How International Justice Can Go Local

In his recent diatribe against the International Criminal Court, U.S. National Security Advisor John Bolton might have given some the impression that the International Criminal Court had somehow conjured up international law.

That is not the case. Instead, the court is the keystone of a nascent system of institutions enforcing already-existing laws: the international conventions, which are signed by the community of nations; and customary international law, which criminalizes genocide, war crimes, and crimes against humanity.

Whatever the criticisms of the still-evolving International Criminal Court’s performance, the imperative of holding perpetrators to account for the gravest of crimes—crimes for which there is no statute of limitations—continues to command political attention around the world.

In Gambia, for instance, the government is grappling with how to hold a former president to account for torture and other atrocities. Mexico’s president-elect, meanwhile, has agreed to explore the creation of an international mechanism to investigate and prosecute crimes against humanity and other serious crimes arising from the country’s conflict with criminal gangs. In South Sudan, a new peace deal has recommitted warring factions to the creation of a court, backed by the African Union, which would address atrocities by all sides. Similar initiatives are under discussion to address appalling crimes committed in such places as Syria, Sri Lanka, and Myanmar.

Some situations fall outside the International Criminal Court’s jurisdiction. Others exceed the capacity of The Hague–based court, which was always envisioned as a last resort. It is preferable to hold perpetrators to account in local or regional courts—places that are more accessible to the communities where the atrocities occurred.

Criminal courts for the former Yugoslavia and Rwanda were first set up on an ad hoc basis in the 1990s, before the International Criminal Court’s launch in 1998. Other kinds of tribunals have been created since, such as the Extraordinary African Chambers in Senegal, which convicted former Chadian dictator Hissène Habré of crimes against humanity, war crimes, and torture. Domestic trials have applied international law too, sometimes with international support, as in Guatemala and the Western Balkans. Some accountability institutions have included corruption or other serious crimes in their mandates.

Over the past 35 years, since the end of the Cold War opened political space throughout much of the world, many different models have been tried, with varying degrees of success. In an effort to make sense of these diverse experiences, the Open Society Justice Initiative embarked on a major study of what has worked and failed.

Our new report, Options for Justice: A Handbook for Designing Accountability Mechanisms for Grave Crimes, looks at 33 different approaches in 29 countries in order to distill lessons and considerations for the design of new bodies. The models examined include purely domestic trials (as in Argentina), hybrid models (where international and local staff and judges work together, as in Sierra Leone), and the ad hoc tribunals for Rwanda and the former Yugoslavia that marked the birth of the modern movement for accountability.

The handbook focuses on questions of design, not operation. It sets out some of the big questions that need to be answered, starting with the mechanism’s purpose and scope. Should the proposed mechanism be concerned with investigation and prosecution? Is it meant to achieve accountability for a defined set of cases, or is it more ambitious? Does it, for example, intend to strengthen the justice system and respect for rule of law as a whole?

The handbook identifies nine such key questions, including the mechanism’s jurisdiction, its relationship to the domestic judicial system, the basis of its authority, financing, oversight, and location.  

There is no simple formula for creating a new accountability mechanism. Some across-the-board lessons include a need for early and robust outreach to affected communities, a need for strong defense structures to uphold fair trial rights, and the imperative of robust internal and external oversight to foster efficiency and avoid scandal.

Beyond these clear lessons, most design decisions entail difficult tradeoffs. For example, local trials have many advantages but may be impossible because of security threats to the process. Victim demands for comprehensive prosecutions may be in tension with limited funding. The introduction of international judges or staff may promise greater objectivity and technical expertise but could undermine the mechanism’s legitimacy in the eyes of some or even most local stakeholders.

There are costs, benefits, and even contradictions in most design choices. With Options for Justice, accountability advocates around the world have a tool to inform plans for new mechanisms based on a fuller appreciation of lessons from previous models. If they can do this, and tailor a new generation of accountability mechanisms to individual contexts, they will fortify the system of international criminal justice.

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As previous Chair of WFM-IGP based in The Hague and New York during the time that some 2500 NGOs worldwide created the Coalition for the International Criminal Court which we have administered over the last 20 years and work closely with the Assembly of States Parties and the organs of the ICC we recognise the importance of establishing viable domestic and regional courts to try existing crimes within the jurisdiction of the ICC and the new crime of Aggression. It is still imperfectly understood (and often deliberately ignored by the Court’s detractors) that a case is referred to The Hague only if the country in which the crime was committed or the perpetrator is a national is unwilling or unable to prosecute. That should be an end to the spurious objections to signing/ratifying the Statute by the USA and others.

Thank you for working to protect human rights in conflict ridden nations with corrupt government systems which do not offer prections against atrocities like hate-crimes. I hope that people of democratic nations around the world will vote for leaders who support the trials against human-rights abuses when the national governments do not intervene, that the free world must help condemn and help heal, since "A threat to freedom anywhere is a threat to freedom everywhere" as the world learned during WWII

Why does US want to repeal all international treaties that affect them?

The current effort by the Republicans in the US is to dismantle civil society as we've all known it since World War II. It's a practice that helps the rich get richer and makes them accountable to no one. I hope that when the nightmare ends, the international community will remember that the US administration, legislative, and now judicial branches are held by a minority government, supported by big money, voter suppression, gerrymandering, and apparently extensive interference in our elections by forces that are hostile to Open Society values. Kudos to Open Society.

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