair trial had been infringed as a result of the Prosecution’s failure to provide exculpatory evidence to the defence in a timely manner.105 Despite this, the Appeals Chamber decided that the defendant was not entitled to a remedy because his case was not materially prejudiced by the infringement and because the Chamber was unable to determine if the breach had been intentional.106 This suggests that under some circumstances the right can be violated so long as it does not result in material prejudice to the accused. There is some logic to that approach. The purpose of the right to a fair trial is to ensure that the accused is not convicted and punished for a crime they did not commit. Therefore, it could be argued that so long as conviction is the correct result it is largely irrelevant whether the procedure used to reach that conclusion was fair. This would conform to the fair enough approach advocated by Colin Warbrick and discussed in greater detail in Chapter 2. The danger of emphasising the result over the process in this way is that it injects a significant amount of arbitrariness into how the trial is conducted. Different courts might view what constitutes material prejudice differently, meaning that the protections afforded to the accused could vary from courtroom to courtroom. It is precisely this sort of unpredictability the right to a fair trial and the rule of law is meant to prevent. While it is accepted that some of the constituent rights of the right to a fair trial can be compromised so long as the trial as a whole remains fair, it is imperative for the trial court to thoroughly explain any decision to depart below the established standards and to identify how doing so complies with the rule of law. Failing to do so can create confusion about what rights need to be protected and can create the impression that widespread deviations from the minimum guarantees are permissible so long as the outcome is considered fair. In turn, that confusion can cause states already struggling to grow the rule of law to adopt lower standards based on a misunderstanding on what rules they are meant to follow. An example of this can be found in Bangladesh’s International Crimes Tribunals. These were domestic tribunals established in 2010 and 2012 to prosecute crimes committed in the 1970s during the Bangladeshi war for liberation.107 The Tribunals’ procedural rules relied on the application of international criminal law principles, including what it understood to be the correct approach to the accused’s right to be present at trial (one of the rights that makes up the right to a fair 105 Prosecutor v Krstic´ (Judgment) No IT-98–33-A, A Ch (19 April 2004) [200]. 106 Ibid [213–14]. 107 Elizabeth Herath, ‘Trials in Absentia: Jurisprudence and Commentary on the Judgment in Chief Prosecutor v. Abul Kalam Azad in the Bangladesh International Criminal Tribunal’ (2014) 55 Harv Int’l L J Online 1, 2–3 accessed 28 June 2017.

International Criminal Trials and Promoting the Rule of Law

47

108

Further, Bangladesh, as a state party to the International Covenant on trial). Civil and Political Rights, was also obligated to ensure that it enforced the right to a fair trial as described in Article 14 of the International Covenant. Despite this, it amended its establishing Act in 2011 to allow the Tribunals to conduct trials in absentia, a decision that is seemingly contrary to the minimum guarantee contained in Article 14(3)(d) that an accused is entitled to be tried in their presence.109 This change in procedure was justified by the erroneous belief that the inclusion of trials in absentia in the Special Tribunal for Lebanon’s Statute represented a change in policy by the United Nations under which such proceedings were now universally permitted.110 Unfortunately, the decision to incorporate trials in absentia into the procedures of the International Crimes Tribunals failed to fully appreciate the safeguards contained in the Special Tribunal for Lebanon’s Statute designed to protect the rights of an absent accused.111 As a result, the International Crimes Tribunals’ approach to in absentia trials fell below acceptable human rights standards leading to the conviction in absentia of several individuals who were not given a meaningful opportunity to participate in their trials.112 The International Crimes Tribunals’ confusion about how to properly protect the accused’s right to be present, and in turn their right to a fair trial, was in part the result of mixed signals sent by international criminal justice institutions regarding the permissibility of derogating from the right to be present at trial. Had the right been applied clearly and consistently, the International Crimes Tribunals would not have had any justification for changing the law in a way that violated the rule of law. For international criminal trials to have the desired rule of law impact on domestic jurisdictions they must make sure that they are giving the maximum possible effect to the right to a fair trial. This does not mean strictly applying the accused’s right to a fair trial in all situations, there are, of course, instances in which the constituent rights underlying the right to a fair trial may conflict with one another making it impossible for the competing rights to both be fully enforced. This issue was very much on display during the Miloševic´ trial at the International Criminal Tribunal for the former Yugoslavia. Miloševic´ arrived at the Tribunal suffering from hypertension and heart disease, conditions that continued to deteriorate during his trial.113 As a result of his illness, the Trial Chamber agreed to sit on a reduced number of days and adjourned trial entirely on 66 108 International Crimes (Tribunals) Act (1973, amended 2011) Art 3. 109 ICCPR (n 91) Art 14(3)(d). 110 Chief Prosecutor v Azad (Judgment) Case No 05 of 2012, ICT-2 (21 January 2013) [50]. 111 Caleb H Wheeler, The Right to be Present at Trial in International Criminal Law (Brill 2018) 262. 112 Ibid. 113 Timothy William Waters, The Miloševic´ Trial: An Autopsy (OUP 2013) 70; Miloševic´ v The Prosecutor (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-02–54-AR73.7, A Ch (1 November 2004) [4].

48 International Criminal Trials and Promoting the Rule of Law different occasions.114 Matters were complicated by the fact that Miloševic´ insisted on representing himself despite the fact that doing so was exacerbating his medical conditions, resulting in further disruption to the trial schedule. However, the reduced trial schedule and frequent disruptions also meant that his right to a fair and expeditious trial was also under threat. The Trial Chamber resolved this dilemma by assigning defence counsel to Miloševic´ on the basis that if they did not the trial would last an inordinately long time or never reach a conclusion.115 The decision was justified on the belief that a Trial Chamber has the duty, when confronted with a situation where the trial is at risk of not being conducted fairly, to implement a regime that will avoid the unfairness.116 In Miloševic´’s case, the requirements of a fair trial meant his right to self-representation and to choose his own counsel had to give way to his right to an expeditious trial if the proceedings were to remain fair. The Appeals Chamber upheld the Trial Chamber’s decision to impose counsel on Miloševic´.117 In so doing, it set out how a trial court should go about deciding the extent to which a right held by the accused may be limited and still comply with the right to a fair trial. It determined that a trial court must follow a ‘general principle of proportionately’, whereby any limitation imposed is: 1 2 3

suitable to the situation; necessary under the circumstances; and reasonable in degree and scope to remedying the threat to the fairness of the trial.118

The decision to impose counsel on Miloševic´ was framed entirely in terms of how it would impact his right to a fair trial. It contains no reference to whether doing so would be fair to either the prosecution or the victims of Miloševic´’s alleged crimes. This is due, at least in part, to the fact that victims had no standing as participants in trials at the International Criminal Tribunal for the former Yugoslavia. Despite the decision’s focus on the rights of the accused, it does make reference to the importance of ensuring that the integrity of the trial is not undermined in a way that would make the trial unfair.119 From this one might extrapolate that although the accused’s right to a fair trial is a primary concern, the 114 Waters (n 113) 70; Report to the President on the Death of Slobodan Miloševic´ (30 May 2006) [14–15] accessed 3 July 2017. 115 Prosecutor v Miloševic´ (Reasons for Decision on Assignment of Defence Counsel) IT02–54-T, T Ch (22 September 2004) [1]. 116 Ibid [33]. 117 Prosecutor v Miloševic´ (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-02–54-AR73.7, A Ch (1 November 2004) [15] [19]. 118 Ibid [17]; see also Prosecutor v. Limaj (Decision on Fatmir Limaj’s Request for Provisional Release) IT-03–66-AR65, A Ch (31 October 2003) [13]. 119 Prosecutor v Miloševic´, Reasons for Decision on Assignment of Defence Counsel (n108) para [33].

International Criminal Trials and Promoting the Rule of Law

49

trial court is also mandated to protect against unfairness as to any aspect of trial. A trial that is fair to the accused but unfair to the other participants would also threaten the integrity of the proceedings as it would increase the likelihood of a decision being made on an improper basis. Therefore, if the role of the trial court is to protect the integrity of the trial it must guarantee that the trial is fair to everyone with an interest in the verdict. Failing to meet that duty will put the decision at risk of being in contravention of the rule of law. The Miloševic´ case indicates that a contextual balancing act should be carried out when resolving conflicts between competing fair trial rights and that the balance must be resolved in favour of ensuring that the trial is fair.120 This focus on the fairness of the outcome acts as a reminder of its paramount importance to the rule of law. The Miloševic´ approach to determining the correct balance of rights is in tune with the goal of enhancing the rule of law. It identifies fairness as the lodestar guiding the entire trial while simultaneously diminishing the likelihood that arbitrariness and bias will infect the process. However, trial courts do not have unlimited discretion to infringe upon the accused’s right to a fair trial or its constituent parts. Such restrictions must be proportionate and may only constrain the accused’s rights to the extent necessary to ensure that the trial is fair. Should a court impose a disproportionate restriction on the accused’s right to a fair trial it could call into question the legitimacy of the proceeding and the court or tribunal conducting it.121 This would have the knock-on effect of diminishing the impact international criminal trials can have on developing the domestic rule of law as its processes and decisions will be seen as being contrary to the interests of fairness and justice.122

Conclusion One of the side effects of armed conflict is the deleterious impact it can have on the domestic rule of law. This can manifest itself in several ways, from a reduction in the efficacy of the institutions of justice to changes in understanding about the law and its proper application. As a result of this, there is often a need to rebuild the domestic rule of law following the cessation of violence. This is a complicated process requiring the political and legal engagement of a number of different stakeholders, including international criminal justice institutions. This is in keeping with the stated goals of international criminal justice, one of which requires institutions to foster and positively impact the domestic rule of law. International criminal justice institutions achieve that goal by ensuring that international criminal trials play an expressive role for domestic legal systems to follow. There are three fundamental ways in which that expressive function can 120 Jørgensen (n 87) 723. 121 Nicholson (n 86) 352. 122 Roger L Phillips, ‘Frail Accused and Fitness to Stand Trial’ in Simon M Meisenberg and Ignaz Stegmiller (eds), The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (TMC Asser Press 2016) 489.

50 International Criminal Trials and Promoting the Rule of Law help to develop the domestic rule of law in post-conflict societies. First, international criminal trials demonstrate how a legal system can and should function. Second, they delineate what sort of behaviour falls outside of international norms so as to promote better compliance with the rule of law. Third, they show the benefits of rule of law compliance to political leaders in post-conflict settings. Running through all of this is the condition that international criminal trials must be both fair and legitimate if they are to have the desired impact. Should fairness and legitimacy be absent, efforts to construct some form of legal ‘best practices’ will fail and international criminal trials will have little effect on the domestic rule of law.

4

International Criminal Trials and the Search for Truth

Establishing the truth about a situation in which atrocity crimes have been committed has been identified as ‘the cornerstone of the rule of law’ and various international and internationalised criminal courts and tribunals have consistently identified the important role truth-finding plays in their missions.1 The truth identified by a court or tribunal is believed to serve multiple purposes, including: the traditional legal function of creating a factual basis upon which the fact-finder can determine the guilt of the accused; identifying an objective record of events; undermining denials about the existence of human rights violations and supplying therapeutic benefits to the victims in recognition of their right to truth.2 Each of these different types of truth help to fulfil different goals of trials, including accountability, peace, reconciliation and delivering justice to the victims. As such, establishing the truth is sometimes viewed as an overarching goal that helps to aid in the achievement of the other identified trial goals.3 At the outset, it is important to clarify that the kinds of truth that can be elicited during an international criminal trial can be roughly divided into two essential types. The first is the truth needed for the fact-finder to determine the guilt of the accused, and the second can generally be referred to as the historical truth. The first type of truth is narrower than the second, as it is constrained by several factors including: the charges brought against the accused; the role played by the defendant in the events under examination; and the availability of relevant evidence. The second type of truth is more wide-ranging. It goes beyond the crimes alleged by also focusing on information that is tangential to the charges and the individual defendants. It is designed to help understand the context in which the alleged crimes were committed and how the victims were affected by their commission. 1 UN Security Council, Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Security Council Meeting (25 May 1993) UN Doc S/ PV.3217, 12. 2 Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (3rd edn, OUP 2014) 38; David Mendeloff, ‘Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice’ (2009) 31 Hum Rts Q 592, 593. 3 M Cherif Bassiouni, ‘Searching for Peace and Achieving Justice: The Need for Accountability’ (1996) 59 Law & Contemp Prob 9, 24.

DOI: 10.4324/9781003027331-4

52 International Criminal Trials and the Search for Truth This chapter considers how trials can give effect to these two types of truths in a way that will also facilitate the other goals of international criminal trials while also ensuring that those trials are fair. It identifies how each type of truth fulfils the trial goals and presents a framework for accommodating truth during international criminal trials in a way that ensures fairness.

The Relationship Between Truth and Accountability The trial goal of accountability is mainly concerned with establishing the first type of truth as discussed in greater detail in Chapter 2. Accountability is designed to determine whether the accused is guilty based on the facts available to the court or tribunal conducting the trial.4 Adversarial criminal trials of the sort conducted by international criminal justice institutions are structured so as to illuminate the facts as they relate to a particular accused and the charges brought against them.5 The accused’s right to a fair trial prevents the introduction of evidence that is outside of the scope of the charges, as its introduction could expose the fact-finder to irrelevant and potentially prejudicial facts that could result in the entry of a verdict based on an improper basis.6 A conviction based on irrelevant evidence would likely be considered unfair, undermining the goals of accountability and threatening the legitimacy of the international criminal justice institution holding the trial.7 Accountability’s emphasis on relevance may serve to protect the overall fairness of proceedings but it prevents the consideration of the sort of information needed to develop a complete picture of the historical situation. This creates a tension with some of the other trial goals, the success of which rely on creating as full a historical understanding about the conflict underlying the charges as possible. The rule of law depends on a robust truth-telling process to the extent that ascertaining how and why violence happened allows the government of an affected state to address those problems and create a more just society in the future.8 Once the history about the behaviour of past regimes is established, it can be condemned by a new government thereby signifying a shift towards a different future.9 Bringing the full historical truth about a situation to light can also help aid reconciliation 4 Steven Ratner, Jason Abrams and James Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (3rd edn, OUP 2009) 254. 5 Mirjan Damaška, ‘What is the Point of International Criminal Justice?’ (2008) 83 Chicago-Kent L Rev 329, 337. 6 Ibid 336; Jens David Ohlin, ‘A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law’ (2009) 14 UCLA J Int’l L & Foreign Aff 77, 95. 7 Ohlin (n 6) 95; see also Barrie Sander, Doing Justice to History: Confronting the Past in International Criminal Trials (OUP 2021) 32. 8 Karen Brounéus, ‘The Trauma of Truth Telling: Effects of Witnessing in the Rwandan Gacaca Courts on Psychological Health’ (2010) 54(3) J Conflict Resolut 408, 430. 9 Jeremy Sarkin, ‘Enhancing the Legitimacy, Status, and Role of the International Criminal Court Globally by Using Transitional Justice and Restorative Justice Strategies’ (2011) 6(1) Interdisc J Hum Rts L 83, 98.

International Criminal Trials and the Search for Truth

53

efforts by creating a common history that cannot be denied by different factions.10 Such a history provides a divided society with a starting point to discuss the issues which caused the conflict and will hopefully encourage disparate groups to find ways to resolve those issues.11 Finally, determining the full historical truth can be very important to victims of atrocity crimes as it can serve to recognise their victimhood and provide them with information about why they were victimised.12 This can help victims feel as if justice has been done and in some cases create the basis for them to forgive their victimisers, an often necessary steps towards reconciliation. International criminal trials typically employ a binary process, with the prosecution advocating one position and the defence offering an opposing view. Only looking at the matter from two perspectives restricts international criminal trials in their ability to establish a comprehensive picture of the truth.13 Not only is evidence limited to what is considered relevant, it is generally presented in the light most favourable to the party presenting it. This often means that evidence that is important to the historical record, but which has no bearing on the cases being presented by the parties, will not be introduced into evidence during trial.14 The International Criminal Court has famously permitted some deviation from this dualistic structure by giving the victims a limited right to participate in proceedings relating to their victimhood.15 However, the victim’s ability to exercise their participatory role is confined to situations in which their personal interests are affected and their participation must not be ‘prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial.’16 This constraint on the victims’ participatory rights generally means that victims are unable to discuss matters that do not clearly relate to the charges, even when their personal interests may be 10 Payam Akhavan, ’Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) 20 Hum Rts Q 737, 741–2; Laurel E Fletcher and Harvey M Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Hum Rts Q 573, 587; James Meernik and Jose Raul Guerrero, ‘Can International Criminal Justice Advance Ethnic Reconciliation? The ICTY and Ethnic Relations in Bosnia-Herzegovina’ (2014) 14(3) Southeast European and Black Sea Studies 383, 403. 11 Rudina Jasini and Victor Phan, ‘Victim Participation at the Extraordinary Chambers in the Courts of Cambodia: Are Retributive and Restorative Principles Enhancing the Prospect for Justice’ (2011) 24(3) Cambridge Review of International Affairs 379, 386. 12 Emily Haslam, ‘Victim Participation at the International Criminal Court: A Triumph of Hope over Experience’ in Dominick McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court (Hart 2004) 328–9. 13 Damaška (n 5) 337. 14 Ibid; see also Mark Klamberg, ‘What are the Objectives of International Criminal Procedure? - Reflections on the Fragmentation of a Legal Regime’ (2010) 79 Nordic J Int’l L 279, 289–90. 15 Rome Statute of the International Criminal Court (17 July 1998) Art 68. 16 Ibid Art 68(3); see also William Schabas, An Introduction to the International Criminal Court (4th Edition, CUP 2011) 347.

54 International Criminal Trials and the Search for Truth affected. The small number of perspectives from which evidence can be introduced during an international criminal trial, accompanied by the restriction that all evidence must be relevant to the crimes alleged, is inadequate for developing the sort of full and complete history trusted by historians.17 In this way, accountability limits what evidence can be introduced during trial makes international criminal trials an imperfect method for establishing the historical truth. Guilty Pleas The introduction of evidence during an international criminal trial is not only hampered by relevance and the narrow perspective of the parties. Another significant limitation involves the willingness of international criminal justice institutions to permit the accused to plead guilty. Guilty pleas result in the accused being found guilty of at least some of the crimes alleged without the need to hold a trial. This clearly satisfies the goal of accountability and, because the accused is admitting their guilt, alleviates most concerns about the safety of the verdict. The drawback to guilty pleas, at least from the perspective of some of the other trial goals, is that they pre-empt the presentation of evidence that can contribute to building the historical record.18 This happens in two different ways. First, the decision not to hold a trial means that there will be no forum in which evidence can be presented to build that record.19 That can be problematic for reconciliation efforts as an expansive history of events, around which different sides may be able to agree a consensus, can be pivotal in allowing divided societies to reconcile. Second, guilty pleas are often the product of a negotiation between the prosecution and the defence in which the former agrees to drop some of the charges in exchange for the latter’s admission of guilt.20 This means that the accused will avoid responsibility for charges pertaining to the victimhood of some of their victims, depriving those victims of a sense that justice has been done. Some trial chambers share these concerns about how guilty pleas are used at international criminal justice institutions. For example, the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia was particularly troubled by plea agreements reached under Rule 62 ter of the Rules of Procedure and Evidence, which permit the accused to enter a guilty plea only as to certain agreed upon facts.21 It felt that pleas entered under these circumstances prevented the 17 Damaška (n 5) 337. 18 Regina E Rauxloh, ‘Negotiated History: The Historical Record in International Criminal Law and Plea Bargaining’ (2010) 10 Int’l Crim L Rev 739, 752 19 Prosecutor v Momir Nikolic´ (Sentencing Judgment), IT-02–60/1-S, T Ch (2 December 2003) [61]. 20 Fergal Gaynor, ‘Uneasy Partners - Evidence, Truth and History in International Trials’ (2012) 10 JICJ 1257, 1268. 21 Prosecutor v Dragan Nikolic´ (Sentencing Judgement) IT-94–2-S, T Ch (18 December 2003) [12]; Rules of Procedure and Evidence, International Criminal Tribunal for the former Yugoslavia (as amended 8 July 2015) Rule 62 ter.

International Criminal Trials and the Search for Truth

55

public and the court from gaining an understanding of the truth beyond what was accepted in the plea agreement.22 The Trial Chamber feared that such partial evidence created a gap in the historical record.23 The International Criminal Court’s Statute attempts to address this concern by allowing for the presentation of evidence following a guilty plea, including witness testimony, ‘in the interests of justice’ and ‘in particular, the interests of the victims’.24 Whether this flexibility to allow the introduction of additional evidence following a guilty plea will contribute to a fuller factual record remains to be seen as the procedure has been used once, and in that instance evidence was only presented for two days.25 Despite the declared interest in protecting the interests of the victims through the taking of evidence, it appears the procedure is mainly designed to ensure that enough evidence is recorded to ensure that the guilty plea is sufficiently grounded in the facts. While this is admirable from a fairness perspective as it attempts to guarantee that the verdict is entered on an appropriate basis, it does little to help develop the larger historical record. The value of guilty pleas depends on them being genuine and truthful.26 The importance of this is highlighted by the case of Biljana Plavšic´ at the International Criminal Tribunal for the former Yugoslavia. Plavšic´ voluntarily surrendered to the Tribunal in 2001 to answer for charges outlined in an indictment confirmed the previous year.27 An amended indictment was issued in 2002, containing eight counts for crimes including genocide, incitement to genocide, persecution, deportation, extermination and killing.28 Instead of facing trial, Plavšic´ chose to plead guilty to the count of persecution in exchange for all of the other charges being dropped.29 The Trial Chamber found during her sentencing that her decision to plead guilty constituted an expression of remorse.30 The plea is reported to have gratified her victims, despite their apparent disappointment that the genocide count was withdrawn.31 However, any satisfaction they may have experienced from her guilty plea was later undermined when Plavšic´ gave an interview in 2009 in which she indicated that she ‘had done nothing wrong’ and stated that she only

22 23 24 25 26 27 28 29 30 31

Dragan Nikolic´ Sentencing Judgement (n 21) [12]. Ibid. Rome Statute (n15) Art 65(4). Prosecutor v Al Mahdi (Judgment and Sentence) No ICC-01/12–01/15, Tr Ch VIII (27 September 2016) [7]. Rauxloh (n 18) 752; Kai Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (OUP 2016) 55. Prosecutor v Plavšic´ (Sentencing Judgment) IT-00–39&40/1-S, T Ch (27 February 2003) [1]. Prosecutor v Krajisnik and Plavšic´ (Amended Consolidated Indictment) IT-00–39 & 40-PT, Prosecutor (7 March 2002). Prosecutor v Krajisnik and Plavšic´ (Plea Agreement) IT-00–39 & 40-PT (14 September 2002) [3]. Plavšic´ Sentencing Judgment (n 27) [73]. Janine Natalya Clark, ‘Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation’ (2009) 20(2) EJIL 415, 431.

56 International Criminal Trials and the Search for Truth pled guilty to obtain a lighter sentence.32 In another interview, she attributed her plea to an inability to bring in witnesses to testify on her behalf and a disinterest in going through trial.33 The actual reason behind Plavšic´’s decision to cast doubt on the efficacy of her guilty plea is immaterial. So too is the legitimacy of her later claims of innocence. Raising a question about the veracity of her plea has dealt a significant blow to any truth-telling function it might have produced. Further, any satisfaction her victims may have experienced as a result of her guilty plea, no matter how tempered by their disappointment that the genocide charge was dropped, is now erased. Simply put, although her guilty plea was never formally withdrawn, it is now worthless either as an instrument for establishing the truth or as a means to permit her victims to experience a sense of justice. Trial chambers conducting international criminal trials need to be wary when accepting guilty pleas. They can have significant value from an accountability perspective because they alleviate the need for a long and complicated trial and reduce doubts about fairness through the accused’s concession that there is an intersection between their factual and legal guilt. The trade-off is that guilty pleas have limited value from a historical perspective as they foreclose the opportunity for testimony during trial that could produce a better understanding about the historical context in which the crimes were committed. Further, all of the benefits of guilty pleas are undermined if the accused later repudiates their plea and reasserts their innocence. Therefore, when an accused indicates their willingness to plead guilty, the trial chamber in charge of the matter needs to explore the veracity of the plea and take steps to guarantee that otherwise important information is not lost. This is essential if the truth established in guilty pleas are to help facilitate other trial goals like reconciliation, peace and providing the victims with a sense that justice has been done. Acquittals Following the Close of the Prosecution’s Case Guilty pleas are not the only way to interrupt the presentation of evidence before all sides have presented their case. Acquittals entered by the trial court following the close of the prosecution’s case also limit the introduction of evidence in a way that prevents the development of the truth. As with guilty pleas, entering a verdict in favour of the accused without both sides presenting their case can be positive for accountability. It is an indication that there is no reason to continue the trial because there is insufficient evidence to overcome the requisite burden of proof. That means that the accused cannot be held legally accountable for their alleged actions. Assuming that the trial was carried out fairly, the goal of accountability is fulfilled because a legal determination has been reached that there is no nexus 32 Simon Jennings, ‘Plavsic Reportedly Withdraws Guilty Plea’ (Institute for War and Peace Reporting, 31 January 2009) accessed 14 January 2022. 33 Diane Orentlichter, Some Kind of Justice (OUP 2018) 148, fn 162.

International Criminal Trials and the Search for Truth

57

between the factual and legal guilt of the accused. Unfortunately, pre-empting the trial before its conclusion means that some witnesses will be deprived of the chance to testify and evidence relevant to the historical record will not be introduced. Therefore, an opportunity is lost to further develop the full and complete history of the situation under review. The tension between accountability and developing the truth under these circumstances can be seen in the judgment reached by the Appeals Chamber of the International Criminal Court in Prosecutor v Gbagbo et al. There, the Appeals Chamber affirmed the decision of the Trial Chamber to acquit the accused because the prosecution failed to satisfy the burden of proof during the presentation of its case-in-chief.34 Not enough evidence was introduced to overcome the presumption of innocence meaning that no procedural reason existed to continue trial.35 For that reason, they chose to end the trial and acquit Gbagbo. While this is the correct decision from an accountability standpoint it discounts the possibility of further developing the truth about the matter under consideration. Judge Ibáñez Carranza advanced that argument in her dissenting opinion in the Gbagbo et al. case. She contends that the no case to answer motion violates the victims’ right to truth (in addition to their rights to justice and reparations) as they were deprived of the opportunity to propose evidence or examine witnesses called by the defence.36 The court’s decision to accept the no case to answer motion rejected that argument, and accepted that accountability and its emphasis on ensuring that the trial is procedurally fair is more important than establishing the historical truth about the underlying situation. Judicial Notice of Facts International criminal trials also limit the development of the historical truth to the extent that trial chambers can take judicial notice of certain facts. Judicial notice is a process by which the court may consider some facts as proven without hearing evidence about them.37 It is used to ensure factual consistency across different trials and to expedite proceedings by eliminating the need for the court to hear evidence about the fact being noticed.38 The facts about which judicial notice may be taken are typically limited to those that are considered common 34 Prosecutor v Gbagbo et al. (Judgment in the Appeal of the Prosecutor Against Trial Chamber I’s Decision on the No Case to Answer Motions) ICC-02/11–01/15 A, A Ch (31 March 2021) [380]. 35 Ibid. 36 Prosecutor v Gbagbo et al. (Dissenting Opinion of Judge Luz del Carmen Ibáñez Carranza to the Judgment on the appeal of the Prosecutor against the oral verdict of Trial Chamber 1 of 15 January 2019 with written reasons issued on 16 July 2019) ICC-02/11–01/15 A, A Ch (31 March 2021) [125]. 37 James Crawford, ‘Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent’ (2003) 3 Int’l Crim L Rev 245, 245. 38 The Prosecutor v Laurent Semanza (Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54) ICTR-97–20-I, T Ch (3 November 2000) [20].

58 International Criminal Trials and the Search for Truth knowledge and, in some international criminal courts and tribunals, to facts that have already been adjudicated.39 What facts constitute common knowledge is a somewhat disputed concept as it is not clear on its face what types of information should be included in this category. The Trial Chamber of the International Criminal Tribunal for Rwanda addressed this ambiguity by defining ‘facts of common knowledge’ as those that are not subject to dispute amongst reasonable persons.40 Included in this are historical facts, facts relating to geography and the laws of nature and ‘facts that are generally known in the area of the Tribunal’s territorial jurisdiction.’41 Also included are facts that can be verified by reference to ‘a reliable and authoritative source.’42 While the first three types of information considered common knowledge by the Tribunal are fairly clear, the interpretation of the latter two categories seems open to a significant amount of judicial discretion. In particular, it is difficult to see how a Court might determine what constitutes a fact that is generally known in a nation the size of Rwanda. Trial Chamber VII of the International Criminal Court relied on the International Criminal Tribunal for Rwanda’s decision about what sort of facts can be judicially noticed without offering any real clarity on the issue. It found in the Bemba case that common knowledge could be derived from ‘sources whose accuracy cannot be reasonably questioned.’43 This, too, is a vague formulation largely leaving the matter open for each individual Trial Chamber to decide. The Special Court for Sierra Leone did try and identify some specific documents possessing the requisite authority. It determined in the Brima case that United Nations documents and Non-Governmental Organisation reports could be adequately authoritative so that judicial notice could be taken of facts contained therein.44 Despite this, there is no evidence of other international criminal courts and tribunals following their lead. As a result, it appears no real consensus exists about what constitutes a sufficiently authoritative source for these purposes. That means that each individual court confronted with this issue will likely have to decide for itself whether a source is sufficiently authoritative to contain common knowledge leaving room for discrepancy in how the matter is decided. While this is not necessarily a bad thing as it permits different Trial Chambers to adapt their 39 ICTY RPE (n 21) Rule 94; see also Rules of Procedure and Evidence, International Criminal Tribunal for Rwanda (as amended 13 May 2015) Rule 94; Rules of Procedure and Evidence, Special Court for Sierra Leone (as amended 31 May 2012) Rule 94; Rules of Procedure and Evidence, Special Tribunal for Lebanon (29 November 2010) Rule 160; Rome Statute (n15) Art 69(d). 40 Prosecutor v Bagosora et al. (Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rules 73, 89 and 94) ICTR-98–41-T, T Ch (11 April 2003) [44]. 41 Ibid. 42 Ibid. 43 Prosecutor v Bemba et al. (Decision on Prosecution Motion for Clarification of Rule 68 (3) Direction in Conduct of Proceedings Decision) ICC-01/05–01/13, T Ch (15 September 2015) [5]. 44 Prosecutor v Brima et al. (Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence) SCSL-04–16-PT, PT Ch (25 October 2005) [31].

International Criminal Trials and the Search for Truth

59

decisions based on the exigencies of their own situation, it also creates a risk that one Trial Chamber may decide to take judicial notice of a fact while another will not. This could create some inconsistency in how cases are decided leaving courts vulnerable to claims that proceedings are unfair because different defendants are being evaluated by different standards. With the exception of the International Criminal Court, all of the international criminal courts and tribunals also permit the trial court to take judicial notice of facts that have already been adjudicated.45 While all of these courts and tribunals largely follow a similar formula, there are subtle differences in how they characterise an adjudicated fact. In Prosecutor v Setako, the Appeals Chamber for the ad hoc Tribunals characterises an adjudicated fact as one contained in a final judgment.46 In this context, a final judgment means either a trial judgment that has not been appealed or, where it has been appealed, the relevant fact has been upheld on appeal.47 The International Criminal Tribunal for the former Yugoslavia took a slightly more expansive view of what constituted an adjudicated fact. In Prosecutor v Popovic´ et al., the Appeals Chamber removed the finality requirement asserted by the International Criminal Tribunal for Rwanda in Setako and determined that judicial notice may be taken of a fact so long as it is one that has been previously determined by the Tribunal on the basis of evidence presented during trial.48 Rule 160 of the Special Tribunal for Lebanon’s Rules of Procedure and Evidence also contain an internal limitation not found in similar rules at the international criminal courts and tribunals. Like the other rules, Rule 160 states that for an adjudicated fact to be judicially noticed it must be related to matters at issue in the current proceedings.49 Unlike the other rules, it contains the additional limitation that judicial notice can only be taken of an adjudicated fact if it does not relate to the acts or conduct for which the accused is being tried.50 Judicial notice can affect the ability of a trial court to establish a historical record both positively and negatively. The best example of the former can be found in the International Criminal Tribunal for Rwanda’s decision in Karamera that it is a fact of common knowledge that a genocide occurred in Rwanda in 1994.51 In so doing, the Appeals Chamber found that the Trial Chamber should have taken judicial notice of this fact on the grounds that it is a fact of world history and that there is no reasonable basis on which to dispute it.52 By making this declaration, 45 ICTY RPE (n 21) Rule 94; ICTR RPE (n 39) Rule 94; SCSL (n 39) Rule 94; STL RPE (n 39) Rule 160. 46 Prosecutor v Setako (Appeals Judgment) ICTR-04–81-A, A Ch (28 September 2011) [200]. 47 Ibid. 48 Prosecutor v Popovic´ et al. (Appeals Judgement) IT-05–88-A, A Ch (30 January 2015) [622]. 49 STL RPE (n 39) Rule 160; ICTY RPE (n 21) Rule 94; ICTR RPE (n 39) Rule 94; SCSL (n 39) Rule 94. 50 STL RPE (n 39) Rule 160. 51 Prosecutor v Karemera et al. (Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice) ICTR-98–44-AR73(c), A Ch (16 June 2006) [35]. 52 Ibid.

60 International Criminal Trials and the Search for Truth the Appeals Chamber removed the existence of the genocide from debate and confirmed it as historical fact, a clear contribution to the historical truth about the events in Rwanda in 1994. It also meant that it did not need to be proven in future trials allowing the court to focus on other issues. One significant danger of judicial notice is that it precludes the introduction of evidence that may support or explain the fact being noticed. Because the fact is simply accepted as true without the need for additional evidence, the historical record is deprived of any new information that evidence might produce. Further, judicial notice loses its ability to advance the historical truth when different trial courts treat the same pieces of evidence differently. An example of this can be found in the Krajišnik and Miloševic´ cases at the International Criminal Tribunal for the former Yugoslavia. The Prosecutor requested that in each case the respective chambers take judicial notice of a large number of facts, many of which were the same in both cases.53 In Krajišnik the Trial Chamber agreed to take notice of all of the facts on the basis that they possessed sufficient reliability having already been adjudicated and found to be accurate.54 The Miloševic´ Trial Chamber took a different view and refused to take notice of many of the same facts. It found that any facts which were not historical were subject to reasonable dispute rendering them inappropriate for judicial notice.55 The Trial Chamber based that decision on the belief that taking notice of facts that could be disputed by the parties would violate the accused’s right to a fair trial.56 The decision was appealed and the Appeals Chamber explained that the basis for taking judicial notice of an adjudicated fact is whether it has been previously decided by another Chamber.57 The Trial Chamber reconsidered its decision on this basis, and while it decided to admit more facts than in its original decision, it still decided that it was not appropriate to take judicial notice of some facts.58 As the Appeals Chamber of the ad hoc Tribunals explained in its Miloševic´ decision on adjudicated facts, when judicial notice is taken of a fact it is presumed that the fact is accurate and it does not have to be proven again at trial.59 The fact may be challenged at trial by the party not requesting that notice be taken, but they must overcome the presumption that it is true before the fact will be 53 Eugene O’Sullivan and Deirdre Montgomery, ‘The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY’ (2010) 8 JICJ 511, 521. 54 Prosecutor v Krajišnik (Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92bis) No IT-00–39-PT, T Ch (28 February 2003) [16]. 55 Prosecutor v Miloševic´ (Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts) No IT-02–54-T, T Ch (10 April 2003) 2. 56 Ibid. 57 Prosecutor v Miloševic´ (Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts) No IT-02–54-AR73.5, A Ch (28 October 2003) 2. 58 Prosecutor v Miloševic´ (Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts) No IT-02–54-T, T Ch (16 December 2003) [20]. 59 Miloševic´ Decision on the Prosecution’s Interlocutory Appeal (n 57) 2.

International Criminal Trials and the Search for Truth

61

60

disregarded by the Trial Chamber. This creates a workable framework for how those facts will be dealt with in the context of a specific trial, but it creates difficulties when two trial chambers reach different decisions about whether judicial notice can be taken of a particular fact. First, there is a fairness issue to the extent that the prosecution will have to prove the fact in one case but not in the other. This changes the burden of production meaning that the trials are being conducted under somewhat different conditions. Second, it is difficult to draw any significant historical conclusions about a fact that remains in dispute. One of the advantages of judicial notice is that it can foreclose disagreement about some facts as they are presumed to be true. That presumption is undermined from a historical standpoint if only some trial chambers feel it is appropriate to take notice of the fact under consideration. Therefore, trial chambers should approach judicial notice with caution and try to avoid taking notice of facts of uncertain status. This should help alleviate concerns about judicial notice and establish an approach whereby it can help international criminal trials accomplish their goals. Excluding Charges Against Certain Individuals or Groups Evidence relevant to establishing the full historical truth can also be omitted on the basis of institutional policies to not bring charges against certain individuals or groups regardless of their possible liability.61 Every international criminal justice institution has faced allegations that it failed to properly investigate all sides of a conflict. Following World War II, both the Nuremberg and Tokyo Tribunals were accused of overlooking Allied crimes and the latter was also criticised for failing to prosecute Emperor Hirohito of Japan for his actions during the war.62 The International Criminal Tribunal for Rwanda was condemned for abandoning attempts to properly investigate and prosecute crimes committed by members of the Tutsi ethnic group or to scrutinise the inaction of the international peacekeeping force during the genocide.63 Survivors of Saddam Hussein’s regime in Iraq have expressed disappointment that foreign actors, including the United Nations, the United States and other Arab countries, were not held accountable for their perceived support of, or lack of intervention in, the human rights violations that were committed against them.64 Many Serbians not only believe that the Yugoslavia Tribunal is biased against ethnic Serbs, but also that responsibility 60 Ibid. 61 Damaška (n 5) 337; Klamberg (n 14) 289–90. 62 Victor Peskin, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda’ (2005) 4 (2) J Hum Rts 213, 214; Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (OUP 2008) 311. 63 Peskin (n 62) 224–25; Megan A Fairlie, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’ (2003) 34(1) Cal W Int’l L J 47, 57–8; Sander Doing Justice (n 7) 265. 64 Nehal Bhuta et al. (eds) Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction (Human Rights Center, UC Berkeley School of Law 2004) 29–31.

62 International Criminal Trials and the Search for Truth should have been apportioned to NATO for their actions during the war in the former Yugoslavia.65 Interviewees in Bosnia and Herzegovina allege that the Dutch government shares equal responsibility with the Serbs for the Srebrenica genocide.66 There are a variety of reasons why the prosecution may choose not to prosecute all sides of a conflict. Some are perfectly legitimate and may relate to achieving other trial goals. For example, accountability and its need to guarantee fairness should prevent prosecutions when there is not enough evidence to support a conviction. It would be unfair to both the accused and the victims to have them go through a process that can only result in one legitimate outcome. Additionally, the crimes alleged against an individual may lack sufficient gravity to make prosecution feasible or the court or tribunal involved may lack jurisdiction over the crimes or the individual accused of committing them. To prosecute under these circumstances would violate the rule of law as the decision to go to trial would lack transparency and consistency with existing laws. Despite the fact that these reasons not to prosecute are based on strong accountability and rule of law grounds, not prosecuting in those situations does serve to limit the development of the historical record. This can, in turn have a negative impact on other trial goals, particularly reconciliation. Prosecution decisions can also be made on political or pragmatic grounds. This can include not prosecuting to avoid alienating states whose cooperation is necessary to facilitate other prosecutions or deciding to only prosecute the losing side of a conflict. Neither of these reasons not to prosecute should be considered legitimate under international criminal law. Both run contrary to the rule of law as they seek to treat defendants differently on the basis of objective criteria, e.g. their ethnic, racial, national or political affiliations, rather than their culpability for crimes they may have committed. This form of ‘victor’s justice’ has no place in modern international criminal law as it undermines many or all of the goals international criminal trials are hoping to achieve. The Limits of Judgments as Historical Records All of these different ways in which the trial is unable to fully develop the truth act as a filtering process that serves to omit information from the record that has a bearing on the historical truth. That process does not stop with the conclusion of the trial. Once the parties have finished selectively presenting evidence that is relevant to the specific accused and the crimes alleged, the judges in their role as fact-finders must then evaluate that evidence. This includes making value judgments about the reliability of the evidence based on its source, whether it has been corroborated and the perceived credibility of the witness offering the evidence. 65 Victor Peskin, International Justice in Rwanda and the Balkans (CUP 2008) 33–4; Ronen Steinke, The Politics of International Criminal Justice: German Perspectives from Nuremberg to the Hague (Hart 2012) 16. 66 Janine Natalya Clark ‘The Limits of Retributive Justice’ (2009) 7(3) JICJ 463, 472.

International Criminal Trials and the Search for Truth

63

This is done to create a single account of events meant to be a definitive description of what happened.67 Ultimately, the judgment arising out of each trial acts as validation, both of individual pieces of evidence and of the emergent narrative as whole. It is this narrative, judicially tested and approved, that serves as a history of events. There are several main concerns with using judgments as an authoritative version of the truth. First, judges are not trained historians and their primary responsibility is to adjudicate the case at bar and not to establish historical truths.68 The type of evidence a judge needs to fulfil their responsibility often differs from that of a historian.69 This results in a historical record that is viewed through the lens of legal rules and procedure rather than being evaluated entirely on its factual accuracy.70 Second, as highlighted above, judges are responsible for creating a single definitive account of the events pertaining to the charges. However, history is often multifaceted, containing diverse and often contradictory narratives.71 Further, the singular history contained in the judgment is focused on explaining the evidentiary and legal basis for its conclusions and not on presenting a compelling description of events.72 This can have a dissociative effect on nonlegal observers contributing to a sense of confusion or boredom on their part.73 Therefore, judgments can fail to properly convey the historical import needed to establish a definitive history of events. This may inhibit reconciliation efforts which often need a clear and conclusive historical record around which different factions can find some common ground. It is by design that trial chambers do not provide a complete history in their judgments. As the Trial Chamber at the International Residual Mechanism for Criminal Tribunals stated in its judgment in the Stanišic´ and Simatovic´ case, it was not its responsibility to write a definitive history of the dissolution of the former Yugoslavia.74 Rather, it understood its role to be limited to determining the criminal responsibility of the two defendants for the crimes alleged.75 As a result, although extensive historical evidence was introduced during the trial and 67 Barrie Sander, ‘The Method Is the Message: Law, Narrative Authority and Historical Contestation in International Criminal Courts’ (2018) 19 Melb J Int’l L 299, 302. 68 Leila Sadat Wexler, ‘Reflections on the Trial of Vichy Collaborator Paul Touvier for Crimes Against Humanity’ (1995) 20 Law and Social Inquiry 191, 215. 69 Gaynor (n 20) 1270–1. 70 Lawrence Douglas, The Memory of Judgment (Yale UP 2001) 75; Lawrence Douglas, ‘Truth and Justice in Atrocity Trials’, in WA Schabas (ed), The Cambridge Companion to International Criminal Law (CUP 2016) 41; Kirsten J Fisher, Moral Accountability and International Criminal Law: Holding Agents of Atrocity Accountable to the World (Routledge 2012) 55. 71 Mina Rauschenbach, ‘Individuals Accused of International Crimes as Delegitimized Agents of Truth’ (2018) 28(4) Int’l Crim Just Rev 291, 293. 72 Gaynor (n 20) 1274; see also Meernik and Guerrero (n 10) 388. 73 Sander Doing Justice (n 7) 300. 74 Prosecutor v Stanišic´ et al. (Transcript) MICT-15–96-T, T Ch (30 June 2021) 4, lines 11–13. 75 Ibid 4, lines 18–21.

