Africa: Beyond The Hague: The Challenges of International Justice

Beyond The Hague: The Challenges of International Justice

By

Richard Dicker, Director, International Justice Program and

Elise Keppler, Counsel, International Justice Program

During the 1990s, the international community took unprecedented steps to
limit the impunity all too often associated with mass slaughter, forced
dislocation of ethnic groups, torture, and rape as a weapon of war. Along
with two genocides and many other widespread crimes, the decade was marked
by the creation of international criminal justice mechanisms and the
application of universal jurisdiction to hold perpetrators of the most
serious crimes to account. Due to inherent difficulties in rendering
justice for these crimes, there have been failings, but the new approaches
have nonetheless made great strides.

In the last few years, opposition to this nascent "system" of international
justice has intensified and today the landscape is less hospitable to the
types of advances that took place in the 1990s. In this context, those
supporting efforts to hold the world's worst abusers to account need to take
a hard look at recent experiences to chart the path forward. The victims
who suffer these crimes, their families, and the people in whose names such
crimes are committed deserve nothing less. In so doing, it is necessary to
emphasize that although international justice mechanisms provide imperfect
remedies, they are a vitally necessary alternative to impunity. This essay
proposes a perspective of the road ahead in light of both the successes of
the recent past and current obstacles to further progress.

A Developing System of International Justice

Soon after the end of the Cold War, with the horrors in the former
Yugoslavia and Rwanda and the stark failures of national court systems
freshly in mind, the United Nations, a number of governments, and many
citizens groups and international nongovernmental organizations (NGOs)
worked to create international criminal courts. The Security Council
created two ad-hoc international criminal tribunals, the International
Criminal Tribunal for the former Yugoslavia (ICTY) in 1993 and the
International Criminal Tribunal for Rwanda (ICTR) in 1994, to try alleged
perpetrators of genocide, war crimes, crimes against humanity, and other
serious violations of international humanitarian law in those particular
conflicts.

Affirming the viability of international criminal mechanisms after a
fifty-year hiatus, the tribunals held perpetrators of crimes in the former
Yugoslavia and Rwanda accountable.

Suspects were arrested and tried before these tribunals regardless of their
official status, leading to the first indictment of a sitting head of state,
namely Slobodan Milosevic by the ICTY, as well as the indictment of the
former Prime Minister of Rwanda, Jean Kambanda, by the ICTR. The Rwandan
and Yugoslav tribunals revitalized an international criminal jurisprudence
that had not developed since the Nuremberg and Tokyo trials.

In response to shortcomings in their performance, described in more detail
below, the ICTY and ICTR improved their practice over time. By 2002,
between four and six trials were taking place each day in the three
courtrooms at the ICTY. Changes were also implemented to improve the
functioning of the ICTR where major problems had persisted. In 2002, the
capacity of the Rwandan tribunal increased when the Security Council amended
the ICTR Statute to permit ad litem judges to serve in trial chambers. After
a long delay, two senior posts in the ICTR Office of the Prosecutor were
filled and a new president and vice-president were elected. In September
2003, the Security Council separated the ICTY and ICTR prosecutor posts and
appointed a separate ICTR prosecutor.

The experience of the ad hoc tribunals revived an idea that first gained
currency after World War II: the creation of a standing forum where justice
can be rendered for the gravest crimes when national courts are unwilling or
unable to do so (the latter limitation on jurisdiction is known as the
"complementarity principle"). In 1998, more than 150 countries completed
negotiations to establish the International Criminal Court (ICC), a
permanent international court charged with prosecuting war crimes, crimes
against humanity, and genocide in such circumstances. Reflecting the
dynamism of efforts to limit impunity during this period, the necessary
sixty states ratified the court's treaty-known as the Rome Statute-to bring
it into force in July 2002, less than four years after it had been opened
for signature. The establishment of the ICC, a huge step forward for human
rights, has the potential to focus international attention on impunity for
the "most serious crimes of concern to the international community," as
noted in the preamble of the Rome Statute. The court has engendered great
expectations.

While the ICC will face many obstacles in bringing justice, the most
immediate threat to its effectiveness comes from the ideologically motivated
hostility of the Bush administration. The U.S. government's campaign
against the court, while both shameful and damaging, has nevertheless failed
to derail the considerable momentum behind the ICC's establishment. To
date, ninety-two states have ratified the Rome Statute and nearly fifty more
have signed it.

