The theme of the Third International Conference of Defence Counsels on International Criminal Law that led to this collection of essays was “International Justice, Justice for Whom?” That theme underlies some of the direst challenges of the global justice system put in place to deal with genocide, crimes against humanity, and war crimes, prominent among which are the issues of selectivity and politicisation. In the face of an International Criminal Tribunal for Rwanda that failed to look at both sides of the conflict, or of an International Criminal Court where investigations are exclusively focused on situations in Africa, observers and participants have begun questioning whether justice for international crimes is indeed true justice according to the rule of law or rather (in)justice for an unlucky few who fell out of favour of the superpowers. These are legitimate concerns that must be discussed and confronted if the idea of justice for the worst crimes known to mankind is to survive its own renaissance in the mid-nineties after the long paralysis of the Cold War that followed the Second World War and the military tribunals put in place to judge the Nazis and members of the Axis.
Just as some of the most problematic aspects of anti-terrorism laws adopted post-9/11 are symbols of the dangers of abuse of the law when the objective of fighting criminality is pursued too aggressively, so must one be careful of similar overreach in the domains of genocide, crimes against humanity, and war crimes. No one is against virtue, and no one is consequently against the objective of fighting international crimes. But we must be guarded against the temptation to cast the net of repression too wide and sacrifice, in our noble endeavour, not only principles that should remain indisputable, like the right to make full answer and defence and the right to an impartial and fair trial, but also actual persons, physical individuals who might become ‘collateral damage’ of laws that are either outright unfair (like most of the early antiterrorism laws) or overly broad—some would say the interpretation given to certain modes of participation to offenses by the ad hoc tribunals. The international criminal justice system, like all justice systems, is vulnerable to abusive or unjust interpretations and applications of the law.
Defence lawyers are particularly well placed to witness these defects. In a sense, the sensible evolution of any justice system, including the international criminal justice system, relies on their capacity of indignation. It is this indignation and those thoughtful attacks on the law that prevent the international justice system from turning into a cheerful circus of do-gooders patting each other’s backs in satisfaction every time one more ‘war criminal’ goes to prison. Having said that, we should also guard against adopting un-nuanced or extreme position about the system: we should be careful of those idealists who see international criminal justice as a panacea and as the grander achievement of mankind, just as we should be careful with those hopeless cynics who see it as a completely worthless and corrupt enterprise.
In this short essay, we wish to discuss some aspects of the background that mark the coming into life of the permanent international criminal jurisdiction—the International Criminal Court. Namely, these include the expectations that were placed on international criminal justice institutions in the nineties and beyond, and the partial failure of these institutions to live up to these unrealistic anticipations (Part 1 below).
We will then address some elements of consideration for the future of the international criminal justice system. We will mention some of the foundations upon which it is built, serving as a basis for our argument that despite a mixed legacy and various shortcomings, there will be no turning back to a legal void in international law as regards accountability for international crimes. We will also discuss the gradual and promising shift of responsibility from international bodies towards states in the investigation and prosecution of international crimes.
The creation of the ad hoc tribunals in the mid-1990s and the adoption of the Rome Statute of the International Criminal Court in 1998 spurred a wave of excitement and tremendous hope in the human rights community and among victims of atrocities. The individuals responsible for committing the gravest violations of international human rights law and of international humanitarian law would be brought to justice. If the international community could not or would not prevent crimes, it would at least ensure that they would not go unpunished. However, aside from the punishment of those who bear the greatest responsibility for the commission of mass crimes, international criminal justice institutions were expected to play a great role in the restoration and or maintenance of peace and security.
In 1993, the UN Security Council stated that, “the establishment [...] of an international tribunal and the prosecution of persons responsible for serious violations of international humanitarian law would [...] contribute to the restoration and maintenance of peace.”1 It was the first time that the belief that criminal accountability might be essential for the restoration and maintenance of peace and security was explicitly expressed. Massive human rights violations, including those occurring within a state’s borders, were considered threats to international peace and security, and individual accountability for such violations was considered a measure to restore or maintain them. This objective became a trend, as all international and internationalised tribunals created since then pursued it to more or less explicit degrees.2
However, this was not the only objective international criminal tribunals were expected to reach. Indeed, international criminal justice was seen as a way not only to deter the individual perpetrator, but also to act as a general deterrent for the commission of international crimes worldwide and to prevent the escalation of war, or at the very least diminish the capacity of a group to commit violations. Moreover, international criminal tribunals were also supposed to tell the truth and shed light on events, providing a sense of justice for victims. They further had an ‘educational’ role aimed at “conveying the message that rules of international humanitarian law have to be obeyed under all circumstances.”3 It was also thought that they would allow victims and perpetrators to reconcile and reinstate the torn societies in a country where the rule of law would have been re-established.4
Even with such a rapid and non-exhaustive overview, it can easily be observed that very high expectations were put on international criminal justice, consequently setting a high threshold for success. In the background of the work of international criminal institutions nowadays, therefore, lies a very difficult endeavour, that of managing expectations: expectations of states, of civil society, of “public opinion” and, above all, those of victims. As put dramatically by Rob Crilly:
[T]he crowd of children, their eyes wide with hope as they held their handwritten signs calling for the UN and ICC to save the people of Darfur… was one of the most depressing sights I had ever seen. In some ways it is easier to deal with misery, with mothers holding skeletal children as they tell how their village was burned and their menfolk killed… What is infinitely more difficult to deal with is hope: the belief that the outside world can solve the problems of Darfur; that the soldiers of the UN will one day ride to the rescue; or that the ICC will end Sudan’s culture of impunity.5
In the face of such high anticipation, it was to be expected that international criminal institutions would be vulnerable to critiques. For one thing, the interaction between and compatibility of peace and security on the one hand, and justice on the other, is at the heart of a raging debate that plays out in most if not all post-conflict settings, as well as in situations of ongoing violence and human rights abuses. The idea that international criminal justice mechanisms can (contribute to) restore peace and security is one of the most hotly debated issue in the literature and in international fora. There is certainly no definite answer to this debate.