64 International Criminal Trials and the Search for Truth considered by the Trial Chamber when reaching its judgment, it chose to leave the historical interpretation of that evidence to historians.76 That is not to say that the truth revealed during a trial is without any historical merit. Both historians and legal scholars have noted the role trials have played in developing the historical record about certain situations. It is undeniable that the Nuremberg Trials created a substantial trove of information relating to the aggressive military tactics employed by Germany during the war and the atrocities that resulted.77 The same can be said about the role the trial judgments produced by the International Criminal Tribunal for the former Yugoslavia have played in developing information about the context in which the wars in the former Yugoslavia were fought.78 What trials cannot do is take in the entire scope of history. The Nuremberg Tribunal was not positioned to explain the origins of World War II – German defeat in World War I, the economic effects of the reparations imposed upon Germany following that war and the resulting rise of Naziism – any more than the International Criminal Tribunal for the former Yugoslavia was capable of delving into all aspects of the centuries long ethnic disagreements that have plagued the Balkans. While this is information relevant to telling the history of each situation, it falls outside of the scope of whether a particular individual or group of individuals committed a crime on a particular day in a particular place. International criminal trials can contribute to the development of the historical record but they cannot be expected to function as the entire record. Trials may create a version of the truth, but it is one that is largely limited to the narrow scope of a particular actor and the crimes alleged against them. This is useful for achieving the goals of accountability and building the rule of law, but it fails to establish a full understanding of the historical record. This, in turn, creates a problem with achieving other trial goals, particularly reconciliation and justice for the victims.79

The Truth Needed for Reconciliation The truth about a situation as established during an international criminal trial has an interesting, and often conflicted, relationship with reconciliation. In its declaration announcing 2009 as the International Year of Reconciliation, the UN 76 Ibid 4, lines 13–17. 77 William A Schabas, Unimaginable Atrocities (OUP 2012) 171. 78 Robert Donia, ‘Encountering the past: History at the Yugoslav War Crimes Tribunal’ (2004) 11(2–3) Journal of the International Institute [online edition] accessed 27 July 2022; see also John Hagan and Sanja Kutnjak Ivkovic´, ‘War Crimes, Democracy, and the Rule of Law in Belgrade, the Former Yugoslavia, and Beyond’ (2006) 605 Annals of the American Academy of Political and Social Science 130, 137. 79 Caroline Fournet, ‘Mass Atrocity: Theories and Concepts of Accountability - On The Schizophrenia of Accountability’ in Ralph Henham and Mark Findlay (eds), Exploring the Boundaries of International Criminal Justice (Ashgate 2011) 43; Akhavan (n 10) 770.

International Criminal Trials and the Search for Truth

65

General Assembly described truth as an indispensable element of ‘reconciliation and lasting peace.’80 It has been suggested that an international criminal trial that develops the historical truth about a conflict can support reconciliation by establishing indisputable facts that cannot be manipulated or denied.81 This may not require that the historical truth be told in full, but it does necessitate that certain ‘central truths’ are established.82 The creation of this sort of shared truth can be a starting point for rebuilding society as it can serve as a springboard for forgiveness, which is often seen as a necessary component of reconciliation.83 Developing a shared truth capable of promoting forgiveness obliges some discussion of the historical truths underlying the situation that caused the initial rupture in the relevant society. It is disputed whether reconciliation is actually served by delving into these historical truths.84 The concern is that, at least in some instances, the historical truth is so painful and difficult to confront that reminding people of it will make them less willing to engage in the reconciliation process.85 In contrast, it has also been argued that confronting the historical truth is a necessary part of reconciliation despite the discomfort it may cause, as it is only through facing the truth that a divided society can move forward.86 Additionally, addressing painful truths can also contribute to reconciliation to the extent that doing so acts as a repudiation of crimes committed by previous regimes, giving the community a shared foundation from which new relationships can grow.87 Relatedly, a full accounting of the truth can also provide the basis from which a state may more easily make the transition from a repressive regime to a democracy.88 Determining what the ‘truth’ about a situation may be is a challenge made all the more difficult in a deeply divided society.89 It is common during periods of 80 UNGA Resolution 61/17 (20 November 2006) UN Doc A/RES/61/17, 1. 81 Akhavan (n 10) 741–2; Fletcher and Weinstein (n 10) 587; Meernik and Guerrero (n 10) 403. 82 Bassiouni (n 3) 23–24. 83 Ibid; Akhavan (n 10) 774; Jeremy Sarkin, ‘The Tension Between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with Genocide’ (2001) 45(2) J Afr L 143, 147. 84 Oskar NT Thoms, James Ron and Roland Paris, ‘State-Level Effects of Transitional Justice: What Do We Know?’ (2010) 4 Int’l J Transitional Just 329, 330; Peter R Baehr, ‘How to Come to Terms with the Past’ in Edel Hughes, William A Schabas and Ramesh Thakur (eds), Atrocities and International Accountability (UN University Press 2007) 18–9; Jeremy Sarkin and Erin Daly, ‘Too Many Questions, Too Few Answers: Reconciliation in Transitional Societies’ (2004) 35 Colum Hum Rts L Rev 661, 667; Susan Dwyer, ‘Reconciliation for Realists’ (1999) 13 Ethics & International Affairs 81, 90–1. 85 Ibid. 86 Jasini and Phan (n 11) 386. 87 Sarkin ‘Enhancing the Legitimacy’ (n 9) 98. 88 Rauxloh (n 18) 740. 89 Audrey R Chapman, ‘Truth Finding in the Transitional Justice Process’ in Hugo van der Merwe, Victoria Baxter and Audrey R Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press 2009) 96.

66 International Criminal Trials and the Search for Truth conflict for opposing sides to develop their own understanding of the truth. This often involves each group creating a narrative in which its members are cast as the victims of aggressive hostility from opposing factions and that any offensive actions taken by the victimised group were necessary to defend themselves from the aggressors. This is precisely what happened in the former Yugoslavia. Serbs, Croats and Bosnian Muslims (also referred to as Bosniaks) all largely perceive themselves as the principal victims of the war.90 A 2004 study found that 84% of Serbs believed that Serbians made up the largest number of total victims of the conflict. That view was confirmed in a 2005 study which indicated that 81% of Serbs held that view.91 A survey of Croats in 2010 produced starkly different results when none of its respondents indicated that Serbs had been the primary victims of the war.92 Instead, 83% of respondents felt that Croats were the only victims of the war or made up a majority of the victims.93 The differences in perceptions of victimisation is further supported by a 2008 study which found that 89% of Bosnian Muslims, 80% of Serbs and 73% of Croat surveyed felt that their ethnic group only fought a defensive war.94 The difference of opinion about who the victims were during the conflict indicates how dissimilar the narratives of different groups are from one another and highlights the difficulties faced in achieving reconciliation. These sorts of internal narratives are extremely hard to break down because they are linked to an individual’s identity as well as their perception of themselves as a victim.95 It is unlikely that a judicially determined judgment will be able to disrupt such deeply held beliefs. The more probable outcome is that contradictory judicial decisions will be rejected or ignored in favour of already existing understanding of historical events.96 Therefore, more is needed if the truth identified during trial is to lead to reconciliation. Janine Clark identifies three indicators of whether the judicially established truth can contribute to reconciliation. They are: 90 Janine Natalya Clark, ‘The Three Rs: Retributive Justice, Restorative Justice, and Reconciliation’ (2008) 11(4) Contemporary Justice Review 331, 335. 91 Diana F Orentlicher, Shrinking the Space for Denial: The Impact of the ICTY in Serbia (Open Society Justice Initiative 2008) 60; see also Stuart Ford, ‘A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms’ (2012) 45 Vand J Transnat’l L 405, 413–14. 92 Tamara Banjeglav, Dealing with the Past in Post-War Croatia: Perceptions, Problems and Perspectives (Springer 2013) 38; citing Krudo Kardov, Dražen Lalic´ and Vesna Teršelicˇ , Coming to Terms with the Past in Croatia: Public Opinion and Attitudes After the War (Documenta 2010) 69. 93 Ibid. 94 Roland Kostic´, ‘Nationbuilding as an Instrument of Peace? Exploring Local Attitudes towards International Nationbuilding and Reconciliation in Bosnia and Herzegovina’ (2008) 10(4) Civil Wars 384, 395. 95 Stuart Ford, ‘A Hierarchy of Goals of International Criminal Courts’ (2018) 27(1) Minn J Int’l L 179, 213. 96 Sander ‘The Method Is the Message’ (n 67) 305.

International Criminal Trials and the Search for Truth 1 2 3

67

acceptance; acknowledgment; and denial.97

The first two factors require positive action on the part of those affected by atrocity crimes. First, the impacted community must be able to endorse and internalise the truth about the situation.98 This often involves admitting that victimhood is not the domain of any one group involved in the conflict and that crimes were committed against all groups. Acceptance of these truths may also lead to the acknowledgment that just as there were victims in all of the groups involved, there were also perpetrators in every group.99 Accepting and acknowledging that there were victims and perpetrators on all sides of a conflict can lead to more open dialogue about how to move forward as a united society. Unfortunately, trials are not particularly well equipped to foster the sort of acceptance and acknowledgment needed to promote reconciliation. Individual trials are focused on one incident, or group of incidents, committed by one particular side of the conflict. Rarely, if ever, will defendants representing different sides of the conflict be tried together as it would raise fairness and relevance issues that would be difficult to overcome. Therefore, the narrative of an individual trial will only establish the victimhood of one side and the culpability of the other. This is antithetical to the type of acceptance and acknowledgment needed to facilitate reconciliation. The denial of the truth established during trial also serves to undermine the effectiveness of reconciliation.100 Denial in this context can be of several types. The first occurs outside of the courtroom and is often the result of official and unofficial rejections of the conclusions reached by the trial court. An example of this can be found in understandings about the Srebrenica genocide. The International Criminal Tribunal for the former Yugoslavia established in the Krstic´ Judgment that the massacre of Bosnian Muslims at Srebrenica constituted a genocide.101 Subsequently, the International Court of Justice also found that acts of genocide were committed at Srebrenica.102 These two judgments suggest that it has been conclusively proven that a genocide did occur at Srebrenica. However, in 2018, Serbian and Bosnian Serb political figures withdrew an earlier issued report which had concluded that a genocide had occurred. The withdrawal of the report was justified on the basis of a belief that the crimes committed at Srebrenica 97 Janine Natalya Clark, International Trials and Reconciliation: Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia (Routledge 2015) 55; see also Sarkin, ‘The Tension Between’ (n 83) 147; Andrew Rigby, Justice and Reconciliation: After the Violence (Lynne Rienner Publishers 2001) 190–1. 98 Clark, International Trials (n 97) 55. 99 Ibid. 100 Ibid. 101 Prosecutor v Krstic´ (Judgement) IT-98–33-T, T Ch (2 August 2001) [598]-[599]. 102 Application of the Genocide Convention Case (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43 [297].

68 International Criminal Trials and the Search for Truth had been exaggerated so as to demonise Serbs.103 This appears to be an effort on the part of Serbia and Bosnian Serbs to change the narrative established by the International Criminal Tribunal for the former Yugoslavia and International Court of Justice, one which had been accepted by their predecessors, and to recast the actions of Bosnian Serbs as appropriate within the context of the larger conflict.104 Suggesting that further investigation is needed into the events at Srebrenica has the effect of calling the reliability of those judgments into question, which in turn diminishes how effective either judgment can be in promoting reconciliation. So long as a doubt exists as to the validity of their findings, no matter how specious that doubt may be, it can be used as a basis to question the judgments and as a reason to avoid reconciling with opposition groups. In a strictly legal context, an accused who asserts their own innocence is also effectively denying the truth being presented by the prosecution. By doing so, it can signal to those people who endorse the accused’s narrative that they are correct to feel the way they do about the incident, or incidents, that are the subject of the trial regardless of whether the evidence supports that conclusion. Denial in this form can resonate even more strongly when the accused takes the opportunity to present evidence during trial which puts forward an alternative narrative to the one being presented by the Prosecution. However, it is fundamental to both the fair trial rights of the accused and efforts to establish a full historical record that the accused be given an opportunity to speak during trial.105 It is a fair trial issue to the extent that the accused must have the opportunity to present a defence to the charges and therefore cannot be silenced in an effort to more positively support reconciliation. Further, the defence presented will often approach the events under consideration from a different perspective, which must be taken into account when establishing a complete historical record. This can, in turn, lead to the creation of a fuller picture of the situation underlying the criminality at issue. Developing a more robust history that accounts for a multitude of perspectives can help support reconciliation as it means people from more sides to the conflict will feel as if their own perspective has been accommodated in the larger narrative. Unfortunately, as previously discussed trials are an imperfect venue for developing complex historical narratives. The necessity of deciding whether the accused should be held accountable for their actions means that the trial court must weigh 103 Albina Sorguc, Bosnian Serbs’ War Commissions: Fact-seeking or Truth Distorting? (Balkan Insight, 25 February 2019) accessed 15 March 2021. 104 Nevenka Tromp, ‘Misjudging the History at the ICTY: Transitional and Post-Transitional Narratives About Genocide in Bosnia and Herzegovina’ (2020) 5(3) European Papers 1191, 1194. 105 Martti Koskenniemi, ‘Between Impunity and Show Trials’ in Jochen A Frowein and Rüdiger Wolfrum (eds), 2002 Max Planck Yearbook of International Law (Kluwer Law Intl 2002) 26, 35.

International Criminal Trials and the Search for Truth

69

the competing historical narratives and in so doing prefer one narrative over another.106 Favouring one perspective has the natural tendency of legitimising the narrative with which the court agrees while repudiating the other. This may inhibit reconciliation as it promotes the idea that there is a correct narrative and anyone subscribing to it would likely be disinclined from accepting counter-narratives that challenge the judicially approved version of events. Perceptions about how courts choose which narrative to support have been a particular issue amongst ethnic Serbs at the International Criminal Tribunal for the former Yugoslavia. They feel that the narratives developed by the Tribunal do not properly account for their own understanding of the war in the former Yugoslavia. This is best reflected in a statement made by a Serbian interviewee who asserted that the Tribunal ‘has one truth and one basic premise – that Serbs are guilty.’107 Serbs, however, reject the notion that they were disproportionately responsible for atrocities committed during the war.108 This disparity between what Serbs believe happened and what the International Criminal Tribunal for the former Yugoslavia’s judgments reflect has contributed to a sense amongst Serbs that they are being victimised by the Tribunal.109 Attitudes like this develop when a group feels as if their own narratives are not being given proper consideration by the trial court. These sorts of mindsets also undermine the effect that trial judgments can have on reconciliation efforts. People are never going to accept the narratives established during international criminal trials if they believe they are inherently biased and fail to properly consider all relevant perspectives. If those narratives are not accepted, they cannot possibly form a basis around which different factions can hope to reconcile. That is why it is fundamental that trials, and the institutions that conduct them, are seen to be giving due account to the views of all of the participants. In reality, it is probably impossible for an international criminal justice institution to develop a common history that will be fully accepted by all parties to a conflict. To do so would require everyone involved to put aside their own perception of events and to accept that other groups’ versions are equally valid.110 It is more feasible to instil the relevant parties with confidence that the proceedings are being conducted fairly. Feeling that the decision was reached in a just way should lead to greater acceptance of trial decisions, even if those outcomes contradict one’s own personally held narrative about the incidents being considered by the Court.111 The most significant way a trial can facilitate this sense of fairness is by permitting the parties to explore a variety of different narratives. Ensuring 106 107 108 109 110 111

Sarkin, ‘The Tension Between’ (n 83) 148. Clark ‘The Three Rs’ (n 90) 338. Ford ‘A Social Psychology Model’ (n 91) 411–12. Clark ‘The Three Rs’ (n 90) 338. Damaška (n 5) 346; Akhavan (n 10) 741–2. Nancy Amoury Combs, ‘Legitimizing International Criminal Justice: The Importance of Process Control’ (2012) 33 Mich J Int’l L 321, 372; Tom R Tyler, ‘Social Justice: Outcome and Procedure’ (2000) 35 Int’l J Psychology 117, 120.

70 International Criminal Trials and the Search for Truth that different versions of events are introduced into evidence can help to convince people that their point of view was given a fair hearing, even if the trial court ultimately upholds facts supporting a different understanding of the events under scrutiny. Doing this helps to show that the court is treating the parties as equals and that any decision issued by the court is fair.112 The admission of different narratives during trial should only be limited to the extent that doing so does not interfere with the accused’s right to a fair trial or the court’s ability to determine the accountability of the accused. Relevant facts cannot be omitted or distorted in an attempt to fulfil the goals of reconciliation nor should facts be included during trial that could lead to the wrongful conviction of the accused. The trial court must find a balance between permitting the presentation of sufficient evidence to create an acceptable narrative that will promote reconciliation while also ensuring that the evidence is relevant to the crimes alleged. By doing this, international criminal trials are more likely to be able to achieve the trial goals of accountability, truth-telling and promoting reconciliation.

Truth and the Victims’ Right to Learn the Truth Much like reconciliation, the trial goal of delivering justice to the victims of atrocity crimes requires the development of a broader and more in-depth understanding of the truth than what is necessary for establishing accountability. When the evidence is limited just to those facts that are relevant to the charges brought against the accused it has the tendency to neglect facts that might be relevant to the victimisation experienced by the victims or the interests of other individuals affected by the situation.113 Further, focusing only on the relevant evidence may result in the court or tribunal failing to adequately account for the victims’ right to learn the truth about the circumstances of their victimisation. The United Nations High Commissioner for Human Rights indicated in 2006 that victims have a ‘right to truth’ entitling them to learn ‘the full and complete truth’ about relevant events and the circumstances in which they occurred, the identities of the participants, and the reasons for the occurrence of the events.114 Despite the emphasis the High Commissioner placed on ascertaining the ‘full and complete truth’, international criminal justice institutions rarely establish, or attempt to establish, the full and complete truth about the situation under consideration.115 The trouble with this approach is that it does not take into account the sort of truth that victims of atrocity crimes have indicated is needed to allow divided 112 Andreas Follesdal, ‘The Legitimacy of International Courts’ (2020) 28(4) J Int’l Philosophy 476, 486. 113 Haslam (n 12) 328–9. 114 Office of the High Commissioner for Human Rights, ‘Promotion and Protection of Human Rights: Study on the Right to Truth’ (8 February 2006) UN Doc E/CN.4/ 2006/91, [59]. 115 Mark Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 176.

International Criminal Trials and the Search for Truth

71

communities to heal and to create a sense that justice has been served following the commission of atrocity crimes. One study found that 93% of Cambodians interviewed believed it was necessary to discover the truth about what happened while the Khmer Rouge was in power, with over 80% of respondents specifying that doing so was necessary for reconciliation and healing.116 In another survey, 89% of citizens in the Central African Republic and Northern Uganda felt that it was important to find out the truth about the atrocity crimes committed in their respective countries.117 In the Central African Republic, survey respondents indicated that finding out the truth was important generally, ‘because the truth must be known’, and more specifically to understand why the violence happened and who was responsible for it.118 The citizens of Northern Uganda also valued knowing the truth to ensure that people would not forget about it, to establish the history about what happened and to identify those responsible for it.119 Victims in Iraq preferred expressive reasons for establishing the truth that included demonstrating to the world the truth about what happened there and educating future generations about the history of Saddam Hussein’s regime so that they were aware of the mistakes that had been made.120 The types of truths identified by the victims in all of these situations go beyond that which specifically pertains to the charges. This demonstrates that at least some victims feel that a broader discussion of events is needed to provide them with justice. It is unclear how much truth may be introduced during trial so as to ensure that proceedings are fair while also complying with the victims’ right to truth. Balancing these issues became an issue during the Lubanga trial at the International Criminal Court. During the trial, thirty victims testified that they suffered harm in the form of sexual violence, although no sexual crimes were included amongst the charges against Thomas Lubanga.121 The legal representatives of the victims suggested in their Closing Submissions that these acts should be taken into account when determining Lubanga’s culpability because 116 Phuong Pham, Patrick Vinck, Mychelle Balthazard and Sokhom Hean, After the First Trial: A Population Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia (Human Rights Center, UC Berkeley School of Law 2011) 31. 117 Patrick Vinck and Phuong Pham, Building Peace Seeking Justice: A Population-Based Survey on Attitudes About Accountability and Social Reconstruction in the Central African Republic (Human Rights Center, UC Berkeley School of Law 2010) 37; Phuong Pham and Patrick Vinck, Transitioning to Peace: A Population-Based Survey on Attitudes About Social Reconstruction and Justice in Northern Uganda (Human Rights Center, UC Berkeley School of Law 2010) 46. 118 Patrick Vinck and Phuong Pham, Building Peace Seeking Justice: A Population-Based Survey on Attitudes About Accountability and Social Reconstruction in the Central African Republic (Human Rights Center, UC Berkeley School of Law 2010) 37. 119 Pham and Vinck (n 117) 46. 120 Bhuta et al. (n 64) 38. 121 Prosecutor v Lubanga (Judgment Pursuant to Article 74 of the Statute) ICC-01/04– 01/06, T Ch I (14 March 2012) [16].

72 International Criminal Trials and the Search for Truth they could show the circumstances under which the crimes were committed or as evidence of aggravating circumstances.122 The Trial Chamber did not follow this suggestion when reaching its judgment, instead confining its decision to ‘the facts and circumstances described in the charges.’123 While this formulation of what evidence was considered when reaching the judgment is rather vague, the implication is that although evidence not relevant to the charges was admitted during the trial it did not form a basis for the Trial Chamber’s decision. On the surface, this would appear to offer a reasonable approach. The victims were allowed to testify about their victimisation and have the truth about their own situation aired in open court and the fairness of the proceedings was not compromised as the decision was only based on evidence relevant to the charges. In essence, it created two different sources from which one might determine the history of the situation: the trial transcript containing the raw historical information and the trial judgment distilling that data into a form that is useable for determining the accountability of the accused. The difficulty with allowing the victims to discuss their victimhood that occurred outside of the charges is that it is impossible to fully eliminate the possibility that it could unconsciously bias the Trial Chamber when it is reaching its judgment. It has been argued that the problem of bias in the decision-making process is largely absent from international criminal trials because the outcome of the trial is determined by professional judges rather than lay juries.124 While this may be true, there is a lack of empirical evidence supporting such a conclusion. The second problem with allowing the victims to testify about victimisation that is not covered by the charges is a practical one. International criminal justice institutions have been consistently criticised for the length of their proceedings. Trials generally last for years and the length of proceedings has been cited as one of the aspects of the international criminal justice system most responsible for inhibiting the victims’ ability to experience a sense of justice. Lengthening trials further to allow more victims to testify about their victimisation would only exacerbate that problem. While it could be argued that those victims who testify in this longer process would gain a sense of justice through the act of testifying, it would do nothing to improve the experience for the vast majority of victims who cannot testify during trial. Therefore, following this approach would have the tendency to prioritise the sense of justice experienced by victim witnesses over the group of victims as a whole. 122 Prosecutor v Lubanga (Public Redacted Version Closing Submissions of the Legal Representatives of Victims a/0047/06, a/0048/06, a/0050/06 and a/0052/06), T Ch (31 May 2011) [61]-[2]; see also Rules of Procedure and Evidence, International Criminal Court (as amended 2013) Rule 145(1)(c) and Rule 145(2)(b). 123 Lubanga Judgment (n 121) [36]. 124 Jens-David Ohlin, ‘Goals of International Criminal Justice and International Criminal Procedure’ in Göran Sluiter, Håkan Friman, Suzannah Linton, Sergey Vasiliev, Salvatore Zappalà (eds), International Criminal Procedure: Principles and Rules (OUP 2013) 61.

International Criminal Trials and the Search for Truth

73

Judge Elizabeth Odio Benito disagreed with the decision of the majority of the Lubanga Trial Chamber to limit its judgment only to the facts and circumstances described in the charges. She explained in her separate and dissenting opinion that in her view the purpose of trial at the International Criminal Court is two-fold: to determine the guilt or innocence of the accused and to address the harm suffered by the victims as a result of the crime.125 That means that the crimes alleged should be understood in that context, and doing so in the Lubanga case would lead to the conclusion that sexual violence should be included in the legal concept of using a child soldier to participate actively in hostilities.126 She reaches that conclusion by considering the underlying harm the crime is meant to protect against – i.e. children being injured during an armed conflict.127 Following Judge Odio Benito’s approach would resolve any concerns about creating a trial transcript that contains a more in-depth historical account than the decision as any evidence introduced during the trial could also serve as a basis for the decision. It would also better equip the Trial Chamber to recognise a fuller range of victims’ experiences in its judgment, enhancing the official recognition of the victims’ suffering.128 This could produce a greater sense in victims that they have been provided with justice and may also encourage greater engagement with reconciliation efforts. Judge Odio Benito’s approach does however have two flaws. First, it does nothing to shorten trials and could actually make them longer as consideration of the harm suffered may involve the introduction of evidence that might now be excluded. Second, it gives the Trial Chamber a tremendous amount of discretion when deciding what might constitute the harm suffered. This could create an inequity between defendants with some being subjected to the introduction of evidence that may be excluded during the trials of other suspects, raising accountability and rule of law concerns. Therefore, her approach should be treated with caution, and were the International Criminal Court to adopt such a procedure, it would be necessary to clarify how a Trial Chamber is meant to identify the harm suffered by the victims as it relates to the charges brought against the accused. Victims of atrocity crimes have made abundantly clear that, if trials are to provide them with justice, they must develop a historical truth that goes beyond what is needed only to fulfil the goal of accountability. Further, the victims’ right to truth as recognised by the United Nations entails providing

125 Prosecutor v Lubanga (Judgment Pursuant to Article 74 of the Statute: Separate and Dissenting Opinion of Judge Odio Benito) ICC-01/04–01/06, T Ch I (14 March 2012) [8]. 126 Ibid [17]. 127 Ibid [19]. 128 Claire Garbett, ‘The Truth and the Trial: Victim Participation, Restorative Justice, and the International Criminal Court’ (2013) 16(2) Contemporary Justice Review 193, 205–6.

74 International Criminal Trials and the Search for Truth them with the full and complete truth about the circumstances surrounding their victimisation. Therefore, trials must be designed to help meet the needs of the victims, and particularly in situations where trials are meant to serve as the primary mechanism for establishing the truth. The best way to accomplish this in a trial context would be to adopt an expansive understanding of what evidence can be submitted during the trial that balances the fair trial rights of the accused with the victims’ right to truth and need to learn more about the underlying situation. While this may have the tendency of allowing the introduction of more incriminating evidence against the accused, especially in the form of cumulative evidence, the danger of that evidence being used impermissibly would be mitigated by also introducing a requirement that the judgment be limited to evidence that is specifically relevant to the crimes with which the accused has been charged. This sort of split approach would make trials longer, frustrating observers who feel that international criminal trials are already too long, but it is a worthwhile sacrifice to improve the likelihood that victims will feel as if justice has been done while also preserving the accused’s right to a fair trial.

Conclusion There will always be tension between what amount of truth is required to accomplish a trial’s accountability goals and what is needed to facilitate reconciliation and to satisfy victims’ rights. The former only requires a truthtelling process sufficient to establish the elements of the crimes alleged while the latter two demand a much more expansive explication of the truth. The easy answer would be to simply allow the introduction of enough evidence to satisfy the victims and to promote reconciliation, as doing so would necessarily also bring in whatever evidence is needed to satisfy accountability. Unfortunately, such a broad approach creates a danger to the rights of the accused, both to the extent that an extensive truth-telling exercise would compromise their right to a speedy trial, and because the introduction of cumulative evidence against them could prejudice the fact-finders when reaching their decision. The answer, therefore, may be that only the limited amount of evidence needed to determine accountability should be introduced during trial. This, too, is problematic as it fails to achieve the victim-oriented goals of trial or to facilitate reconciliation within fractured societies. It also raises fairness concerns in relation to the victims, which can act to undermine the legitimacy of the proceedings. Therefore, a middle way must be found. The most sensible approach is to follow the lead of the Lubanga Court and allow the introduction of more evidence during the trial and then limit the extent to which that evidence can be considered in the final judgment. That way, victims are given the opportunity to learn the truth and to be heard, the different factions in divided societies can feel as if their narrative of events has been documented on the record,

International Criminal Trials and the Search for Truth

75

but the accused will not be unfairly impacted by the introduction of evidence not entirely relevant to the charges they are facing. This solution is not perfect – it would likely lengthen already over-long trials and it poses some risk of prejudicing the accused – however, it represents a fair compromise designed to give broader effect to all of the goals of international criminal trials.

5

Peace, Justice and International Criminal Trials

The international legal order is largely premised on the desire to achieve and preserve global peace. The United Nations Charter states that the first purpose of the United Nations is to ‘maintain international peace and security’.1 That can be accomplished in a variety of ways according to the Charter, including by: addressing threats to peace when they arise; settling international disputes before they lead to breaches of the peace and developing friendly relations between nations in an effort to strengthen peace around the globe.2 The United Nations’ focus on peace and cooperation is the result of a conscious rejection of the use of military force and unilateral action as a means of settling disputes between nations.3 Missing from the Charter is any mention of how accountability can support efforts to build and maintain peace. This omission should not lead to the conclusion that there is no relationship between peace and accountability. In fact, the connection between the two is firmly established in international criminal law and can be found in the foundational documents of most international criminal courts and tribunals.4 This chapter will explore how accountability efforts, specifically in the form of the threat of international criminal trials, can support and inhibit peace-making efforts. It will particularly focus on peace negotiations taking place in states that are or were the subject of International Criminal Court investigations and the impact the existence of those investigations had on the discussions. It is indisputable that achieving and maintaining peace is amongst the primary purposes of the international community. That being said, it is rarely, if ever made clear what peace means in this context. In fact, although peace is such a commonly used term, it is also one that resists easy definition.5 Johan Galtung suggests that this 1 United Nations, Charter of the United Nations (24 October 1945) 1 UNTS XVI, Art 1. 2 Ibid. 3 Paola Gaeta, Jorge E Viñuales and Salvatore Zappalà, Cassese’s International Law (OUP 2020) 313. 4 e.g. UNSC Resolution 808 (22 February 1993) UN Doc S/RES/808; UNSC Resolution 955 (8 November 1994) UN Doc S/RES/955; UNSC Resolution 1315 (14 August 2000) UN Doc S/RES/1315; Rome Statute of the International Criminal Court (17 July 1998) Preamble. 5 Alfred de Zayas, ‘Peace’ in William A Schabas (ed), The Cambridge Companion to International Criminal Law (CUP 2016) 96.

DOI: 10.4324/9781003027331-5

Peace, Justice and International Criminal Trials

77 6

is because it is a term around which consensus can be built when it is left vague. As Galtung puts it, it is difficult to be against peace per se, but that once it is defined parties may have objections to how understandings of peace are constructed.7 This ambiguity can benefit the UN’s efforts to establish and maintain peace as it is easier for states to support peace as a concept even if they may object to the steps taken to actually accomplish it. Galtung proposes that the modern concept of peace should be separated into two different types, described as ‘negative peace’ and positive peace’.8 ‘Negative peace’ is defined as ‘the absence of organized collective violence’, and positive peace is ‘all other good things in the world community, particularly cooperation and integration between human groups’.9 Charles Webel built on Galtung’s theory by introducing the ideas of a ‘Strong, or Durable, Peace’ and a ‘Weak, or Fragile Peace’.10 Strong, or durable, peace exists when there is ‘relatively robust justice, equity, and liberty, and relatively little violence and misery at the social level’.11 Conversely, peace can be described as weak or fragile when there is an absence of war, but also ‘pervasive injustice, inequity and personal discord and dissatisfaction’.12 The United Nations implicitly recognised this distinction in its resolutions authorising the formation of different international criminal justice institutions. This is demonstrated through the repeated use of the term ‘restoration and maintenance of peace’ in those resolutions.13 Using the two modifiers ‘restoration’ and ‘maintenance’, acts as an indication by the Security Council that these are distinct actions international criminal courts and tribunals can perform in relation to peace. The first, restoration, meaning to re-establish something, suggests that whatever is being restored is currently absent. Therefore, to restore peace in a particular place means to bring it back, necessitating cessation of the opposite of peace, i.e. violence. Understood in that way, to restore peace means to bring about the absence of violence, or to put it in Galtung’s terms, to achieve negative peace. To maintain something is to cause it to continue and to take steps to protect it. Once something has been restored, in this case peace, the second step is to ensure that it will continue and that there will not be a return to violence. The best way 6 Johan Galtung, ‘Violence, Peace and Peace Research’ (1969) 6(3) Journal of Peace Research 167, 167. 7 Ibid. 8 Johan Galtung, Theories of Peace: A Synthetic Approach to Peace Thinking (International Peace Research Institute 1967) 12 accessed 27 July 2022. 9 Ibid. 10 Charles Webel, ‘Introduction: Toward a Philosophy and Metapsychology of Peace’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge 2007) 11. 11 Ibid. 12 Ibid. 13 UNSC Resolution 808 (n 4); UNSC Resolution 955 (n 4).

78 Peace, Justice and International Criminal Trials to maintain peace is to institute social, political and economic changes meant to address the underlying causes of the conflict.14 This connects directly to another goal of international criminal trials, reconciliation. Creating a more equitable society and addressing the root causes of the conflict permits the development of positive or durable peace, which increases the likelihood that peace will be maintained. It is important to keep the distinction between the two kinds of peace in mind when understanding the different ways that accountability can impact peace. Because there are two distinct types of peace there are also two different phases in the process of realising peace: peace-making and peace-building. For the purposes of this chapter, peace-making should be understood as activities meant to bring hostile parties together for the purpose of accomplishing the cessation of hostilities.15 Peace-making often involves formal discussions between opposition parties and, when successful will result in a negotiated peace agreement. In essence, the goal of peace-making is to institute negative peace as represented by the end of violence between opposing sides. The interaction between accountability and peace-making will be the focus of this chapter. Peace-building is the process of converting negative peace into positive peace by addressing the root causes of the conflict and constructing new societal relationships.16 Peace-building is closely related to reconciliation, and as a result it will be explored in greater detail in the following chapter.

The Relationship Between Peace and Accountability International criminal law has long recognised the relationship between peace and accountability. The Charters of both the Nuremberg and Tokyo Tribunals provided for the prosecution of individuals alleged to have committed ‘crimes against peace’, which included the planning, preparation, initiation or waging of wars of aggression.17 The United Nations also emphasised the connection between peace and justice when it set up the ad hoc Tribunals in the 1990s. In its resolution establishing the International Criminal Tribunal for the former Yugoslavia, the UN Security Council specified that the establishment of an international tribunal would end the crimes being committed in the former Yugoslavia by bringing the 14 Madhav Joshi and Peter Wallensteen, ‘Understanding Quality Peace: Introducing the Five Elements’ in Madhav Joshi and Peter Wallensteen (eds), Understanding Quality Peace: Peacebuilding After Civil War (Routledge 2018) 10. 15 UN Secretary-General ‘An Agenda for Peace’ (17 June 1992) UN Doc A/47/277S/24111 [20] [34]. 16 Teresa Almeida Cravo, ‘Post-Conflict Peacebuilding and the Rule of Law’ in Christopher May and Adam Winchester (eds), Handbook on the Rule of Law (Edward Elgar 2018) 473. 17 Charter of the International Military Tribunal – Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (8 August 1945) Art 6; Charter of the International Military Tribunal for the Far East (19 January 1946) Art 5.

Peace, Justice and International Criminal Trials

79

perpetrators to justice, which would in turn ‘contribute to the restoration and maintenance of peace’.18 The Security Council used similar language when it authorised the formation of the International Criminal Tribunal for Rwanda. Once again, it indicated that the prosecution of persons responsible for violating international humanitarian law would contribute to the restoration and maintenance of peace.19 The Security Council again drew this link in its resolution requesting that the Secretary-General negotiate with the Sierra Leonian government so as to facilitate the establishment of ‘a strong and credible court that will meet the objectives of bringing justice and ensuring lasting peace’.20 The relationship between international criminal law and peace can also be found in those courts and tribunals established outside of the United Nations’ system. In particular, the preamble to the Rome Statute indicates that the states parties recognise that ‘grave crimes threaten the peace, security and well-being of the world’ necessitating the establishment of the International Criminal Court to hold to account the individuals alleged to have committed those crimes.21 Accountability through international criminal trials plays a complicated role in the success of peace processes. One of the defining controversies in international criminal law has been the so-called ‘peace versus justice’ debate, which is often framed as a conflict between two discordant purposes. It is suggested that justice prevents peace because it disincentivises those individuals suspected of committing atrocity crimes from engaging in peace negotiations if one outcome of those talks may be their own arrest and prosecution. Instead, every effort is made to hold onto power to prevent those individuals from being exposed to criminal prosecution.22 Conversely, it is argued that peace can inhibit justice when it is secured through the promise of amnesties or pardons meaning that those allegedly responsible for crimes committed during periods of violence will not be held accountable for their actions.23 In truth, the effect accountability has on peace is much more complicated than what is reflected through the peace versus justice argument. The compatibility of peace and justice are dependent on multiple factors and should not be understood as a simple binary. Context can be highly determinative of whether accountability and peace can function symbiotically. In fact, the impact accountability efforts can have on peace is almost entirely dependent on context. Additionally, the stage of the peace process at which accountability is interposed can also be highly relevant to whether accountability will encourage or inhibit peace.

18 19 20 21 22

UNSC Resolution 808 (n 4). UNSC Resolution 955 (n 4). UNSC Resolution 1315 (n 4). Rome Statute (n 4) Preamble. Juan E Méndez and Jeremy Kelley, ‘Peace Making, Justice and the ICC’ in Christine de Vos, Sarah Kendall and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Interventions (CUP 2015) 494. 23 Kenneth A Rodman and Petie Booth, ‘Manipulated Commitments: The International Criminal Court in Uganda’ (2013) 35 Hum Rts Q 271, 293.

80 Peace, Justice and International Criminal Trials The Conflict Between Peace and International Accountability in Uganda The situation in Uganda and the behaviour of Joseph Kony is perhaps the most commonly cited example of how accountability has inhibited a peace process. Joseph Kony has led an insurgent movement in Uganda called the Lord’s Resistance Army since at least 1987.24 Rather than engage in direct conflict with national military forces, the Lord’s Resistance Army spent most of the 1990s and 2000s terrorising local communities in Northern Uganda.25 The Lord’s Resistance Army are believed to have committed a wide variety of war crimes and crimes against humanity, including murder, rape, attacking civilian populations, the abduction of and enlistment of children to serve as soldiers, different types of enslavement inclusive of sexual enslavement and inflicting serious bodily injury and suffering.26 The abduction and enlistment of children may be the most insidious of these alleged crimes, as it has only been through forcing children to act as soldiers that the Lord’s Resistance Army has had enough troops to be able to continue to threaten the civilian population.27 The Ugandan government passed an Amnesty Act in 2000 in an effort to entice the Lord’s Resistance Army to end its insurgency and campaign of terror.28 The Act granted amnesty to any Ugandan citizen previously engaging in armed rebellion who now agreed to surrender their arms and renounce any further involvement in violence against the government.29 The Amnesty Act produced mixed results in the years immediately after its passage. It appears to have motivated a number of rank-and-file members of the Lord’s Resistance Army to forswear violence, but it did not result in any senior Lord’s Resistance Army officials availing themselves of its protections.30 The Ugandan government, disappointed that the Act did not cause the Lord’s Resistance Army to cease its activities, decided to look for a new solution to the ongoing violence. It found it in the form of the Rome Statute. In December 2003, President Yoweri Museveni referred the situation involving the Lord’s Resistance Army’s activities in Uganda to the International Criminal Court for investigation and prosecution.31 This 24 Situation in Uganda (Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005) ICC-02/04–01/05, PT Ch II (27 September 2005) [5]. 25 Ibid. 26 Prosecutor v Ongwen (Trial Judgment) No ICC-02/04–01/15, T Ch IX (4 February 2021) [3116]; Situation in Uganda (Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005) ICC-02/04–01/05, PT Ch II (27 September 2005). 27 Payam Akhavan, ‘The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court (2005) 99 AJIL 403, 407. 28 Paul Bradfield, ‘Reshaping Amnesty in Uganda: The Case of Thomas Kwoyelo’ (2017) 15 JICJ 827, 829. 29 Uganda Amnesty Act, 2000, ss 3–4 < https://ihl-databases.icrc.org/applic/ihl/ihl-na t.nsf/0/7d2430f8f3cc16b6c125767e00493668/$file/ugandan+amnesty+act+2000. pdf> accessed 5 July 2021. 30 Bradfield (n 28) 830; Akhavan (n 27) 410. 31 ICC Press Release, ‘ICC – President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC’ (29 January 2004) ICC Doc ICC20040129–44.

Peace, Justice and International Criminal Trials

81

was done for the specific purpose of locating and arresting the leadership of the Lord’s Resistance Army in the hope that removing the organisation’s leadership would bring an end to its actions.32 An investigation conducted by the Office of the Prosecutor ensued, and in 2005 the International Criminal Court issued arrest warrants for five members of the leadership of the Lord’s Resistance Army, including Joseph Kony.33 The indictments initially appeared to have a positive effect on peace-making in Uganda. Following his indictment by the International Criminal Court in 2006, Kony willingly entered the Lord’s Resistance Army into peace negotiations.34 The indictments were not the only factor that led him to make that decision but they are thought to have played a role in it.35 However, the initial optimism inspired by the Lord’s Resistance Army’s willingness to engage in peace negotiations eventually dissipated. Although the arrest warrants issued by the International Criminal Court may have helped start the peace process between the Lord’s Resistance Army and the government, they also appear to have prevented those discussions from being particularly meaningful. Kony and Vincent Otti, the deputy-leader of the Lord’s Resistance Army, participated in some preparatory meetings held in advance of the peace talks but refused to be present for the formal discussions.36 Their refusal to directly participate in the negotiations has been attributed to a fear that if they were to appear they would be arrested and transferred to the International Criminal Court for prosecution.37 Their absence substantially prolonged the talks and became a significant obstacle to reaching a deal. The existence of the International Criminal Court arrest warrants caused particular problems during the talks because both Kony and the Ugandan government treated them as something that could be negotiated away.38 Kony viewed the arrest warrants as a way to pressure him into a peace agreement and demanded that they be withdrawn before the Lord’s Resistance Army would agree to formalise a peace agreement.39 The Ugandan government responded by offering on at least two occasions to grant amnesties to the LRA’s senior leadership, offers that were rejected because it was felt that accepting amnesties was a tacit admission of guilt.40 This essentially created a stalemate because the Ugandan government did

32 Ibid. 33 Situation in Uganda Arrest Warrant for Joseph Kony (n 24). 34 Matthew Happold, ‘The International Criminal Court and the Lord’s Resistance Army’ (2007) 8 Melb J Int’l L 159, 180. 35 Ibid. 36 Mareike Schomerus, The Lord’s Resistance Army: Violence and Peacemaking in Africa (CUP 2021) 53. 37 Alyssa K Prorok, ‘The (In)Compatibility of Peace and Justice?: The International Criminal Court and Civil Conflict Termination’ (2017) 71 International Organization 213, 220; Happold (n 34) 180. 38 Line Engbo Gissel, The International Criminal Court and Peace Processes in Africa: Judicalising Peace (Routledge 2018) 76–7. 39 Issaka K Souáre, ‘The International Criminal Court and African Conflicts: The Case of Uganda’ (2009) 36(121) Review of African Political Economy 369, 374. 40 Schomerus (n 36) 55–6.

82 Peace, Justice and International Criminal Trials not possess the power to withdraw the arrest warrants and the Lord’s Resistance Army refused to conclude the process so long as they remained in effect.41 The threat that the leaders of the LRA would be held accountable through an international criminal trial lay at the heart of this impasse. Because the International Criminal Court issued the arrest warrants, only it had the authority to withdraw them. The Prosecutor of the International Criminal Court, Luis Moreno Ocampo was unwilling to do so as he felt achieving peace in Uganda was contingent on the prosecution of the LRA’s leadership for the crimes they were alleged to have committed.42 Moreno Ocampo believed that Kony and the other indicted individuals were primarily responsible for instigating the violence in Uganda and that peace would be the natural by-product of their arrest and prosecution.43 He also felt that Kony was using the peace negotiations as an opportunity to regroup and further his ‘criminal goals’.44 From his perspective, withdrawing the arrest warrants would result in continued violence as it would remove the only mechanism by which the LRA’s leadership might be held accountable. Despite Kony’s refusal to personally join in the fitful peace negotiations, a tentative peace agreement was reached in 2008. Unfortunately, the deal was never formalized because Kony, still concerned about the arrest warrants, refused to appear for the signing ceremony.45 The inability of the parties to the negotiations to reach a compromise on the arrest warrants has been described by some commentators as the ‘most critical impediment’ to a peace agreement in Uganda.46 The Lord’s Resistance Army continued its terror campaign in northern Uganda following the failure of the peace process, while also expanding its operations to the Democratic Republic of Congo, Central African Republic and South Sudan. A June 2021 report by the UN Secretary-General’s Office to the Security Council suggests that the Lord’s Resistance Army is still active and operating in Central African Republic and the Democratic Republic of the Congo.47 The role played by Moreno Ocampo in the failure of the Ugandan peace talks is often pointed to as evidence that peace and accountability are at odds with one another. It is apparent that the International Criminal Court’s decision to issue 41 Souáre (n 39) 374; see also Kimberley Armstrong, ‘Justice without Peace? International Justice and Conflict Resolution in Northern Uganda’ (2014) 45(3) Development and Change 589, 594. 42 ICC Office of the Prosecutor, Eleventh Diplomatic Briefing of the International Criminal Court, Statement by Mr. Luis Moreno Ocampo (10 October 2007) accessed 27 July 2022. 43 Ibid. 44 Sarah M H Nouwen and Wouter G Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ (2010) 21(4) EJIL 941, 953. 45 Rodman and Booth (n 23) 294. 46 Armstrong (n 41) 594. 47 UN Security Council, ‘Report of the UN Secretary-General on the Situation in Central Africa and the Activities of the United Nations Regional Office for Central Africa (1 June 2021) UN Doc S/2021/517 [24]-[25].