In the brief period since the Rome Statute's entry into force, the ICC has
moved from an institution on paper to a permanent court staffed with highly
qualified judges and an experienced prosecutor and registrar. ICC officials
familiar with the experience of the two ad hoc tribunals consciously drew on
the lessons of those mechanisms to create a more efficient court. In July
2003, one month after taking office, the prosecutor announced he was
following closely the situation in Ituri region of the Democratic Republic
of Congo (DRC). Since there is incontrovertible evidence that the DRC
currently lacks capacity to adjudicate cases involving serious human rights
crimes, the situation there is precisely one of the scenarios the ICC was
intended to address.

Over the past decade, several European states also began to meet their
obligations to prosecute those found on their territory accused of
atrocities. Using domestic universal jurisdiction laws in domestic courts,
Switzerland, Denmark, Belgium, Germany and other states have tried such
individuals far from the countries where the crimes were committed.

In October 1998, the United Kingdom arrested former President Augusto
Pinochet on a Spanish warrant charging the former dictator with human rights
crimes committed in Chile during his seventeen-year rule. As a result, four
states, Belgium, France, Spain, and Switzerland, litigated the right of
their courts to try Pinochet. The arrest of Pinochet sparked litigation
before the United Kingdom's highest court, the House of Lords, that resulted
in the landmark decision that Pinochet, as a former head of state, could
face prosecution for acts of torture in relation to crimes committed after
1988, when the United Kingdom became a party to the U.N. Convention against
Torture.

A synergy developed between efforts to bring justice at the international
level and access to national courts where the crimes occurred. There was a
profoundly important "spillover" effect: national courts began to take on
litigation of previously barred cases. The Pinochet litigation prompted an
opening of the domestic courts in Chile to victims who had been denied
access to remedies. In August 2003, trials of military officers responsible
for gross violations of human rights during Argentina's "dirty war" were
reopened in Buenos Aires. A Spanish judge prompted this development when he
issued warrants for the extradition of forty-five former military officers
and a civilian accused of torture and "disappearances" in Argentina so that
they could stand trial in Spain.

The spillover effect has been particularly pronounced in countries that have
undergone a thorough transition from authoritarian rule to democracy, such
as in Chile and Argentina. But also in Chad, victims were emboldened by
international efforts to indict former dictator Hissène Habré, leading them
to bring cases before their national court against former Habré associates.

These different developments taken together have formed the components of a
new, fragile, yet unprecedented, system of international justice consisting
of ad hoc tribunals, the permanent ICC, and various other international
mechanisms. These institutions promise an end to the impunity that
perpetrators of some of the world's worst crimes have long enjoyed.

A Changing Landscape

By 2001, steps to enhance international justice began to encounter
broadening political opposition. Electoral changes on both sides of the
Atlantic brought in political leaders less supportive of these courts. The
Bush administration's unilateralist policies were hostile to international
institutions. The election of several new governments in Europe reduced the
willingness of the European Union to stand up to such hostility. The
attacks of September 11, 2001 further contributed to a shift away from
support for international justice, with efforts to combat terrorism taking
precedence over international law.

In May 2002, the Bush administration launched a worldwide campaign to
undermine and marginalize the ICC. After repudiating the U.S. signature of
the Rome Statute, the Bush administration threatened to veto all U.N.
peacekeeping operations unless Security Council members passed a resolution
exempting citizens of non-ICC states parties involved in U.N. operations,
such as the United States, from the reach of the ICC. The Bush
administration also played hardball to pressure individual ICC states
parties to sign bilateral immunity agreements exempting U.S. citizens-and
foreign nationals working under contract with the U.S. government-from ICC
jurisdiction. These agreements put states parties in violation of their
treaty obligations to the court. The actions of the United States-in effect
threatening economically vulnerable states with sanctions for supporting the
rule of law through the ICC-marked a perverse low point in U.S. human rights
policy.