Clearly, the adoption of some criminal law measures to deal with international crimes cannot be ignored in peace-building processes (though they may, arguably, be delayed). For one thing, it should be recalled that criminal prosecutions are mandated by international treaty law for some international crimes6 and arguably by international customary law for others.7 Without romanticising the transformative potential of such trials, we are of the view that criminal justice for international crimes has a role to play in post-conflict recovery and indeed perhaps in ongoing conflict situations.
Having said that, the focus on international criminal justice may have shadowed the fact, at least in the beginning, that criminal trials can only be one element of a complex web of measures that need to be implemented for the transition from war to peace to succeed. Only holistic strategies devised on a case-by-case basis after consultation with national constituencies, including the groups most affected by conflict, can hope to balance “a variety of goals, including the pursuit of accountability, truth and reparation, the preservation of peace and the building of democracy and the rule of law.”8 Insistence on criminal trials without due regard to complementary and alternative (legal and non-legal) mechanisms can indeed jeopardise the quest for truth, justice, and reconciliation. Complementarity is necessary not only with other—non-criminal—transitional justice mechanisms, but also, for instance, with judicial and political measures aimed at recognising state responsibility for the crimes committed.9 The various transitional justice approaches in turn need to be implemented in coordination with overlapping initiatives such as security sector and rule of law reforms as well as human rights-based development programming.10
Now, even if one recognises that criminal justice has a role to play for the maintenance or restoration of peace and security, it must be acknowledged that international criminal courts have at times taken roads that are not easy to reconcile with the idea of peace. As a striking example, the failure of the ICTR to look at both sides of the conflict has most probably led to tensions in Rwanda.11 Criminal trials can contribute to peace and reconciliation among other ways by presenting “an accurate collective memory… based on the model of closure. It is said that war crimes trials can permit entire societies to ‘draw a clear line between past and future, allowing the beginning of a healing process.’”12 Beyond closure, which is said to be too ambitious an agenda for criminal trials, it remains that they can promote debates about the history of a conflict or about specific cases through the lens of the law, lessening the chances of blank assertions of guilt from both sides.13 However, post-conflict criminal trials can hope to fulfill this promise only if they look at both sides of a conflict. The ICTR, for reasons of political expediency, blatantly failed in this regard.
As another example, the decision of the then International Criminal Court prosecutor to indict the sitting president of Sudan, Omar Al-Bashir, for crimes against humanity and genocide in Darfur was a surprising move at the time, for legal and strategic reasons, and it proved to be devastating for the legitimacy and credibility of the ICC. Legally speaking, it was rather bold to go directly to the top of the political hierarchy without having previously built the chain of power and command through other, less high-profile cases, in a highly complex situation like that of Darfur. It was also quite intrepid to indict the president for the crime of genocide, a very difficult crime to prove, in a case where even the International Commission of Inquiry that investigated the issue, and whose report led to the Security Council referral of the Darfur situation to the ICC, had not found sufficient evidence to conclude that genocide had occurred.14 Strategically speaking, going after a sitting president when the state was already hardly cooperating with the court was a guarantee of rebuttal and a promise that no alleged Darfur war criminal would make his or her way to The Hague. This decision has alienated the African Union and has triggered a series of very aggressive stances against the ICC, leading the court to the edge in its precious relations with African states. What the Bashir case demonstrates, too, is that one should be cautious about excess of confidence in international criminal justice as an instrument of peace, absent strong political sponsorship, namely the backing of an organ such as the Security Council. Even when the Council has found that criminal prosecutions are a desirable measure for the restoration of peace and security in a given situation, its lack of effective support with the enforcement of subsequent measures adopted within the criminal justice system seriously undermines the credibility of the international legal order: “Impunity through non-enforcement of international arrest warrants that have been backed with Chapter VII authority cannot be permitted without fundamentally undermining the credibility of the notion of an international rule of law.”15 This lack of consequent follow-up in the situation of Darfur gravely undermines the credibility of both the ICC and the Security Council and weakens the international legal order.