Peace, Justice and International Criminal Trials

83

arrest warrants during the negotiation stage of the peace process played a significant, if not decisive, role in preventing the conclusion of a peace agreement. They transformed the talks and made the arrest and prosecution of the indicted LRA leaders a legal imperative that could not be negotiated away.48 This diminished the prospects that a peace agreement might be reached as it was highly unlikely that Kony would agree to a deal that would necessarily result in his own arrest and prosecution.49 This would have been seen as an unacceptable outcome to Kony and the LRA and prevented the parties from reaching a peace agreement.50 Peace and Accountability in Kenya The experience in Uganda does not mean that the existence of an International Criminal Court investigation into a situation will necessarily prevent conflicting factions from reaching an agreement. An example of a situation in which the involvement of the International Criminal Court was not a disruption can be found in Kenya. There, the existence of a preliminary examination did not interrupt the negotiation of a power sharing agreement in Kenya following the post-election violence in 2007–2008. By way of background, violence broke out in parts of Kenya immediately following the announcement of the national election results on 30 December 2007. It is alleged that a series of attacks were launched against supporters of the Party of National Unity (PNU) for the purpose of driving them out of particular geographical areas in an effort to establish a uniform voting bloc that favoured of the opposition party, the Orange Democratic Movement Party (ODM).51 Subsequently, attacks were allegedly carried out by PNU-supporting groups against ODM affiliated individuals at the end of January 2008 in an effort to ensure that the PNU would remain in power.52 On 5 February 2008, the Office of the Prosecutor released a statement that effectively indicated that it was monitoring the situation in Kenya and that it would carefully consider information relating to any crimes committed on the territory of a state party or by its nationals.53 Soon thereafter, President Mwai 48 Gissel (n 38) 44. 49 Janine Natalya Clark, ‘Peace, Justice and the International Criminal Court: Limitations and Possibilities’ (2011) 9 JICJ 521, 541; citing Michael P Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’ (1999) 32 Cornell Int’l L J 507, 508. 50 Sarah Nouwen, ‘The International Criminal Court: A Peacebuilder in Africa?’ in Devon Curtis and Gwinyayi A Dzinesa (eds), Peacebuilding, Power and Politics in Africa (Ohio University Press 2012) 182. 51 Prosecutor v Ruto et al. (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–01/11, PT Ch II (23 January 2012) [169], [181]. 52 Prosecutor v Kenyatta et al. (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/09–02/11, PT Ch II (23 January 2012) [102]. 53 Situation in the Republic of Kenya (Request for Authorisation of an Investigation Pursuant to Article 15) ICC-01/09, PT Ch II (26 November 2009) [5] and Annex 13.

84 Peace, Justice and International Criminal Trials Kibaki (head of the PNU) and opposition leader Raila Odinga (of the ODM) entered into a power-sharing agreement between the rival groups.54 Less than a month later the power-sharing agreement was formalised by the Kenyan Parliament through the enactment of the National Accord and Reconciliation Act 2008.55 This agreement effectively ended the violence between the PNU and the ODM bringing about negative peace.56 The Prosecutor’s 5 February 2008 announcement that his office was monitoring the situation in Kenya does not appear to have had any effect on the peace negotiations that resulted in the power-sharing agreement. Multiple individuals involved in negotiating the agreement later indicated that the possibility of an International Criminal Court investigation or any trials resulting therefrom was not part of their thinking during the negotiation process.57 As one person involved in the process succinctly put it, the International Criminal Court ‘wasn’t doing anything real’.58 Instead, the primary concern for negotiators was how a power-sharing agreement might be structured and whether it would be embedded in the Kenyan Constitution.59 Certain lessons can be drawn from the International Criminal Court’s involvement in the Kenyan peace process, particularly when juxtaposed with Uganda. First, it is apparent that the extent to which the parties perceive International Criminal Court intervention as an actual threat to their own liberty is an important factor in whether they the peace process will be disrupted. As was seen during the Ugandan peace process, Joseph Kony and the other LRA leaders for whom arrest warrants had been issued were unwilling to reach an agreement out of a fear that it could lead to their arrest and trial. In contrast, the generalised threat that the International Criminal Court was monitoring the situation in Kenya appears to have had no impact on peace negotiations there following the 2007–2008 postelection violence. This is due, in part to the fact that none of the individuals involved in the negotiation felt directly threatened by the prospect of prosecution. Rather than bring charges against individuals, the prosecutor instead chose to issue a statement in which he indicated that his office would monitor information about all crimes, regardless of the individual or group alleged to have committed it.60 This served to put those involved on notice that criminal charges could be forthcoming but did not make accountability an obligatory part of any future agreement. 54 Reuters, ‘Text of Power-Sharing Agreement in Kenya (28 February 2008) accessed 12 July 2021. 55 Kenya National Accord and Reconciliation Act 2008 accessed 12 July 2021. 56 Thomas Obel Hansen, ‘Kenya’s Power-sharing Arrangement and its Implications for Transitional Justice’ (2013) 17(2) Int’l J Hum Rts 307, 307. 57 Gissel (n 38) 104. 58 Ibid. 59 Ibid. 60 Situation in the Republic of Kenya (n 53) [5] and Annex 13.

Peace, Justice and International Criminal Trials

85

The way the Kenya investigation was conducted may also indicate that the timing of the International Criminal Court’s intervention into the process could be critical to the success of peace negotiations. In Uganda, the International Criminal Court introduced the possibility of arrest and prosecution into an unstable peace negotiation creating a necessary outcome that was unacceptable to the LRA. In Kenya, the possibility of accountability remained in the background while peace was being negotiated and was only pursued in earnest after an agreement was reached. This suggests that the stage at which the International Criminal Court intervenes in a peace process may be relevant to whether it serves to disrupt that process. It also leads to the conclusion that the spectre of accountability should remain generalised until after peace is agreed between the parties. Peace and Accountability in Colombia In contrast to the experiences in Uganda and Kenya, the threat of international criminal prosecution played an important part in the development of the peace process in Colombia. This is most evident from the text of the two most recently signed peace agreements, the Justice and Peace Law, passed in 2005 and the 2016 Peace Accord. Peace negotiations in Colombia have been longstanding in an effort to resolve more than fifty years of armed conflict between government-led military forces, paramilitary groups referred to collectively as the Autodefensas Unidas de Colombia (‘AUC’) and a variety of different left-wing guerilla organisations including Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP) and the Ejército de Liberación Nacional (ELN).61 The International Criminal Court first began to monitor whether crimes falling under its jurisdiction were being committed in Colombia in 2004, although it was not until 2005 that the International Criminal Court’s Prosecutor, Luis Moreno Ocampo informed the Colombian government that a preliminary examination into those crimes was underway.62 Despite the fact that the 2005 Justice and Peace Law was passed the same year that the Prosecutor publicised his office’s interest in Colombia, the law makes no mention of the International Criminal Court, the Rome Statute or the possible threat of alleged perpetrators being tried by the Court.63 It appears that the International Criminal Court’s exercise of jurisdiction over the situation in Colombia was simply not a consideration when the law was drafted and enacted. The situation was quite different a little more than a decade later when the 2016 Peace Accord was agreed. Unlike its predecessor, it mentions the Rome 61 ICC Office of the Prosecutor, Report on Preliminary Examination Activities (14 November 2016) [234]. 62 Ibid [231]; see also ICC Office of the Prosecutor, Situation in Colombia: Interim Report (November 2012) [27]. 63 Ley 975 de 2005 (25 June 2005) Diario Oficial No. 45.980 (Colombia) accessed 17 June 2021; see also Courtney Hillebrecht and Alexandra Huneeus and Sandra Borda, ‘The Judicialization of Peace’ (2018) 59 Harv Int’l LJ 279, 318–19.

86 Peace, Justice and International Criminal Trials Statute multiple times, with the crimes contained therein receiving particular attention.64 The Peace Accord specifically forbids the granting of amnesties or pardons for Rome Statute crimes and specifies that the following acts fall under that description: hostage taking, other types of unjust imprisonment, torture, extrajudicial murder, forced disappearances, rape, other forms of sexual violence, forced displacement, the abduction of children and the recruitment of minors into military forces.65 Despite this, no mention is made of the International Criminal Court as an accountability mechanism or the Court’s developing jurisprudence.66 It is no surprise that the latter agreement directly references the Rome Statute while the earlier one does not. The Colombian government was only made aware of the Office of the Prosecutor’s preliminary examination a few months before the Justice and Peace Law was passed in 2005. At that point, there had been very little engagement between the Prosecutor and Colombia. However, by the time the 2016 accord was signed the Office of the Prosecutor had been involved with the Colombian peace process for more than a decade, during which multiple formal and informal interventions took place. The decision on the part of the parties to the Colombian peace process to reject amnesties and pardons for Rome Statute crimes shows the influence the involvement of the Office of the Prosecutor had on the negotiations. The existence of the preliminary investigation, and the possibility that it could result in trials at the International Criminal Court if the Colombians did not adequately incorporate accountability into their peace process, acted as a threat that motivated the negotiating parties to comply. Following the agreement of the 2016 accord, the new Prosecutor of the International Criminal Court, Fatou Bensouda, made clear that she agreed with this approach in a statement applauding the decision to exclude amnesties and pardons for Rome Statute crimes in the final agreement.67 Colombia’s decision to forego amnesties and pardons for Rome Statute crimes arose out of a concern that a failure to do so would result in Colombians being tried by the International Criminal Court. Under the principle of complementarity found in Article 17 of the Rome Statute, the Court cannot exercise its jurisdiction unless the relevant state is unwilling or unable to genuinely carry out an investigation or prosecution.68 It is not entirely clear whether amnesties and pardons as part of larger peace and reconciliation process would constitute the requisite 64 Acuerdo Final Para la Terminación del Conflicto y la Construcción de una Paz Estable y Duradera (12 November 2016) accessed 17 June 2021, see also Hillebrecht, Huneeus and Borda (n 63) 319. 65 Colombian Acuerdo Final (n 64) 151. 66 Ibid. 67 ICC Office of the Prosecutor, ‘Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the peace negotiations between the Government of Colombia and the Revolutionary Armed Forces of Colombia – People’s Army’ (1 September 2016) accessed 17 June 2021. 68 Rome Statute of the International Criminal Court (17 July 1998) Preamble, Art 1, Art 17.

Peace, Justice and International Criminal Trials

87

unwillingness or inability to permit the International Criminal Court to act, although statements made by Moreno Ocampo when he was serving as Prosecutor suggest that they might not.69 In a 2006 statement to the UN Security Council, Moreno Ocampo indicated that his office would make complementarity decisions on the basis of whether ‘national proceedings’ were being conducted into the matter under investigation, and that reconciliation mechanisms do not constitute criminal proceedings for the purpose of such a determination.70 Because of this ambiguity, Colombia’s decided to forbid amnesties and pardons and preserve the possibility that those individuals accused of Rome Statute crimes being held responsible in Colombia. This represents an effort to avoid international criminal trials by ensuring that the International Criminal Court was prevented from exercising jurisdiction over the matter through the application of the principle of complementarity. Colombia appears to be investigating and prosecuting Rome Statute crimes, although the progress of those investigations has been rather slow. Members of FARC-EP were finally indicted in January 2021 for crimes including hostagetaking and other severe deprivations of liberty.71 Additionally, steps are being taken to investigate and prosecute crimes committed by government forces, including two former Army generals.72 It remains to be seen whether this progress is sufficient to satisfy the Office of the Prosecutor. In a June 2021 report, the outgoing prosecutor, Fatou Bensouda recognised the complexity of the accountability process being undertaken in Colombia as well as the fact that it would likely take many years to complete.73 Because of this long projected timeframe for completion, it was suggested that a benchmarking framework be developed that would allow the Office of the Prosecutor to conclude whether Colombia is complying with its Article 17 obligations before the completion of all domestic trials.74 Such a framework would likely involve a two-step process. The first consideration would be whether national proceedings are active or inactive, i.e. whether they are making ‘concrete and tangible progress’ towards determining the individual criminal responsibility’ of the individuals under suspicion; and second whether the process is marred by ‘a lack of willingness or ability to carry them out genuinely’.75 Until such a framework is adopted and applied in the Colombian context it is unlikely there will be any definitive answer as to whether Colombia has successfully complied with its Article 17 commitments. Despite this, it is clear that the 69 Martha Minow, ‘Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court’ (2019) 60 Harv Int’l LJ 1, 8; 70 UN Secretary-General, ‘Report of the Secretary-General on the Sudan’ Un Doc S/ PV.5459 (14 June 2006) 3. 71 UN Security Council, ‘United Nations Verification Mission in Colombia: Report of the Secretary-General’ S/2021/603 (25 June 2021) [7]. 72 Ibid [67]. 73 ICC Office of the Prosecutor, ‘Situation in Colombia Benchmark Consultation’ (15 June 2021) [20]. 74 Ibid [23]. 75 Ibid [34].

88 Peace, Justice and International Criminal Trials existence of the International Criminal Court, and the possibility that it could conduct trials, changed the course of the Colombia peace process by making the accountability of alleged perpetrators a key feature.

Broadening Understandings of How Accountability can Facilitate Peace Much of the debate about whether accountability promotes or inhibits peace focuses on ways in which prosecutions thwart peace processes designed to end ongoing conflicts. This is perhaps too narrow an understanding of the role justice can play in promoting peace. Frédéric Mégret suggests that what may be needed is ‘a rethink of the pacifist agenda’ that widens the scope so that it takes in activities that contribute to violence ‘in all its dimensions’.76 This expanded focus would include actions that facilitate armed conflict although they do not necessarily occur during the conflict. For example, this approach could result in greater efforts to prosecute arms dealers who are not directly engaged in the hostilities but whose actions are instrumental in committing atrocity crimes. Other Possible Pathways to Peace and Accountability Efforts have been made outside of the international criminal law context to strengthen the legal response to the illegal arms trade. In 2013, the UN General Assembly adopted a resolution approving the text of an Arms Trade Treaty.77 Coming into force the following year, one object of the Arms Trade Treaty is to ‘prevent and eradicate’ the illegal trade in conventional weapons as doing so would advance the twin purposes of promoting peace and limiting human suffering.78 To accomplish this object and purpose, the treaty prohibits states from permitting the transfer of conventional weapons for a variety of reasons, including when the state knows that the weapons being transferred will be used to commit the crimes regulated by the Rome Statute.79 While the International Criminal Court’s Statute is not directly referenced in the Arms Trade Treaty, it does specifically condemn the Rome Statute crimes of genocide, crimes against humanity and war crimes, suggesting some link between the two international treaties. Unfortunately, the connection between the prohibitions contained in the Arms Trade Treaty and possible international prosecution stops there. Despite outlawing the trade in weapons to be used when committing Rome Statute crimes, the Arms Trade Treaty contains no provision for prosecuting the individuals that violate that 76 Frédéric Mégret, ‘Law of War or Peace Through Law’ in Thomas de Waal (ed), Think Peace: Essays for an Age of Disorder (Carnegie Endowment for International Peace 2019) 49. 77 Laurence Lustgarten, ‘The Arms Trade Treaty: Achievements, Failings, Future’ (2015) 64 ICLQ 569, 569. 78 UN General Assembly, Arms Trade Treaty (adopted 2 April 2013, entered into force 24 December 2014) UN Treaty Series, vol 3013, Art 1. 79 Ibid Art 6(3).

Peace, Justice and International Criminal Trials

89

prohibition at the International Criminal Court. Enforcement of the treaty’s provisions are left to domestic jurisdictions to implement with some oversight from the treaty’s Secretariat and Conference of States Parties.80 As a result, international criminal law is largely ignored when encouraging peace through limiting the international arms trade. This is unfortunate because the illegal trade in weapons has played a significant role in several situations that have been investigated by the International Criminal Court. For example, Viktor Bout, a prominent arms dealer during the 1990s and 2000s, is believed to have illegally trafficked weapons into Colombia, Lebanon, Afghanistan, the Democratic Republic of Congo, Bosnia, Sudan, Rwanda, Liberia and Sierra Leone amongst other countries, before his arrest in Thailand in 2008.81 He was later extradited to the United States, where he stood trial for crimes including, conspiracy to kill members of the American military and for providing support to the FARC-EP in Colombia.82 Bout was convicted of those charges in November 2011 and given a 25-year prison sentence.83 On its face, the conviction of Viktor Bout represents a successful outcome in the effort to promote peace by controlling the illicit arms trade. It demonstrates how accountability efforts can contribute to peace by interrupting the flow of illegal weapons into combat zones. At the same time, it lays bare the limitations of international criminal justice institutions to bring about negative peace. Despite the fact that Bout is alleged to have been involved in arming actors in a number of different states that have been the loci of international criminal investigations and prosecutions, there is no reason to believe he has ever been the target of any international criminal justice institution. The lack of interest shown by international criminal justice institutions in Bout as a suspect means he was not held fully accountable for the crimes he is alleged to have committed. Because he was prosecuted by a domestic American court he was only eligible to be charged for crimes that fall under the jurisdiction of the United States. In this case, those crimes were limited to offences committed directly against American citizens in the context of the ongoing conflict in Colombia. As a result, he has still not been prosecuted for crimes allegedly committed in a number of other countries, including several that are of interest to different international criminal justice institutions. This represents a failure of the international trial goals of accountability and promoting peace.

80 Ibid Arts 14, 17 and 18. 81 Douglas Farah and Stephen Braun, Merchant of Death (John Wiley & Sons 2007) 4, 10; Victoria Ellen Collins and Melissa Pujol, ‘Secrets Exposed?: Selective State Concern and the Prosecution of Notorious Arms Trafficker Viktor Bout’ (2015) 24 Critical Criminology 93, 95–6, 98. 82 United States of America v Viktor Bout (Indictment) United States District Court for the Southern District of New York, available at accessed 22 September 2021. 83 Collins and Pujol (n 81) 98.

90 Peace, Justice and International Criminal Trials How Incapacitation can Facilitate Peace One positive benefit of Bout’s conviction is that it and the resulting sentence led to his incapacitation. Incapacitation involves detaining violent actors through arrest or prosecution, denying them the opportunity to commit additional criminal offences.84 The incapacitation of certain actors can play an important role in promoting peace. Incapacitation disrupts the active involvement of people who may be impeding the peace process and signals to others that credible legal measures might be imposed against them if they are to incite further violence.85 Returning to Joseph Kony and the Lord’s Resistance Army, it is reasonable to surmise that if the International Criminal Court had been able to execute its arrest warrant against Kony, the likelihood of agreeing to peace in Uganda would have been increased. The Lord’s Resistance Army is a ‘rigidly hierarchical’ organisation, and Kony, as its leader, was often viewed synonymously with the group as a whole.86 During the period of time that peace was being discussed in Uganda, Kony’s power over the group was so nearly absolute that the effectiveness of any peace deal with the government would have been dependent on his acquiescence to it.87 However, he was not inclined to agree to end hostilities unless the charges brought against him by the International Criminal Court were dropped, something the Court’s Prosecutor was not willing to do. This led to the talks ending in a stalemate and continued violence in Uganda and the surrounding countries. Had Kony been arrested by the International Criminal Court and removed from the peace process, the Ugandan government might have been able to negotiate with other senior members of the Lord’s Resistance Army, possible yielding a different outcome. International trials may also contribute to peace by driving into hiding those people likely to instigate the commission of violent acts. Once the ad hoc tribunals began to arrest, prosecute and convict people accused of crimes falling under their jurisdiction, a number of people against whom arrest warrants had been issued took steps to conceal their whereabouts.88 For example, an arrest warrant was issued in 1995 by the International Criminal Tribunal for the former Yugoslavia against Radovan Karadžic´, then president of the Republic of Srpska, for his role in committing the Srebrenica genocide.89 Pursuant to the Dayton Accords which 84 Michael Broache, ‘Irrelevance, Instigation and Prevention: The Mixed Effects of International Criminal Court Prosecutions on Atrocities in the CNDP/M23 Case’ (2016) 10 Int’l J Transitional J 388, 401. 85 Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95(7) AJIL 7, 12. 86 Joanna R Quinn, ‘Getting to Peace? Negotiating with the LRA in Northern Uganda’ (2009) 10 Hum Rts Rev 55, 57, 60. 87 Ibid 60. 88 Steven Ratner, Jason S Abrams and James L Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy, (3rd edn, OUP 2009) 251. 89 The Republic of Srpska was founded in 1992 and is one of two territorial entities within Bosnia and Herzegovina. It is now home to most of the ethnic Serbs living in Bosnia and Herzegovina.

Peace, Justice and International Criminal Trials

91

ended the war in the former Yugoslavia, he was forced to relinquish his position as president as no one who had been indicted for war crimes was allowed to hold elected office within the territory of Bosnia and Herzegovina.90 Following an attempt to execute the warrant, he altered his appearance and assumed a new identity.91 While Karadžic´ did not entirely fade from view he did not make any further effort to directly influence Srpska or Serbian politics.92 The issuance of the arrest warrant effectively removed him from a position in which he could others to commit acts of violence and neutralised him as a force capable of upending the peace process.93 Reducing the influence of past violent instigators in this way can aid in the development of a form of negative peace. While arrest warrants may help incapacitate individuals interested in undermining peace, the evidence suggests that they are only effective when accompanied by a legitimate threat that the subject of the arrest warrant will actually be arrested for the crimes alleged against them. This is demonstrated in the work of Michael Broache, who conducted a qualitative study designed to identify connections between actions taken by the International Criminal Court and atrocities committed in Democratic Republic of Congo by the rebel group, the National Congress for the Defense of the People/Movement of 23 March (CNDP/M23). Broache found that there was no appreciable change in the activities of CNDP/ M23 in the period immediately following the unsealing of the International Criminal Court’s arrest warrant against its leader, Bosco Ntaganda.94 Former members of CNDP/M23 confirmed that Ntaganda saw no reason to order changes in the behaviour of the organisation because he did not believe that the issuance of the indictment would lead to his arrest.95 That changed in March 2012 when the International Criminal Court convicted Thomas Lubanga for crimes committed in the same region of Democratic Republic of Congo. Lubanga’s conviction gave Ntaganda a tangible reason to think that he might be held accountable for his actions. In response, Ntaganda escalated the conflict in the hope that the government would offer him an amnesty from prosecution in exchange for his agreement to end the violence.96 It did not, and he was ultimately arrested and convicted of war crimes and crimes against humanity by the International Criminal Court.97 Ntaganda’s incapacitation following his arrest led to an almost immediate and substantial decrease in violent acts carried out by the

90 Constitution of Bosnia and Herzegovina (1995) Art IX; appended as Annex 4, The General Framework Agreement for Peace in Bosnia and Herzegovina (agreed 21 November 1995, signed 14 December 1995). 91 Marko Milanovic´, ‘Current Developments: The Arrest and Impending Trial of Radovan Karadžic´’ (2009) 58 ICLQ 212, 213. 92 Ibid. 93 Ratner et al. (88) 251. 94 Broache (n 84) 401. 95 Ibid 402. 96 Ibid 405. 97 Prosecutor v Ntaganda (Judgment) ICC-01/04–02/06, T Ch VI (8 July 2019) 535– 39.

92 Peace, Justice and International Criminal Trials CNDP/M23.98 Within eight months of his arrest the organisation had been disbanded.99 General Deterrence and its Role in Promoting Peace Not only did Ntaganda’s incapacitation immediately make the situation in Democratic Republic of Congo less violent, it also appears to have had acted as a general deterrent for some CNDP/M23 members. Former members of CNDP/ M23 indicated that Ntaganda’s arrest left them feeling discouraged and fearful that they too might be arrested and tried for their participation in atrocity crimes were they to continue their activities.100 General deterrence presumes that the sanction for committing a crime should be severe enough to discourage others who might want to commit similar crimes.101 It is thought that punishing the perpetrators of atrocity crimes will ‘dissuade for ever, others who may be tempted in the future to perpetrate such atrocities by showing them that the international community shall not tolerate the serious violations of international humanitarian law and human rights’.102 General deterrence rests on the belief that convicting and sentencing people for actions constituting atrocity crimes will help transform perceptions of acceptable behaviour leading to habitual conformity with the law as these new understandings are internalised.103 This view may be overly simplistic, as there is growing evidence to suggest that prosecutions and convictions alone cannot produce the necessary deterrent effect. It appears that the speed with which someone is prosecuted and the likelihood that a prosecution will take place are important factors when determining whether the prosecution and punishment of others will deter them from future criminality.104 This poses a particular problem for international criminal trials which are often very long and slow-moving and can struggle to bring the accused to trial at all.105 Links have been drawn by international criminal law institutions between the slow speed of international criminal trials and the likelihood that they produce a 98 99 100 101

102 103

104 105

Broache (note 84) 405–7. Ibid. Ibid 406. Prosecutor v Al Mahdi (Judgment and Sentence) No ICC-01/12–01/15, Tr Ch VIII (27 September 2016) [67]; Diane Marie Amann, ‘Group Mentality, Expressivism and Genocide’ (2002) 2 Int’l Crim L Rev 93, 115. Prosecutor v Rutaganda (Judgement and Sentence) ICTR-96–3-T, T Ch I (6 December 1999) [456]. Payam Akhavan, ‘Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) 20 Hum Rts Q 737, 747; see also Eric Blumenson ‘The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court’ (2006) 44 Columbia J Transnat’l L 801, 828. Hyeran Jo and Beth A Simmons, ‘Can the International Criminal Court Deter Atrocity?’ (2016) 70 International Organization 443, 447. Blumenson (n 103) 825; Mark Drumbl, Atrocity, Punishment, and International Law (CUP 2007) 170; Kirsten J Fisher, Moral Accountability and International Criminal Law: Holding Agents of Atrocity Accountable to the World (Routledge 2012) 52.

Peace, Justice and International Criminal Trials

93

deterrent effect. The glacial pace of trials at the International Criminal Tribunal for Rwanda and the amount of time spent on them is believed to have diminished the potential deterrent effect of those prosecutions.106 The International Criminal Tribunal for the former Yugoslavia faced similar issues and within three years of commencing operations it had already identified a perceived need to speed up trials and pre-trial proceedings.107 A number of new rules were introduced into the Yugoslavia Tribunal’s Rules of Procedure and Evidence to accomplish this goal, to somewhat varying degrees of success.108 Whether the speed of trials following these reforms had an effect on deterrence in other situations remains unclear. Another issue that plagues international criminal justice institutions is their inability to exert control over all of those people subject to its jurisdiction. This has been a particular problem at the International Criminal Court. At the time of writing, the International Criminal Court has issued arrest warrants against 50 individuals, fifteen of whom remain at large, three who have died before they could be arrested and two others that had the cases against them closed before they could be arrested.109 That means that one third of the people against whom arrest warrants have been issued by the Court have never been in its custody. This is largely the result of the fact that international criminal justice institutions lack their own police forces. This leaves the Court dependent on domestic police to arrest indicted suspects. When the Court is seeking to arrest someone, they can transmit a request to any state asking that the individual being sought is arrested should they be present in the territory of the state party.110 States parties to the Rome Statute that receive such a request are obliged to comply, in recognition of their general obligation to cooperate with the Court found in Article 86 and the more specific obligations found in Articles 87 and 89.111 Despite this clear statutory obligation, it has not always been possible for domestic police to arrest the individuals sought by the Court. The relative ineffectiveness of the International 106 Mackline Ingabire, ‘Exploring the Boundaries of the Deterrence Effect of the International Criminal Tribunal for Rwanda’ in Jennifer Schense and Linda Carter (eds), Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals (Torkel Opsahl 2017) 112. 107 UN Security Council, ‘Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991’ (10 August 1998) UN Doc S/1998/737 [106]. 108 Caleb H Wheeler, ‘Unquestioned Testimony: How the Diminution of Live Testimony Threatens the Accused’s Right to be Present During International Criminal Trials’ (2019) 52(3) Cornell Int’l L J 545, 572–3; Máximo Langer & Joseph W Doherty, ‘Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of ICTY Reforms’ (2011) 36 Yale J Int’l L 241, 269. 109 International Criminal Court Website accessed 17 February 2023. While the website lists 51 defendants, Jean-Pierre Bemba Gombo is listed twice because two different cases were brought against him. 110 Rome Statute (n 68) Art 89. 111 Ibid Art 86, Art 87, and Art 89.

94 Peace, Justice and International Criminal Trials Criminal Court to gain custody over the individuals it seeks to try undermines the potential general deterrent effect as suspects know there is a reasonable possibility they will never be brought before the Court. This problem is exacerbated by the fact that a large proportion of people that participate in atrocity crimes will never be charged by international criminal justice institutions. The sort of atrocity crimes of interest to international criminal courts and tribunals are often committed by hundreds or thousands of individuals working towards a common goal. International courts and tribunals lack the capacity to try all, or even most, of the people subject to their jurisdiction.112 To address this problem, many courts and tribunals have pursued a policy of trying those thought to be most responsible for the criminality under investigation. This was made explicit in Article 1 of the Special Court for Sierra Leone’s Statute, which states that the Court is designed to prosecute those people ‘bearing the greatest responsibility’ for violations of international humanitarian law.113 The Office of the Prosecutor at the International Criminal Court follows a similar strategy, recognising that it would not be feasible for it to investigate and prosecute every person allegedly responsible for crimes falling under its competence.114 Therefore, when deciding what cases to pursue, the Prosecutor’s Office considers the gravity of the crime by focusing on those crimes considered most serious within the context of the situation and which are of the greatest concern to the world community.115 This significantly narrows the Court’s focus, meaning that a number of potential suspects will escape prosecution not because they lack culpability but because the nature of their crimes are not considered grave enough to warrant the International Criminal Court’s attention. This in turn reduces the possible deterrent effect of international criminal prosecutions. If there is little chance that an individual will be arrested and tried by an international criminal justice institution for their alleged crimes it is unlikely that they will be deterred from committing them. There is also no clear indication that international criminal trials promote general deterrence. Some evidence suggests that the Lubanga trial at the International Criminal Court did serve as something of a deterrent. Interviews conducted in the Ituri Province of the Democratic Republic of the Congo following Lubanga’s conviction found a decrease in the use of child soldiers that was attributed to the trial creating a more widespread understanding that the recruitment and use of children in combat is illegal.116 Counterbalancing this apparently positive effect of 112 Ronen Steinke, The Politics of International Criminal Justice: German Perspectives from Nuremberg to the Hague (Hart 2012) 8. 113 UN Security Council, Statute of the Special Court for Sierra Leone (16 January 2002) Art 1. 114 ICC Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’ (15 September 2016) [5]. 115 Ibid [35]. 116 Sharanjeet Parmar, ‘Dissuasive or Disappointing? Measuring the Deterrent Effect of the International Criminal Court in the Democratic Republic of the Congo’, in Jennifer Schense and Linda Carter (eds), Two Steps Forward One Step Back: The Deterrence Effect of International Criminal Tribunals (International Nuremberg Principles Academy 2016) 181.

Peace, Justice and International Criminal Trials

95

the trial is the suggestion that Bosco Ntaganda actually became more violent following Lubanga’s conviction in the effort to force the government to grant him amnesty for his crimes.117 As a result, no real conclusion can be drawn about the deterrent effect experienced in Democratic Republic of the Congo as a result of Lubanga’s conviction. Lubanga’s conviction may have played some role in deterring criminal activity in neighbouring countries. There is at least one instance of a rebel leader in the Central African Republic demobilising his child soldiers upon learning from the trial that it is a crime to use child soldiers in combat.118 Hyeran Jo and Beth Simmons took a broader view when researching the deterrent effect of trials at the International Criminal Court. They looked at violence levels in 101 different states that had experienced at least one episode of civil unrest since 1945, including all of those that had been the subject of an International Criminal Court investigation up until 2016.119 Their focus was on violent incidents occurring in the 13 years before the International Criminal Court Statute came into force and 10 years after.120 Jo and Simmons found that the government in those states that ratified the Rome Statute were almost half as likely to intentionally kill civilians, a number that dropped even lower in those states in which the International Criminal Court conducted preliminary examinations.121 By comparison, ratification of the Rome Statute appears to have little deterrent effect on the actions of rebel groups – they are much more likely to curtail their violent behaviour only when the International Criminal Court takes real action to investigate and prosecute crimes.122 This suggests that international trials, or at least the spectre of international criminal trials, can and do positively impact peace in areas riven by conflict. This conclusion is supported by a study conducted by Hunjoon Kim and Kathryn Sikkink in which they looked at domestic and international human rights prosecutions in over 100 countries for the purpose of determining whether trials could produce a deterrent effect. Their findings showed that prosecutions may deter some human rights abuses and also contributed to the subject states developing a greater respect for human rights overall.123 This positive effect was not only limited to the country in which the prosecution took place, but also extended into neighbouring countries.124 Further, there also appears to be some correlation between the number of prosecutions held and the deterrent effect produced.125 This led Kim and Sikkink to conclude that the likelihood of prosecution leads to a 117 Michael Broache (n 84) 405. 118 Human Rights Watch, Selling Justice Short: Why Accountability Matters (Human Rights Watch 2009) 7. 119 Jo and Simmons (n 104) 456. 120 Ibid. 121 Ibid 460. 122 Ibid 468. 123 Hunjoon Kim and Kathryn Sikkink, ‘Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries’ (2010) 54 Int’l Studies Q 939, 953. 124 Ibid 957. 125 Ibid 953.

96 Peace, Justice and International Criminal Trials decrease in human rights abuses as the cost of those violations outweigh the perceived benefits.126 In fact, all studies into the deterrent effect produced by the International Criminal Court have shown that intervention by the Court has been associated with a decrease in violence.127 This supports the notion that the involvement of international criminal justice institutions in conflict situations positively encourages the development of negative peace between warring parties.

Conclusion It is apparent that the prospect of international criminal trials can have an influence on the cessation of violence in conflict situations, leading to the establishment of negative peace. That impact is linked to two factors: the stage of the peace-making process at which international adjudication is introduced into the process and the likelihood that a peace agreement will lead to the prosecution and incarceration of individuals involved in the negotiations. When the possibility of trials is introduced at the wrong point it can be unsettling as it changes the bargaining position of the sides in a way that can be seen as unfair or evident of bad faith. This is also dependent on whether the parties to the negotiations perceive any threat that they might actually be prosecuted following the conclusion of a peace deal. It is only when some element of personal risk exists that parties will alter their behaviour in a way that will impact peace. Therefore, care needs to be taken to ensure trials are not disruptive to existing peace processes but that they carry a legitimate threat that they will result in convictions and punishment. The evidence also shows that incapacitation and general deterrence can positively benefit peace. Arresting individuals that are, or could be, disruptive to peace processes can enhance the likelihood that periods of violence can be resolved peacefully. In fact, arrest is not always necessary to create this effect – it may also be produced simply by issuing an arrest warrant and creating the prospect of accountability through an international criminal trial. Arrests and the issuance of arrest warrants can also act to deter others from engaging in acts of violence out of fear that they too might be held accountable for their actions. However, the threat of arrest does not, in isolation, create an incapacitation or deterrent effect. Unless their issuance is also accompanied by the belief that the warrant will actually be executed it is doubtful that they will have much effect on behaviour. What this suggests is that whether an individual believes they will be arrested plays a central part in whether accountability efforts can influence the achievement of negative peace. It also shows that the timing of when they come to believe that they could be held accountable can be critical as well. When introduced before peace negotiations, as seen in the context of Democratic Republic of Congo, they can incapacitate individuals that might disrupt peace negotiations and deter others from continuing to participate in violence. The introduction of accountability 126 Ibid 958. 127 Stuart Ford, ‘A Hierarchy of Goals of International Criminal Courts’ (2018) 27(1) Minn J Int’l L 179, 225.

Peace, Justice and International Criminal Trials

97

during peace talks can upend them, as was the case in Uganda, because it creates a disincentive to agree to end hostilities and conclude a process that will result in the arrest and prosecution of some of the participants. However, the situation in Colombia shows that accountability efforts can positively impact agreements intended to generate negative peace when it is used as a point of discussion and not as a threat. Peace and accountability are not necessarily at odds, but accountability must be approached with care if it is to help establish negative peace. Trial fairness does not play a particularly significant role in the process of using accountability to help bring about negative peace. That is because international criminal trials usually take place after peace negotiations are concluded. Some consideration may be given to whether any future trial will be fair before agreeing to a peace deal, but most of the people involved in the talks will want to avoid being tried at all, regardless of the relative fairness of the proposed proceedings. Fairness becomes critical in the transitional period during which a society tries to convert negative peace into positive peace. The next chapter will take up how international criminal trials can contribute to developing positive peace. It will primarily do this by evaluating how reconciliation can help societies rebuild following periods of mass violence and move forward as some semblance of a cohesive society. It recognises that although peace and reconciliation are distinct international criminal trials goals, they are also interdependent to the extent that accomplishment of one is a precondition for the success of the other.

6

How International Criminal Trials Can Encourage Reconciliation

Peace and reconciliation are often connected in international law. Societies riven by conflict must generally attain negative peace before the reconciliation process can begin. The process of reconciling can then, in turn, help produce the sort of positive peace that many view as the desired endpoint post-conflict societies are hoping to reach. The UN General Assembly emphasised this connection when it declared that reconciliation is ‘necessary to and a condition for’ establishing firm and lasting peace in conflict-afflicted areas of the world.1 Understood in that way, peace and reconciliation function symbiotically, with one form of peace needed before reconciliation starts, but the other remaining unachievable until reconciliation is effectively pursued.2 The previous chapter engaged with how the threat of international criminal trials can help promote the negative peace necessary for the reconciliation process to begin. This chapter will consider whether international criminal trials can facilitate reconciliation so as to create a more permanent and durable peace. It will do this by considering the relationship between reconciliation and positive peace, and whether accountability, truth-telling, and forgiveness and apology during trial can aid in that process. Reconciliation is a concept that has its roots in religious doctrine, and it can encompass ideas of truth, justice, mercy, tolerance, fairness, reason and peace.3 That reconciliation is made up of so many different components is in part explainable by the fact that each situation in need of reconciliation is different, with the groups involved having unique needs that must be fulfilled before reconciliation is accomplished. At best, one can identify certain generalities that often, if not always contribute to reconciliation. Commentators concede that safety and security are critical components of reconciliation, but also question the meaning of those terms within the context of a post-conflict society.4 Some have 1 UNGA Resolution 61/17 (20 November 2006) UN Doc A/RES/61/17, 1. 2 Anit Biletzki, ‘Peace-Less Reconciliation’ in Alice MacLachlan and Allen Speight (eds), Justice, Responsibility and Reconciliation in the Wake of Conflict (Springer 2013) 32. 3 Christopher C Joyner, ‘Reconciliation as Conflict Resolution’ (2010) 8 NZ J Pub Int’l L 39, 41. 4 Harvey M Weinstein, ‘Editorial Note: The Myth of Closure, the Illusion of Reconciliation: Final Thoughts on Five Years as Co-Editor-in-Chief’ (2011) 5 Int’l J Transitional J 1, 3–4.

DOI: 10.4324/9781003027331-6

How International Criminal Trials Can Encourage Reconciliation

99

focused on the attitudes of the people on different sides of the conflict, and particularly on whether people from different communities tolerate and accept one another, i.e. whether they are ‘getting along’.5 From that perspective, consensus of opinion amongst rival sides does not need to be the goal. Instead, reconciliation efforts should involve finding a way for people to live together in the absence of consensus.6 Others describe reconciliation as ‘the repair and restoration of relationships’ by ‘discovering ways and means to build trust so that the parties might be able to live cooperatively with one another’.7 This approach assumes that at one time the opposing parties were conciliatory towards one another and that some pre-existing relationship existed that now needs to be reconstructed.8 That is not always the case and at times what is described as reconciliation is actually building previously non-existent understandings between groups.9 Reconciliation is significantly complicated by the fact that it requires those engaging in the process to be both reflective and forward-looking. Reconciliation is reflective to the extent that it requires individuals and groups to consider the past so that they might understand and address the reasons they are or have been in conflict.10 It is forward-looking in that those same individuals and groups must also consider what can be done in the future to resolve the issues that exist between them and move forward as a society.11 Looking forward and backward simultaneously can be difficult. Recalling past incidents of violence or hatred can often be quite painful and finding solutions to the problems that gave rise to those incident is never easy. The success of reconciliation efforts is dependent on the parties being fully engaged with the process and open to confronting difficult memories and ideas.12 Defining reconciliation is made challenging because it is a term used to describe two different things: the end point a society is attempting to reach (a reconciled society) and the process followed to reach that goal (the reconciliation process).13 5 James Meernik and Jose Raul Guerrero, ‘Can International Criminal Justice Advance Ethnic Reconciliation? The ICTY and Ethnic Relations in Bosnia-Herzegovina’ (2014) 14(3) Southeast European and Black Sea Studies 383, 389. 6 Mirjan Damaška, ‘What is the Point of International Criminal Justice?’ (2008) 83 Chicago-Kent L Rev 329, 346. 7 Janine Natalya Clark, ‘The Limits of Retributive Justice’ (2009) 7(3) Journal of International Criminal Justice 463, 482; Joyner (n 3) 40. 8 Brandon Hamber and Gráinne Kelly, A Place for Reconciliation: Conflict and Locality in Northern Ireland (Democratic Dialogue 2005) 39. 9 Biletzki (n 2) 34. 10 Rudina Jasini and Victor Phan, ‘Victim Participation at the Extraordinary Chambers in the Courts of Cambodia: Are Retributive and Restorative Principles Enhancing the Prospect for Justice’ (2011) 24(3) Cambridge Review of International Affairs 379, 387. 11 Ibid. 12 Laurel E Fletcher and Harvey M Weinstein and Jamie Rowen, ‘Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective’ (2009) 31 Hum Rts Q 163, 205–6. 13 Janine Natalya Clark, International Trials and Reconciliation: Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia (Routledge 2015) 40;

100 How International Criminal Trials Can Encourage Reconciliation As a result, the criteria that need to be fulfilled to accomplish reconciliation varies depending on whether it is being pursued as a goal or as a process. Reconciliation as a goal requires: 1 2 3 4

tolerance of different groups, willingness to trust one another, the rejection of stereotypes and generally getting along; acceptance that people can hold valid viewpoints that one disagrees with; recognition of political institutions and their ability to reach decisions without bias; and support for human rights and the rule of law.14

There is significant overlap between the goal of reconciliation and positive peace. The first element of the goal of reconciliation described above aligns with Galtung’s definition of a positive peace as requiring cooperation and integration between disparate groups.15 The third and fourth elements accord with Webel’s belief that a strong or durable peace necessitates respect for principles of equality, justice and liberty.16 This suggests that reconciliation as an endpoint and positive peace are largely the same condition. International criminal trials are not particularly well-designed to facilitate reconciliation as a goal. While trials can support many of the criteria, the only one it can really directly affect is improving support for human rights and the rule of law. The others are more likely to be accomplished through political and diplomatic efforts than legal ones. Perhaps the biggest test for a society attempting to reconcile is accepting that there is no single point at which reconciliation or positive peace can be considered accomplished.17 Different groups have varied understandings about what it means to be reconciled with opposing factions or what needs to happen to be reconciled with those groups. This means the endpoint is constantly changing and may depend on individual rather than group perceptions. Further, members of some groups have indicated that reconciliation is impossible under any circumstances. A survivor of the Rwanda genocide asserted that reconciliation had no meaning to them and that they could only forgive a perpetrator of the genocide ‘after he has

14

15

16 17

Rama Mani, ‘Does Power Trump Morality?’ in Edel Hughes, William A Schabas and Ramesh Thakur (eds), Atrocities and International Accountability (UN University Press 2007) 30; Jens Meierhenrich, ‘Varieties of Reconciliation’ (2008) 33 Law & Social Inquiry 195, 214. James L Gibson, ‘Taking Stock of Truth and Reconciliation in South Africa: Assessing Citizen Attitudes through Surveys’ in Hugo van der Merwe, Victoria Baxter and Audrey R Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press 2009) 176. Johan Galtung, Theories of Peace: A Synthetic Approach to Peace Thinking (International Peace Research Institute 1967) 12 accessed 27 July 2022. Ibid. Eugenia Zorbas, ‘Reconciliation in Post-Genocide Rwanda’ (2004) 1(1) Afr J Leg Studies 29, 30.