Washington's efforts to undermine the ICC coincided with a rising level of
disenchantment among some powerful Security Council members towards the ad
hoc tribunals it had created due to their cost and slow-moving procedures.
As entirely new entities with only the Nuremberg and Tokyo tribunals as
institutional precedents, the ad hoc tribunals for the former Yugoslavia and
Rwanda, not surprisingly, had their share of difficulties. With Security
Council members increasingly skeptical of the utility of the tribunals and
concerned with rising costs, political and financial support waned. This
culminated in pressure to adopt a "completion strategy" with a 2010 deadline
regardless of whether this date allows the tribunals to fulfill their
mandates.

Imposing increased political and financial constraints, the U.N. Security
Council then made efforts to bring international expertise to bear on
questions of justice in ways that were less politically controversial and
costly. These factors prompted the emergence of a diverse "second
generation" of international criminal justice mechanisms: "hybrid"
national/international tribunals that utilized varying degrees of
international involvement.

A U.N. International Commission of Inquiry on East Timor recommended that an
international tribunal be created to try those responsible for atrocities
committed by the Indonesian army and Timorese militias backed by Indonesia
at the time of the vote for independence in 1999. However, Indonesia
promised to prosecute individuals responsible for these crimes. As a
result, Secretary-General Kofi Annan did not endorse and the Security
Council did not implement the Commission's recommendation. In August 2001,
an Ad Hoc Human Rights Court on East Timor was established in Indonesia. To
try alleged perpetrators who remained in East Timor, the U.N. transitional
administration appointed international judges to the newly created Dili
District courts. Even after East Timorese independence on May 20, 2002,
panels comprised of one East Timorese and two international judges, known as
the Special Panels for Serious Crimes, adjudicate these cases.

The U.N. Mission in Kosovo took a similar approach to try serious crimes
committed during the armed conflict in 1999. The ICTY lacked the resources
and the mandate to act as the main venue to bring justice for these crimes.
Although a justice system was reestablished in Kosovo following the
conflict, underfunding, poor organization, and political manipulation
plagued the newly ethnic-Albanian-dominated system. The new U.N.
administration initially appointed a limited number of international judges
to sit on panels with a majority of Kosovar judges without restrictions on
the cases that these panels could adjudicate. Subsequently, the U.N.
administration provided, pursuant to Regulation 2000/64, for panels
comprised of at least two international judges and one Kosovar judge to
adjudicate cases where "necessary to ensure the independence and
impartiality of the judiciary or the proper administration of justice."
These panels are known as Regulation 64 Panels after the regulation that
created them. They generally adjudicate cases involving serious crimes
committed during the conflict. As discussed in the following section, the
hybrid mechanisms in East Timor and Kosovo have faced serious difficulties
in administering justice in such cases.

In 2002, taking a different "hybrid" approach, the United Nations signed an
agreement with the government of Sierra Leone to create the Special Court
for Sierra Leone. The Special Court was mandated to bring to justice those
"most responsible" for atrocities committed during the country's internal
armed conflict. Like the two ad hoc international tribunals, the Special
Court has its own statute and rules of procedure. It does not operate as
part of the national courts of Sierra Leone. Unlike the Rwandan and
Yugoslav tribunals, the court is situated in Sierra Leone, has jurisdiction
over some crimes under Sierra Leonean law, and has judicial panels composed
of international and Sierra Leonean judges. The court is expected to try
between fifteen and twenty alleged perpetrators of the horrific crimes of
the conflict.

Due to Herculean efforts by the staff of the Registry and Office of the
Prosecutor, the Special Court was established in war-ravaged Freetown,
Sierra Leone, in the space of a few months in 2002 and 2003. To date, the
prosecutor has issued nine indictments. While the Special Court aroused
great expectations, including strong support from the United States due to
its low cost and enhanced national character, it too has encountered
disenchantment among some Security Council members and the U.N. Secretariat.
These attitudes congealed as the cost of the court's operations began to
rise beyond initial budget projections. The reservations took a qualitative
leap when the prosecutor unsealed an indictment against former Liberian
President Charles Taylor while the latter was attending peace talks in Ghana
in June 2003. The appropriateness of unsealing the indictment during peace
talks generated considerable objections, although no one denies that
Taylor's long awaited departure took place soon thereafter. At this
writing, the Special Court was facing serious budgetary problems due to the
voluntary nature of its financial support.