As for other unfulfilled expectations, the ad hoc tribunals quickly disappointed victims who initially hoped to have a voice in the international criminal processes. Reparations for victims were not given a prominent status in the ad hoc international criminal tribunals’ statutes, which were heavily based on the common-law model. The ICTY and ICTR Statutes provide for restitution of property acquired through criminal conduct once a finding of guilt has been made, but the victims have no direct standing in claiming restitution.16 The individual victim can also claim compensation through the national courts or other competent bodies, once the accused has been convicted and the judgment has been transmitted to the national authorities.17 These provisions have had little if no impact for victims related to proceedings before the tribunals.18
Moreover, the idea that international criminal justice mechanisms could develop an accurate and detailed narrative of history is fairly controversial.19 Criminal proceedings have as their principal objective determination of individual liability. When they are particularly founded on an adversarial model, they cannot realistically be hoped to build a complete factual record of an entire conflict or years of abuse. The ad hoc tribunals have been criticised for attempting to do so.20
Finally, while it is generally understood that “long-term and sustainable solutions to impunity should aim mostly at building domestic capacity to try [international] crimes,”21 international criminal justice mechanisms produced mixed results. Internationalised (hybrid) tribunals often have a deep impact on national law, but the ad hoc tribunals had a low-profile and inefficient capacity-building strategy, at least in the early stages, and it took some time before they stimulated legal reforms at the domestic level. In fact, the ICTY and ICTR never really saw national capacity building as being a central part of their mandate until their completion strategy had to be crafted.22 Their impact could be summarised as ‘too little too late.’23
The ICC has learned from these arguable failures and has crafted an innovative mechanism for victims’ participation and reparations. Victims have indeed increasingly been given a more prominent role in international criminal proceedings. The ICC has various provisions regarding victims’ participation. Its strategy is based on the principles contained in international instruments regarding victims’ rights.24 It is based on the fact that “positive engagement with victims can have a significant effect on how victims experience and perceive justice and, as such, contribute to their healing process” 25 and on the understanding that the “ICC has not only a punitive but also a restorative function. It reflects growing international consensus that participation and reparations play an important role in achieving justice for victims.”26 Participation in criminal proceedings is not without difficulties, however, particularly where it clashes with the rights of the accused.27 The Extraordinary Chambers in the Court of Cambodia and the Special Tribunal for Lebanon also allow for victims’ participation in court proceedings.28 This confirms the trend of recognising victims not only as potential witnesses and sources of information, but as active actors of the criminal process who are granted specific rights.29 As for national capacity building, as we shall see, the founding principle of the ICC—complementarity—is probably the most promising impact the ICC is likely to have on the global enterprise to fight impunity for the worst international crimes.
It is trite to say that the ad hoc tribunals and the ICC were created on the foundations of Nuremberg and, particularly for the ICC, were aimed at providing a permanent home to the noble idea that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”30 This principle is that of individual criminal liability, the idea that behind the curtains of statehood are persons actually committing, ordering, planning, and so forth, international crimes. This principle is now firmly embedded in both treaty and customary international law, as hinted above, and cannot be ignored, both in law and in practice. International criminal tribunals have had an indisputable role in promoting and building the rule of law at the international level and in building an international normative public order.
It is undeniable that international criminal statutes and courts have brought greater clarity to the definitions of international crimes and to the modes of participation to such crimes. The impressive amount of jurisprudence emanating from these courts and the vibrant academic literature that accompanied it certainly made an immense contribution to the international legal framework. Suffice it to mention, for instance, the tremendous impact on the definition of the crime of genocide by the two first genocide judgments in Akayesu31 and Kambanda,32 which gave unprecedented “vitality and relevance” to the 1948 Convention,33 notably declaring that genocide is “undeniably considered part of customary international law.”34 The Akayesu judgment is also ground-breaking for its affirmation of rape as constitutive of international crimes.35 As with other crimes of sexual violence, it is now considered an underlying crime of all core crimes by international courts and can also be constitutive of torture or persecution.36 The Rome Statute codified this statement of international customary law and lists numerous acts of sexual violence within its definitions of crimes against humanity and war crimes.37
One of the most significant developments in international criminal law has occurred with respect to crimes against humanity. These crimes have grown out of their link with armed conflicts and their definition has been progressively refined (regarding the attack requirement, for instance) and expanded (a broad list of sexual crimes and enforced disappearance, for instance). They cover a wide range of conduct committed in both peace and war times that would not necessarily qualify as genocide or war crimes. Despite the current absence of a specific treaty concerning crimes against humanity, they now form a central part of the international criminal legal order. As regards war crimes, the ad hoc tribunals and the ICC Statute have made numerous important contributions, the most significant and well-known being the extension of the legal regime applicable to war crimes to internal armed conflicts.38 This development has been codified generally in the ICC Statute, which sets forth the most detailed listing thus far of underlying offences constitutive of war crimes committed in internal armed conflicts.39
Apart from the definitions of crimes, international criminal institutions have defined modes of individual criminal liability, trying to find a way to deal with individual criminal responsibility in a context where there is a plurality of perpetrators, some of whom may not have physically committed the crime.40 The doctrines of superior responsibility and joint criminal enterprise were developed to cope with what has been labelled “system criminality.”41 Though they have been criticised,42 the doctrines have been the basis for a vast number of convictions before all international criminal tribunals43 and have contributed, along with the vibrant literature they have stimulated, to building a better understanding of how criminal law may capture collective and massive criminality. Finally, it is worth noting that the building of international criminal justice has also contributed to weakening the legal basis for amnesties for gross human rights violations, it has opened a breach in the long-standing legal regime concerning immunities, and it has severely limited the application or statutes of limitations, all of which welcome developments where applied within the bounds of law, which includes the preservation of state sovereignty.
