The Legal Traditions Question — Comments
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- Milton Owuor: The Deferral Request Under Article 18(2) of the Rome Statute as an Emerging Tradition in the Context of Complementarity: The Situation in Afghanistan I. Prelude: An Emerging Tradition in Complementarity This discourse seeks to engage critically with the overarching legal issues basically revolving around the deferral request under Article 18(2) of the Rome Statute in the aftermath of the Taliban takeover of power in Afghanistan. Article... (more)
- bulut2023: Using Article 53 of the Rome Statute to Incorporate Alternative Justice Mechanisms into the International Criminal Court’s Jurisprudence and Practice I. Introduction The International Criminal Court (ICC) has faced criticism for failing to incorporate non-Western legal traditions and practices, as well as other alternative justice mechanisms, into its jurisprudence and practice. This criticism is justified, as... (more)
- Sydney Siwinski: Using Cultural Context to Award More Meaningful and Salient Remedies to Victims I. Introduction The Rome Statute mandates both categories of remedies available to the International Criminal Court (ICC) as well as, in many cases, the individuals to whom remedies can be awarded.1 However, the ICC’s interpretation of justice and law comes mostly if not entirely from Western legal... (more)
- diabo: Colonialism and Considering Historical Context in the ICC I. Introduction The International Criminal Court (ICC) has come under the scrutiny of legal scholars for its reliance on Western ideas of justice and its disproportionate prosecution of non-Western actors. This criticism is based in the ICC’s foundational text, the Rome Statute, and the bases for investigation and... (more)
- janinaheller: International Criminal Court: The Potential for Complementarity with the Inter-American System I. Introduction In recent years, international law experts have begun to acknowledge the potential for learning opportunities and collaboration between the International Criminal Court (ICC) and regional human rights systems.1 They have also highlighted the important role that the Inter-American System has been playing over the years in... (more)
- HeavenStrouse: Article 53: Shifting From a Retributive Theory of Justice I. Introduction The western ideal of prosecution and punishment are frequently posited as the only legitimate modes of justice not only within the western world itself, but through the implementation of policies that define the power and effectiveness of the International Criminal Court (ICC). Looking directly at the ICC and the objectives it contends to... (more)
- Maggie Sheerin: A New ICC Justice Reflecting Regional Remedies: Reparations, Reconciliation, and Reform I. Introduction This comment will look at the various ways that the International Criminal Court (ICC) could improve its functionality as a global system, by looking to the regional human rights systems and the ways that they have each pulled from their unique regional histories, to create systems that fit their regional needs and... (more)
- etrevisani: When Non-Incarceration is Enough: Rethinking Inadmissibility Under Article 17 I. Introduction With the creation of the International Criminal Court (ICC) and the parallel development of bold new ideas surrounding restorative justice practices within the legal academy, the end of the twentieth century was a period of dramatic change for international transitional justice spaces.1 These practices reflect robust community... (more)
- karagon: Looking Beyond: A New Understanding of Justice for the ICC I. Introduction The creation of the International Criminal Court (ICC) in 1998 was a milestone in the development of international human rights and forums for their vindication. The ICC is the world’s “first permanent court mandated to bring to justice people responsible for war crimes, crimes against humanity, and genocide when national... (more)
Comment on the Legal Traditions Question: “To what extent has the ICC under-represented non-Western laws, principles, rules, procedures, practices, or traditions in its legal structure and system?”
Looking Beyond: A New Understanding of Justice for the ICC
The creation of the International Criminal Court (ICC) in 1998 was a milestone in the development of international human rights and forums for their vindication. The ICC is the world’s “first permanent court mandated to bring to justice people responsible for war crimes, crimes against humanity, and genocide when national courts are unable or unwilling to do so.”1 With more than 120 countries participating as States Parties to the ICC’s Rome Statute, the Court’s scope is unparalleled even when compared to regional systems of human rights such as the European Court of Human Rights, the African Court on Human and People’s Rights, or the Inter-American Court of Human Rights.2
Despite its groundbreaking existence, the ICC has been the subject of extensive criticism. While critiques have ranged from inefficacy (alleging failure of ICC prosecution to meaningfully deter crimes against humanity)3 to inefficiency (alleging that the Court has conducted too few prosecutions and sentenced only a handful of alleged perpetrators),4 perhaps the most consequential critique has been that the Court is Eurocentric, and that the Office of the Prosecutor (OTP) is biased against African nations. As one commentator asserted:
The ICC’s investigations have included “at least eight situations involving Africa, including the Democratic Republic of Congo, the Central African Republic, Uganda, Darfur/Sudan, Kenya, Libya, Côte d’Ivoire, and Mali.”6 In 2016, South Africa, Burundi, and Gambia went so far as to withdraw from the Rome Statute in response to the alleged bias.7
The election by the Assembly of States Parties of Gambian lawyer Fatou Bensouda to the OTP,8 and recent attempts by the OTP to alleviate these tensions by engaging in preliminary investigations of conflicts involving countries like the United States and Israel may have helped to cure this perception. Yet, fundamentally, the ICC operates within a limited scope of legal traditions. In seeking to craft a court that appealed to the most powerful of its 123 States Parties at the time of its founding, the Rome Statute perpetuated a Western conception of justice in which it restricted sentences to incarceration, fines, or asset forfeiture.
