Reflections on the Strengthening the Validity of International Criminal Tribunals Conference- Part I
This week, Pluricourts, University of Oslo, hosted a two day conference entitled ‘Strengthening the Validity of International Criminal Tribunals.’ The purpose of the conference was to explore ways in which the field of international criminal law (ICL) can improve, and lessons that can be learnt, as ICL enters a more mature phase in its development.
The conference aimed to build upon work previously undertaken within other fora, by bringing together a range of experts from a wide variety of backgrounds and perspectives to discuss how the field of international criminal justice can be made more valid, effective and, ultimately, legitimate, as it moves into the future.
The first session of the conference addressed the processes of international criminal justice and how they can be made more effective.
Mikkel Jarle Christensen’s (iCourts) contribution encouraged a degree of self-reflection among conference participants. He spoke about the role of scholarly expertise in and around the international criminal courts (ICTs). His research seeks to track ICL scholarship by investigating who publishes in ICL and which topics and research interests preoccupy them. He wondered whether the overlap that can occur in ICL between those in academia and practitioners prevents those involved from being as critical of the field as they perhaps should be.
Jamie Trinidad (Lauterpacht Centre for International Law) discussed work undertaken with Avidan Kent (University of East Anglia) concerning the role played by third party amicus participation in ICL. He noted that ICTs invite and utilise third party interveners in different ways, for example, some ICTs have paid more attention to submissions from academics rather than those from NGOs. He suggested ways of improving the system and making it more cohesive, such as only calling for amicus participation when it is actually required.
The panel concluded with a presentation from Jenia Turner (Dedman School of Law), who discussed her research exploring whether the increasing focus on managerialism and expediting proceedings has impacted the rights of the defence. On the basis of interviews she has conducted with defence agents, she has found that the widely held assumption that emphasising efficiency in the court process hurts the defence, is not necessarily so. Defence attorneys do not in general perceive judicial managerialism as being driven by efficiency, but rather by other considerations.
The second panel began with Yvonne McDermott (Bangor University). She addressed an under-explored aspect of fact-finding in international criminal trials, whereby judges when assessing the evidential record have differences of opinion as to how the evidence should be weighed and evaluated. She explained that this poses important challenges to reliable fact-finding, arguing that there is a need to raise awareness of the issue. She suggested alternative tools which could help remedy the problem.
Sergey Vasiliev (Leiden University) then addressed the role played by international judicial governance institutions, such as the ICC’s Assembly of State Parties, in international criminal justice. He critiqued the amount of structure devoted to, and the resources used by, for example, the ICC in attending to the needs of the ASP, and asked who is it that ensures that such institutions that are assuring accountability of individuals are held accountable themselves. He argued that there is a need to pay greater attention to this issue, and that there is a need to develop good governance standards in the future.
Finally, Geoff Dancy (Tulane University) discussed his work undertaken with Florencia Montal (University of Minnesota), exploring the impact of the ICC, particularly as regards its impact upon the prevention of conflict and upon domestic legal change. Based upon analysis of qualitative and quantative data, they have found that the ICC does not compel the end of conflict and has almost no effect on deterrence. It is not all bad news however; Dancy explained that the ICC is almost-undoubtedly associated with improved conditions in the world due to the social and legal functions it performs in international politics.
In the third panel, yours truly discussed whether the principle of legality can help to strengthen the effectiveness and validity of ICL. I argued that ICL has had a notoriously lax approach to legality in the past. Legality is a vital component in ensuring certainty and predictability in the law and in protecting the rights of the accused. The claim that legality applies differently somehow in ICL than it does in domestic law no longer holds water. This soft approach to legality needs to harden as ICL moves into the future, and ICL needs to set an example for domestic jurisdictions in this regard.
Carola Lingaas then presented her paper, concerning how the effectiveness of the crime of genocide can be enhanced. She explained that today, race is a highly disputed concept and has been found to be scientifically inaccurate. This does not mean that it should be disregarded as a category of protected group for the crime of genocide. Rather the concept should be interpreted in a contemporary, legally sound manner, using a perpetrator-based subjective approach, namely an assessment as to whether the perpetrator perceives the victim to be from a certain racial group. This would ensure that the category of race remains relevant for the crime of genocide.
The panel concluded with a presentation from Shehzad Charania (British Foreign and Commonwealth Office) who considered the role of state parties to the ICC in amending the Rules of Procedure and Evidence. He talked about the amendment proposals of 2013 and 2014 put forward by the ICC and states, and outlined some of the political and legal reasons why they were either adopted or rejected. He explained that there is little prospect of new amendments being made in the short to medium term, and suggested solutions which could help expedite the situation.
The conference then turned to ways in which ICL could learn from and rely upon other courts and institutions. It began with human rights.
Nobuo Hayashi, International Law and Policy Institute, and Tamas Vince Adany, Pázmány Péter Catholic University, compared some human rights standards with those from ICL, explaining that while certain elements are different, there are also overlaps. They explored this in the context of complementarity, arguing that by virtue of Article 17 of the ICC Statute, the ICC must pass some sort of judgment on the quality of national investigations and prosecutions. They argued that it seems imperative that we distinguish the sense of encouragement implied in positive complementarity from a licence to do as one pleases, and that we give proper consequences to the principle’s abuses.
Marialejandra Moreno Mantilla (Legal Intern, International Criminal Court) concluded the panel by proposing that a joint strategy between the ICC Office of the Prosecutor and the Inter-American Commission on Human Rights be adopted over the selection and prioritisation of cases. She argued that there is an overlap of jurisdiction and that the courts should work together which would improve the efficiency and legitimacy of both institutions, and, based upon previous co-operation efforts and agreements there is already a basis for this co-operation.
By Joanna Nicholson.