Individual criminal liability for genocide, crimes against humanity, and war crimes is here to stay. There will be no turning back to a legal vacuum allowing alleged perpetrators of genocide, crimes against humanity, and war crimes to retire to a quiet holiday on a beach somewhere—if not in practice in all cases, at least in terms of states’ rhetoric and, above all, in international law. To fix any current weaknesses of the current international criminal justice system, it is necessary to work from within it instead of pushing pointlessly for its breakdown.
That said, the way of the future will not necessarily be that of the past. With the ad hoc tribunals, the international community chose to favour a distant and disincarnated form of justice, putting the emphasis on international courts. At the heart of the system put in place by the ICC to ensure accountability for the core crimes instead lies the principle of complementarity. States bear the primary responsibility to prosecute those responsible for international crimes. The ICC will exercise its jurisdiction only if the competent state is inactive, “unable” or “unwilling” to do so.44 National legislations such as Canada’s Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, are therefore called to play an increasingly important role in the global system put in place to fight impunity. By acting locally, states like Canada can indeed make a significant contribution for the “sustainable development” of international criminal justice.45 International criminal justice mechanisms will not disappear, but the international criminal justice system will rely more than ever on states to implement international criminal law.
The Rome Statute, in its preamble46 and by implication of the complementarity principle, provides for states parties’ duty to prosecute the international crimes contemplated therein. The Appeals Chamber of the ICC has recognised that states “have a duty to exercise their criminal jurisdiction over international crimes.”47 However, there is no explicit obligation in the Rome Statute on the part of states parties to establish jurisdiction over the crimes and certainly no obligation to assert it on the basis of universality.48 Regardless of the absence of a clear obligation in this regard in the Statute, many states have taken the opportunity presented by the need to modify their domestic law to implement their obligations under the Rome Statute and give their domestic courts jurisdiction to try these crimes, including on the basis of universality. The “ICC train” is creating an irrevocable momentum toward the criminalisation of the ICC offences in national laws and toward providing national courts with jurisdiction to try these crimes. Many observers argue that the impact of the complementarity principle on domestic legal systems—particularly if promoted ‘proactively’ by the Courts’ organs—is the ICC’s most promising contribution to the fight against impunity and to lasting peace and security.49
This renewed (or new) emphasis on domestic systems has at least two consequences in addition to the one just mentioned, namely, the need to change national laws to comply with international criminal law obligations and responsibilities. The first consequence is that states where the crimes occurred or whose nationality the alleged perpetrator possesses have a particular responsibility in ensuring that the crimes do not go unpunished. Two remarks can be made regarding this commonplace assertion. First, territorial or national states do not exactly have an immaculate pedigree in this regard. In fact, the need to internationalise accountability initiatives to address past human rights violations is often due to a lack of institutional capacity or political will at the local level. Second, having the primary responsibility to investigate and prosecute international crimes is perhaps a privilege respectful of state sovereignty, but it is also a very onerous duty. It is easy to see the inherent difficulties states coming out of conflict can face in living up to this challenge, particularly with respect to ensuring a fair trial to the suspects, in a political environment not always favourable to such noble aims. For instance, Côte d’Ivoire has asked the ICC to inquire into the crimes committed in the electoral period for fear of creating political instability in the country.50 It is also going into some challenges in attempting to hold to account sympathisers of the incumbent president who are alleged to have committed graves violations of international law.51 Similarly, for decades, numerous states and the ICTR have had great difficulties with extraditing or transferring suspects to Rwanda, despite clear political will there to take charge of the cases, essentially because of concerns for the suspects’ security or, more often, for fears that they could not get a fair trial. This long-standing debate has led to an important decision by a Chamber of the European Court of Human Rights (ECHR) on October 27, 2011, which dismissed the application by a Rwandan genocide suspect who was fighting extradition to Rwanda by Sweden because, according to the Court, “he would not risk a flagrant denial of justice.”52 The Appeals Chamber of the ICTR in December 2011 also confirmed the transfer of Jean-Bosco Uwinkindi to Rwandan courts, a first such transfer from the ICTR,53 and some states have also subsequently allowed such transfers, not without concerns expressed by defendants that a fair trial would be illusory on the current political context.54 As a last example, one can only mention the struggle of Libya to convince the ICC and world opinion that it can and will offer a fair trial to Saif Al-Islam Gaddafi.55 The responsibility to ensure accountability for international crimes thus brings about highly delicate challenges for the states involved.
