How effective is international criminal justice? Effectiveness is essentially a matter of perspective. It is easy to point to the failings. The Security Council failed to agree on the Tribunal for Syria. The ad hoc tribunals are fading out. The yearly budget of the ICC's Office of the Prosecutor is less than the one of major NGOs such as Human Rights Watch or Amnesty International. The number of cases at the international level remains relatively modest. The perception of international justice in situations such as the former Yugoslavia or Kenya remains divided. In today's reality, the Rome Statute might not have been adopted. At the same time, there are successes. International criminal law has become richer in contour, contrast, and texture. We are in an age of accountability. In many situations, the question is no longer whether accountability is warranted, but rather how and when it is pursued. The major challenge is how to make international criminal justice work as a system of justice. In this video, I'll try to offer a few suggestions with reference to four key dimensions of accountability, justice, truth-finding, effective remedies, and prevention. Let us start with justice. Delivering justice marks the principal justification of the existence of international criminal courts and tribunals. A few lessons may be learned from past decades. First, the effectiveness of international justice cannot be measured simply in terms of bad guys being convicted and innocent victims receiving reparation. The success of international criminal courts and tribunals depends on a second notion of justice. As we've seen in previous videos, it is necessary to distinguish between the purposes of the criminal process and the function of the institution. The main purpose of the trial is quite narrow, namely to distinguish between culpable and non-culpable defendants. The function of the institution is broader. It encompasses retributive elements such as vindication of social norms and rules, procedural fairness and punishment, and restorative features such as victim participation or repair of harm. Second, effectiveness requires a certain sense of modesty in relation to the goals of justice. Experiences at the tribunals and in ICC situation have shown that it is dangerous to associate or merge international criminal justice with broad rationales such as ending impunity or improving human security. Such effects may well be a consequence of action, but they should not be turned into primary courses. The strengths of international criminal justice lie in atrocity alert, norm expression, and enhancement of compliance. Third, enhancing effectiveness requires better strategies on sustainable exit from situations. International justice mechanisms are often like parachutes. They go in and out of situations, but provide limited thinking to longer term objectives. There needs to be a strategy to sustain justice domestically after international cases have ended. Fourth, there's a need to confront challenges relating to the selective application and perception of double standards. Investigation and prosecution remains selective. This makes it necessary to rethink complementarity strategies. International justice institutions need to be better connected to national or regional bodies. International courts and global NGOs typically call for greater adherence to global treaties or regional systems, better cooperation with international courts, and stigmatization of perpetrators in international relations in order to reinforce accountability. But this is not enough. The controversy over ICC in Africa has shown that formal adherence to legal instruments alone does not automatically ensure a greater justice. Ultimately, what counts is that justice is internalized and not perceived as a distant or foreign project. This requires input in relation to the design of norms and institutions, and public confidence and acceptance. Fifth, improving effectiveness requires critical self-evaluation. One of the concerns is that knowledge and expertise develop mostly internationally, rather than domestically or locally. These imbalances cannot be targeted solely through geographical balance and representation in governance structures of courts and tribunals. They require better connection between justice and development policies. What about truth finding? We've seen that truth finding unfolds in different forms throughout the different stages of the justice process, preliminary examination, investigation, pre-trial, and trial. International criminal proceedings do not produce a monolithic truth, but they may limit the space for denial of atrocities and create a public space and reference point to confront history. There are many connecting points between justice and truth finding at the periphery of cases, namely before the case starts and after it ends. Improving these links may strengthen the effectiveness of international criminal justice. Let me provide two examples. The first one relates to the processing of data collected by fact finding bodies and NGOs. Past decades have seen new forms of human rights fact-finding. Human rights fact finders pursue broader and slightly distinct purposes than the determination of criminal accountability, but there's space to benefit from interaction. For instance, the Commission of Inquiry for Darfur, lead by the late Antonio Cassese, shared an entire truck of material with the ICC. Commissioners for that did a debriefing with ICC analysts. In other situations, like Libya, ICC engagement coincided with commissions of inquiry established by the Human Rights Council. International criminal investigations may benefit from such records if interviews and statements taken by the commission are accompanied by forms of consent which allow for disclosure. Second, any truth produced by international criminal proceedings is a living truth. It continues to be challenged, contested, and expanded after trial. The truths told by the trial exclude many elements, such as the role of bystanders or colonial histories. It is thus necessary for the success of international justice to create archives in sight of memory after the trial that tell a broader story. Finally, the testimony of witnesses is essential for truth finding. In many cases, this testimony has suffered from intimidation and external interference. The Kenya cases of the ICC collapsed because of this. It is thus fundamental for the effectiveness of international criminal justice to increase the protection of witnesses. Let us now turn to procedures and remedies for violations. We've seen that mass atrocities create harm that cannot be repaired through legal remedies. But there's some value in the process and judgment itself. International criminal courts and tribunals have devised procedures that are deemed to protect due process rights and to provide justice for victims. These proceedings have sought to accommodate inquisitorial and accusatory traditions. This has caused confusion and delays. In past years, many of the major causes of the lengths of proceedings have been identified in practice. They include weaknesses in investigations, uncertainty of facts and charges, disclosure problems, a large number of motions, evidentiary issues, and court management issues such as interpretation or translation. How can this be improved? Structurally, there are different methods to address these challenges. One way is to provide clarification through traditional practice or regulation. A second way is to strive for a harmonization or at least approximation of procedures across different chambers. The third option is to encourage good practices through internal review or practice directions. Both the ICC and other tribunals have started to embark on this task through amendment of rules of procedure, adoption of internal practice manuals, and documents identifying lessons learned. Some of these findings are relevant for national courts as well. One of the most daunting challenges from a fairness perspective is the protection of the rights of defendants. International criminal courts and tribunals depend heavily on the consent of states to facilitate defense investigations, to protect privileges and immunities of defense teams, to grant interim relief, or to enforce sentences or decisions. For instance, Congolese leader, Ngudjolo Chui, had to spend three years in asylum detention in the Netherlands following his release because there were no acquittal agreements. Agreements with states that give effect to the rights and privileges of the defense are vital to the effectiveness of international criminal justice. Finally, enhancing effectiveness requires fresh thinking on prevention. International criminal justice may not necessarily stop violations, but it adds constraints that may influence behavior. Criminologists talk about a Pinochet syndrome. There's a greater likelihood to be punished. This creates some form of social deterrence based on travel constraints, damage to reputation, and formal sanctions or marginalization. One of the most important impacts of international criminal justice is that it contributes to a larger culture of accountability in which humanitarian law and human rights law are better integrated into the fabric of society. Where does this leave us? First, international criminal justice remains in many ways imperfect. It is an instrument to enhance the well-being of humankind to some, and a potential cause of fear for others. This dichotomy cannot be entirely solved. Critique is one of the inherent symptoms of an extending accountability culture. International criminal justice will not be able to meet all expectations, but it must become better at responding to critique. Second, the success of international criminal justice is not so much tied to the performance of individual international criminal courts and tribunals, but its operation as a system of justice. Its effectiveness depends on political pressures and networks of cooperation. International criminal justice might in particular become more effective if it fosters other justice mechanisms, rather than excluding them. Third, international criminal justice must be a two-way street. It requires interaction among international institutions and jurisdictions, and most of all interaction with domestic jurisdictions. The development of domestic laws and mechanisms may represent one of the most important contributions to a culture of accountability.
