Reflections on the Strengthening the Validity of International Criminal Tribunals Conference- Part II
The fifth panel of the conference began with Viviane Dittrich (London School of Economics) talking about the legacies of international criminal tribunals (ICTs). She argued that the common conception of legacy is too simplistic, and that, based upon her own comparative, empirical research, no uniform definition of legacy exists across the tribunals. She outlined a new theoretical framework depicting a notional legacy process, arguing that legacy-making at both a local and global level is essential to the effectiveness and legitimacy of past, present and future ICTs.
Hemi Mistry (University of Nottingham) then discussed the concept of collegiality, which, she argues, goes to the heart of the legitimacy and validity of courts. Her research indicates a weak, even absent, institutional culture of collegiality among the judges of ICTs. She looked to other courts, particularly the International Court of Justice, to see whether any lessons can be learnt that could help promote collegiality in ICTs, noting that while these institutions often face the same challenges, there are means of surmounting them which ICTs could adopt.
The second day of the conference began with the key note speech given by Mandiaye Niang, former Judge of the Appeals Chamber of the ICTY and the ICTR, entitled ‘Africa and the Legitimacy of the ICC in Question’. He outlined the current challenges facing the ICC concerning Africa, and accepted that there are legitimate concerns from all sides involved in the controversy. He made some suggestions as to how to move forward, one suggestion being that Africans should be able to feel that the court is theirs, for example, by including more African judges and by conducting trials on African soil. Ultimately, his view was that the ICC has been a positive thing for Africa, and that while the legitimacy of the court is being tested, this is part of its growth and it can overcome these challenges.
The final session of the conference addressed whether more crimes or more courts might help in strengthening the validity of ICL.
Kerstin Carlson (iCourts) spoke about the Hissène Habré trial before the Chambres Africaines Extraordinaires (CAE) in Senegal. The court employed a very different model to previous hybrid models, in that it was an almost entirely local process incorporating elements of ICL and using primarily local staff and defence agents. She explored the innovations of the court to see whether elements of the process might be transferred to other hybrid courts, or whether the CAE was simply a unique event that cannot be repeated elsewhere.
The second panellist was René Provost (McGill University) who discussed whether the ICC could recognise judicial decisions issued by tribunals created by insurgent groups. He focused on tribunals created by Kurdish armed groups in Syria, Iraq and Turkey, and explored the degree to which the prosecution of, for example, a Daesh commander by one of the insurgent courts for genocide ought to be recognised by the ICC. His view was that there might be some room within the Rome Statute to allow the ICC to take such judicial decisions into account when considering the principle of complementarity.
Franziska Oehm’s (University of Erlangen-Nürnberg) presentation addressed the matter of prosecuting economic actors for international crimes. She outlined how such crimes were prosecuted historically, before discussing the possibilities of prosecuting such crimes today. She pointed particularly to the Malabo Protocol adopted by the African Union General Assembly in 2014, which foresees the creation of an integrated African Court of Justice of Human Rights that would have jurisdiction over both natural and legal persons. She argued that further development of this category of crimes is sorely needed.
The final panel began with Dorothy Makaza (University of Hamburg) who talked about the ineffectiveness of the ICL system in Africa. She argued that the impact of certain historical events upon African state compliance with ICL is underappreciated. She suggested different models for re-moulding ICL on the African continent, including incorporating new crimes into the ICC Statute and the possibilities offered by universal jurisdiction. She concluded that, while there is no one single answer to the problem, it might be that a healthy dose of each of the different models injected into the ICL system might be the answer.
Marieke de Hoon (VU University) tried to pull the different threads of the conference together in her presentation concerning why the international criminal justice cannot succeed and what choices are available to turn it around. She argued that we expect too much from international criminal justice, and that we need to adjust our expectations as to what it can realistically achieve. There are unavoidable tensions within ICL. We need to have a better understanding of these and a better understanding of what international criminal trials can do, and manage and match our expectations accordingly.
The final presenter of the conference was Marina Aksenova (iCourts). She also referred to the fact that ICL is being pulled in different directions by different considerations- deterrence, retribution, justice for victims – which erodes its legitimacy. She argued that this could be countered somewhat if there was greater acknowledgment of the symbolic role of ICL. This would help to constrain over ambition and help to prevent unachievable expectations regarding what ICL can realistically achieve.
Should this small taster of the contents of the different presentations at the conference have whetted your appetite, there are plans to publish the conference papers which should come to fruition sometime next year.
Many thanks to all participants for such an interesting and fruitful two days.