A second consequence of this shift towards states in the global fight against impunity for international crimes is that where territorial or national states do not or cannot investigate and prosecute, not only the ICC can act as a last bulwark against impunity, but also third states, notably through the principle of universal jurisdiction. Universal jurisdiction is the assertion of jurisdiction by a state for crimes which, at the time of commission, had no territorial or national link with the state in question. Clearly, the ICC cannot be expected to be able to ensure justice for all perpetrators of international crimes. “As Cesare Beccaria stated as long ago as 1764, ‘the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence’ and the rule of law.’”56
The exercise of universal jurisdiction can in our view contribute to close the ‘impunity gap’ by ensuring that those responsible for international crimes do not escape justice. This extraordinary head of jurisdiction does not come without its own challenges, however, be it for both prosecution and defence to gather evidence, to obtain the territorial state’s cooperation, to apply international law to an unknown foreign context, to finance the investigations and the trials, to manage political tensions that might inevitably ensue, and so on. However, the collective undertaking to fight impunity depends largely on the serious commitment of all nations. This commitment must be directed at the proper functioning of the international institutions that have been established for that purpose, like the ICC, but it must also include the will and capacity to use national institutions towards realisation of the same fundamental objective.57
A lot was expected from the tribunals created by the United Nations Security Council in the midst of the deadly events of Rwanda and the Former Yugoslavia: restoration and maintenance of peace and security, deterrence, reconciliation, education, truth-telling, retribution, denunciation, reparation, etc. The ICC was created in 1998 in this environment of great hopes and tremendous expectations, which no criminal law institution, be it national or international, could ever meet. After nearly twenty years since the revival of international criminal justice, a common understanding emerges: criminal justice is only one measure that can be used in ongoing and post-conflict situations and we must not expect from it more than it can deliver.
The raison d’être of international criminal justice, the idea of individual criminal accountability for the most serious international crimes, is here to stay. There will be no turning back to a legal vacuum where no law and no institution could implement this principle. The ICC is not just an international institution; it has created a global system to fight against the impunity of those responsible for the commission of genocide, crimes against humanity and war crimes, a system which relies primarily on states. The seminar that led to this collection of essays asked the question Justice for Whom? To answer it requires looking beyond the ad hoc tribunals and beyond the ICC. The future of the global system of accountability for international crimes relies on states. The strengthening of national laws and judicial institutions is the priority challenge of the next decades. The political will to let justice follow its course, its main threat. The recent successes or attempts of national courts in states like Guatemala, Argentina, and Haïti, and the use of universal jurisdiction not only in Western states like Canada, Spain, Belgium, and the like, but also by Senegal, South Africa, and Argentina, perhaps points to what might be the most profound impact of the system created by the ICC: justice must be a matter for all, if the aim is that it not be directed against only a few.
1. Resolution 827, SC Resolution 827, UNSCOR, 48th Session, UN Doc S/RES/827, 1993, Preamble, Para. 6.
2. Ibid., Resolution 955, SC Resolution 955, UNSCOR, 49th Session, UN Doc S/RES/955, 1994, Preamble. As regards the Special Court of Sierra Leone (SCSL), see Resolution 1315, SC Resolution 1315, UNSCOR, 55th Session, UN Doc S/RES/1315, 2000, Preamble, Para. 7. For the International Criminal Court (ICC), see Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 3, Preamble, Paras. 3 and 5, Art. 13(b) [“Rome Statute”]. Similar links between peace and justice can be found regarding the establishment of the Panels in Timor-Leste: Resolution 1272, SC Resolution 1272, UNSCOR, 54th Session, UN Doc S/RES/1272, 1999, Preamble, Para. 1; the Khmer Rouge Trials in Cambodia: Khmer Rouge Trials, GA Res 57/228B, 57th Session, Supp. No. 49, UN Doc A/RES/57/228B, 2003, Preamble; and the Special Tribunal for Lebanon: Resolution 1757, SC Resolution 1757, UNSCOR, 61st Session, UN Doc S/RES/1757, 2007, Preamble.
3. Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Judgment, December 17, 2004, Para. 1080 (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber [“ICTY App. Ch.”]).
4. The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UNSCOR, 59th Session, UN Doc S/2004/616, 2004, Para. 38 [“Secretary-General Report on the rule of law and transitional justice”].
5. Rob Crilly, Saving Darfur: Everyone’s Favourite African War, Reportage Press, 2010, pp. 39-40 [emphasis added].
6. Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, 78 UNTS 277 at Arts. IV-VI; Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949, 75 UNTS 31 at Art. 49; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, 75 UNTS 85, Art. 50; Geneva Convention (III) relative to the Treatment of Prisoners of War, August 12, 1949, 75 UNTS 135, Art. 129; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, August 12, 1949, 75 UNTS 287, Art. 146; Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 UNTS 3, Arts. 85-87; International Convention on the Suppression and Punishment of the Crime of Apartheid, November 30, 1973, 1015 UNTS 243, Art. IV (note that, as an exception, at Art. V, the exercise of jurisdiction is phrased in permissive terms (‘may’)); International Convention for the Protection of All Persons from Enforced Disappearance, December 20, 2006 (not yet into force: see International Convention for the Protection of All Persons from Enforced Disappearance, GA Res 61/277, UNGAOR, 61st Session, Supp. No. 49, UN Doc A/61/49 (2006) 408 at Arts. 4-11; Third Committee, Report of the Human Rights Council: Report of the 3rd Committee, UN Doc A/61/448 (2006) at Para. 28, Arts. 4-11); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 UNTS 85, Art. 4-7. Jurisprudence interpreting various regional and international human rights treaties has also increasingly recognised the duty to prosecute those responsible for human rights violations: see e.g. review in Anja Seibert-Fohr, “Reconstruction through Accountability,” 2005, Max Planck Yearbook of United Nations Law, Vol. 9, p. 555.