How International Criminal Trials Can Encourage Reconciliation

101

18

resuscitated the members of my family that he killed’. The existence of attitudes like this suggests that reconciliation is a goal that societies can work towards, but which they may have to accept will never actually be reached. The focus, therefore needs to be on ensuring the achievement of as many of the conditions as possible to minimise the possibility that the community will be divided by violence in the future. The components of what constitutes reconciliation as a process are markedly different than when one views it as a goal. Reconciliation as a process requires the following interrelated conditions to be met by the different groups involved: 1 2 3 4 5

developing a shared vision of an interdependent and fair society; acknowledging and dealing with the past; building positive relationships; significant cultural and attitudinal shifts; and substantial socio-economic and political change.19

As already partly explored elsewhere in this book, international criminal trials can directly contribute to accomplishing the first four of these criteria. By using international criminal trials as a model, with particular attention paid to the importance of trial fairness, domestic jurisdictions can strengthen the rule of law in a way that eliminates systemic discrimination. A greater commitment to the rule of law can positively change peoples’ attitudes about the place in which they live because it allows individuals to be more confident of their own status within the state.20 Treating people equally under the law can also help create more positive relationships, both between the individual and the government and the individual and the other members of society.21 This suggests that committing to the rule of law can positively effect that advancement of the reconciliation process. International criminal trials can also facilitate reconciliation as a process by exploring the history and establishing the truth about the situation that has resulted in the community being divided. The truth demonstrates that whatever caused the rupture in society was not inevitable nor is it a permanent condition.22 To do this, international criminal trials must focus on creating a narrative which emphasises peoples’ shared humanity rather than ethnic, racial, religious or gender 18 Weinstein (n 4) 8. 19 Hamber and Kelly (n 8) 38. 20 Andrés Casas-Casas, Nathalie Mendez and Juan Federico Pino, ‘Trust and Prospective Reconciliation: Evidence From a Protracted Armed Conflict’ (2020) 15(3) J Peacebuilding & Development 298, 302. 21 Audrey R Chapman, ‘Approaches to Studying Reconciliation’, in Hugo van der Merwe, Victoria Baxter and Audrey R Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press 2009) 153. 22 Payam Akhavan, ‘Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) 20 Human Rights Quarterly 737, 741–2.

102 How International Criminal Trials Can Encourage Reconciliation differences.23 An important part of this involves focusing on the individual criminality of the alleged perpetrators.24 This is something international criminal trials are particularly well designed for because of their focus on individual criminal responsibility. Emphasising the responsibility of the individual helps to discourage the idea that crimes were committed by or on behalf of a particular group and instead should be attributable to rogue individuals within that group who co-opted their identity to justify their actions.25 A narrative that distinguishes those individuals from the rest of the group can help provide a basis for the group to move forward and engage in positive reconciliation efforts without being tainted. There are three fundamental areas in which international criminal trials can have the greatest impact on reconciliation. They are: holding accountable those individuals who committed atrocity crimes during the period of conflict; engaging in a full and robust truth-telling process; and providing victims with the space to forgive their victimisers while also giving the perpetrators of atrocity crimes the opportunity to express remorse for their actions.26 Whether accountability, truthtelling, and forgiveness and apology do actually play a positive role in this is a separate question, and one that will be explored at greater length below.

Reconciliation and Accountability It remains an open question whether the sort of accountability accomplished during international criminal trials can contribute to the process of reconciliation. Research done on the effects that prosecutions held at the International Criminal Tribunal for the former Yugoslavia have had in the Balkans do not give much cause for optimism. When the International Criminal Tribunal for the former Yugoslavia was founded, its first president, Antonio Cassese, was optimistic about the role it would play in facilitating reconciliation amongst the parties to the then on-going conflict. Cassese believed that an independent and impartial Tribunal would encourage reconciliation and be conducive to the establishment of ‘healthy and cooperative relations’ between the different factions.27 This would, in turn contribute to the peaceful resolution of the then ongoing Yugoslavian conflict.28 Cassese felt that holding fair trials resulting in the conviction of those responsible for crimes committed during the war would alleviate unresolved hatred and

23 Ibid. 24 Roman David, ‘International Criminal Tribunals and the Perception of Justice: The Effect of the ICTY on Croatia’ (2014) 8 Int’l J Transitional J 476, 483. 25 Ibid. 26 Chapman (n 21) 151. 27 UN Security Council, ‘Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991’ (29 August 1994) UN Doc S/1994/1007 [15]–[17]. 28 Ibid.

How International Criminal Trials Can Encourage Reconciliation

103

resentment which would, in turn diminish the likelihood of renewed violence and the commission of new crimes.29 Serious doubts have since been raised as to whether international criminal prosecutions are capable of producing the sort of reconciliation Cassese thought possible for the former Yugoslavia.30 Qualitative research indicates that his confidence may have been misplaced, and that trials at the International Criminal Tribunal for the former Yugoslavia have not had the hoped-for effect on reconciliation. Janine Natalya Clark has conducted extensive research into attitudes on reconciliation in the former Yugoslavia, largely concluding that trials at the Tribunal have not encouraged reconciliation. She found that: ‘extremely high levels’ of mistrust remained in Bosnia and Herzegovina amongst members of the different factions; that there was little contact between different ethnic groups; the contact that did exist was mostly restricted to business transactions; and different groups had very different understandings about how and why certain events occurred during the war.31 These findings led her to conclude that the International Criminal Tribunal for the former Yugoslavia’s judicial process had not resulted in reconciliation.32 Clark attributes this lack of reconciliation between the parties to the perception, particularly amongst Croats and Serbs, that the International Criminal Tribunal for the former Yugoslavia is biased against them.33 Cassese eventually admitted that the Tribunal was not having the hoped for positive impact on the lives of the people living in the former Yugoslavia.34 What Clark’s research suggests, and what Cassese may not have recognised in his initial optimism about the potential benefits the Tribunal might produce, is that fair trials conducted by an objective tribunal cannot, by themselves, lead to reconciliation. Perhaps more important than the trials actually being fair is that they are seen as being fair by members of the affected communities.35 Perceptions of unfairness act as real obstacles to international criminal courts’ and tribunals’ ability to accomplish reconciliation through accountability. This conclusion is reinforced by a study of post-conflict trials taking place between 1946 and 2005 conducted by Christopher Steinert. In it, he found that the trials conducted at the International Criminal Tribunal for the former Yugoslavia were the most impartial of all the post-conflict trials studied.36 For the purpose of his study, ‘impartial’ post-conflict trials are defined as ‘prosecutions that 29 Ibid [15]-[16]. 30 Eric Stover and Harvey M Weinstein, ‘Conclusion: A Common Objective, a Universe of Alternatives’, in Eric Stover and Harvey M Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (CUP 2004) 323. 31 Clark ‘The Limits of Retributive Justice’ (n 7) 482–3. 32 Ibid 483. 33 Ibid. 34 Antonio Cassese, ‘The ICTY: A Living and Vital Reality’ (2004) 2 JICJ 585, 595. 35 Janine Natalya Clark, ‘The Three Rs: Retributive Justice, Restorative Justice, and Reconciliation’ (2008) 11(4) Contemporary Justice Review 331, 332. 36 Christoph V Steinert, ‘Trial Fairness Before Impact: Tracing the Link Between PostConflict Trials and Peace Stability’ (2019) 45(6) International Interactions 1003, 1025.

104 How International Criminal Trials Can Encourage Reconciliation treat individuals from all conflict parties on equal terms’.37 Others have called the International Criminal Tribunal for the former Yugoslavia ‘a successful experiment in international criminal justice’.38 Despite these positive conclusions about the Yugoslavia Tribunal’s work, many members of impacted communities continue to believe that trials held there were not fair. This demonstrates an obvious disconnect between the actual conditions under which trials at the International Criminal Tribunal for the former Yugoslavia were conducted and how those trials are perceived. It is this negative perception that must be overcome if trials are to positively influence reconciliation. Reconciliation is a two-way process and those involved must be able to attribute responsibility to opposing factions while also admitting their own role in causing or perpetuating the conflict.39 However, when one or more sides feels as if they are being disproportionately blamed for the conflict, it can lead them to abandon the reconciliation process as they feel that their opponents are not engaging with them in good faith. Additionally, it can create the impression that they are being revictimised due to a lack of adequate recognition of their own suffering experienced during and after the conflict. One possible reason for this may relate to the way in which international criminal justice institutions construct accountability. International criminal courts and tribunals have eschewed the idea of collective accountability and are instead exclusively concerned with establishing the criminal responsibility of individuals responsible for committing atrocity crimes. This approach is often attributed to the pronouncement in the Nuremberg Judgment that international crimes are ‘committed by men, not by legal entities’, although it is probably better understood as a continuation of a legal principle found in domestic legal systems.40 This fixation on the individual rather than the larger ethnic community is intentional. It is hoped that it will result in the individual shouldering the blame allowing the group to absolve itself of responsibility.41 The difficulty with only focusing on individual responsibility is that it overlooks the role group membership can play in the perpetration of some atrocity crimes. Many victims believe that their victimisation is linked to pre-existing hostility between people from their own ethnic background and that of their attacker.42 Ignoring the collective dimension of the accused’s criminality can give rise to the perception that the accused was acting as a lone wolf and distances their actions from that of the group with which they are 37 Ibid 1007. 38 Courtney Hillebrecht and Alexandra Huneeus and Sandra Borda, ‘The Judicialization of Peace’ (2018) 59 Harv Int’l L J 279, 283. 39 Joyner (n 3) 42. 40 Judgment of 1 October 1946, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol 1 (1947) 171–367; see also Elies van Sliedregt, Individual Criminal Responsibility in International Law (OUP 2012) 36. 41 Shane Darcy, ‘Imputed Criminal Liability and the Goals of International Criminal Justice’ (2007) Leiden J Int’l L 377, 397. 42 David (n 24) 479.

How International Criminal Trials Can Encourage Reconciliation

105

43

affiliated. Apportioning responsibility in such a way as to minimise the role collective identity played in the accused’s criminality fails to adequately acknowledge the past. In so doing, it may not go far enough to inspire the sort of forgiveness and acceptance often necessary for opposing sides to reconcile. There may also be a cultural disconnect between how local communities conceptualise accountability and how international criminal justice institutions construct it. In 1999, the United Nations established an administrative body, the United Nations Transitional Administration in East Timor (UNTAET), to help Timor-Leste (the state established out of the former Indonesian province of East Timor) transition towards independence from Indonesia.44 One of UNTAET’s responsibilities was to assist in investigating and prosecuting crimes committed by the Indonesian military in the wake of the announcement that East Timor would seek its independence. UNTAET was impeded in those efforts as it was difficult to secure the requisite evidence; many of the witnesses to the crimes had been killed or were reluctant to testify due to a fear of reprisal, or they had returned to Indonesia.45 This reliance on the need for objective evidence frustrated the East Timorians as their own legal tradition permits an accused to be convicted in the absence of evidence when everyone ‘knows’ who committed the crime.46 UNTAET’s refusal to proceed on that basis led many in East Timor to conclude that the trials had not produced accountability and to believe that the entire legal process was a failure as a result.47 In this instance, a different understanding of what constituted a fair process created the perception that the trials had been unsuccessful. This perception of failure also meant that the trials did not contribute towards reconciliation. Another explanation for the inability of international criminal trials to contribute to reconciliation may be found in how international criminal justice institutions interact with the communities directly affected by the crimes being tried at the relevant courts and tribunals.48 This starts with the location of the courts and tribunals. International criminal trials are, for the most part, conducted outside of the country or countries in which the crimes charged are alleged to have occurred. Trials at the International Criminal Tribunal for the former Yugoslavia, the International Criminal Court and the Special Tribunal for Lebanon are, or have been held in the Netherlands. The International Criminal Tribunal for Rwanda conducted its trials in Tanzania. The Special Court for Sierra Leone split its time 43 Tracy Isaacs, ‘International Criminal Courts and Political Reconciliation’ (2016) 10(1) Criminal Law and Philosophy 133, 137. 44 David Cohen, ‘“Hybrid” Justice in East Timor, Sierra Leone, and Cambodia: “Lesson Learned” and Prospects for the Future’ (2007) 43 Stan J Int’l L 1, 6–7. 45 Erica Harper, ‘Delivering Justice in the Wake of Mass Violence: New Approaches to Transitional Justice’ (2005) 10 J Conflict & Sec L 149, 165. 46 Ibid. 47 Ibid. 48 Darcy (n 41) 394; Neil J Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights’ (1996) 59 Law & Contemp Probs 127, 131.

106 How International Criminal Trials Can Encourage Reconciliation between Sierra Leone and the Netherlands. Only the Extraordinary Chambers in the Courts of Cambodia held all of its trials in the country in which the alleged crimes took place. Many of these courts and tribunals are permitted to hold trials, in whole or in part, in a place other than the seat of the tribunal, including in the country in which the crimes being prosecuted are alleged to have occurred.49 However, most have not availed themselves of this option, despite the fact that requests have been made that they do so. In the Ruto case, The International Criminal Court was confronted with a request to move the trial to either Kenya or Tanzania. That application was ultimately denied when a plenary of the judges failed to vote in sufficient numbers to authorise moving parts of the trial closer to the locality in which the alleged crimes were committed (a two thirds majority was required).50 Those opposing the move expressed concerns about the cost of doing so, threats to security, a failure to consult all of the affected communities and increased threats to the integrity of the trial in the form of witness intimidation and tampering.51 It is difficult to see how some of these worries, particularly those relating to cost and security, can ever be entirely alleviated when proposing to hold trial in the locus of the alleged crimes, suggesting that they could be used as justification to never hold trials outside of the Hague. This distance between the state in which the alleged crimes took place and the state in which trial is held can have a real impact on whether proceedings are perceived as being fair. This is particularly true for victims who have indicated that being able to attend and participate in trials can enhance their belief that the trial is fair.52 Obviously, the International Criminal Court has attempted to address this through its innovative victim participation procedures, although most victims do not attend trial in the courtroom unless they have been called as a witness.53 In reality, the ability for victims to be involved in proceedings, either directly as a participant or indirectly as an observer in the courtroom, remains severely limited when trial is held far from where they live. Depriving the vast majority of victims 49 Rome Statute of the International Criminal Court (17 July 1998) Art 3; Rules of Procedure and Evidence, Special Tribunal for Lebanon (29 November 2010) Rule 44; Rules of Procedure and Evidence, International Criminal Tribunal for the former Yugoslavia (as amended 8 July 2015) Rule 4; Rules of Procedure and Evidence, International Criminal Tribunal for Rwanda (as amended 13 May 2015) Rule 4. 50 Prosecutor v Ruto et al. (Decision of the Plenary of Judges on the Joint Defence Application for a Change of Place where the Court Shall Sit for Trial in the case of The Prosecutor v William Samoei Ruto and Joshua Arap Sang) ICC-01/09–01/11– 875-Anx, Plenary of Judges (26 August 2013). 51 Ibid [22]-[3]. 52 Brianne McGonigle Leyh, Procedural Justice? Victims Participation in International Criminal Proceedings (Intersentia 2011) 47–8, citing Anne-Marie de Brouwer and Marc Groenhuijsen, ‘The Role of Victims in International Criminal Proceedings’ in Göran Sluiter and Sergey Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of Law (CMP Publishing 2009) 153–4. 53 Hans-Peter Kaul, ‘Victims’ Rights and Peace’ in Thorsten Bonacker and Christoph Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (Springer 2013) 225.

How International Criminal Trials Can Encourage Reconciliation

107

of the opportunity to observe the trial and to see for themselves that it is being conducted fairly can prevent them from feeling as if justice has been done. This can, in turn, thwart reconciliation as it deprives the victims of at least one precondition necessary to allow them to reconcile with those communities with whom they disagree.54 A second problem with conducting international criminal trials somewhere other than the locality in which the alleged crimes were committed is that it makes it much harder to inform local communities about how the proceedings are being conducted. As one resident of the Eastern part of the Democratic Republic of Congo pointed out, the Lubanga and Katanga trials were both held in the Hague, meaning that ‘nobody [in the community] knew what actually happened there’.55 Victims in the Democratic Republic of Congo have reinforced that idea, saying about the International Criminal Court ‘[w]here are they? We cannot see them or their work’.56 These statements suggest that local communities are interested in developing a better understanding about how international criminal trials work and the ability to reach their own conclusions about the matters under consideration by the court. Alternatively, an individual who is unable to attend the proceedings must rely on information filtered through the perspectives of others. This can give a skewed idea of the work being done by the Court and allow for the development of narratives suggesting that the court or tribunal is biased against one group or another. One way to overcome this is for international and internationalised criminal courts and tribunals to reach out to the affected communities and communicate directly to them about its activities and the progress of trial. The International Criminal Tribunal for the former Yugoslavia failed to do this in its early years, which may help to explain the limited impact it has had on reconciliation in the region.57 This information vacuum was filled by others, who were able to disseminate versions of events that suited their own interests, which in some cases included actively undermining the work of the Tribunal.58 The inability of international criminal justice institutions to better inform communities seeking to reconcile about the judicial narratives they were developing has significantly reduced the effectiveness that truth-telling can have on reconciliation. This was the case in the former Yugoslavia, where the different ethnic 54 Kingsley Chiedu Moghalu, ‘Reconciling Fractured Societies: An African Perspective on the Role of Judicial Prosecutions’, in Ramesh Thakur & Peter Malcontent (eds) From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (United Nations Press 2004) 216; Clark ‘The Three Rs’ (n 35) 332. 55 Radio Canal Révélation, ‘Reactions from the Population of Bunia to the Possibility of Holding Closing Statements in Situ’ (International Justice Monitor 1 March 2018) accessed 26 May 2022. 56 Mariana Goetz, ‘Victims’ Experiences of the International Criminal Court’s Reparations Mandate in the Democratic Republic of Congo’ in Carla Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (2nd edn, Brill 2020) 429. 57 Diane Orentlicher, Some Kind of Justice (OUP 2018) 309. 58 Ibid.

108 How International Criminal Trials Can Encourage Reconciliation groups have largely rejected the narrative created by the International Criminal Tribunal for the former Yugoslavia.59 Alternative narratives developed along ethnic lines that often conflicted with national and international accounts have sprung up in the place of the Tribunal’s narrative. This is exacerbated by discrete ethnic groups within each country developing their own understandings about the war.60 The result of all of this has been the development of an enormous number of histories that clash with one another on a basic level. The proliferation of such a multitude of different histories makes it almost impossible to foster reconciliation as the people involved lack a common starting point from which to begin to understand one another. Disagreements about what happened during the war in the former Yugoslavia has also raised questions about the International Criminal Tribunal for the former Yugoslavia’s legitimacy, particularly when it reached decisions that did not easily harmonise with a particular group’s understanding of events. When this happens, the truth established during trial has a limited impact on reconciliation. Establishing the objective truth about a conflict during trial supports reconciliation by establishing indisputable facts that cannot be manipulated or denied.61 When done effectively, it guards against historical revisionism by producing a narrative that is made up of incontrovertible, judicially determined evidence.62 However, failure to properly communicate that narrative lessens its ability to shape the larger conversation. Rather than become an authoritative history which different groups can rally around, it is just one of many narratives that can be marginalised or discounted to serve the political or social needs of the different factions. Decisions about who to hold accountable during international criminal trials can also impact the effectiveness of reconciliation efforts. Reconciliation often necessitates the belief that blame is being properly apportioned to all sides of a conflict. Charging decisions that lead to the prosecution of a larger number of the members of a particular group than other groups can undermine that belief. An example of this can also be found at the International Criminal Tribunal for the former Yugoslavia. The Tribunal issued 161 indictments while in operation, 109 of which were brought against ethnic Serbs.63 Additionally, Serbs convicted of the crimes alleged against them received slightly longer prison sentences than members of other ethnic backgrounds.64 This imbalance in the charging and 59 Jelena Subotic, ‘Truth, Justice, and Reconciliation on the Ground: Normative Divergence in the Western Balkans’ (2015) 18(3) J Int’l Rel & Dev 361, 371, 373. 60 Ibid. 61 Akhavan (n 22) 741–2; Laurel E Fletcher and Harvey M Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Hum Rts Q 573587; Meernik and Guerrero (n 5) 403. 62 Kai Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (OUP 2016) 49, citing UN Security Council, Provisional Verbatim Record of the Four Thousand One Hundred and Sixty-First Meeting of the United Nations Security Council (20 June 2000) UN Doc S/PV.4161. 63 Stuart Ford, ‘Fairness and Politics at the ICTY: Evidence from the Indictments’ (2013) 39(1) NC J Int’l L & Com Reg 45, 68. 64 Ibid.

How International Criminal Trials Can Encourage Reconciliation

109

sentencing practices led ethnic Serbs to reject many of the Tribunal’s findings on the basis that it was inherently biased against them. That Serbs were charged and more harshly punished by the Tribunal suggests one of two things: either Serbs were disproportionately responsible for crimes committed during the war in the former Yugoslavia, or the large number of Serbs prosecuted is indicative of an anti-Serbian bias on the part of the Tribunal.65 The former interpretation, if true, suggests that the Yugoslavia Tribunal’s activities are consistent with the judicial goal of holding accountable those individuals responsible for committing mass killings and ethnic cleansing and in this particular instance, ethnic Serbs were disproportionately responsible for committing those crimes. However, that interpretation does not accord with the Serbian narrative of the war. A 2004 survey found that only 8% of ethnic Serbs surveyed thought that Serbs committed the largest number of war crimes during the conflict and 84% believe that Serbs constituted the most victimised ethnic group.66 This narrative clearly rejects the proposition that Serbs were responsible for committing a disproportionate number of crimes during the war. Therefore, Serbs are left with only one interpretation of the higher prosecution rate, that the Tribunal is biased against them as a group. When an international criminal trial is understood as inherently biased, it is impossible for the truth established during the proceedings to promote reconciliation. Therefore, the legitimacy of the international criminal justice institution holding the trial becomes key. This is particularly true when trying to build a narrative meant to contribute to reconciliation. While it is probably impossible to construct a narrative that will be fully accepted by all sides, a court or tribunal that is considered legitimate should be able to create one that the different sides can live with in the absence of consensus.67 It is unlikely that the conclusions reached by a court will be trusted should any side of the divided society believe that the process has been infected by bias. However, if all sides feel they have been treated fairly, which includes having the opportunity to express their opinions and be heard, it is more likely they will accept a narrative that may not entirely conform to their own. Accomplishing this sort of legitimacy may require international justice institutions to allow the introduction of evidence beyond what is necessary to reach a determination as to the guilt of the accused. For reconciliation to be successful, the members of the affected society need to know not just that crimes were committed by, or at the direction of, a particular individual. They also need to know why those crimes were committed and what attitudes informed the decision 65 Ibid 70–1; Clark, ‘The Limits of Retributive Justice’ (n 7) 483; Mirko Klarin, ‘The Impact of ICTY Trials on Public Perception in the Former Yugoslavia’ (2009) 7 JICJ 89, 92. 66 Stuart Ford, ‘A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms’ (2012) 45 Vand J Transnat’l L 405, 413–14. 67 Damaška (n 6) 346.

110 How International Criminal Trials Can Encourage Reconciliation leading to their commission.68 Understanding the motivations underlying the perpetrator’s criminality can give rise to a dialogue about their validity. It allows the different factions to explain and challenge what happened in open and honest ways that can help the society achieve some form of catharsis.69 A society able to develop this deeper sort of truth is better equipped to reconcile and move forward as a reunited whole.70 There are also instances in which the introduction of certain types of factual evidence not relevant to the guilt of the accused could help strengthen reconciliation efforts.71 The families of people killed during conflict have often expressed a strong interest in learning the location of the remains of their murdered loved ones.72 The reason for this is two-fold: first, so that the living know for certain that their loved ones are dead; and second, so that the deceased can receive a proper burial.73 Providing survivors with this information can help facilitate their mourning and in gaining a sense of closure about the incident.74 Closure of this sort can lead to acceptance which can help pave the way for more effective reconciliation efforts. Despite the clear benefits for victims of establishing the location of burial sites, it is not one of the elements of the crimes involving killing that must be proved to demonstrate the guilt of the accused.75 While the existence and location of a mass grave may be introduced during trial to show that the killings took place, a finding of guilt against the accused does not depend on it. There may be other, better information that establishes the same conclusion resulting in any discussion about mass graves being omitted from the evidence. Victims at the International Criminal Court could attempt to elicit information about the location of burial sites through the exercise of their Article 68(3) right to have their views and concerns aired in relation to matters about which they are personally interested.76 However, the Trial Chamber may also refuse to admit the evidence on the basis that it is either prejudicial to the accused or that it could compromise the overall fairness of proceedings.77 68 Susan Dwyer, ‘Reconciliation for Realists’ (1999) 13 Ethics & International Affairs 81, 96. 69 Jeremy Sarkin, ‘The Tension Between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with Genocide’ (2001) 45(2) J Afr L 143, 147. 70 Jasini and Phan (n 10) 386. 71 Gerry Simpson, Law, War and Crime (Polity Press 2007) 80. 72 Rosario Figari Layús, The Reparative Effects of Human Rights Trials: Lessons From Argentina (Routledge 2018) 131. 73 Mercedes Doretti and Luis Fondebrider, ‘Science and Human Rights’ in Victor Buchli and Gavin Lucas (eds), Archaeologies of the Contemporary Past (Routledge 2001) 143. 74 Ibid. 75 See the elements of the crimes of genocide by killing, the crimes against humanity of murder and extermination, the war crime of wilful killing; ICC Elements of Crimes, Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May -11 June 2010 (ICC 2011) 2, 5, 13. 76 Rome Statute (n 49) Art 68(3). 77 Ibid.

How International Criminal Trials Can Encourage Reconciliation

111

A possible solution to that problem is for trial chambers to more closely consider what might constitute prejudice to the accused. This must be done carefully as broadening the scope of the evidence admitted during trial to facilitate reconciliation can compromise the fairness of proceedings.78 The introduction of evidence not relevant to the accused’s guilt must be approached with caution so as not to risk distorting the case against them or allowing conviction on an improper basis. The trial court must find a balance between permitting the presentation of sufficient evidence to satisfy the needs of victims and creating an acceptable narrative that will promote reconciliation, while also ensuring that the evidence is relevant to the crimes alleged. When a conflict arises it must be resolved in favour of admitting only relevant evidence, although courts should take a liberal approach to how it interprets what evidence is relevant. Such a system is most likely to ensure that the trial is both fair and also fulfills the goal of reconciliation.

Forgiveness, Apology and Reconciliation Knowing the truth about the conflict and developing a common narrative may help political and community leaders find a basis for reconciliation but it unlikely to be as effective for victims of atrocity crimes.79 While victims can gain some satisfaction from better understanding the circumstances of their victimisation, more is often needed to permit them to engage in a cooperative reconciliation process with those individuals who committed crimes against them.80 Reconciliation between victims and perpetrators requires both sides to overcome the mistrust and hostility that previously defined their interactions.81 Doing that will often require the perpetrators of atrocity victims to acknowledge the wrongfulness of their actions and for their victims to forgive them.82 Addressing the destructiveness of the pre-existing relationships between victims and perpetrators, and finding some way forward can significantly contribute towards reconciliation and building positive peace.83

78 Daniel Joyce, ‘The Historical Function of International Criminal Trials: Re-thinking International Criminal Law’ (2004) 73 Nordic J Int’l L 461, 484. 79 James Gallen, ‘Reconciliation and a Just Peace’ in Carsten Stahn and Jens Iverson (eds), Just Peace After Conflict (OUP 2020) 104. 80 Ibid; Antoine Rutayisire, ‘Rwanda: Repentance and Forgiveness – Pillars of Genuine Reconciliation’ in Ani Kalayjian and Raymond F Paloutzian (eds), Forgiveness and Reconciliation: Psychological Pathways to Conflict Transformation and Peace Building (Springer 2009) 184. 81 Geetanjali Mukherjee, ‘Achieving Reconciliation Through Prosecution in the Courts: Lessons from Rwanda’ (2011) 28(3) Conflict Resolution Q 331, 333. 82 M Cherif Bassiouni, ‘Assessing Conflict Outcomes: Accountability and Impunity’ in M Cherif Bassiouni (ed), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice, vol 1 (Intersentia 2010) 8. 83 Alexander Dukalskis, Laura K. Taylor, and John Darby, ‘Reconciliation and Quality Peace’ in Madhav Joshi and Peter Wallensteen (eds), Understanding Quality Peace: Peacebuilding After Civil War (Routledge 2018) 156.

112 How International Criminal Trials Can Encourage Reconciliation Forgiveness is a conscious and deliberate decision made by the victims of atrocity crimes to relinquish their right to pursue legitimate grievances for wrongs they have been subjected to.84 It involves the renunciation of anger and resentment and represents an indication that the victim regards the perpetrator of the crimes against them as occupying the same position as any other member of society.85 Forgiveness is facilitated by the personal recognition that one no longer intends to be a victim defined by the past but instead wishes to be a person with an as yet undetermined future.86 Forgiveness cannot be the product of external pressure and the accused must feel able to offer forgiveness without conditions or predicates.87 It does not need to be preceded by an apology as forgiveness is directed inward, towards the person who has been victimised, rather than outward at the victimiser or society as a whole.88 Victims should also not be made to feel as if their forgiveness is a prerequisite for reconciliation.89 Doing so places a burden on the victims of atrocity crimes to forgive, and their decision not to do so can be interpreted as a decision to obstruct the reconciliation process.90 This creates a risk of retraumatising victims or stigmatising them as barriers to achieving a positive peace.91 The decision to forgive is a choice personal to each victim and one they can only make on their own behalf.92 It is a choice that is freely made or withheld by the victim depending on their own state of mind and nothing else. When forced, it is not forgiveness but a performative act meant to resemble forgiveness that is designed to satisfy the demands of others.93 It lacks the required mental state, the actual relinquishment of one’s resentment or desire for vengeance that is essential if forgiveness is meant to be effective or to play any role in reconciliation. That is because the positive act of forgiveness, either through the victim’s words or deeds, is meaningless in the absence of an accompanying mental state in which the victim actually lets go of their resentments and seeks to move forward. 84 Martha Minow, ‘Forgiveness, Law, and Justice’ (2015) 103 Calif L Rev 1615, 1618. 85 Daniel Philpott, ‘Reconciliation, Politics and Transitional Justice’ in Atalia Omer, R Scott Appleby and David Little (eds), The Oxford Handbook of Religion, Conflict and Peacebuilding (OUP 2015) 349; Daniel Philpott, ‘The Justice of Forgiveness’ (2013) 41(3) J Religious Ethics 400, 402. 86 Ibid 4. 87 David C Gray, ‘A No Excuse Approach to Transitional Justice: Reparations as Tool of Extraordinary Justice’ (2010) 87 Wash U L Rev1043, 1084. 88 Martha Minow, When Should Law Forgive? (WW Norton & Co 2019) 3–4. 89 Neelke Doorn, ‘Forgiveness, Reconciliation and Empowerment in Transitional Justice’ (2011) 1(4) Int’l J Humanities & Soc Sciences 13, 14. 90 David C Gray, ‘A No Excuse Approach to Transitional Justice: Reparations as Tool of Extraordinary Justice’ (2010) 87 Wash U L Rev 1043, 1084. 91 Chandra Lekha Sriram, ‘Victims, Excombatants and the Communities: Irreconcilable Demands or Dangerous Convergence?’ in Thorsten Bonacker and Christoph Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (Springer 2013) 241. 92 John D Inazu, ‘No Future Without (Personal) Forgiveness: Reexamining the Role of Forgiveness in Transitional Justice’ (2009) 10 Hum Rts Rev 309, 310. 93 Minow, ‘Forgiveness, Law, and Justice’ (n 84) 1620.

How International Criminal Trials Can Encourage Reconciliation

113

Forgiveness can be accomplished without an apology or other recognitions of wrongdoing, but it does not support reconciliation without similar engagement from the perpetrators of atrocity crimes.94 The success of reconciliation is dependent both on the victim granting forgiveness to their victimiser but also by the victimiser acknowledging that they have committed a wrong for which they need to be forgiven.95 To be affective, the victimiser’s recognition of responsibility must go beyond simply admitting that a wrong occurred. Instead, to facilitate reconciliation it is necessary that the specific acts constituting the wrongs committed are detailed. Both forgiveness and acknowledgment require that the truth be told and heard.96 As a result, forgiveness and acceptance connect with the truth-telling process of trial and the development therein of a commonly shared factual narrative. The perpetrator’s recognition of the wrongness of their actions must be both internal and external. It must be internal to the extent that the victimiser accepts that they have wronged the victim and that their behaviour constitutes something for which they need forgiveness.97 This is particularly true in conflicts in which genocide or other forms of ethnic cleansing have occurred. Those crimes generally involve, on some basic level, a belief that the victims should be exterminated simply by virtue of their status as a member of the group being targeted. It is difficult to see how a society premised on equality and cooperation will be constructed when some of its members do not accept the victims’ right to exist or the wrongfulness inherent in denying that right. External recognition often takes the form of apology or some other expression of contrition for the wrongfulness of their actions. International criminal trials can act as a space in which victims and perpetrators can come together for the purpose of forgiveness and acknowledgment.98 States often encounter periods of weakened rule of law enforcement following periods of societal or political instability. A consequence of this can be the diminishment in the perceived authority of domestic justice institutions. Further, periods of conflict are also often followed by an inability to openly discuss the causes and effects of the violence out of a fear that doing so will result in repercussions.99 International criminal trials can fill that gap by offering a forum that has not been affected by the conflict in which both victims and perpetrators can be heard. They provide the accused the opportunity to concede, both formally and on the record, that wrongdoing occurred and that they played a role in that wrongdoing. Trials also 94 Meierhenrich (n 13) 207. 95 Yehudith Auerbach, ‘The Role of Forgiveness in Reconciliation’ in Yaacov Bar-SimanTov (ed), From Conflict Resolution to Reconciliation (OUP 2004) 154. 96 Charles Griswold, Forgiveness: A Philosophical Exploration (CUP 2007) 195. 97 Rutayisire (n 80) 172. 98 Minow, ‘Forgiveness, Law, and Justice’ (n 84) 1620. 99 Paula Green, ‘Reconciliation and Forgiveness in Divided Societies: A Path of Courage, Compassion, and Commitment’ in Ani Kalayjian and Raymond F Paloutzian (eds), Forgiveness and Reconciliation: Psychological Pathways to Conflict Transformation and Peace Building (Springer 2009) 252.

114 How International Criminal Trials Can Encourage Reconciliation provide the perpetrators of atrocity crimes the opportunity to plead guilty, another way of formally acknowledging responsibility for their actions.100 Trials can also give perpetrators the chance to make more informal expressions of regret to the victims for the circumstances that resulted in their victimisation. These sorts of public demonstrations of acknowledgment and remorse can act as indications that the perpetrators of violence are prepared to constructively engage in the reconciliation process.101 Guilty pleas and apologies can also help encourage the development of a common history. When the accused pleads guilty to some or all of the charges alleged against them they are, at a minimum, accepting that sufficient evidence exists to prove that charge beyond a reasonable doubt. From a legal standpoint, that means the accused no longer has the right to dispute the legitimacy of those facts, making them part of the common and shared history of the parties to the dispute. In this way, guilty pleas can contribute to the sort of truth-telling necessary to encourage reconciliation. However, to facilitate forgiveness it is not enough for the perpetrator to simply concede that they have done something wrong, their acknowledgement of their own wrongdoing must also be genuine.102 If it is seen as formulaic or self-serving it will defeat the purpose and possibly exacerbate the victim’s feeling that they have been wronged. International criminal proceedings have produced both genuine and suspect expressions of guilt or remorse. An example of the latter can be found in the Karadžic´ case at the International Criminal Tribunal for the Former Yugoslavia. Prior to the issuance of the decision of the Trial Chamber’s judgment, Karadžic´’s defence team submitted a Final Trial Brief to the Trial Chamber in which he indicates his ‘deep regret and sympathy’ for the victims of the crimes charged in the indictment and he acknowledges his moral responsibility for crimes committed by the citizens or the military of the Republic of Srpska (part of Bosnia and Herzegovina) during the period of time he was its president.103 Despite this, he does not apologise or accept individual criminal liability for those crimes.104 On the surface it would seem that some expression of remorse, even one that is limited or qualified, could help contribute to reconciling the differences between the parties. However, the context of Karadžic´’s statement raises real questions as to its sincerity. It is presented in the Brief as a plea in mitigation should he be found guilty of the crimes alleged and it immediately follows a recitation of the case law supporting the notion that statements of regret and sympathy should be considered as a mitigating factor even when the accused does not admit personal 100 Olivera Simic´ and Barbora Holá, ‘A War Criminal’s Remorse: the Case of Landžo and Plavšic´’ (2020) 21 Hum Rts Rev 267, 268. 101 Prosecutor v Plavsic´ (Sentencing Judgment) IT-00–39&40/1-S, T Ch (27 February 2003) [80]. 102 Green (n 99) 253. 103 Prosecutor v Karadžic´ (Defence Final Trial Brief) No IT- 95–5/1-T, T Ch (29 September 2014) [3428]. 104 Ibid.

How International Criminal Trials Can Encourage Reconciliation

115

105

This does not mean that Karadžic´ was not genuinely expressing responsibility. remorse in the Brief, but it opens the door for the supposition that the statement was made in his own self-interest rather than out of true remorse. This equivocal approach to remorse stands in stark contrast to the guilty plea Ahmad Al Faqi Al Mahdi entered at the start of his trial at the International Criminal Court. He opened by acknowledging the truthfulness of the charges against him, describing them as ‘accurate and correct’.106 He then expresses regret over his actions and asks for forgiveness specifically from the families of the people whose mausoleums he destroyed but also from the entire population of Timbuktu.107 Interestingly, he then ties the potential length of his sentence to the likelihood of forgiveness by stating that he hopes his punishment will be sufficient to enable the people of Timbuktu, Mali and the world to forgive him.108 By doing this, Al Mahdi seems to recognise that his apology is not, by itself, sufficient to encourage forgiveness and reconciliation. Instead, it must be accompanied by a punishment that adequately reflects the harm he caused. Goran Basic’s research suggests that in at least some instances accountability and punishment are necessary preconditions to forgiveness and reconciliation.109 Basic interviewed 27 survivors of the war in the former Yugoslavia about their experiences and the conditions they felt were necessary to enable reconciliation between the parties to the conflict.110 He found that many of the interviewees made their forgiveness and their willingness to reconcile conditional on the perpetrators of atrocity crimes being punished for their actions during the periods of conflict.111 Some victims need to know that the perpetrator has been formally condemned for their actions before feeling able to offer their forgiveness and to begin the process of reconciliation. Conviction and punishment represents a tangible indication to the victims that justice has been done, and by taking place in an international context, it is also seen by the world as having been accomplished.112 This public and identifiable demonstration of justice can help some victims ease their feelings of resentment and allow them to forgive their victimizers.113 International criminal trials, as a source of accountability, become a very important part of the reconciliation process under these circumstances as they can help enable

105 Ibid [3427]. 106 Prosecutor v Al Mahdi (Trial Transcript) No ICC-01/12–01/15, T Ch (22 August 2016) 7. 107 Ibid 8. 108 Ibid 9. 109 Goran Basic, ‘Conditions for Reconciliation: Narratives of Survivors from the War in Bosnia and Herzegovina’ (2015) 17(2) Journal of Criminal Justice and Security 107, 123. 110 Ibid 107. 111 Ibid 123. 112 Moghalu (n 54) 216; Melanie Klinkner and Howard Davis, The Right to Truth in International Law: Victims’ Rights in Human Rights and International Criminal Law (Routledge 2020) 239. 113 Ibid.

116 How International Criminal Trials Can Encourage Reconciliation victims of atrocity crimes to come to terms with the wrongs committed against them and lead to forgiveness. Conversely, the nature of an adversarial trial can also make it difficult for international criminal trials to accomplish the sort of genuine acknowledgement needed to facilitate reconciliation. The reasons for this are four-fold. First, the way international criminal trials are structured may limit reconciliation efforts because trials, by their very nature, are designed to highlight distinctions between disparate groups.114 They are divided into prosecution and defence with the purpose of distinguishing the not guilty from the guilty. Emphasising these differences between groups runs counter to the sort of inclusivity needed to foster reconciliation. Second, a court can find someone guilty of the crimes alleged against them without the accused admitting responsibility or displaying contrition. Under these circumstances, it is the court, and not the individual, acknowledging the responsibility of the perpetrator for the crimes alleged. While this can provide victims with the sort of wider recognition of the circumstances surrounding their victimization it lacks the acknowledgement of the individual perpetrator, which is often needed to encourage reconciliation. Third, an accused may refuse to acknowledge their role in the victimization of the victims not because they do not accept the wrongness of their actions, but out of a desire to protect themselves from the sort of criminal sanctions likely to accompany such an acknowledgment. This too can inhibit reconciliation to the extent that the perpetrator might have been willing to apologise or otherwise acknowledge their culpability in a context that would not result in penal or monetary sanctions. Fourth, guilty pleas and other expressions of remorse during trial can be offered out of a sense of self-interest rather than a desire to acknowledge culpability. The sort of agreements that result in the accused pleading guilty often involve dismissing some of the charges against them or agreeing to support leniency during sentencing in recognition of the plea. Guilty pleas given in exchange for something become suspect because they can appear disingenuous to the victims of atrocity crimes.115 When that happens, it may actually have a negative effect on reconciliation as the victims are more likely to perceive the accused as acting for their own benefit rather than out of remorse.116 That can be understood as a continued or renewed refusal to acknowledge their own wrongdoing and a rejection of the possibility of working cooperatively with their victims. Forgiveness by the victims and the acknowledgment of wrongdoing by the perpetrators of atrocity crimes play an important role in creating the conditions needed for reconciliation and positive peace. Both require those involved to relinquish negative perceptions of the other in an effort to find some common ground upon which a cooperative relationship can be built. International criminal trials can play a role in this by providing a neutral venue in which victims and perpetrators can interact with one another. However, for trials to play that role 114 Mani (n 13) 36. 115 Simic´ and Holá (n 100) 272. 116 Ibid.

How International Criminal Trials Can Encourage Reconciliation

117

117

Victims will not be effectively they must be perceived as fair and legitimate. willing to offer forgiveness, and perpetrators will not be able to acknowledge the wrongfulness of their actions, in the context of proceedings that they feel are unfair. Therefore, steps need to be taken to ensure that the trial process is considered fair so that it might help to facilitate the overall goals of trial. For victims, this includes making sure they are heard during trial, that forgiveness is always at their discretion and never conditional, and that perpetrators are not rewarded for disingenuous guilty pleas and other cynical expressions of remorse. For perpetrators, procedural fairness needs to be guaranteed in line with their right to a fair trial and any sentence passed should be neither arbitrary nor excessive. When trials are conducted under these conditions, they are much more likely to create an environment in which a victim feels able to forgive and in which a perpetrator can show remorse.

Conclusion Reconciliation may be the most difficult goal for international criminal trials to achieve. It requires people to be simultaneously forward and backward-looking in an effort to find some sort of basis for consensus. It also needs people on all sides of a conflict to put aside their own deeply held beliefs and accept the legitimacy of other narratives that contradict their own version of events. Further, reconciliation will often only be effective when victims of atrocity crimes find a way to forgive their victimisers and for the perpetrators of those crimes to show some remorse for their actions. Accomplishing this is incredibly challenging in a society lacking in trust and a common willingness to work cooperatively towards achieving reconciliation. International criminal trials can assist in this process by providing a neutral venue in which a common narrative can be developed and different factions can come together to be heard. They are also able to hold accountable and to punish the perpetrators of crimes committed during periods of violence. However, as has been seen in the context of International Criminal Tribunal for the former Yugoslavia, a tribunal that is understood to be biased lacks legitimacy, inhibiting the sort of fair and open interactions needed to promote reconciliation. In fact, an international criminal justice institution without the requisite legitimacy can further exacerbate the divisions between different factions as the decisions it reaches and the narratives it creates are disbelieved and taken as further evidence of institutional bias. Instead of building a basis for reconciliation, it is instead undermined. This reinforces the importance of trials being fair so as to build the institutional legitimacy necessary for creating greater trust in the outcomes of international criminal trials. Unfortunately, legitimacy does not only require that trials are fair, 117 Jeremy Sarkin and Erin Daly, ‘Too Many Questions, Too Few Answers: Reconciliation in Transitional Societies’ (2004) 35 Columbia Human Rights Law Review 661, 694.