In Cambodia, efforts to create a stand-alone "hybrid" court to bring members
of the Khmer Rouge to justice have been less successful. The United States,
France, Japan, and others pressured the United Nations to conclude an
agreement with Cambodia to establish a Khmer Rouge Tribunal that lacked
fundamental protections to ensure that the tribunal would be independent and
impartial. The proposed tribunal would have a majority of Cambodian judges
and a minority of international judges, working alongside Cambodian and
international co-prosecutors. Cambodia's judiciary has been widely condemned
by the United Nations and many of its member states for lack of
independence, low levels of competence, and corruption. There are serious
concerns about this mechanism.

There are other post-conflict situations where the permanent members of the
Security Council have yet to address impunity. These include Afghanistan,
Liberia, Côte d'Ivoire, as well as the Democratic Republic of the Congo. In
Afghanistan, a national human rights commission, rather than an
international commission of inquiry, was given the task of addressing past
abuses committed during two decades of war despite its very limited
capacity. This was largely due to resistance by the newly established
Afghan government, the U.S. government, and the U.N. Assistance Mission in
Afghanistan to a serious accountability process that might upset the
political transition. To date, the national human rights commission has not
made meaningful progress to address past crimes, a result of inadequate
training, resources, and equipment, and threats against commission members.

The accountability process in Iraq marks another missed opportunity for the
international community. The Iraqi Governing Council has drafted a law to
establish a domestic war crimes tribunal to prosecute the former Iraqi
leadership for crimes including genocide, crimes against humanity, war
crimes, torture, "disappearances," and summary and arbitrary executions
committed during Ba`th Party rule. The United States has backed such an
"Iraqi-led" tribunal to try these crimes and many Iraqis have expressed
support for this approach. However, Iraqi jurists have not had experience
in complex criminal trials applying international standards. In the face of
very limited United Nations involvement in post-war Iraq, the Security
Council, for its part, even shied away from a proposal to establish an
expert group comprised of Iraqi and international experts to assess how to
best bring justice for Iraq. There is real concern that the projected
trials in Baghdad could end up as highly politicized proceedings,
undercutting the fairness and legitimacy of the process.

In the last several years, although some states continued to meet their
obligation to prosecute the most serious international crimes through their
national courts, the application of universal jurisdiction laws also has
been scaled back somewhat. While there are a number of pending cases
involving mid-level officials before national courts in Europe, there has
been no increase in prosecutions of senior officials.

In the so-called Yerodia case of February 2002, the International Court of
Justice (ICJ) held that a sitting foreign minister was immune from
prosecution in another country's court system regardless of the seriousness
of the crimes with which he was charged. Although the ICJ noted that such
officials would not be immune to prosecution before international criminal
courts where these courts have jurisdiction, its decision went against
recent trends to deny immunity for serious human rights crimes.

In 2003, Belgium was forced to revise its universal jurisdiction law in
response to intense economic and diplomatic threats by the Bush
administration. This included the Bush administration raising the
possibility of moving NATO headquarters elsewhere unless Belgium capitulated
to its demands. The Belgian law had a particularly expansive reach: the
absence of a jurisdictional "presence" requirement in the law together with
a provision allowing private individuals, known as "parties civiles," to
file complaints directly with an investigating judge resulted in the
indiscriminate filing of a spate of cases against high profile officials
from around the world. This attracted enormous media attention and
opposition even though the investigative judge had the power to, and
undoubtedly would have, ultimately dismissed any patently unfounded
complaints. The revised law restricts the reach of universal jurisdiction
to cases where either the accused or victim has ties to Belgium, making it
similar to or more restrictive than the laws of most countries that
recognize universal jurisdiction.

A Way Forward

The backlash against the developing international justice system, while
dismaying, is hardly surprising given the extent to which the significant
advances of the past decade have begun to constrain the prerogatives of
abusive state officials. The challenge now is to work effectively in a more
difficult international environment while many national courts remain unable
and unwilling to prosecute the most serious human rights crimes. The gains
engendered by international justice institutions need to be preserved and
the international system strengthened until many more national courts assume
their front-line role in combating impunity.