7. See review of argument in e.g., Robert Cryer et al., An Introduction to International Criminal Law and Procedure, Cambridge, Cambridge University Press, 2007, pp. 31-33, 58-61.
8. Secretary-General Report on the rule of law and transitional justice, supra note 4 at Para. 25. On national consultations, see Office of the High Commissioner for Human Rights (OHCHR), Rule-of-law Tools for Post-conflict States: National Consultations on Transitional Justice, UN Doc HR/PUB/09/2, 2009.
9. See Saira Mohamed, “A Neglected Option: The Contributions of State Responsibility for Genocide to Transitional Justice,” 2009, University of Colorado Law Review, Vol. 80, p. 327.
10. Jane E. Stromseth, “Pursuing Accountability for Atrocities After Conflict: What Impact on Building the Rule of Law?” 2006-2007, Georgetown Journal of International Law, Vol. 28, p. 256; OHCHR, Frequently asked questions on a human rights-based approach to development cooperation, UN Doc HR/PUB/06/8, 2006. See also the interesting proposal of an emergency post-conflict justice that would work alongside other justice initiatives such as international criminal proceedings: Louise Otis and Eric H. Reiter, “Front-Line Justice,” 2006, Virginia Journal of International Law, Vol. 46, p. 677.
11. Human Rights Watch, “Rwanda: End Attacks on Opposition Parties,” February 10, 2010, http://www.hrw.org/news/2010/02/10/rwanda-end-attacks-opposition-parties. An opposition figure “has been widely condemned in official and quasi-official media and described as a ‘negationist’ of the genocide for stating publicly that crimes committed against Hutu citizens by the RPF and the Rwandan army should be investigated and those responsible brought to justice.”
12. Jose Alvarez, “Rush to Closure: Lessons from the Tadić Judgment,” 1998, 96 Michigan Law Review 2031 at 2034, citing Naomi Roth-Arriaza, “Introduction” in Naomi Roth-Arriaza, ed., Impunity and Human Rights in International Law and Practice, New York, Oxford University Press, 1995, p. 7.
13. Ibid., pp. 2084-2085.
14. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN Doc S/2005/60, 2005, Paras. 640-642.
15. C. Reiger, “Fulfilling the Justice Promise: Guiding Principles for Resolving the Ongoing Responsibilities of International Tribunals,” October 8, 2009, p. 2.
16. Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia since 1991, Art. 24(3); Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwanda Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January and 31 December 1994, Art 23(3); ICTY, Rules of Procedure and Evidence, rules 98ter(B), 105 [“ICTY RPE”]; ICTR, Rules of Procedure and Evidence, rules 88(b), 105 [“ICTR RPE”].
17. ICTY RPE, rule 106; ICTR RPE, rule 106.
18. See e.g. Anne-Marie De Brouwer, Supranational Criminal Prosecution of Sexual Violence: The ICC and the Practice of the ICTY and the ICTR, Antwerpen, Intersentia, 2005, p. 394 and following; William A. Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, Cambridge, Cambridge University Press, 2006, p. 149 and following; Susanne Malström, “Restitution of Property and Compensation to Victims” in Richard May et al., eds, Essays on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, The Hague, Kluwer Law International, 2001, 373 at 376. In Rwanda, the compensation orders have not been implemented: International Crisis Group, International Criminal Tribunal for Rwanda: Justice Delayed, June 7, 2001, Africa Report No. 30, http://www.crisisgroup.org/en/regions/africa/central-africa/rwanda/030-international-criminal-tribunal-for-rwanda-justice-delayed.aspx.
19. Jose Alvarez, “Rush to Closure: Lessons from the Tadić Judgment”, supra note 12; Mark J. Osiel, Mass Atrocity, Collective Memory and the Law, New Brunswick, Transaction Publishers, 1997; Martha Minow, Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence, Boston, Beacon Press, 1998.
20. See e.g. Prosecutor v. Tadić, IT-94-1-T, Opinion and Judgement, May 7, 1997, ICTY Trial Chamber [“ICTY T. Ch.”]; Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, September 2, 1998, ICTR Trial Chamber; for critiques, see e.g. José Alvarez, “Lessons from the Akayesu Judgment,” 1998-1999, ILSA Journal of International and Comparative Law, Vol. 5, p. 359; Jose Alvarez, “Rush to Closure: Lessons from the Tadić Judgment”, supra note 12.
21. OHCHR, Rule of Law Tools for Post-Conflict States: Prosecution Initiatives, UN Doc HR/PUB/06/4, 2006, p. 1; also, Secretary-General Report on the Rule of Law and Transitional Justice, supra note 4. Para. 34; Kerstin McCourt, “Judicial Defenders: Their Role in Postgenocide Justice and Sustained Legal Development,” 2009, The International Journal of Transitional Justice, Vol. 3:2, pp. 272-273.