118 How International Criminal Trials Can Encourage Reconciliation they must also be seen as being fair. To do this, international criminal justice institutions should consider holding trials in states that are engaging in the reconciliation process. This can lead to the trial being more visible in the affected state, giving the international criminal justice institution holding the trial greater control over the common narrative being developed. It also allows more of the victims of the crimes being litigated to attend court and see that the proceedings are fair. Giving more people the opportunity to see first-hand that trials are being conducted fairly will increase their legitimacy and create the conditions under which international criminal trials can positively benefit reconciliation.

7

Justice for Victims of Atrocity Crimes

One of the primary purposes of every international criminal justice institution is to provide the victims of atrocity crimes with justice.1 The prominence of justice for the victims as a goal of international criminal law was highlighted in a 2011 joint statement issued by all of the prosecutors of the then existing international criminal courts and tribunals. In it they stated that they had a responsibility to work effectively and expeditiously to deliver justice to the victims of atrocity crimes.2 This was not a stand-alone statement. A number of the people serving as prosecutors have reiterated their commitment to providing the victims of atrocity crimes with justice. The first prosecutor of the International Criminal Court, Luis Moreno Ocampo described his mandate in the role as ‘justice for the victims’.3 His successor, Fatou Bensouda felt she had a responsibility to investigate and try the suspected perpetrators of atrocity crimes so as to provide victims with justice when others would not.4 Louise Arbour, the former Prosecutor of the International Criminal Tribunal for the former Yugoslavia asserted that she, and her entire office, were committed to delivering justice to all of the victims of the war in the former Yugoslavia.5 Declarations about the importance of providing victims with justice are not confined only to the prosecutors of international criminal justice institutions. The 1 Laurel E Fletcher, ‘Refracted Justice: The Imagined Victim and the International Criminal Court’ in Christine de Vos, Sarah Kendall and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (CUP 2015) 307. 2 SCSL Office of Prosecutor, ‘Joint Statement, Sixth Colloquium of International Prosecutors’ (15 May 2011) 1 accessed 28 July 2022. 3 ICC Press Release, ICC Prosecutor visits Egypt and Saudi Arabia (9 May 2008) ICC Doc ICC-CPI-20080509-MA13. 4 ICC Press Release, ‘Statement by the Prosecutor of the International Criminal Court Mrs. Fatou Bensouda’ (22 October 2012) accessed 2 August 2022. 5 ICTY Press Release, ‘Statement by Justice Louise Arbour, Prosecutor of the ICTY during her visit to Zagreb, Croatia’ (20 July 1999) accessed 24 May 2022.

DOI: 10.4324/9781003027331-7

120 Justice for Victims of Atrocity Crimes first President of the International Criminal Tribunal for the former Yugoslavia, Antonio Cassese, once stated that the Tribunal was established ‘for the victims of crimes’ and he described protecting victims as the Tribunal’s raison d’être. 6 President Judge Kong Srim of the Extraordinary Chambers in the Courts of Cambodia, recognised the importance of the Chambers remaining committed to their work so that they could ‘expeditiously and effectively deliver justice to all victims’ in Cambodia.7 The former President of the SCSL, Emmanuel Ayoola believed that the mission of the Special Court was ‘to bring justice to the victims of the war in Sierra Leone’.8 Support for victims has also come from outside of the international criminal courts and tribunals. Former UN Secretary-General, Kofi Annan encouraged the delegates to the Rome Conference to prepare a Statute for the International Criminal Court that prioritised the interests of the victims.9 His successor, Ban Ki-Moon reaffirmed the importance of protecting victims’ interests in justice by asserting that victims must occupy a ‘central place’ in any accountability mechanism designed to address violations of international crimes.10 What is lacking from all of these statements in support of justice for the victims is a well-defined sense of what it actually means to provide victims of atrocity crimes with justice. The General Assembly of the United Nations attempted to describe justice for victims in its 1985 Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power.11 The Declaration defines justice in terms of providing victims with access to ‘the mechanisms of justice’ and a right to redress for the harms they endured.12 In this context, access includes: informing victims of the timing of proceedings and their role therein; allowing victims to present their views and concerns when they are affected; providing victims with proper assistance; protecting their privacy and preventing exposure to intimidation or retaliation; and avoiding unnecessary delays in proceedings.13 While the Declaration provides a useful list of what victims are entitled to during the legal process, it fails to explain how the protection of these rights will result in 6 Antonio Cassese, ‘The International Criminal Tribunal for the former Yugoslavia’ (1997) 4 EHRLR 329–339, 331. 7 ECCC President, ‘Opening Speech by the Plenary’s President Judge Kong Srim, During the 8th Plenary of the Extraordinary Chambers of the Courts of Cambodia (ECCC) on 13th September 2010’ (13 September 2010) 3 accessed 28 July 2022. 8 SCSL President, ‘Second Annual Report of the President of the Special Court for Sierra Leone’ (2005) 3 accessed 28 July 2022. 9 UN Press Release, UN Secretary-General Declares Overriding Interest of International Criminal Court Conference Must be that of Victims and World Community as a Whole, Doc. No. SG/SM/6597 L/2871 (15 June 1998). 10 UN Secretary-General, ‘Delivering Justice: Programme of Action to Strengthen the Rule of Law at the National and International Levels’ (16 March 2012) UN Doc A/ 66/749. 11 UNGA Resolution 40/34 (29 November 1985) UN Doc A/RES/40/34. 12 Ibid Annex [4]. 13 Ibid Annex [6].

Justice for Victims of Atrocity Crimes

121

delivering justice to them. The Declaration does go on to state that victims should also be entitled to different forms of reparations, specifically restitution, compensation and assistance.14 However, it again does not explicitly identify the connection between reparations and justice. International and internationalised criminal courts and tribunals have not done much to expand understanding about what it means for victims to experience justice. It is a concept officials associated with international criminal justice institutions often discuss in the abstract, with little attention paid to what actually needs to happen for victims to experience justice. This is due, in part, to the fact that international criminal justice institutions often treat victims as a monolithic group, with the only criterion of membership being that they allegedly suffered from the wrongful acts committed by the accused.15 Therefore, their victimhood, and their needs arising from it, are entirely understood in terms of what has been done to them rather than any unique characteristics they may possess. This approach overlooks the fact that individuals have different wants and needs that will often be informed by attributes other than their victimhood.16 Further, international criminal justice institutions have generally struggled to effectively apply an intersectional understanding of victimhood.17 It also ignores the different injuries they may have suffered as a result of their victimisation, injuries that may require distinct responses for them to feel as if justice has been served. Scholars have attempted to fill the gap left by the inability of international criminal justice institutions to understand victims in anything more than the most general terms. Some, like Yael Danieli, focus on justice for victims as a process requiring a variety of different components including the investigation of the crime, the identification of suspects, bringing those suspects to trial, imposing punishment following conviction and providing victims with restitution.18 This approach somewhat echoes the General Assembly Declaration by focusing on how the criminal justice process can produce justice for victims. It also links to the relationship between victims, accountability and punishment discussed more fully in Chapter 2. Hugo van der Merwe takes this idea a step further by suggesting that justice goes beyond punishing those responsible for atrocity crimes and extends to providing the victims with a better understanding of how and why they were victimised and offering them a route to re-establishing themselves as full participants in society.19 For some, achieving this sort of understanding can 14 15 16 17

Ibid Annex [12]–[17]. Fletcher (n 1) 307. Kathryn Sikkink, The Justice Cascade (WW Norton & Co 2011) 163. Gregor Maucˇ ec, ‘The International Criminal Court and the Issue of Intersectionality – A Conceptual and Legal Framework for Analysis’ (2021) 21 Int‘l Crim L Rev 1, 2. 18 Yael Danieli, ‘Massive Trauma and the Healing Role of Reparative Justice: An Update’ in Carla Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (2nd edn, Brill 2020) 42. 19 Hugo van der Merwe, ‘Delivering Justice During Transition: Research Challenges’ in Hugo van der Merwe, Victoria Baxter and Audrey R Chapman (eds), Assessing the

122 Justice for Victims of Atrocity Crimes include participating in proceedings either as a witness or, in the context of the International Criminal Court, as a victim-participant.20 Luke Moffett asserts that justice for the victims involves providing them with a right to an effective remedy designed to eliminate the effect of the harms they have been forced to endure.21 That remedy is made up of three parts: developing a truthful record of events; establishing accountability for the crimes committed; and providing the victims with reparations.22 These different perspectives about what constitutes justice for victims suggest that there are at least four elements that need to be considered when determining whether international criminal trials can provide victims with a sense that justice has been served. They are: developing an accurate record of the events that produced the victims’ injuries; holding the perpetrators of the criminal acts described in that record accountable for their actions; providing the victims of atrocity crimes with reparations for their injuries; and giving victims the opportunity to participate in the proceedings. The first two of these components have been addressed elsewhere in this book. What is left to consider is whether providing victims with reparations and giving them the opportunity to participate in proceedings can help deliver the sort of justice that underpins international criminal justice institutions.

The Role Reparations Play in Providing Victims with a Remedy International law has long wrestled with the idea of providing victims of atrocity crimes with reparations, although it has not been until relatively recently that those efforts have come to fruition. The earliest mention in international law of compensating victims of atrocity crimes is found in a Draft Statute prepared by the International Law Commission for a proposed permanent international criminal court. The ILC Draft Statute would serve to compensate people for their losses, however the relevant provisions read more as if they were meant to sound in tort rather criminal law.23 The first meaningful proposal designed to compensate victims under criminal law can be found in the 1937 Draft Convention for the Creation of an International Criminal Court. Article 39 of the 1937 Draft Convention gives the trial court the power to order the defendant to pay damages to

20 21

22 23

Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press 2009) 123. Jamie O’Connell, ‘Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their Victims?’ (2005) 46(2) Harv Int’l L J 295, 329. Luke Moffett, Justice for Victims Before the International Criminal Court (Routledge 2014) 30–1; citing Dinah Shelton, Remedies in International Human Rights Law (2nd edn, OUP 2005) 7, 35–6. Ibid; Moffett (n 20) 33–4; citing Shelton (n 20) 7, 35–6. See Article 22, International Law Commission, ‘Draft Statute of the International Penal Court as Amended by the Permanent International Criminal Court Committee of the International Law Commission’ in International Law Commission (eds), Historical Survey of the Question of International Criminal Jurisdiction (United Nations 1949) 65.

Justice for Victims of Atrocity Crimes

123

their victims and the court also has the discretion to decide whether any items confiscated from a victim should be returned to them.24 While reparations in this form would have been rather limited, it does represent some nascent effort to recompense victims for the harms they suffered. Granting reparations to victims was raised again in 1947 in the UN Economic and Social Council’s Draft Convention on the Crime of Genocide. Article XIII of the Draft Genocide Convention, titled ‘Reparations to Victims of Genocide’ obligated states in which acts of genocide were committed to provide the victims with ‘redress of a nature and in an amount determined by the United Nations’.25 The Commentary to the Draft Genocide Convention identified several types of reparations that could be ordered, including: compensation paid to both direct and indirect victims of the genocide; restitution of property seized or payment representing its fair value; and special benefits given to the survivors to improve their situation, which might include access to housing or educational scholarships.26 It also contained a right to group reparations, which could take the form of compensation or the rebuilding of buildings making up the ‘moral, artistic and cultural inheritance of the group’ that had been damaged or destroyed.27 None of these early efforts to provide victims with reparations were ever enacted. The first meaningful step towards recognising the victims’ right to reparations came in the form of the 1985 United Nations General Assembly Declaration. The 1985 Declaration identifies reparations as part of what makes up justice for crime victims.28 The declaration identifies three different types of reparations: restitution, compensation and assistance.29 The 1985 Declaration was limited in scope to crimes committed under the laws of domestic jurisdiction as there was no functioning international criminal justice system in place at the time. The General Assembly explicitly extended the right to reparations to victims of international crimes in a 2005 Resolution that specifically made reparations available to victims of crimes constituting the violation of international human rights norms and international humanitarian law.30 Although victims of international crimes were now explicitly afforded the right to reparations, the right as defined in the 2005 Resolution did not necessarily extend to victims of crimes being tried at international criminal justice institutions. The 2005 Resolution is clear in that it creates an obligation for states to comply with but does not mention a corresponding 24 See Article 39, International Law Commission, ‘Draft Convention for the Creation of an International Criminal Court’ in International Law Commission (eds), Historical Survey of the Question of International Criminal Jurisdiction (United Nations 1949) 93. 25 UN Economic and Social Council, Draft Convention on the Crime of Genocide and Commentary (28 March 1947) UN Doc E/447, Art XIII. 26 Ibid 49. 27 Ibid. 28 That being said, the term ‘reparations’ does not appear in the text of the 1985 Declaration. 29 UNGA Resolution 40/34 (n 11) Annex [8]-[17]. 30 UNGA Resolution 60/147 (16 December 2005) UN Doc A/RES/60/147, Annex [4].

124 Justice for Victims of Atrocity Crimes responsibility for international entities.31 This is likely due to the fact that the existing international criminal justice institutions were established either by treaty, like the International Criminal Court, under the auspices of the Security Council, like the ad hoc Tribunals or in the cases of Sierra Leone and Cambodia through bilateral agreements between the United Nations and the relevant country. The General Assembly had no control over any of these entities and therefore lacked the authority to declare a right to reparations for victims at any of these judicial institutions. That being said, the timing of the 2005 Resolution may have been a response to the fact that most of the existing international criminal justice institutions had taken a very narrow approach to providing victims with reparations. The Statutes of the ad hoc Tribunals and the Special Court for Sierra Leone only authorise reparations in the form of restitution of property and proceeds obtained by the accused through his or her criminal conduct.32 The Extraordinary Chambers in the Courts of Cambodia limit reparations to ‘collective and moral’ reparations and explicitly exclude monetary awards from forming part of that remedy.33 Victims at the Special Tribunal for Lebanon are eligible for compensatory damages, but they will not be awarded directly by the Tribunal.34 Instead, victims must request compensation from a court of national jurisdiction, which will only be awarded following the conviction of the accused and the transmission of that conviction to the relevant court by the Special Tribunal for Lebanon’s Registrar.35 A similar provision can also be found in Article 44(6) of the Law establishing the Kosovo Specialist Chambers.36 The International Criminal Court’s Statute is the only one that takes a more robust approach to providing victims with reparations, a fact recognised in the 2005 Declaration.37 The Rome Statute permits victims to seek three types of reparations, specifically, restitution, compensation and rehabilitation.38 Despite taking this more expansive approach to reparations, the International Criminal Court has imposed limits on which victims are eligible for reparations. At the International Criminal Court, a victim is generally defined as a person that fits each of the following four criteria:

31 Ibid [1]. 32 UN Security Council, Statute of the International Criminal Tribunal for the former Yugoslavia (25 May 1993) Art 24(3); UN Security Council, Statute of the International Criminal Tribunal for Rwanda (8 November 1994) Art 23(3); UN Security Council, Statute of the Special Court for Sierra Leone (16 January 2002) Art 19(3). 33 Internal Rules, Extraordinary Chambers in the Courts of Cambodia (as amended 16 January 2015) Rule 23 quinquies (1). 34 UN Security Council, Statute of the Special Tribunal for Lebanon (30 May 2007) Art 25. 35 Ibid. 36 Law on Specialist Chambers and Specialist Prosecutor’s Office (3 August 2015) Art 44. 37 UNGA Resolution 60/147 (n 29) Annex, Preamble. 38 Rome Statute of the International Criminal Court (17 July 1998) Art 75.

Justice for Victims of Atrocity Crimes 1 2 3 4

125

they are a natural or legal person; who has suffered harm; caused by the commission of a crime falling within the jurisdiction of the International Criminal Court; and a causal nexus exists between the harm suffered and the crime.39

For the purposes of determining reparations, a condition attaches to the third criterion to be applied when deciding if an individual qualifies as a victim. For a victim to be eligible for reparations, the accused must have been convicted of the crime that caused the harm to the victim.40 As a result, the interests of victims of atrocity crimes are divided at the reparations stage of proceedings between those who suffered harm as a result of a crime for which the accused was convicted and those whose injuries were the result of crimes not proven during the trial. Dividing the victims in this way can create several problems. First, creating different categories of victims based on who is entitled to reparations could cause some to question the legitimacy of the victimisation of those individuals not entitled to reparations.41 It could be assumed that the people not entitled to reparations are not really victims because no one was convicted of the crimes committed against them. This ignores the fact that the International Criminal Court is an entity that is incapable of prosecuting all possible perpetrators for the crimes falling under its jurisdiction. The fact that no one is held accountable for the crimes resulting in the victimisation of some people is more a reflection of the limitations of the International Criminal Court than anything pertaining to the worthiness of the victims. Because of this, the International Criminal Court should do more to challenge that implication by reinforcing the idea that victimhood is not contingent on accountability. Creating different classifications of victims might also give rise to a conflict of interest for the victims’ legal representatives. A conflict of interest arises when counsel receives contradictory and irreconcilable instructions from one or more groups of victims making it impossible for counsel to fairly represent the interests of the different sides.42 At the outset of trial the victims share a common interest – the conviction of the accused. When they are separated into those who can receive reparations and those who cannot, the interests of the former group could diverge from the interests of the latter. Those victims eligible for reparations are likely to 39 Prosecutor v Katanga (Order for Reparations Pursuant to Article 75 of the Statute) ICC-01/04–01/07, T Ch II (24 March 2017) [36]; citing Prosecutor v Lubanga (Judgment on the Appeals of The Prosecutor and The Defence Against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008) ICC-01/04–01/06, A Ch (11 July 2008) [61]-[65]. 40 Katanga Order for Reparations (n 38) [37]. 41 Kirsten J Fisher, ‘Messages From the Expressive Nature of ICC Reparations: Complex-victims in Complex Contexts and the Trust Fund for Victims’ (2020) 20 Int’l Crim L Rev 318, 331–2. 42 Prosecutor v Banda and Jerbo (Decision on Common Legal Representation) Doc No ICC-02/05–01/09, T Ch IV (25 May 2012) [42].

126 Justice for Victims of Atrocity Crimes prioritise the reparations aspect of the proceedings while those who cannot receive reparations will be more interested in the possibility of appealing the decision. This can put counsel in a difficult position and might require them to withdraw from representing one of the groups.43 The withdrawal of counsel at such a late stage of the proceedings could disadvantage whichever group of victims has new representation. It would require the victims to trust in lawyers with whom they have had no previous contact, a process that can be difficult, particularly when the victims have sustained physical or psychological trauma associated with their victimisation. It could also create mistrust in the system amongst those victims with new counsel and give rise to concerns that they are not being treated fairly. That can undermine the legitimacy of the proceedings and inhibit the willingness of victims to engage with the process of reconciliation. The International Criminal Court should be commended for adopting a broader understanding of reparations, although it still falls short of what the General Assembly called for in its 2005 Resolution. In addition to extending the right to reparations to international crimes, the General Assembly also expanded the categories of what constituted reparations.44 While the 1985 Declaration included three categories of reparations, the 2005 Resolution contained five: restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.45 Of those five, only one, compensation, specifically requires a financial remedy. This is important because it demonstrates that supplying victims with a remedy goes beyond simply providing them with some form of financial recompense for the harms they have suffered. Instead, reparations must be understood as a more holistic effort to address all of their injuries, including those that cannot be remedied with money. An example of this can be found in the Resolution’s description of restitution. Restitution is intended to restore victims to the position they occupied before their victimisation.46 It can include a financial remedy but is more likely to involve intangible things like the restoration of a person’s liberty or employment, returning people to their place of residence and guaranteeing their human rights, identity, family life and citizenship.47 Rehabilitation is similar to restitution, but is instead directed at rebuilding a victims’ physical and mental health and providing them with the services necessary to accomplish that.48 The satisfaction element of reparations is wide-ranging. Amongst its multitude of components are some goals that can be directly accomplished during trial. These goals, broadly described as those designed to establish the truth about a situation and to hold offenders accountable, are almost unavoidably part of the legal process addressed through international criminal trials.49 Other satisfaction goals can be, but are not necessarily, pursued during international criminal trials. 43 International Criminal Court, Code of Professional Conduct for Counsel, Doc No ICC-PIOS-LT-03–002/15_Eng (2011) Art 16. 44 UNGA Resolution 60/147 (n 29) [1] and Annex, Principle 11. 45 Ibid [15], [19]–[23]. 46 Ibid [19]. 47 Ibid. 48 Ibid [21]. 49 Ibid [22].

Justice for Victims of Atrocity Crimes

127

These include assisting in the search for the whereabouts of the disappeared, commemorations and tributes to the victims and public apologies accompanied by an acceptance of responsibility.50 The remaining part of satisfaction, which involves including an accurate account of events in educational materials, is not something that international criminal trials can achieve.51 The same can be said for the fifth element of reparations, guarantees of non-repetition.52 The different parts of this goal largely relate to developing the rule of law through political processes so as to prevent victimisation in the future. As such, it is not really something that international criminal trials are able to address. International criminal justice institutions and the United Nations are not the only groups interested in providing the victims of atrocity crimes with reparations. Various studies demonstrate that people affected by atrocity crimes believe that the victims of those crimes should be entitled to reparations in recognition of the harm they have suffered. Ugandan and Kenyan victim participants involved in cases adjudicated at the International Criminal Court identified the prospect of receiving reparations as their primary motivation for becoming involved in the prosecutions.53 Nearly three quarters of Ugandan victim participants indicated that the opportunity to receive reparations was the main reason they agreed to participate in proceedings.54 The majority specifically identified compensation as the reparative element they were most interested in receiving, although some also felt that rehabilitative goals like medical treatment should be prioritised.55 Kenyan victim participants were less likely than their Ugandan counterparts to identify reparations as the primary reason for their participation. That being said, more than half still indicated that reparations were the main factor in their participation and, of those who did, individual compensation was easily the most popular form of reparations hoped for.56 The most common reason cited in favour of individual reparations was a fear that collective reparations would be prone to exploitation by government officials who would either keep the money for themselves or choose to benefit some communities at the expense of others.57 There was some recognition that compensation alone might not constitute adequate reparations and that it should be accompanied by satisfaction in the form of convictions and prison sentences for those responsible.58 Similar to their Kenyan counterparts, victim participants in the Democratic Republic of Congo and Côte d’Ivoire placed reparations amongst the reasons they chose to participate.59 They also made clear that they expected reparations when 50 51 52 53 54 55 56 57 58 59

Ibid. Ibid. Ibid [23]. Human Rights Center, The Victims’ Court?: A Study of 622 Victim Participants at the International Criminal Court (UC Berkeley School of Law 2015) 36, 58. Ibid 36. Ibid 37. Ibid 58. Ibid. Ibid. Ibid 46, 68.

128 Justice for Victims of Atrocity Crimes trial concluded, although they did not identify reparations as their main purpose for cooperating with the Court.60 Interviewees from countries in which atrocity crimes were committed but who do not necessarily identify as victims have also indicated that it is important to provide the victims of atrocity crimes with reparations. Ninety-seven per cent of survey respondents in the Central African Republic felt that providing the victims with reparations is an important aspect of delivering justice.61 Further, a study done in Iraq found that most people believed that it was necessary to provide reparations to the victims in the form of rehabilitation and compensation to allow the country to move on from the brutality of Saddam Hussein’s regime.62 A majority of individuals interviewed in Sierra Leone and Liberia felt that the victims of crimes tried at the Special Court for Sierra Leone should receive reparations.63 While there was no consensus on what form the reparations should take, common answers identified different forms of compensation, including money directly paid to the victims and providing victims with housing or access to education.64 Some also thought it would be appropriate to provide victims with medical care as a form of rehabilitation.65 The widespread support for providing victims of atrocity crimes with reparations should not be misunderstood to mean that, when reparations are provided to victims, they necessarily experience a sense that justice has been done. Reparations are designed to redress the harms suffered by the victims of atrocity crimes.66 Framing reparations in terms of the harm suffered by the victims, rather than as a reflection of the wrongs committed by the accused, makes it more akin to a tort law principle than a criminal one.67 Therefore, it should be understood as an effort to put the victims back in the position they would have been in if the crime had never occurred. However, as discussed in Chapter 2, victims of atrocity crimes are also deprived of their position vis-à-vis the other members of society – a harm that cannot be addressed through reparations.68 Victims who demand that sort of restoration will necessarily need accountability in addition to reparations for justice 60 Ibid. 61 Vinck P and PN Pham, Building Peace Seeking Justice: A Population-Based Survey on Attitudes About Accountability and Social Reconstruction in the Central African Republic (Human Rights Center, UC Berkeley School of Law 2010) 3, 29, 35. 62 Bhuta N, H Megally, HM Weinstein, PN Pham, E Stover, P van Zyl, S Grego and S Rutledge (eds), Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction (Human Rights Center, UC Berkeley School of Law 2004) 40. 63 L Alison A Smith and Sara Meli, Making Justice Count: Assessing the Impact and Legacy of the Special Court for Sierra Leone in Sierra Leone and Liberia (No Peace Without Justice 2012) 25. 64 Ibid. 65 Ibid. 66 Pablo de Grieff, ‘Justice and Reparations’ in Pablo de Grieff (ed) Handbook of Reparations (OUP 2006) 452. 67 R Antony Duff, “Repairing Harms and Answering for Wrongs’ in John Oberdiek (ed) Philosophical Foundations of the Law of Torts (OUP 2014) 215. 68 Jean Hampton, ‘Correcting Harms Versus Righting Wrongs: The Goal of Retribution’ (1992) 39 UCLA L Rev 1659, 1667–68.

Justice for Victims of Atrocity Crimes

129

to be done. Further, other victims need to know that they have the opportunity to tell their own story and that their story will be heard and recorded. They too will not be satisfied only by reparations. Reparations may be able to restore some of what victims have lost, but it is unlikely to form a complete sense that they have been provided with justice. This is particularly true when reparations are made contingent on the conviction of the accused. Reparations may be an important part of justice for victims eligible to receive them, but those victims who do not have access to reparations will have to derive justice from other sources. Because of this, justice cannot be too closely linked to reparations or those who are not able to receive them will necessarily be deprived of justice. In fact, creating a distinction about which victims can receive reparations has contributed to a sense amongst the non-eligible victims that they are being subjected to an injustice.69 Attitudes of this sort can have a very negative effect on perceptions about the legitimacy of the trial as a whole. Further, despite the International Criminal Court’s more robust approach to reparations, the reality of how the system has been administered has failed to live up to its ambitions. The International Criminal Court has regularly disregarded the expressed wishes of the victims about how reparations should be issued, often choosing to administer collective reparations instead of individual ones or only distributing a token amount of individual compensation.70 It is difficult to see how reparations can be closely connected to justice if the victims’ expectations for reparations continue to go unmet. Victims will never feel as if the harms they experienced have been remedied if they feel that the reparations provided fail to meet their needs. Unless changes are made to the International Criminal Court’s current approach to reparations, they will likely only play a small part in delivering justice to the victims of atrocity crimes.

Justice Derived From Victim Participation During Trial Victims Deriving Justice from Testifying During Trial Direct victim participation in international criminal trials can be another avenue for delivering justice to the victims. Victims can participate in trials in two ways: as a witness called by either party to give testimony about their experiences or as a direct participant playing an active role in proceedings. Traditionally, victims could only participate in international criminal trials when they were called to testify as witnesses.71 Their role is to provide a factual account of the circumstances 69 Carla Ferstman, ‘Reparations at the ICC: The Need for a Human Rights Based Approach to Effectiveness’ in Carla Ferstman and Mariana Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (2nd edn, Brill 2020) 451. 70 Luke Moffett and Clara Sandoval, ‘Tilting at Windmills: Reparations and the International Criminal Court’ (2021) 34 Leiden J Int’l L 749, 758–9. 71 Salvatore Zappalà, ‘The Rights of Victims v. the Rights of the Accused’ (2010) 8 JICJ 137, 137.

130 Justice for Victims of Atrocity Crimes surrounding their victimisation so as to contribute to the case being presented by one of the two parties. The testimony of victim witnesses during international criminal trials has often been vital to providing sufficient evidence to support the conviction of the accused, particularly in the absence of other evidence about the crimes alleged.72 In this context, their testimony is usually framed in terms of proving the elements of the crimes for which the accused is being prosecuted. This is often at the expense of the victim being able to explain aspects of their own experiences which may not relate directly to those elements. The limited role victim witnesses play during international criminal trials does not mean that they did not benefit from the experience. It was observed in the International Criminal Tribunal for the former Yugoslavia’s Fourth Annual Report to the United Nations that some witnesses had commented on the great sense of relief they experienced following their testimony before the Tribunal.73 Alan Tieger, a former prosecutor at the International Criminal Tribunal for the former Yugoslavia, echoed that sentiment when he asserted that witnesses found testifying to be a positive experience providing them with a sense of satisfaction and a feeling of strength.74 Douglas Johnson, the former executive director of the Center for Victims of Torture, indicated that testifying had a ‘very salutary effect’ on those victims who testified during the course of the trials held in Argentina for atrocity crimes committed between 1976–1983.75 Testifying can allow victims to experience an emotional catharsis and to gain a sense that justice has been done.76 It is cathartic to the extent that testifying can help victims believe that they have been heard and that their grievances have been acknowledged.77 Acknowledging their victimisation in this way can address, or even bring to an end, any feelings the victims may have of social, political or emotional exclusion.78 This, in turn allows the victim to feel as if their value as an equal member of society has been affirmed and the imbalance created by their victimisation has been remedied. The benefit of this is experienced not just by the victim but by society as a whole. Affirming a victim’s value in society allows them to reintegrate, which can have positive effects on reconciliation efforts. A former victim who feels valued in society is more likely to engage in efforts meant to heal 72 Patricia M Wald, ‘Dealing with Witnesses in War Crimes Trials: Lessons from the Yugoslav Tribunal’ (2002) 5 Yale Hum Rts & Dev L J 217, 219. 73 UN Security Council, ‘Fourth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991’ (18 September 1997) UN Doc S/1997/729 [192]. 74 O’Connell (n 19) 329. 75 Ibid 318. 76 Neil J Kritz, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights’ (1996) 59 Law & Contemp Probs 127, 128; see also Oskar NT Thoms, James Ron and Roland Paris, ‘State-Level Effects of Transitional Justice: What Do We Know?’ (2010) 4 Int’l J Transitional Just 329, 333. 77 Kai Ambos, Treatise on International Criminal Law: Volume III: International Criminal Procedure (OUP 2016) 52. 78 O’Connell (n 19) 323.

Justice for Victims of Atrocity Crimes

131

a fractured community. The effects of that catharsis are enhanced when the accused is convicted, as the victim knows that they contributed to the process of holding the accused accountable for their actions. This can help the victim witness feel a sense that justice has been served.79 Some support for the position that trials are beneficial to victim witnesses can be found in the empirical data. A study into the effects of testifying was conducted of 302 fact witnesses who testified at the International Criminal Tribunal for the former Yugoslavia in at least one case that had completed its trial phase.80 It should be noted that this study did not focus specifically on victim witnesses although a number of the witnesses interviewed were also victims of the crime for which the accused was being tried. The interviewees were presented with over 30 positive and negative feelings and emotions and asked to identify the ones they experienced both before and after testifying.81 A majority of the respondents felt positive emotions before and after testifying and a number of them indicated that their negative feelings decreased further after testifying.82 That so many of the people interviewed felt positive before testifying suggests that some witnesses may experience catharsis simply at the prospect of providing evidence during trial. Further, the marked decrease in negative emotions after testifying supports the idea that victims may benefit emotionally from giving testimony. A similar study was carried out by Eric Stover in 2014 of victim witnesses at the International Criminal Court. The subjects had been witnesses in either the Lubanga or Katanga trials, with most of them coming from either the Democratic Republic of the Congo or the Central African Republic.83 Interviews were conducted in three different stages: the first took place before the witness testified; the second occurred immediately after testifying; and the third was held six to 12 months later.84 Almost all of the respondents interviewed immediately after testifying felt that they had personally benefitted by appearing as a witness.85 Some believed that testifying supplied them with a sense of pride while others reported a feeling of letting go of something they had been holding inside.86 This result remained consistent when the six to twelve month interviews were held. The vast majority still felt that testifying had produced a personal benefit and some of the evidence from the later interviews even suggested that attitudes about testifying

79 Kritz (n 75) 128. 80 Kimi King, James Meernik, Sara Rupert, Tiago de Smit and Helena Vranov Schoorl, Echoes of Testimonies: A Pilot Study into the Long-Term Impact of Bearing Witness Before the ICTY (University of North Texas/VWS International Criminal Tribunal for the former Yugoslavia 2016) 24, 27. 81 Ibid 81. 82 Ibid. 83 Stephen Cody, Eric Stover, Alexa Koenig and Robin Mejia, Bearing Witness at the International Criminal Court: An Interview Survey of 109 Witnesses (Human Rights Center, UC Berkeley School of Law 2014) 16, 26. 84 Ibid 16. 85 Ibid 50. 86 Ibid.

132 Justice for Victims of Atrocity Crimes had grown more positive due to the passage of time.87 These findings support the idea that victim witnesses do benefit from testifying during trial. Not everyone agrees that testifying is actually beneficial to the victims of atrocity crimes. Laurel Fletcher and Harvey Weinstein reject the notion that trial provides therapeutic benefits to victims as a ‘profoundly simplistic view of how psychotherapy works’.88 Fletcher and Weinstein assert that while catharsis may produce a short-term benefit for some people, actual psychological healing is a longterm process requiring more than a cathartic moment.89 Eric Stover cautions that although some victim witnesses do experience positive effects from testifying, those feelings are not shared by everyone and that victims who do feel a sense of catharsis often find it fleeting.90 This somewhat contradicts his research discussed above concerning witnesses at the International Criminal Court who found that the act of testifying provided them with a longer-term feeling of positivity. Empirical data also supports the view that testifying at trial may not have a positive effect on victims. Researchers found that 16 years after the Rwandan genocide, survivors and their families continued to suffer considerable rates of Post-Traumatic Stress Disorder (‘PTSD’) as well as symptoms indicative of depression and anxiety.91 Although this evidence should not be considered conclusive, the subjects were not necessarily victim witnesses, the continued high number of diagnoses of PTSD, depression and anxiety in Rwanda indicates that trials have not always afforded relief to those affected by the genocide despite the truth having been extensively established during the many years of trial. The findings of a second study suggest that testifying may even exacerbate instances of PTSD and depression. Karen Brounéus found in her study of witnesses testifying before Gacaca courts in Rwanda that the rate of PTSD and depression amongst victims who testified at the trials was higher than for individuals who did not testify.92 From that she concluded that testifying may have a negative effect on PTSD and depression in victims of atrocity crimes due to the retraumatising effect of appearing as a witness.93 Victims can also run the risk of being retraumatised when they testify at the trials of their alleged victimisers. There are two ways in which a victim may become retraumatised. First, the act of reliving a previously traumatising event can 87 Ibid 59. (It should be noted that the sample size for the third interview was much smaller than the previous two, possibly skewing the findings). 88 Laurel E Fletcher and Harvey M Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Hum Rts Q 573, 593. 89 Ibid 593–4. 90 Eric Stover, ‘Witnesses and the Promise of Justice in the Hague’ in Eric Stover and Harvey M. Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, (CUP 2004) 107. 91 Heide Rieder and Thomas Elbert, ‘Rwanda – Lasting Imprints of a Genocide: Trauma, Mental Health and Psychosocial Conditions in Survivors, Former Prisoners and Their Children’ (2013) 7(6) Conflict and Health 1, 12. 92 Karen Brounéus, ‘The Trauma of Truth Telling: Effects of Witnessing in the Rwandan Gacaca Courts on Psychological Health’ (2010) 54(3) J Conflict Resolut 408, 429. 93 Ibid.

Justice for Victims of Atrocity Crimes

133

cause the victim to be traumatised again. Second, victims can find it traumatising when required to participate in the adversarial criminal process, and particularly as a result of being subjected to cross-examination.95 The first type of re-traumatisation may be the result of recalling the original traumatic event, organising memories surrounding the event coherently and having to prove that one suffered.96 This form of re-traumatisation is due to the relative brevity of the victims re-exposure to the traumatic event.97 While there is no consensus as to how PTSD is best treated, it is commonly agreed that it is a long-term process conducted in a safe space with trusted therapist.98 Those conditions cannot be accommodated during a criminal trial. The nature of court proceedings means that victim-witnesses are not afforded the time needed to become desensitised to their past experiences. This can result in the trauma being maintained and intensified.99 The second risk of retraumatisation results from the confrontational process of adversarial cross-examination.100 As noted above, treatment for PTSD requires a safe space and a courtroom is, by its nature, not a very therapeutic environment.101 As one commentator suggested, ‘if one set out intentionally to design a system for provoking symptoms of post-traumatic stress disorder, it might look very much like a court of law’.102 The sort of questions asked during crossexamination are meant to challenge the witness’s direct testimony by casting doubt on their character or recollection of events. This type of questioning can lead victim-witnesses to experience renewed feelings of stigmatisation, blameworthiness, stress and fear.103 These emotional responses are often the result of feeling as if their story is being cut short or manipulated by the defence.104 There is generally little antidote for these concerns as the due process rights of the accused require the court to allow their counsel to thoroughly examine the witnesses.105 However, it can invalidate the victim’s sense that justice has been done which can make them less inclined to meaningfully engage with the reconciliation process. 94

94 Sarah Louise Steele, ‘Victim-Witnesses in the International Criminal Court: Justice for Trauma or the Trauma of Justice’ (2005) 12 Aust Int’l L J 99, 99–100; Brounéus (n 91) 412; O’Connell (n 19) 332. 95 David Mendeloff, ‘Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice’ (2009) 31 Hum Rts Q 592, 620; O’Connell (n 19) 334; Mirjan Damaška, ‘What is the Point of International Criminal Justice?’ (2008) 83 Chicago-Kent L Rev 329, 342. 96 O’Connell (n 19) 332. 97 Brounéus (n 91) 412. 98 Mendeloff (n 94) 613. 99 Ibid. 100 Ibid 620; O’Connell (n 19) 334; Damaška (n 94) 342. 101 Mendeloff (n 94) 620. 102 Judith Lewis Herman, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16 Journal of Traumatic Stress 159, 159. 103 Damaška (n 94) 342; Steele (n 93) 99–101. 104 Steele (n 93) 99–101. 105 Damaška (n 94) 342; Mendeloff (n 94) 620.

134 Justice for Victims of Atrocity Crimes It is not clear whether testifying during international criminal trials is beneficial or harmful to victims of atrocity crimes. Further, those that there is a benefit are uncertain about what causes it or how long it lasts. Proponents of the idea that victims benefit from testifying concede that the perceived benefit may come from relief at having finished testifying rather than any therapeutic value derived from the act of testifying.106 Others argue that the benefit is the result of appearing in the courtroom and confronting the individuals responsible for their victimisation.107 There is also a difference of opinion about how long the victim will continue to experience a benefit from testifying. Tieger maintains that victims retain a positive benefit from testifying for weeks or months after appearing in court.108 Stover’s findings somewhat undermine that conclusion and suggest that even when the victim witness feels they have benefitted from testifying it does not necessarily result in a long-term perception that justice has been done.109 David Mendeloff further clouds the issue in finding that testifying may have little or no significant impact on victims’ sense of justice.110 Ultimately, the evidence is too scarce, and the findings too varied to draw any definitive conclusions about how testifying during international criminal trials impacts the feeling amongst victims of atrocity crimes that justice has been delivered. Whether the experience of testifying is beneficial, detrimental or neutral is likely down to the individual characteristics of each victim. To try and extrapolate a larger lesson applicable to all would be a disservice to the victims to the extent that it is an attempt at needless categorisation. The conclusion to be drawn from this is that testifying during trial may help some, but not all victims experience a sense that justice has been done. For others, justice will be dependent on accountability, truth and reparations. Victims Directly Participating in Proceedings The International Criminal Court Prior to the introduction of the Rome Statute in 1998, victims could only contribute to international criminal trials as witnesses. Hailed as a major innovation and achievement, Article 68 of the Statute allows victims to act as participants in trials held at the International Criminal Court.111 For the first time, victims of the 106 O’Connell (n 19) 329, fn 197. 107 Stover (n 89) 118; Francois-Xavier Nsanzuwera, ‘The ICTR Contribution to National Reconciliation’ (2005) 3 JICJ 944, 947. 108 O’Connell (n 19) 329, fn 197. 109 Stover (n 89) 107, 114–15, 117–18. 110 Mendeloff (n 94) 615–16. 111 Rome Statute (n 37) Art 68(3); Lucia Catani, ‘Victims at the International Criminal Court: Some Lessons Learned from the Lubanga Case’ (2012) 10 JICJ 905, 906; Jens David Ohlin, ‘A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law’ (2009) 14 UCLA J Int’l L & Foreign Aff 77, 99; Sergey Vasiliev, ‘Article 68(3) and Personal Interests of Victims in the Emerging Practice of the ICC’ in Carsten Stahn and Göran Sluiter (eds), The Emerging Practice of the International

Justice for Victims of Atrocity Crimes

135

crimes alleged against the accused could present their ‘views and concerns’ during trial.112 The International Criminal Court’s Rules of Procedure and Evidence further expand the rights of the victims to include the right to representation, the right to directly participate in the proceedings and the right to question witnesses during trial.113 Generally, victims have exercised these rights and agreed to participate in International Criminal Court proceedings. There are some notable limitations on the ability of the victims to participate in an ongoing matter at the International Criminal Court. A victim can be deprived of their right to participate for a number of reasons. First, victim participation is dependent on charging decisions made by the Prosecutor’s Office.114 There must be a connection between the circumstances surrounding the accused’s victimisation and the charges brought against the accused if the victim is to participate directly in the proceedings. Should someone be victimised by actions that do not form the basis of the charges, or if their victimisation is the result of actions performed by someone who is not on trial at the International Criminal Court, then they cannot directly participate. The former situation arose during the Lubanga case when a number of victims of acts of sexual and gender-based violence were aggrieved by the fact that they could not be participants in the case because the Prosecutor chose not to charge Lubanga with crimes related to the harms they had suffered.115 The latter can occur when the crimes committed against the victim fall under the jurisdiction of the International Criminal Court, but the Court is unable to exercise jurisdiction against that individual. The classic example of this is the situation in Sudan involving former President Omar Al Bashir. Despite the fact that the International Criminal Court issued two arrest warrants against Al Bashir, in 2009 and 2010, he has successfully avoided being transferred into the custody of the Court. Therefore, victims who were recognised as victim participants during the investigatory stage of the case in 2007 have still not had the opportunity to participate in a trial against Al Bashir. Further, an additional group of victims authorised to participate in the investigation in 2009 voluntarily relinquished their right to participate due to the Court’s

112 113 114

115

Criminal Court (Martinus Nijhoff Publishers 2009) 635; Emily Haslam, ‘Victim Participation at the International Criminal Court: A Triumph of Hope over Experience’ in Dominick McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court (Hart 2004) 315; Christine H Chung, ‘Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?’ (2008) 6(3) Northwestern J Int’l Hum Rts 459, 459. Rome Statute (n 37) Art 68(3). Rules of Procedure and Evidence, International Criminal Court (as amended 2013) Rule 91. Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’ (2013) 76 Law & Contemp Problems 235, 243–4. Paolina Massida, ‘Retributive and Restorative Justice for Victims: Considerations on the Lubanga Proceedings Before the ICC’ in Victims at the Center of Justice: From 1998 to 2018: Reflections on the Promises and the Reality of Victim Participation at the ICC (FIDH 2018) 71.