We see three critical steps: make a sober assessment of the challenges
facing international justice today; analyze and draw lessons from experience
to date; and take strategic, measured steps forward. This essay concludes
with separate descriptions of each of these steps, including specific
recommendations on how to implement them to maximize the effectiveness of
existing institutions.

Assessing the Challenges Facing International Justice Today

The system of international justice has made several singular advances. At
the same time, as decribed below, the ad hoc international tribunals have
not been as effective or as efficient as envisioned. The achievements of
the courts in Kosovo and East Timor have been similarly mixed. Grasping the
combination of the inherent institutional limitations and the objective
difficulties to international justice is crucial in evaluating the
performance of these tribunals and continuing efforts to more fully assure
justice for atrocities.

Prosecuting senior officials for serious human rights crimes where there are
a large number of victims is a complex and expensive process regardless of
whether the cases are tried before national or international courts. These
prosecutions tend to involve massive amounts of evidence that must be
analyzed and classified by crime scene, type of crime, and alleged
perpetrator. Such cases require a sophisticated prosecution strategy.
Trials must comply with international human rights standards to ensure their
legitimacy and credibility. Ensuring the fairness of these trials-including
their compliance with human rights standards-often results in a slow
process.

Cases brought before international criminal tribunals or in national courts
(based on universal jurisdiction) are often tried far away from the crime
scene and thus are less accessible to victims and those in whose name the
crimes were committed. These trials sometimes lack the visibility in the
country where the crimes occurred that a local trial would have. The state
where the crimes occurred, whose government may include accused war
criminals or their confederates, may oppose the prosecutions, resisting
cooperation and making it difficult to obtain custody of the defendants or
obtain evidence. Gathering evidence for crimes that occurred hundreds or
thousands of miles away makes it more difficult to meet the level of proof
required for a conviction and for the accused to develop a comprehensive
defense. Another downside to distance includes a lack of familiarity with
the cultural and historical context in which the crimes occurred. The need
for translation services also slows the pace of trials and makes them more
costly.

International criminal tribunals, as global institutions, also face their
own unique institutional challenges. Bringing together judges, prosecutors,
and other court personnel from different backgrounds and legal cultures
creates obstacles to efficient trials. Reconciling the civil and common law
traditions to establish and implement rules of procedure and evidence is
time-consuming and costly.

The Yugoslav and Rwandan tribunals are illustrative of some of these
problems. After approximately seven years of work, the ICTR has completed
only fifteen trials. This is due to a variety of factors including an
overly ambitious prosecution strategy that pursued too many suspects; poor
coordination between investigators and prosecutors; and failure to fill some
long vacant posts. The slow pace of trials has resulted in unusually long
pre-trial detentions that raise human rights concerns. Although
significantly more efficient, cases at the ICTY have also progressed slowly,
in some part due to indictments overloaded with numerous counts. The cost
of the tribunals has been extraordinarily high, reaching one hundred million
dollars a year.

At the ICTR, there have also been ongoing problems with witness and victim
protection. Witnesses and victims have described being treated with a lack
of sensitivity due in part to lack of communication with victims and
witnesses and inadequate follow-up. Major indicted war criminals of both
tribunals remain at-large due to a failure of cooperation and assistance by
the states where they are located and other states with the capacity to
arrest them.

The national component of the hybrid mechanisms offers the potential
advantage that the trials will leave a more lasting legacy in the countries
where the crimes occurred. In theory, the existence of national staff
working alongside internationals with expertise in adjudicating complex
criminal trials could over time enhance the capacity of national courts.
The proximity of the court to the site of the crimes could make the trials
more accessible to victims and those in whose name the crimes were
committed. However, the local component of these mechanisms also presents
particular challenges. Security risks may be increased, local staff hired
to work on these cases may be linked to past abuses, thereby re-traumatizing
victims and witnesses, and national staff may be subject to political
interference or lack the expertise to ensure that cases are tried fairly and
effectively.

The work of the hybrid mechanisms in East Timor and Kosovo up to this point
has been far from ideal. Representing "justice on the cheap," they have
been seriously under funded by the international community. In both
situations, cases have progressed slowly and the administration of justice
has suffered from a range of problems including: lack of qualified staff to
investigate, prosecute, and adjudicate cases; arbitrary or lengthy pre-trial
detention and ineffective defense counsel; lack of effective translation
services and support staff; and allegations of political interference or
intimidation.