22. Resolution 1503, SC Resolution 1503, UNSCOR, 58th Session, UN Doc. S/RES/1503, 2003, (inter alia, “recalls that the strengthening of national judicial systems is crucially important to the rule of law in general and to the implementation of the ICTY and ICTR Completion Strategies in particular”; see also Statute by the President of the Security Council, 57th Session, UN Doc S/PRST/2002/21, 2002.
23. See generally Jane E. Stromseth, supra note 10, p. 279.
24. International Criminal Court [“ICC”], Report of the Court on the strategy in relation to victims, ICC-ASP/8/45, November 10, 2009, Para. 6. The Office of the Prosecutor has also prepared a Policy Paper on Victims’ Participation, RC/ST/V/M.1, April 12, 2010, http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-ST-V-M.1-ENG.pdf.
25. ICC, Report of the Court on the strategy in relation to victims, supra note 24, para. 2.
26. Ibid., Para. 3.
27. See Salvatore Zappalà, “The Rights of Victims v. the Rights of the Accused,” 2010, Journal of International Criminal Justice, Vol. 8:1, p. 137.
28. See e.g. Extraordinary Chambers in the Court of Cambodia, Internal Rules, rules 23-23 quinquies; Special Tribunal for Lebanon [“STL”], Rules of Procedure and Evidence, rules 86-87 [“STL RPE”]; STL, RPE Explanatory Memorandum by the Tribunal’s President, June 10, 2009, Para. 14; for a comment, see Jérôme de Hemptinne, “Challenges Raised by Victims’ Participation in the Proceedings of the Special Tribunal for Lebanon,” 2010, Journal of International Criminal Justice, Vol. 8:1, p. 165.
29. There are a growing number of jurisprudential interpretations of the criteria necessary to qualify as a victim under Art. 68(3) of the ICC Statute, including on the notion of harm suffered by the victim and the link with the alleged crime. See e.g. The Prosecutor v. Thomas Lubanga Dyilo, Judgment on the appeals of The Prosecutor and The Defence against Trial Chamber I’s Decision on Victims’ Participation of 18 January 2008, ICC-01/04-01/06-1432, July 11, 2008.
30. International Military Tribunal, Trial of the Major War Criminals before the International Military Tribunal, Nürnberg, November 14, 1945 - October 1, 1946, published at Nürnberg, Germany, 1947, p 223.
31. Prosecutor v. Akayesu, supra note 20.
32. Prosecutor v. Kambanda, ICTR-97-23-S, Judgment and sentence, September 4, 1998, ICTR Trial Chamber.
33. Convention on the Prevention and Punishment of the Crime of Genocide, supra note 6; Payam Akhavan, “The Crime of Genocide in the ICTR Jurisprudence,” 2005, Journal of International Criminal Justice, Vol. 3, p. 990.
34. Prosecutor v. Akayesu, supra note 20, p. 495.
35. Kelly Dawn Askin, “Gender Crimes Jurisprudence in the ICTR: Positive Developments,” 2005, Journal of International Criminal Justice, Vol. 3, p. 1011.
36. Ibid. p. 1014; see Prosecutor v. Semanza, ICTR-97-20-T, Judgment and Sentence, May 15, 2003, ICTR Trial Chamber); Prosecutor v. Gacumbitsi, ICTR-01-64-T, Judgment, June 17, 2004, Para. 215, ICTR Trial Chamber; Prosecutor v. Nahimana et al., ICTR-99-52-T, Judgment and Sentence, December 3, 2003, ICTR Trial Chamber. The test of equal gravity has helped to enlarge the scope of acts falling under the crime of persecution: Prosecutor v. Karadzic, IT-95-5/18-PT, Decision on Six Preliminary Motions Challenging Jurisdiction, April 28, 2009, Para. 43, ICTY Trial Chamber.
37. Rome Statute, supra note 4, Arts. 7(1)(g), 8(b)(xxii), 8(e)(vi). The Elements of Crimes of the International Criminal Court, ICC-ASP OR, ICC-ASP/1/3, 2002, p. 108, also confirm that it can be constitutive of genocide at Art 6(b), note 3.
38. Report of the Secretary General Pursuant to Paragraph 5 of Security Council Resolution 955, 50th Sess, UN Doc S/1995/134, 1995, Para. 12; see Prosecutor v. Tadić, supra note 22, Para. 134; Prosecutor v. Delalić et al., IT-96-21, Judgment. November 16, 1998, Para. 308, ICTY Trial Chamber; Lindsay Moir, “Grave Breaches and Internal Armed Conflicts,” 2009, Journal of International Criminal Justice, Vol. 7, p. 764; Denise Plattner, “The Penal Repression of Violations of International Humanitarian Law Applicable in Non-international Armed Conflicts,” 1990, International Review of the Red Cross, Vol. 30:278, p. 414.