136 Justice for Victims of Atrocity Crimes inability to advance the case and instead negotiated a private settlement of their grievances.116 Victim participation is also limited to those situations in which their personal interests are affected, and even that right of participation may only be exercised when the Court deems it appropriate.117 There is a lack of clarity about the issues that are of personal interest to the victim participants. In Lubanga, the Appeals Chamber found that the victims could introduce evidence about the guilt or innocence of the accused so long as they could establish that the evidence affected their interests.118 The Pre-Trial Chamber in the Katanga case went a step further when it determined that the victims have a ‘core interest’ in the guilt or innocence of the accused due to their close link to ‘the satisfaction of [the victims’] right to justice’.119 This decision suggests that evidence about guilt or innocence is always in the interest of the victims as it connects to whether the trial is able to deliver justice to the accused. However, the Appeals Chamber in Katanga appears to have disagreed. It found that the victims can only testify about the conduct of the accused, which is necessarily seen as a component of their guilt or innocence, and must meet four criteria before it is admissible.120 They are: 1 2 3 4

The evidence impacts the interests of the accused; it is relevant to the issues in the case; it contributes to the determination of the truth; and it is consistent with the rights of the accused.121

The Trial Chamber in Ongwen appear to have extended the restrictions on what evidence the victims can enquire about when it found that the victims’ legal representatives could not ask questions which had the tendency to prove any of the elements of the crimes alleged against the accused.122 Instead, their questioning had to be limited to the issue of harm, either that the victims suffered themselves or that they observed being suffered by others.123 116 Prosecutor v Al-Bashir (Victims’ Notification of Their Withdrawal from the Case Against Omar Hassan Ahmed al-Bashir) No ICC-02/05–01/09, PT Ch II (19 October 2015) 3. 117 Rome Statute (n 37) Art 68(3). 118 Prosecutor v Lubanga (Judgment on the Appeals of The Prosecutor and The Defence Against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008) No ICC-01/0–01/06, T Ch (11 July 2008) [97]-[99]. 119 Prosecutor v Katanga et al. (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case) No ICC-01/04–01/ 07–474, PT Ch (13 May 2008) [36], [42]. 120 Prosecutor v Katanga (Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 Entitled ‘Decision on the Modalities of Victim Participation at Trial) No ICC-01/04–01/07, A Ch (16 July 2010) [114]. 121 Ibid. 122 Prosecutor v Ongwen (Trial Transcript) No ICC-02/04–01/15-T-65-Red-ENG, T Ch IX (4 April 2017) 56, lines 6–13. 123 Ibid.

Justice for Victims of Atrocity Crimes

137

The approach taken by the International Criminal Court to victim participation narrows the range of evidence that the victims are entitled to elicit during trial and somewhat diminishes the impact their participation can have on the overall proceedings. These limitations are, however necessary to protect the accused’s right to a fair trial. Unfettered victim participation could lead to an imbalance in how cases are presented. A fundamental precept of criminal law is that the party that bears the burden of proof must present the evidence necessary to overcome that burden. As Article 66 of the Rome Statute makes clear, that burden in borne by the Prosecutor alone.124 When victims are allowed to present evidence about the elements of the crimes they would be impermissibly fulfilling some part of the Prosecutor’s responsibility in violation of the accused’s presumption of innocence.125 In such a situation, the trial would necessarily be unfair and any conviction resulting therefrom would be unsafe. This would threaten the accomplishment of several of the other goals of trial. Permitting the victims to directly participate in trial can be seen as a way to enhance the sense of justice they may experience by allowing them to play a more central role in the trial process. However, the benefits of that sort of participation are tempered by the fact that most victims cannot regularly be present in the courtroom during each trial session. Instead, trial generally takes place in their absence with their participatory rights being exercised on their behalf by their legal representatives.126 That means that although the victim is understood to be a direct participant in the trial, their actual participation takes place from at least one remove. This is compounded by the fact that the victims are not individually represented during trial. Rule 90 of the International Criminal Court’s Rules of Procedure and Evidence permits each victim to choose their own legal representative and it is most common for one or two legal representatives to each represent a large group of victims.127 The purpose of this is to ensure the effectiveness of the proceedings, which has been interpreted to include guaranteeing that the trial is conducted expeditiously.128 As a result, the legal representatives for the victims are not really representing the individual interests of each victim. Instead, they are representing the victims’ collective interests as determined through the application of selective criteria designed to align with their actual interests. 124 Rome Statute (n 37) Art 66. 125 Michelle Coleman, ‘Right Without Remedy? The Development of the Presumption of Innocence at the International Criminal Court’ (2022) 22(4) International Criminal Law Review 874, 881. 126 Hans-Peter Kaul, ‘Victims’ Rights and Peace’, in Thorsten Bonacker and Christoph Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (Springer 2013) 225. 127 ICC RPE (n 112) Rule 90; For example, there were 4,095 victim participants during the Ongwen trial at the ICC represented by two teams of lawyers. See Prosecutor v Ongwen (Trial Judgment) No ICC-02/04–01/15, T Ch IX (4 February 2021) [25]. 128 Prosecutor v Kony et al. (Decision on victims’ applications for participation a/0010/ 06, a/0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/ 0127/06) No ICC-02/04–01/05, PT Ch II (10 August 2007) [80], [162].

138 Justice for Victims of Atrocity Crimes The International Criminal Court’s Code of Professional Conduct mandates that counsel explain to their clients all information needed to allow the clients to make informed decisions about their representation.129 Doing this requires counsel to be in semi-regular contact with each of their clients so that information can be effectively conveyed. The process is significantly complicated when a team of lawyers based in the Hague are representing thousands of people a continent away. Therefore, much of the communication between victims and their legal representatives is done in group settings, depriving individual victims of many meaningful opportunities to communicate their personal viewpoint.130 Quite often these group meetings will not even take place directly between the victims and their legal representatives, instead the victims will meet with intermediaries working for the International Criminal Court who then convey the substance of the meeting to the legal representatives.131 This results in the victims being one step further removed from actually participating in the proceedings. The Extraordinary Chambers in the Courts of Cambodia The International Criminal Court is not the only international criminal justice institution to give victims the opportunity to directly participate in proceedings. The Extraordinary Chambers in the Courts of Cambodia also allowed victims to participate in trial as a Civil Party to the proceedings.132 Treating victims as a party, rather than just a participant is ground-breaking, although they are still not able to act as a full party to the proceedings.133 Rule 23 of the Internal Rules of the Extraordinary Chambers in the Courts of Cambodia indicates that the purpose of a Civil Party Action is to: a b

participate in criminal proceedings conducted under the jurisdiction of the Chambers ‘by supporting the prosecution’; and to seek collective and moral reparations.134

129 ICC Code of Professional Conduct (n 42) Art 15(1). 130 Megan Hirst and Sandra Sahyouni, ‘Effective Legal Representation for Participating Victims: Principles, Challenges and Some Solutions’ in Rudina Jasini and Gregory Townsend (eds), Advancing the Impact of Victim Participation at the International Criminal Court: Bridging the Gap Between Research and Practice (International Criminal Court Bar Association/Economic and Social Research Council/University of Oxford 2020) 18. 131 Ibid. 132 Silke Studzinsky, ‘Participation Rights of Victims as Civil Parties and the Challenges of Their Implementation Before the Extraordinary Chambers in the Courts of Cambodia’ in Thorsten Bonacker and Christoph Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (Springer 2013) 177. 133 Rudina Jasini and Victor Phan, ‘Victim Participation at the Extraordinary Chambers in the Courts of Cambodia: Are Retributive and Restorative Principles Enhancing the Prospect for Justice’ (2011) 24(3) Cambridge Review of International Affairs 379, 393, 395. 134 ECCC IR (n 32) Rule 23.

Justice for Victims of Atrocity Crimes

139

A Civil Party action is only admissible if the applicant is clearly identified and he or she has suffered ‘physical, material or psychological injury’ as a direct consequence of at least one crime alleged against the accused.135 The purpose of becoming a Civil Party is to become eligible for reparations, which are limited to the ‘collective and moral’, with direct financial payments being explicitly excluded from the type of reparations available.136 Unlike their counterparts at the International Criminal Court, victim participants at the Extraordinary Chambers in the Courts of Cambodia are entitled to access all parts of the case file.137 They may also respond to applications any party makes to the Chambers, and may raise legal and factual issues of their own volition.138 They also play a more substantial role during the investigative phase as they are allowed to submit investigative requests to the Co-Investigating Judges.139 During trial, a Civil Party may, through their counsel, question the accused, witnesses and other Civil Parties and the content of their questioning need not be linked to a specific personal interest in the evidence being sought.140 In practice, the ability to inquire or raise evidence about any issue has been limited, with the Trial Chamber finding in Prosecutor v Kaing Guek Eav that Civil Parties could not ask questions about the accused’s character, nor could they make submissions or recommendations about sentencing.141 These limitations are rooted in the idea that the sole interest of Civil Parties is to secure a conviction that can serve as a basis for a reparations’ claim, and that issues of character and sentencing have no bearing on achieving that goal.142 Restricting Civil Party participation in this way has been interpreted as being part of an overall disinclination by the Extraordinary Chambers in the Courts of Cambodia to allow them to act as full participants in proceedings.143 This limitation was seen as being necessary to ensure that the tribunal’s main purposes of determining the guilt or innocence of the accused and maintaining the accused’s right to a fair trial were not distorted by the victims somewhat divergent interests.144 The justification for curbing the victims’ participatory rights at the Extraordinary Chambers in the Courts of Cambodia is similar to that found at the International Criminal Court. In both cases,

Ibid Rule 23 bis. Ibid Rule 23 quinquies. Ibid Rule 86. Studzinsky (n 131) 179. Ibid 180. Ibid. Prosecutor v Kaing Guek Eav (Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character) 001/18-07-2007/ECCC/TC, T Ch (9 October 2009) [40], [47]. 142 Ibid [42], [47]. 143 Studzinsky (n 131) 188. 144 Jasini and Phan (n 132) 395.

135 136 137 138 139 140 141

140 Justice for Victims of Atrocity Crimes fairness dictates that the accused’s right to a fair trial must predominate over the victims’ right to participate. The conditions placed on direct participation by the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia indicate that such participation cannot be, as currently constructed, an essential component of justice for the victims. The procedures followed by both Courts have the tendency to minimise the role individual victims can play in the process, reducing the substantive impact of that participation. These sorts of restrictions are not conducive to providing victims with justice as they do not really allow the victims to feel that they are contributing to the process of convicting their victimisers. At the same time, the limits on the participatory rights of the victims are necessary if the relevant legal system is to continue to function. It is not possible for international criminal justice institutions to allow each victim to introduce evidence on every topic or to be individually represented during trial. If they did so, international criminal trials would be never-ending and the institutions that hold them would be very quickly overwhelmed. Further, proceeding in that way would infringe on the accused’s right to a fair trial which would call into question the legitimacy of the proceedings as a whole. What is essential then, is for international criminal courts and tribunals to ensure that trial chambers take a liberal approach to allowing victim participation. That means erring on the side of allowing victims to contribute unless there are convincing reasons not to and taking a broad view of who can participate in trial as a victim. Victims who feel they are being recognised by international criminal justice institutions and heard during international criminal trials are much more likely to also feel that those institutions are providing them with justice.

Conclusion The various shortcomings this chapter identifies about how reparations and victim participation are pursued in international criminal law should not be seen as an implicit criticism of either idea or the ways in which they help victims experience justice. The problem is not with the ideas but rather with how they have been executed. It has been correctly pointed out that the introduction of these concepts in the Rome Statute gave greater effect to the rights of victims than any previously existing international criminal justice institution.145 However, they have been implemented in a way that deprives them of their full effect for victims. It will require greater efforts on the part of the International Criminal Court and all future international criminal justice institutions to improve the procedures relating to victim participation and reparations before either will make up a significant part of what constitutes justice for victims.

145 Juan-Pablo Perez-Leon-Acevedo, ‘Victims and Appeals at the International Criminal Court (ICC): Evaluation Under International Human Rights Standards’ (2021) 25(9) Int’l J Hum Rts 1598, 1599.

Justice for Victims of Atrocity Crimes

141

Delivering justice to the victims of atrocity crimes is a complex process requiring international criminal justice institutions to accomplish at least four different things. They must: develop an accurate and truthful account of the events resulting in the crimes that caused the victimisation of the victims; hold the perpetrators of those crimes accountable for their actions; provide victims of atrocity crimes with reparations and give the victims an opportunity to participate in the proceedings. This process is further complicated by the fact that justice is not onesize-fits-all; each victim experiences justice in their own way. That means none of the four identified components of justice for the victims can be prioritised over the other. To do so would mean marginalising justice for some victims in favour of promoting it for others. The reason justice for victims is separated into four different components is because each one satisfies a different need. Developing an accurate and truthful account of events and allowing victims to participate in that process signals to victims that the reality of their victimisation is being documented and that the details of their suffering is being heard. This helps victims feel as if their position in society has been restored which can encourage them to engage in the reconciliation process. Holding the perpetrators accountable acts as confirmation that the world community recognises that the victims have been wronged and that steps need to be taken to redress the violations committed against them. Providing victims with reparations is more pragmatic. It accepts that the victims suffered some form of loss, either material or intangible, as a result of the crimes committed against them. Reparations act as a way to make them whole again. What all this suggests is that trying to understand what justice for victims means as a singular idea is probably an inadequate approach to providing justice to any victims. Whether a victim believes they have been provided with justice is more likely dependent on their individual characteristics rather than a set idea of what justice looks like. Further, one must accept that some victims – regardless of whether the accused is held accountable, the truth is told during trial, they are provided with reparations or they are permitted to participate in proceedings – will never believe that justice has been accomplished. Their loss is simply too great – their mental or physical injuries are too significant – for them to ever accept that justice has been served. When viewed in that light, it may be that international criminal trials should concern themselves with ensuring that their actions do not result in injustice rather than trying to accomplish a fictionalised justice victims are presumed to desire. Victims have indicated that they will accept trials that result in acquittal so long as they understand the process to be fair.146 Victims have identified several elements, which, if implemented, will contribute to their perception that the proceeding has been fair. They include: being treated with dignity and respect; receiving support as a victim; attending and participating in proceedings; receiving 146 Brianne McGonigle Leyh, Procedural Justice? Victims Participation in International Criminal Proceedings (Intersentia 2011) 47.

142 Justice for Victims of Atrocity Crimes notice about important developments in the case and their rights in relation to those developments; and being provided reparations and legal assistance.147 International criminal trials are not equipped to accomplish all of these things, but to the extent possible trial courts should make every effort to accomplish those they can. Victims are more likely to feel as if justice is being done if they feel that their suffering has been recognised, that there is some form of redress available to them and that they allowed to meaningful contribute to deciding what that redress will be. International criminal justice institutions should focus on those things if they hope to fulfil this important part of their mission.

147 Ibid; citing Anne-Marie de Brouwer and Marc Groenhuijsen, ‘The Role of Victims in International Criminal Proceedings’ in Göran Sluiter and Sergey Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of Law (CMP Publishing 2009) 153–4.

8

Conclusion

International criminal trials have been given a very complicated task. Unlike their domestic counterparts, which are almost exclusively concerned with determining the guilt of the accused, international criminal trials are also asked to help improve the rule of law in domestic jurisdictions, establish the truth and develop the history about situations during which atrocity crimes were committed, instigate peace in conflict situations, promote reconciliation in post-conflict contexts and deliver justice to the victims of atrocity crimes. If that was not enough, it is expected that international criminal trials will do all of this in equal measure, notwithstanding the fact that it may be impossible to accomplish all of these goals at once. That leaves the international criminal justice organisations that hold international criminal trials with two options. They can either decide to impose their own hierarchy on the trial goals or find a way to balance them so as to give each its maximum effect. The issue with pursuing the first option is that it will necessarily lead to the goals being prioritised in a variety of ways, both by different trial chambers at the same institution and also across the various international criminal courts and tribunals. That could create an inequity in international criminal law whereby the procedure employed during trials might vary depending on which goals that particular court chose to emphasise. Such an approach raises questions about whether every trial participant is receiving the same access to justice, potentially undermining the legitimacy of international criminal justice institutions. It would also result in some of the trial goals being marginalised or entirely unfulfilled, meaning that the trial will have failed to accomplish at least some of its purposes. The complications intrinsic to establishing a hierarchy of goals means that giving weight to all of the trial goals is the more viable of the two options. However, that approach also contains some inherent challenges. Most significant amongst them is the fact that not all of the trial goals are complementary. Legal accountability, in particular, conflicts at times with several of the other goals, including establishing the truth and history about a situation, promoting reconciliation and delivering justice to the victims. The disagreement between these goals is often centred on how much evidence is needed to accomplish them and whether there is a point at which too much evidence may begin to undermine other DOI: 10.4324/9781003027331-8

144 Conclusion goals. As a result, it is necessary to find some way to reconcile the goals of trial in order to achieve each of them. This book has demonstrated that an appropriate balance is struck between the needs of the different trial goals by emphasising fairness in the trial process. A trial is considered fair when the trial participants have access to rights that, when given full effect, will result in the proceeding ending in a just outcome.1 That includes guaranteeing the accused’s right to a fair trial, ensuring that the prosecution has a full and fair opportunity to present its case and giving due regard to the rights of the victims and their desire for justice. The accused’s right to a fair trial is protected as a human right in the International Covenant on Civil and Political Rights and forms a fundamental component of the statutes of every international criminal justice institution. Failing to ensure that the trial protects the accused’s right to a fair trial will result in a verdict of questionable validity. Such unreliable outcomes have a negative knock-on effect on perceptions about the legitimacy of the institution conducting the trial. This danger has caused some to suggest that trials should provide the accused with the ‘highest standard of fairness’ in order to avoid raising concerns about institutional legitimacy.2 While there is an obvious appeal to providing the accused with such robust protections, it is an approach that does not fully engage with what it means for a trial to be fair. Fairness is not the sole preserve of the accused. Instead, it results when the decisions reached by the trial court are made without bias or favour towards any party.3 The absence of bias, especially towards the accused, is particularly important to the victims. They often feel as if the accused’s right to a fair trial is interpreted in a way that prioritises the interests of the accused at the expense of the victims’ needs. When that happens, victims tend to reject the trial’s outcome, even when the case has been fairly decided. Such a rejection indicates that the victims feel as if they have been denied justice and can also prevent them from meaningfully participating in reconciliation efforts. This suggests that it is not only necessary for the trial to be fair, but it is needs to be perceived as being fair for it to accomplish its goals. This can often be achieved by ensuring that the victims an opportunity to adequately share their views. The importance of fairness is further reinforced when it is understood in the context of legal accountability. Legal accountability only results when a trial ends in a guilty verdict, however not every guilty verdict produces legal accountability. For a person to be legally accountable they must be found guilty of the crimes alleged against them and there must be a nexus between their factual and legal guilt.4 A trial that is unfair, that is a trial during which the rights of the accused are 1 Mark Klamberg, ‘What are the Objectives of International Criminal Procedure? – Reflections on the Fragmentation of a Legal Regime’ (2010) 79 Nordic J Int’l L 279, 286. 2 Yvonne McDermott, Fairness in International Criminal Trials (OUP 2016) 34. 3 David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 579, 588.

Conclusion

145

not properly respected or where the prosecution and the victims are deprived of an adequate opportunity to be heard, is more likely to be decided on an improper basis. As a result, the absence of fairness will often undermine the trial goal of legal accountability. Fairness is also a key component to the promotion of the domestic rule of law. International criminal trials play an expressive role for domestic legal systems to follow. This includes providing a model for how a rule of law compliant legal system should function, outlining acceptable forms of behaviour within a system that prioritises the rule of law and displaying the benefits of being rule of law compliant. International criminal trials cannot possibly accomplish this expressive purpose if they themselves are unfair. Under those circumstances the international criminal trials will only be reinforcing the bad habits of the domestic system and implicitly undermining the importance of rule of law compliance. In the absence of fairness the goal of improving the domestic rule of law will fail. Fairness must be understood flexibly as it pertains to the truth established during international criminal trials. International criminal trials can ascertain two types of truth: that which is sufficient to establish the guilt of the accused; and the truth necessary for understanding the underlying context in which atrocity crimes were committed. The first type, needed to satisfy the goal of legal accountability, is limited to those facts that are relevant to the charges alleged against the accused. Restricting the evidence in this way helps to protect the accused’s right to be present at trial and diminishes the likelihood that a decision will be reached on an improper basis. Conversely, it does not include much of the sort of evidence that victims need to feel as if their interests have been adequately accounted for leading to the impression that the trial has not been fair. The second type of truth is much broader and requires the introduction of information that can be tangential to the guilt or innocence of the accused. Taking a broader approach to the introduction of evidence will typically satisfy more of the victims as it gives them a greater opportunity to tell their own story and have their concerns aired. However, a risk is created that the accused will be convicted on the basis of irrelevant or cumulative evidence, which would be violate their right to a fair trial. As a result, a compromise must be struck between these two positions to ensure that the entirety of the trial process remains fair. Peace, as a concept, can be separated into two types: negative peace, described as the absence of armed conflict, and positive peace, which exists when a society is just and equitable and relatively free of violence.5 Trial fairness has little impact on establishing negative peace but can play a significant role in the development of positive peace. The limited influence fairness has on negative peace is largely due to timing. Negative peace often arises out of peace agreements, which are typically 4 Michelle Coleman, The Presumption of Innocence in International Human Rights and Criminal Law (Routledge 2021) 14. 5 Charles Webel, ‘Introduction: Toward a Philosophy and Metapsychology of Peace’ in Charles Webel and Johan Galtung (eds), Handbook of Peace and Conflict Studies (Routledge 2007) 11.

146 Conclusion concluded before trials are conducted. Because peace agreements generally precede trials, the participants in the negotiations leading to an accord are more concerned with avoiding trials entirely than with whether any future proceedings will be conducted fairly. It would be incorrect to conclude that trial fairness is irrelevant in this context, anyone who is tried following the introduction of negative peace would certainly want a fair trial, but it is a relatively minor consideration. Fairness is much more important to the development of positive peace. Achieving the sort of just and equitable society that denotes a positive peace often requires opposing factions to reconcile their differences with one another. That can be done by accepting that other sides have legitimately held narratives about the nature of the conflict between the groups and it could also require the perpetrators of crimes to show remorse for their actions and the victims of those crimes to forgive their abusers. This can be exceedingly complicated, particularly in a society lacking in communal trust and goodwill. International criminal trials may help with this process by providing a neutral venue in which evidence can be heard from witnesses spanning the spectrum of the conflict, the accused can express regret for their actions and victims can discuss their victimisation and explain its impact. International criminal trials can only support reconciliation in this way when they are fair and perceived as being fair. Any suspicion of prejudice may result in the groups involved rejecting the narratives developed during trial, and in so doing fundamentally undermine the reconciliation efforts needed to create a positive peace. To avoid this, trials must be scrupulous in ensuring that the procedures being used are fair. That includes making every effort to give all of the participants a voice in the proceedings and adequately explaining its decisions to make them less susceptible to allegations of bias. Delivering justice to the victims of atrocity crimes is also dependent on ensuring that trials are fair and free from bias. Justice for victims is a complicated concept. It is made up of several different parts and whether a defendant experiences it is highly dependent on their own individual characteristics. It can involve accomplishing several of the other trial goals, including accountability, establishing the truth, and reconciliation, as well as providing victims with some form of reparations and giving them the opportunity to participate in proceedings. An important part of justice for the victims involves prioritising fairness in the legal process. Some victims have suggested that they will accept adverse verdicts so long as they feel those decisions were reached through the application of a fair procedure.6 Victims have also indicated that they are more likely to feel that a trial has been fair when they are: meaningfully included in the proceedings, treated with dignity and respect, given access to legal assistance and eligible for reparations.7 Not all victims need the same thing and it is impossible to create a remedy that will 6 Brianne McGonigle Leyh, Procedural Justice? Victims Participation in International Criminal Proceedings (Intersentia 2011) 47. 7 Ibid; citing Anne-Marie de Brouwer and Marc Groenhuijsen, ‘The Role of Victims in International Criminal Proceedings’ in Göran Sluiter and Sergey Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of Law (CMP Publishing 2009) 153–4.

Conclusion

147

produce a common feeling amongst every victim that justice has been done. This fragmented understanding of justice for the victims means that efforts should be made towards achieving all of the goals in the hope that doing so will create a sense of justice for as many victims as possible. While it is clear that fairness must be at the heart of any procedure designed to accomplish all of the trial goals, it remains to be seen what such a procedure should look like. One promising possibility can be found in the approach taken by the International Criminal Court’s Trial Chamber I in the Lubanga case. There, the Court allowed victims to present evidence about matters that were related to the charges, but not directly encompassed in them.8 After hearing this evidence during the trial, the Trial Chamber opted not to consider it as part of its final judgment, instead relying on evidence relating to ‘the facts and circumstances described in the charges’.9 The Prosecution presented its case in full, a number of victims were able to directly participate in the proceedings as parties and to testify about their victimisation and the circumstances surrounding it, while the rights of the accused were protected to the extent that evidence not sufficiently related to the charges was excluded from the Trial Chamber’s judgment. A trial procedure similar to this, which gives all of the participants an opportunity to be heard, offers a somewhat satisfactory solution to how fairness can be prioritised during international criminal trials. This is not, however, an approach without flaws. Allowing the introduction of testimony that will not be considered as part of the judgment runs the risk of significantly lengthening trials. The duration of trials is already an acute concern for many international criminal justice institutions, with some trials lasting for several years. Introducing a procedure that would make trials longer would not be well received in many quarters. It could also affect aspects of the accused’s right to a fair trial, and particularly the guarantee that they will be tried without undue delay.10 Additionally, victims have often complained that international criminal trials are already too slow and that their ponderous nature can delay or reduce their sense that justice has been done. Employing the procedure outlined above also creates a danger that international criminal trials will become more like de facto truth and reconciliation commissions. This is problematic to the extent that although international criminal trials and truth and reconciliation commissions are both concerned with establishing the truth about the situation under investigation, only trials result in establishing the accused’s legal accountability. An over-emphasis on truth and reconciliation during international criminal trials would alter the balance between the goals of trial in a way that could impact fairness and prevent accountability from being fairly realised. While international criminal trials need to allow more time to 8 Prosecutor v Lubanga (Judgment Pursuant to Article 74 of the Statute) ICC-01/04– 01/06, T Ch I (14 March 2012) [16]. 9 Ibid 36. 10 For example, UN General Assembly, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, Art 14(3)(c).

148 Conclusion develop the truth about the situation under examination and to help promote reconciliation amongst affected communities, doing so cannot come at the expense of compromising the goal of accountability. These concerns should not discourage international criminal justice institutions from implementing trial procedures that emphasise giving all of the participants an effective voice during trials. Doing so will help improve trial fairness and increase the likelihood that all of the goals of international criminal trials will be achieved. Instead, safeguards must be implemented that are designed to guarantee that fairness remains at the heart of the trial process. They would include developing guidelines that protect the accused’s right to a fair trial while also allowing for the more robust introduction of evidence. It would also be essential to implement standard rules clarifying how and when the victims of atrocity crimes can effectively participate in trial as a party and as a witness. Steps should also be taken to guarantee that the Prosecution has an opportunity to present its case in the way it sees fit so as to increase the probability that the matter will be decided on the proper basis. Judges should be provided additional instruction about how to properly identify the evidence relevant to the charges to guard against convictions based on cumulative or immaterial evidence. Through these efforts, a system will develop that prioritises fairness in the trial process and enhances the likelihood that international criminal trials will accomplish all of their goals.

Bibliography

Books Ambos K, Treatise on International Criminal Law: Volume I: Foundations and General Part (OUP 2013) Ambos K, Treatise on International Criminal Law: Volume III: International Criminal Procedure (OUP 2016) Arendt H, Eichmann in Jerusalem: A Report on the Banality of Evil (Penguin 2006) Banjeglav T, Dealing with the Past in Post-War Croatia: Perceptions, Problems and Perspectives (Springer 2013) Bingham T, The Rule of Law (Allen Lane 2010) Boister N and R Cryer, The Tokyo International Military Tribunal: A Reappraisal (OUP 2008) Brannigan A, Beyond the Banality of Evil (OUP 2013) Broomhall B, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law (OUP 2002) Clark JN, International Trials and Reconciliation: Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia (Routledge 2015) Clooney A and P Webb, The Right to a Fair Trial in International Law (OUP 2020) Coleman M, The Presumption of Innocence in International Human Rights and Criminal Law (Routledge 2021) Day A and J Caus, Rule of Law and Sustaining Peace: Towards More Impactful, Effective Conflict Prevention (United Nations University 2021) Douglas L, The Memory of Judgment (Yale UP 2001) Drumbl M, Atrocity, Punishment, and International Law (CUP 2007) Elberling B, The Defendant in International Criminal Proceedings (Hart Publishing 2012) Farah D and S Braun, Merchant of Death (John Wiley & Sons 2007) Fedorova M, The Principle of Equality of Arms in International Criminal Proceedings (Intersentia 2012) Fisher K, Moral Accountability and International Criminal Law: Holding Agents of Atrocity Accountable to the World (Routledge 2012) Gaeta P, JE Viñuales & S Zappalà, Cassese’s International Law (OUP 2020) Galtung J, Theories of Peace: A Synthetic Approach to Peace Thinking (International Peace Research Institute 1967) accessed 27 July 2022. Gissel LE, The International Criminal Court and Peace Processes in Africa: Judicalising Peace (Routledge 2018)

150 Bibliography Griswold C, Forgiveness: A Philosophical Exploration (CUP 2007) Hamber B and G Kelly, A Place for Reconciliation: Conflict and Locality in Northern Ireland (Democratic Dialogue 2005) Kardov K, D Lalic´ and V Teršelicˇ , Coming to Terms with the Past in Croatia: Public Opinion and Attitudes After the War (Documenta 2010) Klinkner M and H Davis, The Right to Truth in International Law: Victims’ Rights in Human Rights and International Criminal Law (Routledge 2020) Ivkovic´ SK and J Hagan, Reclaiming Justice: The International Tribunal for the Former Yugoslavia and Local Courts (OUP 2011) Kersten M, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (OUP 2016) Kiza E, C Rathgeber and H-C Rohne, Victims of War: An Empirical Study on War-Victimization and Victims’ Attitudes Towards Addressing Atrocities (Hamburger Edition HIS Verlagsges 2006) Layús RF, The Reparative Effects of Human Rights Trials: Lessons From Argentina (Routledge 2018) Longman T, Memory and Justice in Post-Genocide Rwanda (CUP 2017) Marchuk I, The Fundamental Concept of Crime in International Criminal Law: A Comparative Law Analysis (Springer 2014) McGonigle Leyh B, Procedural Justice? Victims Participation in International Criminal Proceedings (Intersentia 2011) McDermott Y, Fairness in International Criminal Trials (OUP 2016) McGoldrick D, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Clarendon Press 1994) Minow M, Between Vengeance and Forgiveness (Beacon Press 1998) Minow M, When Should Law Forgive? (WW Norton & Co 2019) Moffett L, Justice for Victims Before the International Criminal Court (Routledge 2014) Orentlicher DF, Shrinking the Space for Denial: The Impact of the ICTY in Serbia (Open Society Justice Initiative 2008) Orentlicher DF, Some Kind of Justice (OUP 2018) Peskin V, International Justice in Rwanda and the Balkans (CUP 2008) Ratner S, JS Abrams and JL Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (3rd edn, OUP 2009) Raz J, The Authority of Law: Essays on Law and Morality (Clarendon Press 1979) Rigby A, Justice and Reconciliation: After the Violence (Lynne Rienner Publishers 2001) Sander B, Doing Justice to History: Confronting the Past in International Criminal Trials (OUP 2021) Schabas WA, An Introduction to the International Criminal Court (4th Edn, CUP 2011) Schabas WA, Unimaginable Atrocities (OUP 2012) Schabas WA, The International Criminal Court: A Commentary on the Rome Statute (2nd edn, OUP 2016) Schomerus M, The Lord’s Resistance Army: Violence and Peacemaking in Africa (CUP 2021) Seibert-Fohr A, Prosecuting Serious Human Rights Violations (OUP 2009) Shahabuddeen M, International Criminal Justice at the Yugoslav Tribunal: A Judge’s Recollection (OUP 2012) Shelton D, Remedies in International Human Rights Law (2nd edn, OUP 2005) Sikkink K, The Justice Cascade (WW Norton & Co 2011) Simpson G, Law, War and Crime (Polity Press 2007)

Bibliography

151

van Sliedregt E, Individual Criminal Responsibility in International Law (OUP 2012) Sriram CL, Globalizing Justice for Mass Atrocities: A Revolution in Accountability (Routledge 2005) Steinke R, The Politics of International Criminal Justice: German Perspectives from Nuremberg to the Hague (Hart 2012) Stromseth J, D Wippman and R Brooks, Can Might Make Rights: Building the Rule of Law After Military Interventions (CUP 2006) Tamanaha BZ, On the Rule of Law (CUP 2004) Werle G and F Jessberger, Principles of International Criminal Law (3rd Edn, OUP 2014) Waters TW, The Miloševic´ Trial: An Autopsy (OUP2013) Wheeler CH, The Right to be Present at Trial in International Criminal Law (Brill 2018) Book Chapters Ainley K, ‘Transitional Justice in Cambodia: The Coincidence of Power and Principle’ in R Jeffrey and HJ Kim (eds), Transitional Justice in the Asia-Pacific (CUP 2013) Ambos K, ‘Fairness and Expediency in International Criminal Procedure’ in J Jackson and S Summers (eds), Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms (Hart 2018) Auerbach Y, ‘The Role of Forgiveness in Reconciliation’ in Y Bar-Siman-Tov (ed), From Conflict Resolution to Reconciliation (OUP 2004) Baehr PR, ‘How to Come to Terms with the Past’ in E Hughes, WA Schabas and R Thakur (eds), Atrocities and International Accountability (UN University Press 2007) Bassiouni MC, Assessing Conflict Outcomes: Accountability and Impunity’ in MC Bassiouni (ed), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice, vol 1 (Intersentia 2010) Biletzki A, ‘Peace-Less Reconciliation’ in A MacLachlan and A Speight (eds), Justice, Responsibility and Reconciliation in the Wake of Conflict (Springer 2013) ˇ orkalo, D Ðipa, P Milin, H Weinstein, ‘Attitudes Toward Justice Biro M, D Ajdukovic´, D C and Social Reconstruction in Bosnia and Herzegovina and Croatia’ in E Stover and HM Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (CUP 2004) de Brouwer A-M and M Groenhuijsen, ‘The Role of Victims in International Criminal Proceedings’ in G Sluiter and S Vasiliev (eds), International Criminal Procedure: Towards a Coherent Body of Law (CMP Publishing 2009) Carothers T, ‘The Rule-Of-Law Revival’ in T Carothers (ed), Promoting the Rule of Law Abroad: In Search of Knowledge (Carnegie Endowment for International Peace 2006) Chapman AR, ‘Approaches to Studying Reconciliation’ in H van der Merwe, V Baxter and AR Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press 2009) Chouliaris A, ‘The Legitimacy and Effectiveness of International Criminal Tribunals: A Criminal Policy Perspective’ in N Hayashi and CM Bailliet (eds), The Legitimacy of International Criminal Tribunals (CUP 2017) Cravo TA, ‘Post-Conflict Peacebuilding and the Rule of Law’ in C May and A Winchester (eds), Handbook on the Rule of Law (Edward Elgar 2018) Crawford J and J McIntyre, ‘The Independence and Impartiality of the International Judiciary’ in S Shetreet and C Forsyth (eds), The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges (Brill 2011)

152 Bibliography Damaška M, ‘Problematic Features of International Criminal Procedure’ in A Cassese (ed), Oxford Companion to International Criminal Justice (OUP 2009) Danieli Y, ‘Massive Trauma and the Healing Role of Reparative Justice: An Update’ in C Ferstman and M Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (2nd edn, Brill 2020) Dixon PJ, ‘Reparations and the Politics of Recognition’ in C de Vos, S Kendall and C Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Interventions (CUP 2015) Doretti M and L Fondebrider, ‘Science and Human Rights’ in V Buchli and G Lucas (eds), Archaeologies of the Contemporary Past (Routledge 2001). Douglas L, ‘Truth and Justice in Atrocity Trials’ in WA Schabas (ed), The Cambridge Companion to International Criminal Law (CUP 2016) Duff RA, ‘Authority and Responsibility in International Criminal Law’ in S Besson and J Tasioulas (eds), The Philosophy of International Law (OUP 2010) Duff RA, ‘Repairing Harms and Answering for Wrongs’ in J Oberdiek (ed) Philosophical Foundations of the Law of Torts (OUP 2014) Duff RA, ‘Fairness in Criminal Proceedings: Concluding Thoughts and Further Questions’ in J Jackson and S Summers (eds), Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms (Hart 2018) Dukalskis A, LK Taylor, and J Darby, ‘Reconciliation and Quality Peace’ in M Joshi and P Wallensteen (eds), Understanding Quality Peace: Peacebuilding After Civil War (Routledge 2018) Ferstman C, ‘Reparations at the ICC: The Need for A Human Rights Based Approach to Effectiveness’ in C Ferstman and M Goetz (eds), Reparations for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (2nd edn, Brill 2020) Fife RE, ‘Penalties’ in RS Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers, Inc 2001) Fletcher LE, ‘Refracted Justice: The Imagined Victim and the International Criminal Court’ in C de Vos, S Kendall and C Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (CUP 2015) Fournet C, ‘Mass Atrocity: Theories and Concepts of Accountability – On The Schizophrenia of Accountability’ in R Henham and M Findlay (eds), Exploring the Boundaries of International Criminal Justice (Ashgate 2011) Gallen J, ‘Reconciliation and a Just Peace’ in C Stahn and J Iverson (eds), Just Peace After Conflict (OUP 2020) García-Godos J, ‘Building Trust Through Accountability: Transitional Justice in the Search for Peace’ in CM Bailliet (ed), Research Handbook on International Law and Peace (Edward Elgar 2019) Gibson JL, ‘Taking Stock of Truth and Reconciliation in South Africa: Assessing Citizen Attitudes through Surveys’ in H van der Merwe, V Baxter and AR Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press 2009) Ginsburg T, ‘Difficulties With Measuring the Rule of Law’ in C May and A Winchester (eds), Handbook on the Rule of Law (Edward Elgar 2018) Goldstone RJ, ‘Foreword’ in M Minow, Between Vengeance and Forgiveness (Beacon Press 1998) Goetz M, ‘Victims’ Experiences of the International Criminal Court’s Reparations Mandate in the Democratic Republic of Congo’ in C Ferstman and M Goetz (eds), Reparations

Bibliography

153

for Victims of Genocide, War Crimes and Crimes Against Humanity: Systems in Place and Systems in the Making (2nd edn, Brill 2020) Green P, ‘Reconciliation and Forgiveness in Divided Societies: A Path of Courage, Compassion, and Commitment’ in A Kalayjian and RF Paloutzian (eds), Forgiveness and Reconciliation: Psychological Pathways to Conflict Transformation and Peace Building (Springer 2009) de Grieff P, ‘Justice and Reparations’ in P de Grieff (ed) Handbook of Reparations (OUP 2006) Joshi M and P Wallensteen, ‘Understanding Quality Peace: Introducing the Five Elements’ in M Joshi and P Wallensteen (eds), Understanding Quality Peace: Peacebuilding After Civil War (Routledge 2018) Kaul H-P, ‘Victims’ Rights and Peace’ in T Bonacker and C Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (Springer 2013) Haslam E, ‘Victim Participation at the International Criminal Court: A Triumph of Hope over Experience’ in D McGoldrick, P Rowe and E Donnelly (eds), The Permanent International Criminal Court (Hart 2004) Hayek FA, ‘Planning and the Rule of Law’ in B Caldwell (ed), The Collected Works of F. A. Hayek: Vol 2 – The Road to Serfdom (Routledge 2014) Herman J, O Martin-Ortega and CL Sriram, ‘Beyond Justice Versus Peace: Transitional Justice and Peacebuilding Strategies’ in K Aggestam and A Björkdahl (eds), Rethinking Peacebuilding: The Quest for Just Peace in the Middle East and the Western Balkans (Routledge 2012) von Holtermann JH, ‘‘One of the Challenges That Can Plausibly Be Raised Against Them?’ On the Role of Truth in Debates About the Legitimacy of International Criminal Tribunals’ in N Hayashi and CM Bailliet (eds), The Legitimacy of International Criminal Tribunals (CUP 2017) Ingabire M, ‘Exploring the Boundaries of the Deterrence Effect of the International Criminal Tribunal for Rwanda’ in J Schense and L Carter (eds), Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals (Torkel Opsahl 2017) Kersten M, ‘Between Justice and Politics: The ICC’s Intervention in Libya’ in C de Vos, S Kendall and C Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Interventions (CUP 2015) Kiza E and H-C Rohne, ‘Victims’ Expectations Towards Justice in Post-Conflict Societies: A Bottom-Up Perspective’ in R Henham and M Findlay, Exploring the Boundaries of International Criminal Justice (Ashgate 2011) Kleinfeld R, ‘Competing Definitions of the Rule of Law’ in T Carothers (ed), Promoting the Rule of Law Abroad: In Search of Knowledge (Carnegie Endowment for International Peace 2006) Koskenniemi M, ‘Between Impunity and Show Trials’ in JA Frowein and R Wolfrum (eds), 2002 Max Planck Yearbook of International Law (Kluwer Law Intl 2002) Langvatn SA and T Squatrino, ‘Conceptualising and Measuring the Legitimacy of International Criminal Tribunals’ in N Hayashi and CM Bailliet (eds), The Legitimacy of International Criminal Tribunals (CUP 2017) Lohne K, ‘Global Civil Society, The ICC and Legitimacy in International Criminal Justice’ in N Hayashi and CM Bailliet (eds), The Legitimacy of International Criminal Tribunals (CUP 2017) Longman T, P Pham and HM Weinstein, ‘Connecting Justice to Human Experience: Attitudes Toward Accountability and Reconciliation in Rwanda’ in E Stover and HM

154 Bibliography Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (CUP 2004) Longman T and T Rutagengwa, ‘Memory, Identity, and Community in Rwanda’ in E Stover and HM Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (CUP 2004) Luban D, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ in S Besson and J Tasioulas (eds), The Philosophy of International Law (Oxford University Press 2010) Mani R, ‘Does Power Trump Morality?’ in E Hughes, WA Schabas and R Thakur (eds), Atrocities and International Accountability (UN University Press 2007) Martin-Ortega O, ‘Beyond the Hague: Prosecuting War Crimes in Bosnia and Hezegovina’ in J Gow, R Kerr and Z Pajic´ (eds), Prosecuting War Crimes: Lessons and Legacies of the International Criminal Tribunal for the former Yugoslavia (Routledge 2014) Matwijkiw A and B Matwijkiw, ‘A Modern Perspective on International Criminal Law: Accountability as a Meta-Right’ in LN Sadat and MP Scharf (eds), The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (Martinus Nijhoff Publishers 2008) McDermott Y, ‘International Criminal Procedure and the False Promise of an Ideal Model of Fairness’ in J Jackson and S Summers (eds), Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms (Hart 2018) Mégret F, ‘Law of War or Peace Through Law’ in T de Waal (ed), Think Peace: Essays for an Age of Disorder (Carnegie Endowment for International Peace 2019) Méndez JE and J Kelley, ‘Peace Making, Justice and the ICC’ in C de Vos, S Kendall and C Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Interventions (CUP 2015) van der Merwe H, ‘Delivering Justice During Transition: Research Challenges’ in H van der Merwe, V Baxter and AR Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press2009) van der Merwe H, V Baxter and AR Chapman, ‘Introduction’ in H van der Merwe, V Baxter and AR Chapman (eds), Assessing the Impact of Transitional Justice: Challenges for Empirical Research (United States Institute of Peace Press 2009) Moghalu KC, ‘Reconciling Fractured Societies: An African Perspective on the Role of Judicial Prosecutions’ in R Thakur & P Malcontent (eds) From Sovereign Impunity to International Accountability: The Search for Justice in a World of States (United Nations Press 2004) Moreno-Ocampo L, ‘Building a Future on Peace and Justice: The International Criminal Court’ in K Ambos, J Large and M Wierda (eds), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development The Nuremberg Declaration on Peace and Justice (Springer 2009) Nouwen S, ‘The International Criminal Court: A Peacebuilder in Africa?’ in D Curtis and GA Dzinesa (eds), Peacebuilding, Power and Politics in Africa (Ohio University Press 2012) Ohlin J-D, ‘Goals of International Criminal Justice and International Criminal Procedure’ in G Sluiter, H Friman, S Linton, S Vasiliev, S Zappalà (eds), International Criminal Procedure: Principles and Rules (OUP 2013) Parmar S, ‘Dissuasive or Disappointing? Measuring the Deterrent Effect of the International Criminal Court in the Democratic Republic of the Congo’ in J Schense and L Carter (eds), Two Steps Forward One Step Back: The Deterrence Effect of International Criminal Tribunals (International Nuremberg Principles Academy 2016)