As the Special Court for Sierra Leone has yet to begin trials, it is too
soon to evaluate its success as an accountability model. However, it
appears so far to be operating efficiently.

In establishing the Yugoslav and Rwandan tribunals, the international
community faced specific challenges that resulted from their sui generis
nature. The only models from which they had to work were the Nuremberg and
Tokyo tribunals, courts conducted by the victors of World War II, fifty
years ago, and in which trials and sentences were quickly carried out.
While not absent, fair trial safeguards in these prosecutions would probably
not pass muster under today's standards. Most strikingly, there was no
right to appeal. The establishment of the Yugoslav and Rwandan tribunals
thus occurred without any pre-existing adequate model and high start-up
costs could have been expected.

Objective institutional problems have also been aggravated by a tendency to
misunderstand the immediate impact of the Nuremberg trials. The short-term
effect of Nuremberg has, unfortunately, been inflated over the years. At
the time the trials were conducted, they were enormously controversial among
Germans. While illuminating to the international audience, the German
people initially dismissed the proceedings as political show trials. The
International Military Tribunal (IMT) that conducted the Nuremberg trials
did not significantly enable Germans to come to grips with the horrific
crimes that were committed by the Nazi government. This reckoning only
occurred decades later when a new generation began to ask questions about
individual responsibility during the Third Reich. At that time, the IMT's
record provided an invaluable and incontrovertible reference point of past
crimes. Nevertheless, conventional wisdom about the Nuremberg trials is
that they quickly enabled the population of Germany to confront what had
happened under the Nazi Party. This idealized view has led to unrealistic
expectations for war crimes trials. We need to better calibrate our
expectations given the experience of the last half a century.

The international community, moreover, is only beginning to reap the
benefits of its investment in the Yugoslav and Rwandan tribunals. It has
drawn on the lessons of the two tribunals in establishing the ICC and hybrid
mechanisms, and can also be expected to benefit from this experience in
structuring future justice mechanisms.

Learning from Experience

National courts are not about to become uniformly capable or willing to
bring justice for atrocities in the immediate future. This is particularly
true in post-conflict situations where justice systems have been either
partially or completely destroyed. As a result, international justice will
remain a crucial last resort that must continue to be fortified against
efforts to undermine it.

The achievements and failings of the ICTY and ICTR need to be thoroughly
assessed. While it may be unrealistic to expect that full-scale ad hoc
international tribunals will be created in the current environment, the
lessons of these tribunals can help inform other efforts, including the
development of hybrid justice mechanisms. Similarly, the record of existing
hybrid mechanisms must be evaluated so that the benefits of national
participation can be fully realized while better achieving fair and
effective trials. The effects of differences between existing hybrid
courts, including the extent to which they operate more as national courts,
as do the Regulation 64 Panels in Kosovo, or as international courts, as
does the Special Court for Sierra Leone, should receive particular scrutiny.
Hybrid mechanisms should not be established simply because they are an
inexpensive alternative if an international mechanism would be more
appropriate.

In addition, we need to evaluate situations in which international
mechanisms are rejected notwithstanding serious concerns about national
capacity and willingness to pursue justice, as in Indonesia for crimes in
East Timor and as is likely to be the case in Iraq. The consequences of
failing to address impunity at all, as appears likely in Afghanistan, must
also be documented. Such efforts will help build support for international
justice.

More countries should be encouraged to adopt and implement universal
jurisdiction laws. This could be accomplished as part of their adoption of
ICC implementing legislation. Politicized use of universal jurisdiction
against high profile figures, however, will only weaken the credibility of
international justice efforts and should be avoided. In general,
prosecutors and investigating judges should initiate cases against
lower-rank defendants found on their territories. This will allow the
jurisprudence and practice to be built from the bottom up. This could lead
over time to the successful application of extra-territorial jurisdiction
against more prominent figures. However, where a strong legal basis exists,
cases against more prominent figures must also be pursued.