39. Rome Statute, supra note 2, Arts. 8(2)(c), 8(2)(e).
40. Harmen G. van der Wilt, “The Continuous Quest for Proper Modes of Criminal Responsibility,” 2009, Journal of International Criminal Justice, Vol. 7, pp. 307-8.
41. Ibid.
42. See among many others Jens David Ohlin, “Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise,” 2007, Journal of International Criminal Justice, Vol. 2, pp. 69-90.
43. Gideon Boas, James L. Bischoff & Natalie L. Reid, Forms of Responsibility in International Criminal Law, vol. 1 (Cambridge: Cambridge University Press, 2007) at 9.
44. Rome Statute, supra note 2, Preamble, Para. 6, Arts, 1, 17.
45. See Fannie Lafontaine, “‘Think Globally, Act Locally’: Using Canada’s Crimes against Humanity and War Crimes Act for the ‘Sustainable Development’ of International Criminal Law”, Proceedings of the 36th Annual Conference of the Canadian Council of International Law which focused on “Canada’s Contribution to International Law”, Ottawa, October 2007; Fannie Lafontaine & Edith-Farah Elassal, “La prison à vie pour Désiré Munyaneza—Vers un « développement durable » de la justice pénale internationale”, Le Devoir, November 2, 2009, http://www.ledevoir.com/societe/justice/272108/la-prison-a-vie-pour-desire-munyaneza-vers-un-developpement-durable-de-la-justice-penale-internationale.
46. Rome Statute, supra note 2, Preamble, Paras. 4 and 6.
47. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01/07, Judgement on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, September 25, 2009, Para. 85, ICC, Appeals Chamber.
48. See e.g. Payam Akhavan, “Whiter National Courts? The Rome Statute’s Missing Half,” 2010, Journal of International Criminal Justice, Vol. 8, p. 1248.
49. See e.g. William W. Burke-White, “Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice,” 2008, Harvard International Law Journal, Vol. 49, p. 53; Mark S. Ellis, “International Justice and the Rule of Law: Strengthening the ICC through Domestic Prosecutions,” 2009, Hague Journal on the Rule of Law, Vol. 1, p. 79.
50. Mark Kersten, “Outsourcing Justice to the ICC—What Should Be Done?” Justice in Conflict, October 31, 2012, http://justiceinconflict.org/2012/10/31/outsourcing-justice-to-the-icc-what-should-be-done/; Pia Navazo, “Closer to Justice? Côte d’Ivoire and the ICC One Year On”, The Laws of Rule, April 11, 2012, http://www.lawsofrule.net/2012/04/11/closer-to-justice-cote-divoire-and-the-icc-one-year-on/; The Office of the Prosecutor, Report on Preliminary Examination Activities, December 13, 2011, Para. 120.
51. “Supporting National Prosecutions in Côte d’Ivoire”, International Center for Transitional Justice, June 6, 2013, http://ictj.org/news/supporting-national-prosecutions-cote-divoire.
52. Case of Ahorugeze v. Sweden, No 37375/09, 2011, ECHR.
53. Jean Uwinkindi v. The Prosecutor, ICTR-01-75-AR11bis, Decision of Uwinkindi’s Appeal against the Referral of his Case to Rwanda and Related Motions. December 16, 2011, ICTR Appeals Chamber.
54. See e.g. the expulsion of Léon Mugesera from Canada: Motifs d’une décision en application de l’alinéa 115(2)b) de la Loi sur l’immigration et la protection des réfugiés (LIPR), numéro de dossier HQ7-65767, on file with author, p. 53, and the discussion on fair trial guarantees generally at pp. 57-63. See discussion in Fannie Lafontaine, “Mugesera: Canada’s First Faltering Steps in the Debate Over Transferring Genocide Suspects to Rwanda,” International & Transnational Criminal Law, January 5, 2012, http://rjcurrie.typepad.com/international-and-transna/2012/01/mugesera-canadas-first-faltering-steps-in-the-debate-over-transferring-genocide-suspects-to-rwanda.html.
55. See e.g. The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11, Libyan Government’s consolidated reply to the responses of the Prosecution, OPCD, and OPCV to its further submissions on issues related to the admissibility of the case against Saif Al-Islam Gaddafi, March 4, 2013, http://www.icc-cpi.int/iccdocs/doc/doc1562659.pdf. The Appeals Chamber has now decided on admissibility, finding the case admissible: The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, ICC-01/11-01/11, Judgment on the appeal of Libya against the decision of Pre-Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi,” May 21, 2014, http://www.icc-cpi.int/iccdocs/doc/doc1779877.pdf.
56. Antonio Cassese, “On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law,” 1998, European Journal of International Law, Vol. 9, p. 17, citing Cesare Beccaria, ‘Dei delitti e delle pene,’ translated in J. Farrar, Crimes & Punishment, 1880, pp. 193-194.
57. Fannie Lafontaine, “Universal Jurisdiction: The Realistic Utopia,” 2012, Journal of International Criminal Justice, Vol. 10, p. 1277; Fannie Lafontaine, “The Unbearable Lightness of International Obligations: When and How to Exercise Jurisdiction under Canada’s Crimes against Humanity and War Crimes Act,” 2011, 23:2, Revue québécoise de droit international 1.