Bibliography

155

Peskin V, ‘Battles of Legitimation and the Politics of Noncompliance and African Sovereignty From the Rwanda Tribunal to the ICC’ in N Hayashi and CM Bailliet (eds), The Legitimacy of International Criminal Tribunals (CUP 2017) Phillips RL, ‘Frail Accused and Fitness to Stand Trial’ in SM Meisenberg and I Stegmiller (eds), The Extraordinary Chambers in the Courts of Cambodia: Assessing their Contribution to International Criminal Law (TMC Asser Press 2016) D Philpott, ‘Reconciliation, Politics and Transitional Justice’ in A Omer, RS Appleby and D Little (eds), The Oxford Handbook of Religion, Conflict and Peacebuilding (OUP 2015) Reisinger-Coracini A, ‘Cooperation from States and Other Entities: General Framework of International Criminal Procedure’ in G Sluiter, H Friman, S Linton, S Vasiliev and S Zappalà (eds), International Criminal Procedure: Principles and Rules (OUP 2013) Rishmawi M, ‘The Rule of Law and Human Rights’ in C May and A Winchester (eds), Handbook on the Rule of Law (Edward Elgar 2018) Rutayisire A, ‘Rwanda: Repentance and Forgiveness – Pillars of Genuine Reconciliation’ in A Kalayjian and RF Paloutzian (eds), Forgiveness and Reconciliation: Psychological Pathways to Conflict Transformation and Peace Building (Springer 2009) Scharf MP, ‘Trading Justice for Peace’ in E Hughes, WA Schabas and R Thakur (eds), Atrocities and International Accountability (UN University Press 2007) Sriram CL, ‘Victims, Excombatants and the Communities: Irreconcilable Demands or Dangerous Convergence?’ in T Bonacker and C Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (Springer 2013) Stover E, ‘Witnesses and the Promise of Justice in the Hague’ in E Stover and HM Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge University Press 2004) Stover E and R Shigekane, ‘Exhumation of Mass Graves: Balancing Legal and Humanitarian Needs’ in E Stover and HM Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge University Press 2004) Stover E and HM Weinstein, ‘Conclusion: A Common Objective, a Universe of Alternatives’ in E Stover and HM Weinstein (eds), My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity (Cambridge University Press 2004) Stromseth J, ‘Justice on the Ground? International Criminal Courts and Domestic Rule of Law Building in Conflict-Afflicted Societies’ in JE Fleming (ed), Getting to the Rule of Law (NYU Press 2011) Studzinsky S, ‘Participation Rights of Victims as Civil Parties and the Challenges of Their Implementation Before the Extraordinary Chambers in the Courts of Cambodia’ in T Bonacker and C Safferling (eds), Victims of International Crimes: An Interdisciplinary Discourse (Springer 2013) Trechsel S, ‘The Character of the Right to a Fair Trial’ in J Jackson and S Summers (eds), Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms (Hart 2018) Vasiliev S, ‘Article 68(3) and Personal Interests of Victims in the Emerging Practice of the ICC’ in C Stahn and G Sluiter (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) Vasiliev S, ‘Between International Criminal Justice and Injustice: Theorising Legitimacy’ in N Hayashi and CM Bailliet (eds), The Legitimacy of International Criminal Tribunals (CUP 2017) Veitch S, ‘Judgment and Calling to Account: Truth, Trials and Reconciliations’ in A Duff, L Farmer, S Mitchell and V Tadros (eds), The Trial on Trial: Volume 2: Judgment and Calling to Account (Hart 2006)

156 Bibliography Webel C, ’Introduction: Toward a Philosophy and Metapsychology of Peace’ in C Webel and J Galtung (eds), Handbook of Peace and Conflict Studies (Routledge 2007) Weigend T and S Veitch, ‘Why Have a Trial When You Can Have a Bargain?’ in A Duff, L Farmer, S Mitchell and V Tadros (eds), The Trial on Trial: Volume 2: Judgment and Calling to Account (Hart 2006) Zayas A, ‘Peace’ in WA Schabas (ed), The Cambridge Companion to International Criminal Law (CUP 2016) Zyberi G, ‘The Role and Contribution of International Courts in Furthering Peace as an Essential Community Interest’ in CM Bailliet (ed), Research Handbook on International Law and Peace (Edward Elgar 2019) Journal Articles Acosta Arcarazo D, Russell Buchan and Rene Urueña, ‘Beyond Justice, Beyond Peace? Colombia, The Interests of Justice and the Limits of International Criminal Law’ (2015) 26 Criminal Law Forum 291 Akhavan P, ’Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal’ (1998) 20 Hum Rts Q 737 Akhavan P, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95(7) AJIL 7 Akhavan P, ‘The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court’ (2005) 99AJIL 403 Akhavan P, ‘Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism’ (2009) 31 Hum Rts Q 624 Alter KJ, “Agents or Trustees: International Courts in Their Political Context’ (2008) 14 (1) European Journal of International Relations 33 Alvarez JE, ‘Crimes of Hate/Crimes of State: Lessons from Rwanda’ (1999) 24(2) Yale J Int’l L 365 Amann DM, ‘Group Mentality, Expressivism and Genocide’ (2002) 2 Int’l Crim L Rev 93 Appel BJ, ‘In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations?’ (2018) 62(1) Journal of Conflict Resolution 3 Arajärvi N, ‘The Core Requirements of the International Rule of Law in the Practice of States’ (2021) 13 HJRL 173 Armstrong K, ‘Justice without Peace? International Justice and Conflict Resolution in Northern Uganda’ (2014) 45(3) Development and Change 589 Aukerman MJ, ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 Harv Hum Rts J 39 Basic G, ‘Conditions for Reconciliation: Narratives of Survivors from the War in Bosnia and Herzegovina’ (2015) 17(2) J Crim Just & Sec 107 Bassiouni MC, ‘Human Rights in the Context of Criminal Justice: Identifying International and Procedural Protections and Equivalent Protections in National Constitutions’ (1993) 3 Duke Journal of Comparative & International Law 235 Bassiouni MC, ‘Searching for Peace and Achieving Justice: The Need for Accountability’ (1996) 59 Law & Contemp Prob 9 Bayer CP, F Klasen and H Adam, ‘Association of Trauma and PTSD Symptoms with Openness to Reconciliation and Feelings of Revenge Among Former Ugandan and Congolese Child Soldiers’ (2007) 298(5) JAMA 555 Binningsbø HM, CE Loyle, S Gates and J Elster, ‘Armed Conflict and Postconflict Justice, 1946–2006: A Dataset’ (2012) 49(5) Journal of Peace Research 731

Bibliography

157

Blumenson E, ‘The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court’ (2006) 44 Columbia J Transnat’l L 801 Borneman J, ‘Reconciliation After Ethnic Cleansing: Listening, Retribution, Affiliation’ (2002) 14 Public Culture 281 Bradfield P, ‘Reshaping Amnesty in Uganda: The Case of Thomas Kwoyelo’ (2017) 15 JICJ 827 Broache M, ‘Irrelevance, Instigation and Prevention: The Mixed Effects of International Criminal Court Prosecutions on Atrocities in the CNDP/M23 Case’ (2016) 10 Int’l J Transitional J 388 Brounéus K, ‘The Trauma of Truth Telling: Effects of Witnessing in the Rwandan Gacaca Courts on Psychological Health’ (2010) 54(3) J Conflict Resolut 408 Buchanan A and RO Keohane, ‘The Legitimacy of Global Governance Institutions’ (2006) 20(4) Ethics & International Affairs 405 Buyse A, K Fortin, B McGonigle Leyh and J Fraser, ‘The Rule of Law From Below – A Concept Under Development’ (2021) 17(2) Utrecht L Rev 1 Campbell K, ‘The Making of Global Legal Culture and International Criminal Law’ (2013) 26Leiden J Int’l L 155 Caron DD, ‘The Multiple Functions of International Courts and the Singular Task of the Adjudicator’ (2017) 111 Am Soc’y Int’l L Proc 231 Casas-Casas A, N Mendez and JF Pino, ‘Trust and Prospective Reconciliation: Evidence From a Protracted Armed Conflict’ (2020) 15(3) J Peacebuilding & Development 298 Casper JD, T Tyler and B Fisher, ‘Procedural Justice in Felony Cases’ (1988) 22 Law & Soc’y Rev 483 Cassese A, ‘The International Criminal Tribunal for the Former Yugoslavia and Human Rights’ (1997) 1997(4) European Human Rights Law Review 329 Cassese A, ‘Reflections on International Criminal Justice’ (1998) 61(1) MLR 1 Cassese A, ‘The ICTY: A Living and Vital Reality’ (2004) 2 JICJ 585 Cassese A, ‘The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice’ (2012) 25 Leiden J Int’l L 491 Catani L, ‘Victims at the International Criminal Court: Some Lessons Learned from the Lubanga Case’ (2012) 10 JICJ 905 Chung CH, ‘Victims’ Participation at the International Criminal Court: Are Concessions of the Court Clouding the Promise?’ (2008) 6(3) Northwestern J Int’l Hum Rts 459 Clark JN, ‘The Three Rs: Retributive Justice, Restorative Justice, and Reconciliation’ (2008) 11(4) Contemporary Justice Review 331 Clark JN, ‘Plea Bargaining at the ICTY: Guilty Pleas and Reconciliation’ (2009) 20(2) EJIL 415 Clark JN, ‘The Limits of Retributive Justice’ (2009) 7(3) JICJ 463 Clark JN, ‘Peace, Justice and the International Criminal Court: Limitations and Possibilities’ (2011) 9 JICJ 521 Clark JN, ‘The ICTY and Reconciliation in Croatia: A Case Study in Vukovar’ (2012) 10 JICJ 397 Cohen D, ‘“Hybrid” Justice in East Timor, Sierra Leone, and Cambodia: “Lesson Learned” and Prospects for the Future’ (2007) 43 Stan J Int’l L 1 Coleman M, ‘Right Without Remedy? The Development of the Presumption of Innocence at the International Criminal Court’ (2021) 22(4) International Criminal Law Review (forthcoming) Collins VE and M Pujol, ‘Secrets Exposed?: Selective State Concern and the Prosecution of Notorious Arms Trafficker Viktor Bout’ (2015) 24 Critical Criminology 93

158 Bibliography Combs NA, ‘Legitimizing International Criminal Justice: The Importance of Process Control’ (2012) 33 Mich J Int’l L 321 Crawford J, ‘Judicial Notice in International Criminal Law: A Reconciliation of Potential, Peril and Precedent’ (2003) 3 Int’l Crim L Rev 245 Cronin-Furman K, ‘Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity’ (2013) 7 International Journal of Transitional Justice 434 Damaška M, ‘What is the Point of International Criminal Justice?’ (2008) 83 Chicago-Kent L Rev 329 Damaška M, ‘The International Criminal Court between Aspiration and Achievement’ (2009) 14 UCLA J Int’l L Foreign Aff 19 Damaška M, ‘Reflections on Fairness in International Criminal Justice’ (2012) 10 JICJ 611 Dancy G, ‘Searching for Deterrence at the International Criminal Court’ (2017) 17(4) ICLR 625 Darcy S, ‘Imputed Criminal Liability and the Goals of International Criminal Justice’ (2007) 20(2) Leiden J Int’l L 377 Dauvergne C, ‘Sovereignty, Migration and the Rule of Law in Global Times’ (2004) 67(4) MLR 588 David R, ‘International Criminal Tribunals and the Perception of Justice: The Effect of the ICTY on Croatia’ (2014) 8Int’l J Transitional Just 476 de Guzman MM, ‘Gravity and the Legitimacy of the International Criminal Court’ (2009) 32 Fordham Int’l LJ 1400 de Guzman MM, ‘Gravity and the Legitimacy of the International Criminal Court’ ‘Choosing to Prosecute: Expressive Selection at the International Criminal Court’ (2012) 33 Mich J Int’l L 265 DeFalco RC, ‘The Uncertain Relationship between International Criminal Law Accountability and the Rule of Law in Post-Atrocity States: Lessons from Cambodia’ (2018) 42 Fordham Int’l LJ 1 Dietrich J, ‘The Limited Prospects of Deterrence by the International Criminal Court: Lessons from Domestic Experience (2014) 88(3) International Social Science Review 1 Donia R, ‘Encountering the past: History at the Yugoslav War Crimes Tribunal’ (2004) 11 (2–3) Journal of the International Institute [online edition] accessed 27 July 2022. Doorn N, ‘Forgiveness, Reconciliation and Empowerment in Transitional Justice’ (2011) 1 (4) Int’l J Humanities & Soc Sciences 13 Drumbl MA, ‘The Expressive Value of Prosecuting and Punishing Terrorists: Hamdan, the Geneva Conventions, and International Criminal Law’ (2007) 35 Geo Wash L Rev 1165 Dufraimont L, ‘Evidence Law and the Jury: A Reassessment’ (2008) 53 McGill L J 199 Dutton YM and T Alleblas, ‘Unpacking the Deterrent Effect of the International Criminal Court: Lessons from Kenya’ (2017) 91 St. John’s L Rev 105 Dwyer S, ‘Reconciliation for Realists’ (1999) 13 Ethics & International Affairs 81 Fairlie MA, ‘Due Process Erosion: The Diminution of Live Testimony at the ICTY’ (2003) 34(1) Cal W Int’l L J 47 Fallon RH, ‘“The Rule of Law” as a Concept in International Discourse’ (1997) 97 Colum L Rev 1 Falvey Jr JL, ‘United Nations Justice or Military Justice: Which is the Oxymoron? An Analysis of the Rules of Procedure and Evidence of the International Tribunal for the Former Yugoslavia’ (1995) 19 Fordham Int’l L J 475

Bibliography

159

Ferdinandusse W and A Whiting, ‘Prosecute Little Fish at the ICC’ (2021) 19(4) JICJ 759 Fisher KJ, ‘Messages From the Expressive Nature of ICC Reparations: Complex-victims in Complex Contexts and the Trust Fund for Victims’ (2020) 20 International Criminal Law Review 318 Fletcher G, ‘Against Universal Jurisdiction’ (2003) 1 JICJ 580 Fletcher GP and JD Ohlin, ‘Reclaiming Fundamental Principles of Law in the Darfur Case’ (2005) 3(3) JICJ 539 Fletcher LE and HM Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24 Hum Rts Q 573 Fletcher LE and HM Weinstein and J Rowen, ‘Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective’ (2009) 31 Hum Rts Q 163 Follesdal A, ‘The Legitimacy of International Courts’ (2020) 28(4) J Int’l Philosophy 476 Ford S, ‘A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms’ (2012) 45 Vand J Transnat’l L 405 Ford S, ‘Fairness and Politics at the ICTY: Evidence from the Indictments’ (2013) 39(1) NC J Int’l L & Com Reg 45 Ford S, ‘A Hierarchy of Goals of International Criminal Courts’ (2018) 27(1) Minn J Int’l L 179 Fortin K, ‘Of Interactionality and Legal Universes: A Bottom-Up Approach to the Rule of Law in Armed Group Territory’ (2021) 17(2) Utrecht Law Review 26 Galtung J, ‘Twenty-Five Years of Peace Research: Ten Challenges and Some Responses’ (1985) 22(2) Journal of Peace Research 141 Garapon A, ‘Three Challenges for International Criminal Justice’ (2004) 2JICJ 716 Garbett C, ‘The Truth and the Trial: Victim Participation, Restorative Justice, and the International Criminal Court’ (2013) 16(2) Contemporary Justice Review 193 Garbett C, ‘The International Criminal Court and Restorative Justice: Victims, Participation and the Processes of Justice’ (2017) 5(2) Restorative Justice 198 Gaynor F, ‘Uneasy Partners – Evidence, Truth and History in International Trials’ (2012) 10 JICJ 1257 Gray DC, ‘A No-Excuse Approach to Transitional Justice: Reparations as Tools of Extraordinary Justice’ (2010) 87 Wash U L Rev 1043 Greenawalt AKA, ‘International Criminal Law for Retributivists’ (2014) 35 U Pa J Int’l L 969 Hagan J and SK Ivkovic´, ‘War Crimes, Democracy, and the Rule of Law in Belgrade, the Former Yugoslavia, and Beyond’ (2006) 605 Annals of the American Academy of Political and Social Science 130 Hampton J, ‘Correcting Harms Versus Righting Wrongs: The Goal of Retribution’ (1992) 39 UCLA L Rev 1659 Hansen TO, ‘Kenya’s Power-sharing Arrangement and its Implications for Transitional Justice’ (2013) 17(2) Int’l J Hum Rts 307 Happold M, ‘The International Criminal Court and the Lord’s Resistance Army’ (2007) 8 Melb J Int’l L 159 Harper E, ‘Delivering Justice in the Wake of Mass Violence: New Approaches to Transitional Justice’ (2005) 10 J Conflict & Sec L 149, 181. Hassan-Morlai PM, ‘Evidence in International Criminal Trials: Lessons and Contributions from the Special Court for Sierra Leone’ (2009) 3 Afr J Leg Studies 96 Henham R, ‘Towards Restorative Sentencing in International Criminal Trials’ (2009) 9 Int’l Crim L Rev 809

160 Bibliography Herath E, ‘Trials in Absentia: Jurisprudence and Commentary on the Judgment in Chief Prosecutor v. Abul Kalam Azad in the Bangladesh International Criminal Tribunal’ (2014) 55 Harv Int’l L J Online 1, 2–3 accessed 28 June 2017. Herman JL, ‘The Mental Health of Crime Victims: Impact of Legal Intervention’ (2003) 16Journal of Traumatic Stress 159 Hillebrecht C, A Huneeus and S Borda, ‘The Judicialization of Peace’ (2018) 59 Harv Int’l L J 279 Hoven E and S Scheibel, ‘‘Justice for Victims’ in Trials of Mass Crimes: Symbolism or Substance’ (2015) 21(1) Int’l Rev Victimology 161 Hughes J and D Kostovicova, ‘Introduction: Rethinking Reconciliation and Transitional Justice After Conflict’ (2018) 41(4) Ethnic & Racial Studies 617 Inazu JD, ‘No Future Without (Personal) Forgiveness: Reexamining the Role of Forgiveness in Transitional Justice’ (2009) 10 Hum Rts Rev 309 Isaacs T, ‘International Criminal Courts and Political Reconciliation’ (2016) 10(1) Criminal Law and Philosophy 133 Ivkovic´ SK and J Hagan, ‘The Politics of Punishment and the Siege of Sarajevo: Toward a Conflict Theory of Perceived (In)Justice’ (2006) 40(2) Law & Society Review 369 Jalloh CC, ‘Special Court for Sierra Leone: Achieving Justice’ (2011) 32 Mich J Int’l L 395 Jasini R and V Phan, ‘Victim Participation at the Extraordinary Chambers in the Courts of Cambodia: Are Retributive and Restorative Principles Enhancing the Prospect for Justice’ (2011) 24(3) Cambridge Review of International Affairs 379 Jo H and BA Simmons, ‘Can the International Criminal Court Deter Atrocity?’ (2016) 70 International Organization 443 Jørgensen, NHB, ‘The Right of the Accused to Self-Representation Before International Criminal Tribunals’ (2004) 98 Am J Int’l L 711 Joyce D, ‘The Historical Function of International Criminal Trials: Re-thinking International Criminal Law’ (2004) 73 Nordic J Int’l L 461 Joyner CC, ‘Reconciliation as Conflict Resolution’ (2010) 8 NZ J Pub Int’l L 39 Kendall S and S Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’ (2013) 76 Law & Contemp Problems 235 Kim H and K Sikkink, ‘Explaining the Deterrence Effect of Human Rights Prosecutions in Transitional Countries’ (2010) 54 Int’l Studies Q 939 Klamberg M, ‘What are the Objectives of International Criminal Procedure? – Reflections on the Fragmentation of a Legal Regime’ (2010) 79 Nordic J Int’l L 279 Klarin M, ‘The Impact of ICTY Trials on Public Perception in the Former Yugoslavia’ (2009) 7 JICJ 89 Kostic´ R, ‘Nationbuilding as an Instrument of Peace? Exploring Local Attitudes towards International Nationbuilding and Reconciliation in Bosnia and Herzegovina’ (2008) 10 (4) Civil Wars 384 Kritz NJ, ‘Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights’ (1996) 59 Law & Contemp Probs 127 Ku J and J Nzelibe, ‘Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?’ (2006) 84(4) Washington University Law Review 777 Kwon O-G, ‘The Challenge of an International Criminal Trial as Seen from the Bench’ (2007) 5 JICJ 360 Landsman S, ‘Alternative Responses to Serious Human Rights Abuses: of Prosecution and Truth Commissions’ (1996) 59 Law & Contemp Probs 81

Bibliography

161

Langer M and JW Doherty, ‘Managerial Judging Goes International, but Its Promise Remains Unfulfilled: An Empirical Assessment of ICTY Reforms’ (2011) 36 Yale J Int’l L 241 Leebaw BA, ‘The Irreconcilable Goals of Transitional Justice’ (2008) 30 Hum Rts Q 95 Levitt J, ‘The Promises of International Prosecution’ (2001) 114 Harv L Rev 1957 Li M, B Leidner, N Petrovic and SN Orazni, ‘The Role of Retributive Justice and the use of International Criminal Tribunals in Post-Conflict Reconciliation’ (2018) 48 Eur J Soc Psychol 133 Ludwin King EB, ‘Does Justice always Require Prosecution: The International Criminal Court and Transnational Justice Measures’ (2013) 45 Geo Wash Int’l L Rev 85 Lustgarten L, ‘The Arms Trade Treaty: Achievements, Failings, Future’ (2015) 64 ICLQ 569 Mahoney P, ‘The International Judiciary – Independence and Accountability’ (2008) 7 Law & Prac Int’l Cts & Tribunals 313 Mangu AM, ‘The International Criminal Court, Justice, Peace and the Fight Against Impunity in Africa: An Overview’ (2015) XL(2) Africa Development 7 Matwijkiw A, ‘The No Impunity Policy in International Criminal Law: Justice versus Revenge’ (2009) 9 Int’l Crim L Rev 1 Maucˇ ec G, ‘The International Criminal Court and the Issue of Intersectionality – A Conceptual and Legal Framework for Analysis’ (2021) 21 Int’l Crim L Rev 1 McCarthy S and K Un, ‘The Evolution of Rule of Law in Cambodia’ (2017) 24 Democratization 100 McCorquodale R, ‘Defining the International Rule of Law: Defying Gravity?’ (2016) 65(2) Int’l & Comp L Q 277 McGonigle Leyh B and J Fraser, ‘Transformative Reparations: Changing the Game or More of the Same?’ (2019) 8(1) Cambridge Int’l L J 39 Meernik J, ‘Justice, Power and Peace: Conflicting Interests and the Apprehension of ICC Suspects’ (2013) 13 Int’l Crim L Rev 169 Meernik J, A Nichols, and KL King, ‘The Impact of International Tribunals and Domestic Trials on Peace and Human Rights After Civil War’ (2010) 11(4) International Studies Perspectives 309 Meernik J and JR Guerrero, ‘Can International Criminal Justice Advance Ethnic Reconciliation? The ICTY and Ethnic Relations in Bosnia-Herzegovina’ (2014) 14(3) Southeast European and Black Sea Studies 383 Megret F, ‘Beyond Fairness: Understanding the Determinants of International Criminal Procedure’ (2009) 14 UCLA J Int’l L Foreign Aff 37 Megret F, ‘International Criminal Justice as a Peace Project’ (2018) 29(3) European Journal of International Law 835 Meierhenrich J, ‘Varieties of Reconciliation’ (2008) 33 Law & Social Inquiry 195 Mendeloff D, ‘Trauma and Vengeance: Assessing the Psychological and Emotional Effects of Post-Conflict Justice’ (2009) 31 Hum Rts Q 592 Mendez JE, ‘Accountability for Past Abuses’ (1997) 19 Hum Rts Q 255 Meron T, ‘From Nuremberg to the Hague’ (1995) 149 Mil L Rev 107 Milanovic´ M, ‘Current Developments: The Arrest and Impending Trial of Radovan Karadžic´’ (2009) 58ICLQ 212 Minow M, ‘Forgiveness, Law, and Justice’ (2015) 103 Calif L Rev 1615 Minow M, ‘Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court’ (2019) 60 Harv Int’l LJ 1

162 Bibliography Moffett L and C Sandoval, ‘Tilting at Windmills: Reparations and the International Criminal Court’ (2021) 34 Leiden J Int’l L 749 Momeni M, ‘Why Barayagwiza is Boycotting his Trial at the ICTR: Lessons in Balancing Due Process Rights and Politics’ (2001) 7 Intl L Stud Assoc J Intl & Comp L 315 Muhammad S, B Holá and A Dirkzwager, ‘Reimagining the ICC: Exploring Practitioners’ Perspectives on the Effectiveness of the International Criminal Court’ (2021) 21(1) Int’l Crim L Rev 126 Mukherjee G, ‘Achieving Reconciliation Through Prosecution in the Courts: Lessons from Rwanda’ (2011) 28(3) Conflict Resolution Q 331 Nicholson J, ‘‘Too High’, ‘Too Low’, or ‘Just Fair Enough’?: Finding Legitimacy Through the Accused’s Right to a Fair Trial’ (2019) 17 JICJ 351 Nkansah LA, ‘Justice within the Arrangement of the Special Court for Sierra Leone versus Local Perception of Justice: A Contradiction or Harmonious?’ (2014) 22 Afr J Int’l & Comp L 103 Nouwen SMH and WG Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’ (2010) 21(4) EJIL 941 Nsanzuwera F-X, ‘The ICTR Contribution to National Reconciliation’ (2005) 3 JICJ 944 O’Connell J, ‘Gambling with the Psyche: Does Prosecuting Human Rights Violators Console Their Victims?’ (2005) 46(2) Harv Int’l L J 295 Ohlin JD, ‘A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law’ (2009) 14 UCLA J Int’l L & Foreign Aff 77 Olivier C, ‘Revisiting General Comment No. 29 of the United Nations Human Rights Committee: About Fair Trial Rights and Derogations in Times of Public Emergency’ (2004) 17 Leiden J Int’l L 405 Orentlicher D, ‘‘Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency’ (2007) 1 Int’l J Transitional Just 10 O’Sullivan E and D Montgomery, ‘The Erosion of the Right to Confrontation under the Cloak of Fairness at the ICTY’ (2010) 8 JICJ 511 Perez-Leon-Acevedo J-P, ‘Victims and Appeals at the International Criminal Court (ICC): Evaluation Under International Human Rights Standards’ (2021) 25(9) Int’l J Hum Rts 1598 Peskin V, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda’ (2005) 4(2) J Hum Rts 213 Pham PN, HM Weinstein and T Longman, ‘Trauma and PTSD Symptoms in Rwanda: Implications for Attitudes Toward Justice and Reconciliation’ (2004) 292(5) Journal of the American Medical Association 603 Philpott D, ‘An Ethic of Political Reconciliation’ (2009) 23 Ethics & Int’l Affairs 389 Philpott D, ‘The Justice of Forgiveness’ (2013) 41(3) J Religious Ethics 400 Posner EA, ‘Political Trials in Domestic and International Law’ (2005) 55 Duke Law Journal 75 Prorok AK, ‘The (In)Compatibility of Peace and Justice?: The International Criminal Court and Civil Conflict Termination’ (2017) 71 International Organization 213 Pues A, ‘A Victim’s Right to a Fair Trial at the International Criminal Court?’ (2015) 13 JICJ 951 Quinn JR, ‘Getting to Peace? Negotiating with the LRA in Northern Uganda’ (2009) 10 Hum Rts Rev 55 Rabkin J, ‘Global Criminal Justice: An Idea Whose Time has Passed’ (2005) 38Cornell Int’l L J 753

Bibliography

163

Ramji-Nogales J, ‘Designing Bespoke Transitional Justice: A Pluralist Process Approach’ (2010) 32 Mich J Int’l L 1 Ratner SR, ‘After Atrocity: Optimizing UN Action Toward Accountability for Human Rights Abuses’ (2015) 36 Michigan Journal of International Law 541 Rauschenbach M, ‘Individuals Accused of International Crimes as Delegitimized Agents of Truth’ (2018) 28(4) Int’l Crim Just Rev 291 Rauschenbach M and D Scalia, ‘Victims and International Criminal Justice: A Vexed Question?’ (2008) 90(870) International Review of the Red Cross 441 Rauxloh RE, ‘Negotiated History: The Historical Record in International Criminal Law and Plea Bargaining’ (2010) 10 Int’l Crim L Rev 739 Reisman M, ‘Legal Responses to Genocide and Other Massive Violations of Human Rights’ (1996) 59(4) Journal of Law & Contemporary Problems 75 Rieder H and T Elbert, ‘Rwanda – Lasting Imprints of a Genocide: Trauma, Mental Health and Psychosocial Conditions in Survivors, Former Prisoners and Their Children’ (2013) 7(6) Conflict and Health 1 Rijpkema P, ‘The Concept of a Global Rule of Law’ (2013) 4(2) Transnat’l Leg Theory 167 Robinson PL, ‘The Right to a Fair Trial in International Law, with Specific Reference to the Work of the ICTY’ (2009) 3 Berkeley Journal of Law International Law Publicist 1 Rodman KA, ‘Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court’ (2009) 22 LJIL 99 Rodman KA, ‘Justice as a Dialogue between Law and Politics: Embedding the International Criminal Court within Conflict Management and Peacebuilding’ (2014) 12 JICJ 437 Rodman KA, ‘Why the ICC should Operate Within Peace Processes’ (2012) 26(1) Ethics & International Affairs 59 Rodman KA and P Booth, ‘Manipulated Commitments: The International Criminal Court in Uganda’ (2013) 35 Hum Rts Q 271 Sadat Wexler L, ‘Reflections on the Trial of Vichy Collaborator Paul Touvier for Crimes Against Humanity’ (1995) 20 Law and Social Inquiry 191 Sander B, ‘Justice as Identity: Unveiling the Mechanics of Legitimation in Domestic Atrocity Trials’ (2018) 16 JICJ 203 Sander B, ‘Justice as Identity: Unveiling the Mechanics of Legitimation in Domestic Atrocity Trials’ ‘The Method Is the Message: Law, Narrative Authority and Historical Contestation in International Criminal Courts’ (2018) 19 Melb J Int’l L 299 Sarkin J, ‘The Tension Between Justice and Reconciliation in Rwanda: Politics, Human Rights, Due Process and the Role of the Gacaca Courts in Dealing with Genocide’ (2001) 45(2) J Afr L 143 Sarkin J, ‘Achieving Reconciliation in Divided Societies’ (2008) 3 Yale Journal of International Affairs 11 Sarkin J, ‘Enhancing the Legitimacy, Status, and Role of the International Criminal Court Globally by Using Transitional Justice and Restorative Justice Strategies’ (2011) 6(1) Interdisc J Hum Rts L 83 Sarkin J and E Daly, ‘Too Many Questions, Too Few Answers: Reconciliation in Transitional Societies’ (2004) 35 Colum Hum Rts L Rev 661 Schabas WA, ‘Sentencing by International Tribunals: A Human Rights Approach’ (1997) 7 (2) Duke J Comp & Int’l L 461 Scharf MP, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’ (1999) 32Cornell Int’l L J 507

164 Bibliography Schrag M, ‘Lessons Learned from ICTY Experience’ (2004) 2JICJ 427 Simic´ O and B Holá, ‘A War Criminal’s Remorse: The Case of Landžo and Plavšic´’ (2020) 21Hum Rts Rev 267 Simpson G, ‘“From the Normative to the Transformative”: Defining and Promoting Justice and Human Rights as Part of Violence Conflict Prevention and Peacebuilding’ (2017) 9 Journal of Human Rights Practice 379 Sloan RD, ‘The Expressive Capacity of International Punishment: The Limits of the National Law Analogy and the Potential of International Criminal Law’ (2007) 43 Stanford J Int’l L 39 Snyder J and L Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’ (2004) 28(3) International Security 5 Sriram CL, ‘Beyond Transitional Justice: Peace, Governance and Rule of Law’ (2017) 19 (1) International Studies Review 53 Souáre IK, ‘The International Criminal Court and African Conflicts: The Case of Uganda’ (2009) 36(121) Review of African Political Economy 369 Stahn C, ‘Editorial: Between “Faith” and “Facts”: By What Standards Should We Assess International Criminal Justice?’ (2012) 25(2) Leiden J Int’l L 251 Staub E, ‘Reconciliation after Genocide, Mass Killing, or Intractable Conflict: Understanding the Roots of Violence, Psychological Recovery and Steps Toward a General Theory’ (2006) 27 Political Psychology 867–894. Steele SL, ‘Victim-Witnesses in the International Criminal Court: Justice for Trauma or the Trauma of Justice’ (2005) 12 Aust Int’l L J 99 Steinert CV, ‘Trial Fairness Before Impact: Tracing the Link Between Post-Conflict Trials and Peace Stability’ (2019) 45(6) International Interactions 1003 Struett MJ, ‘Why the International Criminal Court Must Pretend to Ignore Politics’ (2012) 26(1) Ethics & International Affairs 83 Subotic J, ‘Truth, Justice, and Reconciliation on the Ground: Normative Divergence in the Western Balkans’ (2015) 18(3) J Int’l Rel & Dev 361 Thoms ONT, J Ron and R Paris, ‘State-Level Effects of Transitional Justice: What Do We Know?’ (2010) 4 Int’l J Transitional Just 329 Tromp N, ‘Misjudging the History at the ICTY: Transitional and Post-Transitional Narratives About Genocide in Bosnia and Herzegovina’ (2020) 5(3) European Papers 1191 Turner JI, ‘Defense Perspectives on Law and Politics in International Criminal Trials’ (2008) 48 Va J Int’l L 529 Tyler TR, ‘Social Justice: Outcome and Procedure’ (2000) 35 Int’l J Psychology 117 Vinjamuri L, ‘Deterrence, Democracy and the Pursuit of International Justice’ (2010) 24 (2) Ethics & International Affairs 191 Wagner L and D Druckman, ‘Drivers of Durable Peace: The Role of Justice in Negotiating Civil War Termination’ (2017) 26 Group Decision and Negotiation 45 Wald PM, ‘Dealing with Witnesses in War Crimes Trials: Lessons from the Yugoslav Tribunal’ (2002) 5 Yale Hum Rts & Dev L J 217 Warbrick C, ‘International Criminal Courts and Fair Trial’ (1998) 3J Armed Conflict L 45 Weinstein HM, ‘Editorial Note: The Myth of Closure, the Illusion of Reconciliation: Final Thoughts on Five Years as Co-Editor-in-Chief’ (2011) 5 Int’l J Transitional Just 1 Wippman D, ‘Atrocities, Deterrence, and the Limits of International Justice’ (1999) 23 Fordham Int’l L J 473 Wheeler CH, ‘Rights in Conflict: The Clash Between Abolishing the Death Penalty and Delivering Justice to the Victims’ (2018) 18 Int’l Crim L Rev 354

Bibliography

165

Wheeler CH, ‘Unquestioned Testimony: How the Dimunition of Live Testimony Threatens the Accused’s Right to be Present During International Criminal Trials’ (2019) 52(3) Cornell Int’l L J 545 Wheeler CH, ‘Shifting Priorities: Are Attitudes Changing About at the International Criminal Court about Trial in absentia?’ (2021) 21 Int’l Crim L Rev 97 Williams J, ‘Slobodan Milosevic and the Guarantee of Self-Representation’ (2007) 32 Brooklyn J Int’l L 553 Zappalà S, ‘The Rights of Victims v. the Rights of the Accused’ (2010) 8JICJ 137 Zorbas E, ‘Reconciliation in Post-Genocide Rwanda’ (2004) 1(1) Afr J Leg Studies 29 Non-Governmental Organisation Reports Bhuta N, H Megally, HM Weinstein, PN Pham, E Stover, P van Zyl, S Grego and S Rutledge (eds), Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction (Human Rights Center, UC Berkeley School of Law 2004) Cody S, E Stover, A Koenig and R Mejia, Bearing Witness at the International Criminal Court: An Interview Survey of 109 Witnesses (Human Rights Center, UC Berkeley School of Law 2014) Hirst M and S Sahyouni, ‘Effective Legal Representation for Participating Victims: Principles, Challenges and Some Solutions’ in R Jasini and G Townsend (eds), Advancing the Impact of Victim Participation at the International Criminal Court: Bridging the Gap Between Research and Practice (International Criminal Court Bar Association 2020) Human Rights Center, The Victims’ Court?: A Study of 622 Victim Participants at the International Criminal Court (UC Berkeley School of Law 2015) Human Rights Watch, Selling Justice Short: Why Accountability Matters (Human Rights Watch 2009) Humanitarian Law Center, Press Release: Serbian Supreme Court Obstructs War Crimes Trials (Humanitarian Law Center, 19 September 2008) accessed 18 July 2022. Ilic Z, ‘Psychological Preparation of Torture Victims as Witnesses towards the Prevention of Retraumatisation’ in Ž Špiric, G Kneževic, V Jovic and G Opacic (eds), Torture in War: Consequences and Rehabilitation of Victims – Yugoslav Experience (J Antonijevic (trans) International Aid Network 2004) Institute for Integrated Transitions, Rethinking Peace and Justice, 8 accessed 11 May 2020. International Bar Association, Resolution on the Rule of Law (September 2005) accessed 25 January 2022. Jennings S, ‘Plavsic Reportedly Withdraws Guilty Plea’ (Institute for War and Peace Reporting, 31 January 2009) accessed 14 January 2022. King K, J Meernik, S Rupert, T de Smit and H Vranov Schoorl, Echoes of Testimonies: A Pilot Study into the Long-Term Impact of Bearing Witness Before the ICTY (University of North Texas/VWS International Criminal Tribunal for the former Yugoslavia 2016) Lie TG, HM Binningsbø and S Gates, Post Conflict Justice and Sustainable Peace, PostConflict Transitions Working Paper No 5, World Bank Policy Research Working Paper 4191 (World Bank 2007)

166 Bibliography Massida P, ‘Retributive and Restorative Justice for Victims: Considerations on the Lubanga Proceedings Before the ICC’ in Victims at the Center of Justice: From 1998 to 2018: Reflections on the Promises and the Reality of Victim Participation at the ICC (FIDH 2018) Open Societies Justice Initiative, Dead End at Cambodia’s Khmer Rouge Tribunal: Next Steps for the UN (29 April 2020) accessed 15 February 2022. Pham PN, P Vinck, E Stover, A Moss, M Wierda and R Bailey, When the War Ends: A Population-Based Survey on Attitudes About Peace, Justice, and Social Reconstruction in Northern Uganda (Human Rights Center, UC Berkeley School of Law; Payson Center for International Development Tulane University; International Center for Transitional Justice 2007) Pham P and P Vinck, Transitioning to Peace: A Population-Based Survey on Attitudes About Social Reconstruction and Justice in Northern Uganda (Human Rights Center, UC Berkeley School of Law 2010) Pham P, P Vinck, M Balthazard and S Hean, After the First Trial: A Population Based Survey on Knowledge and Perception of Justice and the Extraordinary Chambers in the Courts of Cambodia (Human Rights Center, UC Berkeley School of Law 2011) Smith LAA and S Meli, Making Justice Count: Assessing the Impact and Legacy of the Special Court for Sierra Leone in Sierra Leone and Liberia (No Peace Without Justice 2012) Tolbert D, ‘Truth is the First Step Towards Peace’International Center for Transitional Justice (24 March 2016) accessed 25 July 2022. Vinck P and PN Pham, Building Peace Seeking Justice: A Population-Based Survey on Attitudes About Accountability and Social Reconstruction in the Central African Republic (Human Rights Center, UC Berkeley School of Law 2010) Vinck P and PN Pham, Searching for Lasting Peace: Population-Based Survey on Perceptions and Attitudes about Peace, Security and Justice in Eastern Democratic Republic of the Congo (Harvard Humanitarian Initiative and United Nations Development Programme 2014) Other Resources ‘ICC – President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC’ (29 January2004) accessed 6 July 2021. ‘Israel ‘Will Not Cooperate’ with ICC War Crimes Investigation’ (BBC, 9 April 2021) accessed 4 June 2021. Beaumont P, ‘ICC Opens Investigation into War Crimes in Palestinian Territories’ (The Guardian, 3 March 2021) accessed 4 June 2021. Bolton J, ‘Full Text of Speech to the Federalist Society’ (Al Jazeera, 10 September 2018) accessed 4 June 2021. Burke J, ‘Finding Them is not Rocket Science: The Hunt for the Rwandan Genocide Fugitives’ (The Guardian, 3 November 2020) accessed 27 July 2022.