The United Nations must play a more central and systematic role in
post-conflict situations. Although the United Nations has often been
pivotal in forging the international response to serious human rights crimes
in such settings, the "justice gap" in countries such as Liberia, the
Democratic Republic of Congo, and Côte d'Ivoire underscores the need for
more systematic U.N. efforts. Over the last decade, the Security Council,
the secretary-general, and the General Assembly have convened several
commissions of experts to assess evidence of serious human rights crimes and
recommend appropriate mechanisms. Such commissions were created for the
former Yugoslavia, Rwanda, East Timor, and Cambodia. The U.N. Secretariat
should create a permanent post or entity charged with analyzing the work of
such commissions, identifying successes and failures, and advising future
commissions. Creation of such commissions should become a regular part of
the Security Council's response to post-conflict situations.

Taking Strategic Steps Forward

The ICC will only realize its potential with the concerted assistance of
states, intergovernmental organizations, and NGOs. States parties need to
strengthen and defend the integrity of the ICC statute. They should find
ways to diffuse attacks on the court by the Bush administration, and
continue to provide additional financial and diplomatic support for the
court. States parties must also adopt strong legislation implementing the
provisions of the Rome Statute into national law.

There likely will be intense scrutiny of the ICC's performance in the first
cases it adjudicates. It will be difficult work to do well and there will
be shortcomings. However, the ICC should make every effort to conduct the
most fair, impartial, effective, and efficient trials possible so that the
court gains legitimacy and credibility.

Even if the ICC achieves its full potential, it realistically will not be
able to address all situations in which national courts are unwilling or
unable to prosecute perpetrators. Among other factors, there are temporal
and other jurisdictional limitations on what cases the ICC can hear. The
ICC's jurisdiction is also restricted to cases in which the state where the
crimes occurred is a party to the Rome Statute, the state of the nationality
of the accused is a party to the Rome Statute, or the Security Council
refers the situation. Even where these requirements are satisfied, the ICC
will be able to prosecute only a small percentage of the highest-level
alleged perpetrators. Cases of mid-level perpetrators and cases where there
are numerous perpetrators bearing significant responsibility, as in many
post-conflict situations, are unlikely to be fully addressed by the ICC.

In light of the constraints on the ICC and other international justice
mechanisms, efforts to strengthen weak but politically willing national
courts are all the more important. The ICC's operations must leverage the
complementarity provisions of the Rome Statute to create a synergy between
its work and prosecutions for serious human rights crimes by national
courts. The ICC should strive to focus international attention on
situations where serious human rights have occurred, both where it is
pursuing cases and not pursuing cases. Where it is pursuing cases, such
attention could help garner support to enhance the capacity of national
courts to prosecute mid-level and lower-level perpetrators effectively and
in accordance with fair trial standards. Where it is unable to pursue cases
involving serious crimes due to jurisdictional limitations or some other
obstacle, such attention could help garner support to enhance the capacity
of national courts to prosecute the highest-level perpetrators. This will
maximize the ICC's catalytic effect on international support for fair and
effective prosecutions at the national level.

Hybrid mechanisms, universal jurisdiction, and other solutions will be
essential to fill justice gaps where the ICC and national courts are unable
to address serious crimes. The international community should apply the
lessons learned from existing hybrid mechanisms to develop new models that
are able to bring justice more fairly, effectively, and efficiently.
Universal jurisdiction should be applied where appropriate.

The work of the ICTY and ICTR should effectively draw on the lessons of
experience to date to complete their work. Given the emphasis the Security
Council has placed on a completion strategy for these tribunals to cease
operations by 2010, states and intergovernmental organizations should work
assiduously to arrest key suspects and prosecute them. The tribunals should
continue to amend their rules and improve courtroom management to increase
efficiency and effectiveness. Some cases are likely to be referred back to
the national courts of the former Yugoslavia and Rwanda as part of the
completion strategy. The lessons of the tribunals should be used to
increase the capacity of the national courts to adjudicate these cases
fairly and effectively by conditioning referral on national courts'
compliance with international fair trial and human rights standards.

Conclusion

The development of a system of international justice to limit impunity for
serious human rights crimes has struck at outmoded notions of national
sovereignty and the absolute prerogative of states. It would have been
unrealistic to expect that progress would occur in a straight line. To
address today's more difficult environment, recent achievements must be
secured and the system must be refined so that perpetrators of the most
serious crimes are increasingly held to account.