Bibliography

167

Radio Canal Révélation, ‘Reactions from the Population of Bunia to the Possibility of Holding Closing Statements in Situ’ (International Justice Monitor, 1 March 2018) accessed 26 May 2022. Reuters, ‘Text of Power-Sharing Agreement in Kenya’ (28 February 2008) accessed 12 July 2021. Sorguc A, ‘Bosnian Serbs’ War Commissions: Fact-seeking or Truth Distorting?’ (Balkan Insight, 25 February 2019) accessed 15 March 2021. Table of Authorities Conventions and Treaties United Nations, Charter of the United Nations (24 October 1945) 1 UNTS XVI UN General Assembly, Universal Declaration of Human Rights (10 December 1948) 217 A (III) Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14 (adopted 4 November 1950, entered into force 3 September 1953) ETS 5 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention) (12 August 1949) 75 UNTS 31 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention) (12 August 1949) 75 UNTS 85 Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) (12 August 1949) 75 UNTS 135 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (12 August 1949) 75 UNTS 287 International Law Commission, ‘Draft Convention for the Creation of an International Criminal Court’ in International Law Commission (eds), Historical Survey of the Question of International Criminal Jurisdiction (United Nations 1949) International Law Commission, ‘Draft Statute of the International Penal Court as Amended by the Permanent International Criminal Court Committee of the International Law Commission’ in International Law Commission (eds), Historical Survey of the Question of International Criminal Jurisdiction (United Nations 1949) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977) 1125 UNTS 3 UN General Assembly, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) United Nations, Treaty Series, vol 1465, 85 UN General Assembly, Arms Trade Treaty (adopted 2 April 2013, entered into force 24 December 2014) UN Treaty Series, vol 3013 UN Economic and Social Council, Draft Convention on the Crime of Genocide (28 March 1947) UN Doc E/447

168 Bibliography Statutes of International Criminal Courts and Tribunals Charter of the International Military Tribunal – Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (8 August 1945) Charter of the International Military Tribunal for the Far East (19 January 1946) UN Security Council, Statute of the International Criminal Tribunal for the former Yugoslavia (25 May 1993) UN Security Council, Statute of the International Criminal Tribunal for Rwanda (8 November 1994) Rome Statute of the International Criminal Court (17 July 1998) UN Security Council, Statute of the Special Court for Sierra Leone (16 January 2002) Law On The Establishment Of Extraordinary Chambers In The Courts Of Cambodia For The Prosecution Of Crimes Committed During The Period Of Democratic Kampuchea (27 October 2004) UN Security Council, Statute of the Special Tribunal for Lebanon (30 May 2007) UN Security Council, Statute of the United Nations Mechanism for International Criminal Tribunals (22 December 2010) Statute of the Extraordinary African Chambers within the Senegalese judicial system for the prosecution of international crimes committed on the territory of the Republic of Chad during the period from 7 June 1982 to 1 December 1990 (2013) Law on Specialist Chambers and Specialist Prosecutor’s Office (3 August 2015) National Constitutions Constitution of Bosnia and Herzegovina (1995); appended as Annex 4, The General Framework Agreement for Peace in Bosnia and Herzegovina (agreed 21 November 1995, signed 14 December 1995) Constitution of the Kingdom of Cambodia (enacted 1993, revised 2008) accessed 14 February 2022. International Rules of Procedure and Evidence Rules of Procedure and Evidence, Special Tribunal for Lebanon (29 November 2010) Rules of Procedure and Evidence, Special Court for Sierra Leone (as amended 31 May 2012) Rules of Procedure and Evidence, International Criminal Court (as amended 2013) Rules of Procedure and Evidence, Special Tribunal for Lebanon (as corrected 3 April 2014) Internal Rules, Extraordinary Chambers in the Courts of Cambodia (as amended 16 January 2015) Rules of Procedure and Evidence, International Criminal Tribunal for Rwanda (as amended 13 May 2015) Rules of Procedure and Evidence, International Criminal Tribunal for the former Yugoslavia (as amended 8 July 2015) Rules of Procedure and Evidence, United Nations Mechanism for International Tribunals (as amended 26 September 2016) Rules of Procedure and Evidence Before the Kosovo Specialist Chambers (28 March 2017) National Legislation Acuerdo Final Para la Terminacio´n del Conflicto y la Construccio´n de una Paz Estable y Duradera (12 November 2016) (Colombia) accessed 17 June 2021 Amnesty Act, 2000 (Uganda) < https://ihl-databases.icrc.org/applic/ihl/ihl-nat.nsf/0/ 7d2430f8f3cc16b6c125767e00493668/$file/ugandan+amnesty+act+2000.pdf> accessed 5 July 2021 International Crimes (Tribunals) Act (1973, amended 2011) (Bangladesh) Ley 975 de 2005 (25 June 2005) Diario Oficial No. 45.980 (Colombia) accessed 17 June 2021 National Accord and Reconciliation Act,2008 (Republic of Kenya) accessed 12 July 2021 Police and Criminal Evidence Act (United Kingdom) 1984 United States’ Federal Rules of Evidence (2022) UN Documents Commission on Human Rights Commission on Human Rights, Report of the Secretary-General Prepared Pursuant to SubCommission Resolution 1993/26, UN Doc E/CN.4/Sub.2/1994/26 (13 June 1994) Commission on Human Rights, ‘Report of the Independent Expert to Update the Set of Principles to Combat Impunity, Diane Orentlicher’No E/CN.4/2005/102/Add.1 (8 February 2005) Committee Against Torture UN Committee Against Torture, General Comment No 3 (13 December 2012) UN Doc CAT/C/GC/3 Economic and Social Council. UN Economic and Social Council, ‘Updated Set of principles for the protection and promotion of human rights through action to combat impunity’ UN Doc. E/CN.4/2005/ 102/Add.1 (8 February 2005) Human Rights Committee Human Rights Committee, General Comment 13, Article 14 (Twenty-first session, 1984), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/Rev.1 (1994) Human Rights Committee, General Comment 29: State of Emergency (article 4) (31 August 2001) UN Doc CCPR/C/21/Rev.1/Add.1 Human Rights Committee, General Comment 32: Article 14: Right to Equality Before Courts and Tribunals and to a Fair Trial (23 August 2007) UN Doc CCPR/C/GC/32 Human Rights Council Human Rights Council, ‘Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar’ (17 September 2018)

170 Bibliography Office of the High Commissioner for Human Rights Office of the High Commissioner for Human Rights, General Comment 13, Article 14: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (1994) Office of the High Commissioner for Human Rights, ‘Promotion and Protection of Human Rights: Study on the Right to Truth’ (8 February 2006) UN Doc. E/CN.4/ 2006/91 Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence, Annual Report (14 October 2014) No A/69/518 Office of the UN High Commissioner for Human Rights Press Release, ‘Zeid urges Maldives to retain long-standing moratorium on death penalty’ (9 August 2017) accessed 13 April 2017. Secretary-General UN Secretary-General ‘An Agenda for Peace’ (17 June 1992) UN Doc A/47/277-S/ 24111 UN Secretary-General, ‘Press Release: UN Secretary-General Declares Overriding Interest of International Criminal Court Conference Must be that of Victims and World Community as a Whole’ (15 June 1998) UN Doc SG/SM/6597 L/2871 UN Secretary-General, ‘Report of the Secretary-General on the Sudan’ (14 June 2006) UN Doc S/PV.5459 UN Secretary-General, ‘Delivering Justice: Programme of Action to Strengthen the Rule of Law at the National and International Levels’ (16 March 2012) UN Doc A/66/749 UN Secretary-General, ‘United Nations Verification Mission in Colombia: Report of the Secretary-General’ (25 June 2021) UN Doc S/2021/603 Security Council UN Security Council, Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Security Council Meeting (25 May 1993) UN Doc S/PV.3217 UN Security Council, ‘Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991’ (29 August 1994) UN Doc S/1994/1007 UN Security Council, ‘Fourth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991’ (18 September 1997) UN Doc S/1997/729 UN Security Council, ‘Fifth Annual Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former Yugoslavia since 1991’ (10 August 1998) UN Doc S/1998/737 UN Security Council, Provisional Verbatim Record of the Four Thousand One Hundred and Sixty-First Meeting of the United Nations Security Council (20 June 2000) UN Doc S/PV.4161 UN Security Council, Report of the Secretary-General: The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (24 August 2004) UN Doc S/2004/616

Bibliography

171

UN Security Council, Provisional Verbatim Record of the Seven Thousand One Hundred Thirteenth Meeting of the United Nations Security Council (19 February 2014) UN Doc S/PV.7113 UN Security Council, ‘Report of the UN Secretary-General on the Situation in Central Africa and the Activities of the United Nations Regional Office for Central Africa (1 June 2021) UN Doc S/2021/517 UN Security Council, ‘United Nations Verification Mission in Colombia: Report of the Secretary-General’ S/2021/603 (25 June 2021) UN Resolutions General Assembly UNGA UNGA UNGA UNGA

Resolution Resolution Resolution Resolution

40/34 (29 November 1985) UN Doc A/RES/40/34 60/147 (16 December 2005) UN Doc A/RES/60/147 61/17 (20 November 2006) UN Doc A/RES/61/17 67/1 (30 November 2012) UN Doc A/Res/67/1

Security Council UNSC UNSC UNSC UNSC UNSC UNSC UNSC UNSC UNSC UNSC UNSC UNSC UNSC

Resolution Resolution Resolution Resolution Resolution Resolution Resolution Resolution Resolution Resolution Resolution Resolution Resolution

808 (22 February1993) UN Doc S/RES/808 827 (25 May 1993) UN Doc S/RES/827 955 (8 November 1994) UN Doc S/RES/955 1165 (30 April 1998) UN Doc S/RES/1165 1166 (13 May 1998) UN Doc S/RES/1166 1315 (14 August 2000) UN Doc S/RES/1315 1329 (5 December 2000) UN Doc S/RES/1329 1503 (28 August 2003) UN Doc S/RES/1503 1534 (26 March 2004) UN Doc S/RES/1534 1757 (30 May 2007) UN Doc S/RES/1757 1966 (22 December 2010) UN Doc S/RES/1966 2256 (22 December 2015) UN Doc S/RES/2256 2422 (27 June 2018) UN Doc S/RES/2422

International Criminal Court and Tribunal Documents Extraordinary Chambers of the Courts of Cambodia ECCC President, ‘Opening Speech by the Plenary’s PresidentJudge Kong Srim, During the 8th Plenary of the Extraordinary Chambers of the Courts of Cambodia (ECCC) on 13th September 2010’ (13 September 2010) 3 accessed 28 July 2022. International Criminal Court ICC, Rules of Procedure of the Assembly of States Parties of the ICC (adopted 17 July 1998) ICC, Code of Professional Conduct for Counsel, Doc No ICC-PIOS-LT-3–2/15_Eng (2011)

172 Bibliography ICC Elements of Crimes, Official Records of the Review Conference of the Rome Statute of the International Criminal Court, Kampala, 31 May-11 June 2010 (2011) ICC Office of the Prosecutor, Policy Paper on the Interests of Justice (2 September 2007) ICC Office of the Prosecutor, Eleventh Diplomatic Briefing of the International Criminal Court, Statement by Mr. Luis Moreno Ocampo (10 October 2007) Office of the Prosecutor, Situation in Colombia: Interim Report (November 2012) ICC Office of the Prosecutor, ‘Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the peace negotiations between the Government of Colombia and the Revolutionary Armed Forces of Colombia – People’s Army’ (1 September 2016) accessed 17 June 2021. ICC Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’ (15 September 2016) ICC Office of the Prosecutor, Report on Preliminary Examination Activities (14 November 2016) ICC Office of the Prosecutor, ‘Situation in Colombia Benchmark Consultation’ (15 June 2021) ICC Press Release, ‘ICC – President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC’ (29 January 2004) ICC Doc ICC-20040129– 20040144. ICC Press Release, ICC Prosecutor visits Egypt and Saudi Arabia (9 May 2008) ICC Doc ICC-CPI-20080509-MA13 ICC Press Release, ICC launches commemorations for 17 July – International CriminalJustice Day (6 July 2012) ICC Doc ICC-CPI-20120706-PR822 ICC Press Release, ‘Statement by the Prosecutor of the International Criminal Court Mrs. Fatou Bensouda’ (22 October 2012) accessed 2 August 2022. International Criminal Tribunal for the former Yugoslavia ICTY Press Release, ‘Statement by Justice Louise Arbour, Prosecutor of the ICTY during her visit to Zagreb, Croatia’ (20 July 1999) < www.icty.org/en/press/statement-justi ce-louise-arbour-prosecutor-icty-during-her-visit-zagreb-croatia> accessed 24 May 2022. Report to the President on the Death of Slobodan Miloševic´ (30 May 2006) accessed 28 July 2022. International Criminal Tribunal for Rwanda Sixteenth Annual Report of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States between 1 January and 31 December1994 (29 July 2011) UN Doc. S/2011/472 Special Court for Sierra Leone SCSL President, ‘Second Annual Report of the President of the Special Court for Sierra Leone’ (2005) 3 accessed 28 July 2022.

Bibliography

173

SCSL Office of Prosecutor, ‘Joint Statement, Sixth Colloquium of International Prosecutors’ (15 May 2011) accessed 28 July 2022. Special Tribunal for Lebanon First Annual Report of the Special Tribunal for Lebanon (2010) accessed 14 August 2018. Table of Cases Extraordinary Chambers in the Courts of Cambodia Prosecutor v Kaing Guek Eav (Decision on Civil Party Co-Lawyers’ Joint Request for a Ruling on the Standing of Civil Party Lawyers to Make Submissions on Sentencing and Directions Concerning the Questioning of the Accused, Experts and Witnesses Testifying on Character) 001/18–7-2007/ECCC/TC, T Ch (9 October 2009) Prosecutor v Meas (Case 003) (Decision on International Co-Prosecutor’s Appeal of the Pre-Trial Chamber’s Failure to Send Case 003 to Trial as Required by the ECCC Legal Framework) No 002/19–9–2007-ECCC/SC, S Ch (17 December 2021) Prosecutor v Yim (Case 004) (Decision on International Co-Prosecutor’s Appeal of the PreTrial Chamber’s Failure to Send Case 004 to Trial as Required by the ECCC Legal Framework) No 004/23–9–2021-ECCC/SC), S Ch (28 December 2021) International Court of Justice Application of the Genocide Convention Case (Bosnia and Herzegovina v Serbia and Montenegro) (Merits) [2007] ICJ Rep 43 Jadhav Case (India v Pakistan) (Declaration of Judge Robinson) [2019] ICJ 418 Questions Relating To The Obligation To Prosecute Or Extradite (Belgium v Senegal) (Judgment) [2012] ICJ Reports 422 International Criminal Court Situation in the Republic of Kenya (Request for Authorisation of an Investigation Pursuant to Article 15) ICC-01/09, PT Ch II (26 November 2009) Situation in Uganda (Warrant of Arrest for Joseph Kony Issued on 8 July 2005 as Amended on 27 September 2005) ICC-02/04–01/05, PT Ch II (27 September 2005) Situation in Uganda (Decision on Prosecutor’s Applications for Leave to Appeal Dated the 15th Day of May 2006 and to Suspend or Stay Consideration of Leave to Appeal Dated the 11th Day of May 2006) No ICC-02/04–01/05, PT Ch (10 July 2006) Prosecutor v Al Bashir (Victims’ Notification of Their Withdrawal from the Case Against Omar Hassan Ahmed al-Bashir) No ICC-02/5–1/09, PT Ch II (19 October 2015) Prosecutor v Al Mahdi (Trial Transcript) No ICC-01/12–1/15, T Ch VIII (22 August 2016) Prosecutor v Al Mahdi (Judgment and Sentence) No ICC-01/12–1/15, Tr Ch VIII (27 September 2016) Prosecutor v Banda and Jerbo (Decision on Common Legal Representation) No ICC-02/ 5–1/09, T Ch IV (25 May 2012)

174 Bibliography Prosecutor v Bemba (Fifth Decision on Victims’ Issues Concerning Common Legal Representation of Victims) No ICC-01/5–1/08, PT Ch III (16 December 2008) Prosecutor v Bemba et al. (Decision on Prosecution Motion for Clarification of Rule 68(3) Direction in Conduct of Proceedings Decision) ICC-01/5–1/13, T Ch (15 September 2015) Prosecutor v Bemba (Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo Agianst Trial Chamber III’s ‘Judgment Pursuant to Article 74 of the Statute: Separate Opinion Judge Christine van den Wyngaert and Judge Howard Morrison) No ICC-01/5–1/08, App Ch (8 June 2018) Prosecutor v Bemba (Judgment on the Appeal of Mr. Jean-Pierre Bemba Gombo Against Trial Chamber III’s ‘Judgment Pursuant to Article 74 of the Statute: Concurring Separate Opinion of Judge Eboe-Osuji) No ICC-01/5–1/08, App Ch (8 June 2018) Prosecutor v Gbagbo et al. (Reasons for oral decision of 15 January 2019 on the Requête de la Défense de Laurent Gbagbo afin qu’un jugement d’acquittement portant sur toutes les charges soit prononcé en faveur de Laurent Gbagbo et que sa mise en liberté immédiate soit ordonnée: Reasons of Judge Geoffrey Henderson) No ICC-02/11–01/ 15, T Ch I (16 July 2019) Prosecutor v Gbagbo et al. (Judgment in the Appeal of the Prosecutor Against Trial Chamber I’s Decision on the No Case to Answer Motions) ICC-02/11–1/15 A, A Ch (31 March 2021) Prosecutor v Gbagbo et al. (Dissenting Opinion of Judge Luz del Carmen Iba´n~ez Carranza to the Judgment on the appeal of the Prosecutor against the oral verdict of Trial Chamber 1 of 15 January 2019 with written reasons issued on 16 July 2019) ICC-02/ 11–01/15 A, A Ch (31 March 2021) Prosecutor v Katanga et al. (Decision on the Set of Procedural Rights Attached to Procedural Status of Victim at the Pre-Trial Stage of the Case) No ICC-01/4–1/7–474, PT Ch (13 May 2008) Prosecutor v Katanga (Judgment on the Appeal of Mr Katanga Against the Decision of Trial Chamber II of 22 January 2010 Entitled ‘Decision on the Modalities of Victim Participation at Trial) No ICC-01/04–01/07, A Ch (16 July 2010) Prosecutor v Katanga (Judgment Pursuant to Article 74 of the Statute: Minority Opinion of Judge Christine Van den Wyngaert) No. ICC-01/4–1/07, T Ch II (7 March 2014) Prosecutor v Katanga (Order for Reparations Pursuant to Article 75 of the Statute) ICC01/4–1/07, T Ch II (24 March 2017) Prosecutor v Kenyatta et al. (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute) ICC-01/9–2/11, PT Ch II (23 January 2012) Prosecutor v Kony et al. (Decision on victims’ applications for participation a/0010/06, a/ 0064/06 to a/0070/06, a/0081/06 to a/0104/06 and a/0111/06 to a/0127/06) No ICC-02/4–1/05, PT Ch II (10 August 2007) Prosecutor v Lubanga (Decision on the Prosecution’s Application for Leave to Appeal the Chamber’s Decision of 17 January 2006 on the Applications for Participation on the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6) No ICC-01/ 4–1/06, PT Ch I (31 March 2006) Prosecutor v Lubanga (Judgment on the Appeal of Mr. Thomas Lubanga Dyilo against the Decision on the Defence Challenge to the Jurisdiction of the Court pursuant to Art. 19 (2)(a) of the Statute of 3 October 2006) No ICC-01/04–01/06, A Ch (14 December 2006) Prosecutor v Lubanga (Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the

Bibliography

175

prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008) ICC-01/04–01/06, T Ch I (15 June 2008) Prosecutor v Lubanga (Decision on Victims’ Participation) ICC-01/4–1/06, T Ch I (18 June 2008) Prosecutor v Lubanga (Judgment on the Appeals of The Prosecutor and The Defence Against Trial Chamber I’s Decision on Victims’ Participation of 18 January2008) ICC01/04–01/06, A Ch (11 July 2008) Prosecutor v Lubanga (Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled “Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008”) ICC-01/4–1/06, A Ch (21 October 2008) Prosecutor v Lubanga (Public Redacted Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU) No. ICC01/4–1/06, T Ch I (10 July 2010) Prosecutor v Lubanga (Judgment on the Appeal of the Prosecutor Against the Decision of Trial Chamber I of 8 July 2010 entitled “Decision on the Prosecution’s Urgent Request for Variation of the Time-Limit to Disclose the Identity of Intermediary 143 or Alternatively to Stay Proceedings Pending Further Consultations with the VWU”) No ICC01/04–01/06, A Ch (8 October 2010) Prosecutor v Lubanga (Public Redacted Version Closing Submissions of the Legal Representatives of Victims a/0047/06, a/0048/06, a/0050/06 and a/0052/06), T Ch (31 May 2011) Prosecutor v Lubanga (Judgment Pursuant to Article 74 of the Statute) ICC-01/4–1/06, T Ch I (14 March 2012) Prosecutor v Lubanga (Decision Establishing Principles and Procedures to be Applied to Reparations) No. ICC-01/4–1/06, T Ch I (7 August 2012) Prosecutor v Ntaganda (Judgment) ICC-01/4–2/06, T Ch VI (8 July 2019) Prosecutor v Ongwen (Trial Transcript) No ICC-02/4–1/15-T-65-Red-ENG, T Ch IX (4 April 2017) Prosecutor v Ongwen (Trial Judgment) No ICC-02/4–1/15, T Ch IX (4 February 2021) Prosecutor v Ruto et al. (Decision on the Confirmation of Charges Pursuant to Article 61 (7)(a) and (b) of the Rome Statute) ICC-01/9–1/11, PT Ch II (23 January 2012) Prosecutor v Rutoet al. (Decision of the Plenary of Judges on the Joint Defence Application for a Change of Place where the Court Shall Sit for Trial in the case of The Prosecutor v William Samoei Ruto and Joshua Arap Sang) ICC-01/9–1/11–875-Anx, Plenary of Judges (26 August 2013) Prosecutor v Ruto et al. (Decision on Defence Applications for Judgments of Acquittal: Reasons of Judge Eboe-Osuji) No ICC-01/9–1/11, T Ch V(A) (5 April 2016) International Crimes Tribunals (Bangladesh) Chief Prosecutor v Azad (Judgment) Case No 05 of2012, ICT-2 (21 January 2013) International Criminal Tribunal for the former Yugoslavia Prosecutor v Blagojevic´ (Judgment) No IT-2–60-A, A Ch (9 March 2007) Prosecutor v Furundžija (Judgement) No IT-95–17/1-T, T Ch (10 December 1998)

176 Bibliography Prosecutor v Haradinaj et al. (Judgement) No IT-4–84-A, A Ch (19 July 2010) Prosecutor v Karadžic´ (Defence Final Trial Brief) No IT- 95–95/1-T, T Ch (29 September 2014) Prosecutor v Karadžic´ (Public Redacted Version of Judgement Issued on 24 March 2016) No IT-95–5/18-T, T Ch (24 March 2016) Prosecutor v Krajišnik and Plavšic´ (Amended Consolidated Indictment) IT-00–39 & 40PT, Prosecutor (7 March 2002) Prosecutor v Krajišnik and Plavšic´ (Plea Agreement) IT-00–39 & 40-PT (14 September 2002) Prosecutor v Krasjišnik (Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts and for Admission of Written Statements of Witnesses Pursuant to Rule 92bis) No IT-00–39-PT, T Ch (28 February 2003) Prosecutor v Krajišnik (Judgement) IT-00–39-A, A Ch (17 March 2009) Prosecutor v Krstic´ (Judgement) IT-98–33-T, T Ch (2 August 2001) Prosecutor v Krstic´ (Judgment) No IT-98–33-A, A Ch (19 April 2004) Prosecutor v Kunarac (Sentencing Judgment) No IT-96–23, T Ch (22 February 2001) Prosecutor v Limaj (Decision on Fatmir Limaj’s Request for Provisional Release) IT-3–66AR65, A Ch (31 October 2003) Prosecutor v Miloševic´ (Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts) No IT-2–54-T, T Ch (10 April 2003) Prosecutor v Miloševic´ (Decision on the Prosecution’s Interlocutory Appeal Against the Trial Chamber’s 10 April 2003 Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts) No IT-02–54-AR73.5, A Ch (28 October 2003) Prosecutor v Miloševic´ (Decision on Prosecution Motion for Judicial Notice of Adjudicated Facts) No IT-2–54-T, T Ch (16 December 2003) Prosecutor v Miloševic´ (Reasons for Decision on Assignment of Defence Counsel) IT-2–54T, T Ch (22 September 2004) Prosecutor v Miloševic´ (Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Defence Counsel) IT-2–54-AR73.7, A Ch (1 November 2004) Prosecutor v Mladic´ (Judgement) No IT-9–92-T, T Ch (22 November 2017) Prosecutor v MomirNikolic´ (Judgment), No IT-2–60/1, T Ch (2 December 2003) Prosecutor v MomirNikolic´ (Sentencing Judgment), IT-2–60/1-S, T Ch (2 December 2003) Prosecutor v DraganNikolic´ (Sentencing Judgement) IT-94–92-S, T Ch (18 December 2003) Prosecutor v Plavšic´ (Sentencing Judgment) IT-00–39&40/1-S, T Ch (27 February 2003) Prosecutor v Popovic´ et al. (Appeals Judgement) IT-5–88-A, A Ch (30 January 2015) Prosecutor v Simic´ et al. (Judgement) IT-95–99-T, T Ch II (17 October 2003) Prosecutor v Stanišic´ et al. (Transcript) MICT-15–96-T, T Ch (30 June 2021) International Criminal Tribunal for Rwanda Prosecutor v Bagosora et al. (Decision on the Prosecutor’s Motion for Judicial Notice Pursuant to Rules 73, 89 and 94) ICTR-98–41-T, T Ch (11 April 2003) Prosecutor v Karemera et al. (Decision on Prosecutor’s Interlocutory Appeal of Decision on Judicial Notice) ICTR-98–44-AR73(c), A Ch (16 June 2006) Prosecutor v Nahimana et al. (Judgement and Sentence) ICTR-99–52-T, T Ch I (3 December 2003) Prosecutor v Rutaganda (Judgement and Sentence) ICTR-96–93-T, T Ch I (6 December 1999)

Bibliography

177

Prosecutor v Semanza (Decision on the Prosecutor’s Motion for Judicial Notice and Presumptions of Facts Pursuant to Rules 94 and 54) ICTR-97–20-I, T Ch (3 November 2000) Prosecutor v Setako (Appeals Judgment) ICTR-4–81-A, A Ch (28 September 2011) International Military Tribunal, Nuremberg Judgment of 1 October 1946, Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, vol 1 (1947) Special Court for Sierra Leone Prosecutor v Brima et al. (Decision on the Prosecution Motion for Judicial Notice and Admission of Evidence) SCSL-4–16-PT, PT Ch (25 October 2005) United States United States of America v Viktor Bout (Indictment) United States District Court for the Southern District of New York, available at < www.asser.nl/upload/documents/Dom. CLIC/Docs/NLP/US/Bout_Indictment_17-02-2010.pdf> accessed 22 September 2021.

Index

1937 Draft Convention for the Creation of an International Criminal Court 122–23 Academic community 13 Accountability 2–3, 6–9, 11–13, 15–21, 23–28, 31, 37, 51–52, 54, 56–57, 62, 64, 70, 72–4, 76, 78–81, 83, 85–90, 95–97, 102, 104–105, 115, 120–2, 125, 129–30, 134, 143–48 Legal Accountability 2, 6, 56, 143–45, 147 Accountability mechanisms 6, 74, 82, 86, 120 Commissions of inquiry 6 Guarantees of non-repetition 6, 127 Memorialisation of victims 6 Trials 6–9, 11–15, 17–19, 21, 23–24, 27–30, 32–49, 51–65, 67–74, 82, 84–85, 89–90, 93, 95–97, 101, 105–111, 113–118, 121–122, 125–126, 128–129, 131–142, 143–148 Truth and Reconciliation Commissions 6, 147 Accusatorial system, see Adversarial system Accused 1, 3, 6–7, 9–11, 13, 15–16, 18, 20, 27–28, 32, 37–39, 43–49, 51–54, 56–57, 59, 61–62, 68–70, 72–74, 87, 91, 93, 105, 109–112, 114–16, 121, 124–125, 128–136, 139, 141, 143–146 Presumption of innocence 9, 44–45, 57, 137 Right to be present 13, 45, 47, 145 Right to counsel 44–45, 47–48 Right to confrontation 133 Right to an expeditious trial 10, 48, 74 Right to a fair trial 9, 11–12, 15, 43–49, 52, 60, 68, 70, 74, 137, 139–140, 144–148

Right to prepare a defence 68 Right to self-representation 47–48 Acquittals 6, 56–57, 141 Ad hoc Tribunals 3, 42, 45, 61, 78, 91, 124 Adjourning trials 47 Adjudication 96 Administration of Justice 43 Adversarial system 52, 116, 133 Affected communities 13, 103, 106–107, 148 Afghanistan 89 Aggression, Crime of, see Atrocity crimes Allied Powers 62 Amicus Curiae 15 Amnesties 79–80, 82, 86–87, 92, 95 Anglo/American System, see Adversarial system Annan, Kofi 120 Apology 98, 102, 111–115, 127 Arbitrary and capricious decisions 7, 29–30, 43, 117 Arbour, Louise 119 Arms Trade Treaty 88–89 Arrest warrants 81–84, 91, 93–94, 97, 135 Atrocity crimes Aggression 1, 78 Crimes against humanity 1, 16, 80, 89, 92 Genocide 1, 16, 19, 21–22, 25–26, 55–56, 59–62, 67–68, 89, 91, 100–101, 113, 123, 132 Torture 22–25, 86 War crimes 1, 16, 42, 89, 109 Ayoola, Emmanuel 120 Balkans, the 64, 102 Bangladesh 46–47 International Crimes Tribunals, see International Crimes Tribunals (Bangladesh)

Index 179 Barayagwiza, Jean-Bosco 13 Al Bashir, Omar 135–136 Basic, Goran 115 Belgrade War Crimes Chamber 42 Bensouda, Fatou 40, 86–87, 119 Blagojevic´, Vidoje 45 Bolton, John 14 Bosnia and Herzegovina 25, 42, 62, 66–67, 89, 91, 103, 114 Bosnian Muslims 66–67 Bosnian Serbs 68 Bout, Viktor 88–90 Broache, Michael 91 Brounéus, Karen 132 Cambodia 38–40, 71, 120, 124, Constitution 38 Capital Punishment 19, 22, 24–26 Cassese, Antonio 8, 102–103, 120, Caus, Jessica 42 Center for Victims of Torture 130 Central African Republic 19, 71, 82–83, 128, 131, Child soldiers 33, 73, 95 Abduction 80, 86 Enlistment 33, 80, 86, 95 Use in hostilities 33, 73, 95 Civil party actions 138–140 Clark, Janine 67, 103 Colombia 85–90, 97 Autodefensas Unidas de Colombia 85 Fuerzas Armadas Revolucionarias de Colombia – Ejércita del Pueblo 85, 87, 90 Ejército de Liberación Nacional 85 Justice and Peace Law 2005 85–6 Peace Accord 2016 85–6 Complementarity 2, 87 Convention Against Torture 24 Conviction 7, 11, 15–17, 20, 25, 27, 33, 40–41, 43–46, 52, 62, 89–90, 92–93, 95, 97, 102, 111, 115, 121, 124–125, 127, 130, 137, 139, 148 Côte d’Ivoire 20 Counsel 3, 48, 133, 138–139 Assistance of 3, 48, 133, 138–139 Defence 48 Imposed 48–49 Required to be represented by 44 Right to, see Accused, Right to counsel Withdrawal 126 Crimes against humanity, see Atrocity crimes

Crimes of international concern, see Atrocity crimes Criminal behaviour 18 Croatia 66, 103 Croats 66, 103 Damaška, Mirjan 15 Danieli, Yael 121 Day, Adam 42 Dayton Accords 91 Death penalty, see Punishment, Capital punishment Democracy 32, 65 Democratic Republic of Congo 20, 22, 33, 82–83, 89, 91–92, 95, 97, 107, 127, Ituri Province 95 National Congress for the Defense of the People/Movement of 23 March 91–92 Deterrence, see Punishment Developing the History 1, 52–54, 57, 60, 63–64, 68–69, 71–72, 101, 108, 114, 144–145 Dirkzwager, Anja 4 Disruption of trial 48 Domestic legal systems 1, 4, 7–8, 10, 12, 18, 26, 28–29, 32, 34, 36–38, 40–41, 42, 46, 50, 88–90, 96, 101, 104, 113, 123, 143, 145 Due Process 38, 41, 133 Duty 10, 17, 48–49 Affirmative 17 Non-derogable 17 East Timor, see Timor-Leste 105 ECCC, see Extraordinary Chambers in the Courts of Cambodia Equality 31, 44, 100, 113 Establishing the Truth 1, 3, 5, 7, 13, 51–57, 60–74, 98, 101–102, 107–111, 113–114, 122, 126, 132, 136, 141, 143, 145–148 Evidence 1, 7, 11, 44, 46, 51–57, 59–64, 68, 70, 72–74, 105, 108–111, 114, 130, 136–137, 139–140, 143, 145–147 Burden of production 61 Burden of proof 57, 137 Cumulative 74, 145 Exculpatory 46 Introduction of, see Presentation of Prejudicial 11, 110–111 Presentation of 44, 52, 54–57, 59–60, 64, 68, 70, 73–74, 136–137, 139–140, 146–148

180 Index Relevant 11, 51–54, 57, 61–62, 70, 72, 108, 110–111, 136, 145, 147–148 Reliability 7, 11, 63 Sufficiency of 1, 56–57, 60, 62, 68, 70, 72–73, 105, 109, 111, 114, 130, 137, 143, 145, 147 Expressivism 16–17, 32–35, 41, 43, 50, 71, 145 Extraordinary Chambers in the Courts of Cambodia 2–3, 25, 38–40, 106, 120, 124, 138–140 Cases Prosecutor v Kaing Guek Eav (‘Duch case’) 25, 139 Civil Party Actions 138–140 Hybrid nature 38–39 Internal Rules Internal Rule 23 138 Fairness Procedural 7, 117 Trial 10–11, 97, 101, 145, 148 First International Crimes Tribunal (Bangladesh), see International Crimes Tribunals (Bangladesh) First World War 64 Fletcher, Laurel 132 Forced Disappearances 86 Forgiveness 65, 98, 102, 105, 111–113, 115–117 Galtung, Johann 76–77 Gbagbo, Laurent 57 Gender-based violence 135 Geneva Conventions 24 Genocide, see Atrocity crimes Germany 64 Goldstone, Richard 18 Good faith 6, 104 Guilty pleas 54–56, 114, 116–117 Hampton, Jean 16 Hariri, Rafik 3 Hirohito, Emperor of Japan 61 History, see Developing the History Holá, Barbara 4 Human rights 2–3, 8–9, 16–17, 21, 31–32, 34, 38, 47, 51, 61, 92, 96, 100, 123, 126 Abuses 8, 34, 36, 96 Violations 3, 8–9, 17, 21, 34, 47, 51, 61, 92, 123 Human Rights Committee 45 Hussein, Saddam 22–23, 61, 71, 128

ICC, see International Criminal Court ICTY, see International Criminal Tribunal for the former Yugoslavia ICTR, see International Criminal Tribunal for Rwanda Impunity 4, 17, 38, 41 Indonesia, Republic of 105 Interests of justice 55 International community 23, 31–32, 35, 76 International Court of Justice 67–68 International Covenant on Civil and Political Rights 38, 44, 47 Article 14 38, 44, 47 International Crimes Tribunals (Bangladesh) 46–47 Establishing Act 47 International Criminal Court 2–4, 9–10, 14, 23–24, 33–34, 36–37, 40, 53, 57–59, 71–74, 76, 79, 81–96, 105–107, 119–120, 122, 124–127, 129, 131–132, 134–139, 147 Amicus Curiae observations 14 Appeals Chamber 57, 136 Assembly of States Parties 14 Cases 33, 40, 57, 73, 81–83, 90, 92, 95, 131, 135, 147 Prosecutor v Bemba et al. 58 Prosecutor v Gbagbo et al. 57 Prosecutor v Katanga 9, 107, 131, 136 Prosecutor v Kenyatta 40 Prosecutor v Kony et al. 81–83, 90 Prosecutor v Lubanga 33, 71–74, 92, 95, 107, 131, 135–136, 147 Prosecutor v Ntaganda 91–92 Prosecutor v Ongwen 136 Prosecutor v Ruto et al. 106 Code of Professional Conduct 138 Office of the Prosecutor 14, 40, 81–88, 94, 119 Proprio motu powers 14 Preliminary examinations 83, 85–86, 95 Pre-Trial Chambers 136 Rules of Procedure and Evidence 135 Rule 90 137 Rule 91 135 Rome Statute 10, 24, 36–37, 79, 86–89, 94–95, 106, 120, 124–125, 134–135, 137 Preamble 36 Article 17 36–37, 87–88 Article 64 10 Article 66 137 Article 68 10, 106, 134

Index 181 Article 75 124–125 Article 86 94 Article 87 94 Article 89 94 Situations 14, 83–88, 135 Colombia 85–88 Kenya 83–85 Palestine 14 Sudan 135 Trial Chambers 10, 23, 57–58, 72–73, 95, 110, 136, 147 International criminal law 1–2, 21, 24, 26, 28, 33, 46, 62, 76, 78–79, 88–89, 93, 119, 140, 143 International criminal justice, see International criminal law International criminal justice institutions 1, 3, 8–9, 14, 18, 21, 25–26, 28–29, 32, 41, 43, 47, 49–50, 52, 54, 70, 77, 90, 93–94, 96, 105, 107, 119, 121, 124, 127, 140–142, 147–148 Lack of capacity 26, 97 Selective prosecutorial strategies 26, 34 International Criminal Tribunal for the former Yugoslavia 2–3, 10–11, 42, 45, 47, 54, 59, 63–64, 67, 93, 103–105, 114, 120, 130 Appeals Decisions 11, 45–46, 59–60 Cases 11, 45–48, 59–60, 63, 114 Prosecutor v Blagojevic´ 45 Prosecutor v Haradinaj et al. 11 Prosecutor v Karadžic´ 91, 114–115 Prosecutor v Krajišnik 45, 60 Prosecutor v Krstic´ 46, 67 Prosecutor v Miloševic´ 47–49, 60 Prosecutor v Plavšic´ 55–56 Prosecutor v Popovic et al. 59 Fourth Annual Report 130 Rules of Procedure and Evidence 54, 93 Rule 62 ter 54 Statute 2, 10, 124 Trial Chamber 11, 47–48, 54–56, 60, 64, 114 International Criminal Tribunal for Rwanda 2–3, 10, 40, 58–59, 105, 124 Appeals Decisions 59–60 Cases 40, 59–60 Prosecutor v Bagosora et al. 40 Prosecutor v Karamera et al. 59 Prosecutor v Nahimana et al. (‘The Media Trial’) 13 Prosecutor v Setako 59–60 Statute 2, 10, 124 Trial Chamber 58–59

International human rights law 2 International humanitarian law 2 International and internationalised criminal courts and tribunals, see International criminal justice institutions International Law Commission 122 Draft Statute of the International Penal Court as Amended by the Permanent International Criminal Court Committee of the International Law Commission 122 International Military Tribunal for the Far East 61, 78 Charter 78 International Military Tribunal at Nuremberg 61, 64, 78, 104 Charter 78 Judgment 104 Trial 64, 104 International peace and security 76 International Residual Mechanism for Criminal Tribunals 63–64 Cases 63 Prosecutor v Stanišic´ and Simatovic´ 63 Trial Chamber 63–64 Iraq 22–23, 61, 71, 128, Baghdad 23 Sulaimaniyah 23 Israel 14 Ivory Coast, see Côte d’Ivoire Japan 61 Jo, Hyeran 95 Johnson, Douglas 130 Judicial Notice of Facts 57–61 Jurisdiction 4, 10, 14–15, 18, 28–29, 34, 36, 38–39, 47, 58, 62, 85–87, 89–91, 93–94, 101, 123–125, 135, 139, 143 Territorial 58 Jus cogens 24 Kantian philosophy 16 Karadžic´, Radovan 21–22, 91, 114–115 Kenya 20, 40, 83–85, 106, 127 Constitution 84 National Accord and Reconciliation Act 2008 84 Orange Democratic Movement Party 83–84 Party of National Unity 83–84 Kenyatta, Uhuru 40 Khmer Rouge 38, 71 Kibaki, Mwai 84 Kim, Hunjoon 96 Ki-Moon, Ban 120

182 Index Kiza, Ernesto 20 Kony, Joseph 80–84, 90–91 Kosovo Specialist Chambers 124 Lebanon 3, 89 Legitimacy 2, 7–9, 12–15, 18, 23, 25, 27–28, 35, 43, 49–50, 52, 56, 62, 74, 91, 97, 108–109, 112, 114, 117–118, 125–126, 129, 140, 143–144, 146, Perceptions of Liberia 41, 89, 128 Lord’s Resistance Army 80–85, 90–91 Luban, David 12 Lubanga, Thomas 33, 71–72, 92, 95, 135, Al Mahdi, Ahmad al Faqi 115 Mali 115 McDermott Rees, Yvonne 9 van der Merwe, Hugo 121 Mégret, Frédéric 88 Mendeloff, David 134 Militias 33 Miloševic´, Slobodan 47–48 Moffett, Luke 122 Moreno Ocampo, Luis 82–83, 87, 119 Muhammad, Samaria 4 Multi-national corporations 13 Murder 80, 86, 110 NATO, see North Atlantic Treaty Organization Naziism 64 Netherlands, the 105–106 Non-Governmental Organisations 58 North Atlantic Treaty Organization 62 Ntaganda, Bosco 91–92, 95 Nuremberg Tribunal, see International Military Tribunal at Nuremberg Nuremberg Trial, see International Military Tribunal at Nuremberg Odinga, Raila 84 Odio Beneto, Elizabeth 73 Otti, Vincent 81 Palestine 14 Pardons 79–80, 86–87 Peace 3, 35, 76–79, 81–81, 84–86, 90–91, 96–100, 112, 116, 145–146 Maintenance of 3, 76–79 Negative peace 77–78, 84, 90–91, 96–98, 145–146 Negotiations 76, 79, 81–82, 84–86, 97–99, 146

Peace-building 78 Peace-making 76, 78, 81, 96 Positive peace 35, 77, 97–98, 100, 112, 116, 145–146 Restoration of 3, 77–79 Strong, or durable peace 77–78, 98, 100 Weak, or fragile peace 77 Perpetrators 16–19, 21–22, 26–27, 33–34, 37, 67, 79, 86, 88, 92, 102, 111, 113–117, 119, 122, 125, 141, 146 Pham, Phuong 22 Plavšic´, Biljana 55–56 Post-Conflict States 8, 13, 28–29, 50, 98, 143 Post-Traumatic Stress Disorder (‘PTSD’), see Victims Presumption of innocence 9, 44–45, 57, 137 Procedural Fairness, see Fairness, Procedural Proper administration of justice, see Administration of justice Proportionality Principle 48 Prosecution, the 1, 11, 48, 53–54, 56–57, 61–62, 68, 78, 116, 139, 145, 147–148 Prosecutor’s right to a fair trial 11 Punishment 7, 9, 15–28, 93, 97, 115, 121 Adequacy of 27 Death Penalty 22, 24–26 Deterrence 34, 92–97 Expressive nature 16–18 Incapacitation 90–92, 97 Imprisonment 19 Retribution 21–23, 25 Revenge 23 Summary Execution 19 Torture 22–25, 86 Rape 80, 86 Reparations, see Victims Retribution, see Punishment Rights of the Accused, see Accused Rohne, Holger-C 20 Rome Statute, see International Criminal Court, Rome Statute Rule of Law 2–4, 8, 16–18, 27–52, 62, 64, 73, 100–101, 127, 143, 145 Breakdown of 29, 33–34 Capacity building 4, 8, 16, 27–29, 33, 35, 37–41, 49, 64 Compliance with 29, 31–32, 36, 41–43, 50, 145 Defining 30–32 Domestic context 4, 18, 29, 32, 34–35, 37, 40–42, 47, 49, 145

Index 183 Enforcement 36, 113 Expressivist Function 16, 35–43 International 32 Thin rule of law 30–31 Ruto, William 106 Rwanda 58–60, 89, 100, 132 Gacaca Courts 132 Genocide 59, 100, 132 SCSL, see Special Court for Sierra Leone Second International Crimes Tribunal (Bangladesh), see International Crimes Tribunal (Bangladesh) Second World War 61, 64 Serbia 25, 42, 61, 66, 68, 69, 91, 109 Anti-Serbian Bias 61, 66, 109 Serbs 25, 61, 66, 68, 69, 91 Serious international crimes, see Atrocity crimes Sexual Violence 71, 73, 86 Sierra Leone 26, 41, 89, 106, 120, 124, 128 Sikkink, Kathryn 96 Simmons, Beth 95 Social movements 13 South Sudan 82 Special Court for Sierra Leone 2–3, 26, 41, 58, 94, 105, 120, 124, 128 Cases 58 Prosecutor v Brima et al. 58 Prosecutor 26 Statute 26, 94 Article 1 26, 94 Special Tribunal for Lebanon 2–3, 47, 59, 105, 124 Rules of Procedure and Evidence 59 Rule 160 59 Statute 47, 124 Article 22 47 Article 25 124 Srebrenica genocide 22, 62, 67–68, 91 Srim, Judge Kong 120 Srpska, Republic of 91, 114 Stahn, Carsten 1 STL, see Special Tribunal for Lebanon Stover, Eric 131–132, 134 Tanzania 105 The Hague 106–107, 138 Tieger, Alan 130, 134 Timbuktu 115 Timor-Leste, Democratic Republic of 105 Tokyo Trial, see International Military Tribunal for the Far East

Torture, see Punishment Transparency 12–13, 31, 62 Trials in absentia 13, 47 Truth, see Establishing the Truth Tutsis 61 Uganda 20, 22, 40, 71, 80–85, 90–91, 97, 127 Amnesty Act, 2000 80 United States of America 14 , 61, 89–90 United Nations 2–3, 31–32, 47, 73, 76–79, 105, 120, 123–124, 127, 130 Charter 76 Economic and Social Council 123 Draft Convention on the Crime of Genocide 123 High Commissioner for Human Rights 70 General Assembly 2, 32, 65, 88, 98, 120–121, 123–126 Declarations 120, 123, 126 Declaration of Basic Principles of Justice for Victims of Crimes and Abuse of Power 120, 121, 123, 126 Resolutions 2, 32, 63, 123–124, 126–127 60/147 123–124, 126–127 61/17 63 67/1 32 Secretary-General 2, 4, 79, 120 Reports 2, 82 Security Council 2, 77–79 Resolutions 2, 77, 79 808 77, 79 955 79 1315 79 United Nations Transitional Administration in East Timor 105 Victims 2–4, 9–11, 13, 15–28, 34, 36, 40, 42, 48, 51, 53–57, 62, 64, 66–67, 70–74, 102, 104, 106–107, 110–148 Direct victims 13, 123 Indirect victims 13, 123 Justice for 18, 25, 51, 64, 70, 119–123, 128–129, 140–141, 143, 146–147 Legal Representatives 3, 71, 137–138 Post-Traumatic Stress Disorder (‘PTSD’) 132–133 Reparations 19–20, 57, 64, 121–129 Assistance 121, 123

184 Index Collective 123–124, 127, 129 Compensation 19, 123–124, 126, 128 Individual 127, 129 Rehabilitation 124, 126, 128 Restitution 121, 123–124, 126 Non-repetition 126–127 Satisfaction 126, 128 Revictimization 104 Right to an effective remedy 122 Right to direct participation 106, 127, 129, 134–140 Right to representation 135 Right to question witnesses 135, 139 Right to truth 52, 57, 70–71, 74vict Victim-Witnesses 129–134 Vinck, Patrick 22

Violence 22–23, 29, 40, 49, 52, 71, 73, 77–78, 80–86, 88, 90–92, 95–97, 99, 101, 103, 114, 117, 135, 145 Warbrick, Colin 9, 46 War crimes, see Atrocity crimes Webel, Charles 77, 100 Weinstein, Harvey 132 Witnesses 11, 13, 44, 56–57, 73, 105, 129–134, 139, 146 World War I, see First World War World War II, see Second World War van den Wyngaert, Judge Christine 9–10 Yugoslavia 3, 25, 42, 63–64, 66, 69, 79, 91, 102–103, 108, 115, 119,