Given the imbalance in prosecutions, and an increasing belief among justice system reformers that incarceration may be more harmful than helpful, and targets already-oppressed individuals and communities, is it time for the Assembly of States Parties to reevaluate some of the core tenets of the ICC and broaden its procedures and remedies to include restorative justice tools more common in non-Western societies? Is it advisable for the ICC to adjust its remedies after a trial and conviction to include those utilized in various non-Western legal traditions?
This comment argues in the affirmative. Yes, non-Western normative principles relating to justice can and should be incorporated into the spirit of the ICC by adding to incarceration and financial compensation, currently found in the ICC’s sentencing guidelines, other restorative justice tools including participation in reconciliation activities and truth commissions. This will increase the ICC’s ability to deliver holistic justice while better meeting some victim’s needs. Importantly, such tools (implemented via sentencing) would mitigate rather than replace a sentence under the current scheme.
In Part II of my comment, I discuss some of the underlying principles of the ICC as they relate to modes or goals of justice, as well as sentencing. Then, in Part III, I highlight various non-Western principles and justice traditions to showcase alternative sentencing frameworks. In Part IV, I engage with the Rome Statute as it currently stands regarding sentencing, and determine that an amendment is necessary. Finally, I conclude with a call to action for the ICC to incorporate non-Western legal principles and systems into its sentencing guidelines, to ensure the Court is representing a wider variety of its States Parties and meeting its goals of accountability and justice.
II. Principles and Legal Systems Underlying the ICC
The ICC is the product of an epic negotiation between 160 countries during the drafting of the Rome Statute. At the time, negotiators involved in the creation of the ICC “pushed for rules and procedures that mimicked those of their domestic legal systems to help reduce uncertainty regarding the Court’s future behavior and decision-making processes.”9 In other words, countries pushed for a Court modeled on their courts back home, in order to remove some of the risk of being subject to the jurisdiction of an international, independent court like the future ICC. This process of negotiation “led to the creation of a sui generis court”10 representing a mixture of common law (originating in the British Isles) and civil law (stemming from the laws and codes of the Roman Empire) systems.11 This made the ICC more attractive to countries with these systems, in comparison to Islamic law or mixed law states.12
Interestingly, while the United States generally opposed the creation of the ICC as an imposition on its sovereignty and refused to ratify the Rome Statute (it is therefore not a State Party), it had a significant role in shaping the Court due to its status as the most powerful state at the negotiating table. During the process of drafting the Statute, the U.S. government administration lawyers “subjected the [International Law Commission] drafts to extensive internal review and analysis.”13 This, along with the influence of other Western states and the United Nations, has resulted in a Court largely modeled off of domestic criminal tribunals of Western nations.
Since it first convened in 2002, the Court has developed extensive procedures and some precedent, and much of its applicable law is grounded in the relevant international human rights from a variety of forums in the decades since the Second World War, as well as international common law. However, in recent years, the West has grown more cognizant of restorative justice mechanisms, which depart from the typical notion that punishment of an individual is an appropriate response to that individual’s wrongdoing (a punitive focus) and instead embrace the idea that greater healing and justice may be achieved through a collective process of accountability and reconciliation between victim and perpetrator.14 It seems a fitting moment to reconsider the current stance of the ICC on sentencing, and to look to non-Western legal systems for inspiration.
III. Highlighting Justice Traditions of Non-Western Countries
The ICC has experienced a somewhat self-selective development of procedures following its initial founding. As a result, and partly due to the sidelining of non-Western interests and norms on the international political stage, imagining the future of the Court must begin with an effort to explore legal traditions and systems that exist outside of the Western tradition.
For example, Indonesian15 Muslims may see a “deep justice relevance when enemies who have murdered villagers build, or help rebuild, a mosque or a stupa in the village of the victims.” And in Colombia, following a sixty-year conflict between the government, guerrillas, and paramilitaries, a peace agreement was reached that included an opportunity for FARC rebels to avoid prison time altogether.16 Instead, a Truth Commission has been established to address:
This type of solution to a conflict that claimed more than 260,000 lives by the time it concluded in 201618 would seem unbelievable to many in the West, and would be unworkable under the current ICC sentencing framework. Yet, while far from perfect, these solutions have allowed communities to move forward with their lives and gain some measure of justice. The following sections explore non-Western justice principles in greater detail as further demonstration that the current scope of the ICC’s vision of justice, and related sentences, can be expanded.
A. African Customary Law
Legal traditions across Africa are diverse and varied, differing based on country, local traditions, religion, geographic placement and neighboring countries, and colonial influence, among other factors. However, legal scholars have pinpointed similarities in legal systems used in pre-colonial African societies, categorizing such practices within a system of African Customary Law, or the indigenous law of the various ethnic groups of Africa.19 As a general principle:
Customary law operated for thousands of years before colonization:
Sources for African law were primarily custom, legislation via tribal councils, and precedent from previous tribunals.22 In addition, differences across particular communities were (and still are today) reflected in the utilization of local proverbs. Such proverbs “may be regarded as legal maxims or the verbalization of social norms and laws which govern interpersonal and communal relations,”23 and were often employed in settling disputes.
In this context, the law operated as a means to restore “peace, balance and harmony”24 versus as a vehicle for retribution or to punish for the sake of punishing. Proceedings in the customary judicial process in traditional African societies “were—and are still—characterized by an overall concern for community needs as opposed to individual rights.”25 In order to resolve disputes, conversation and mutual accommodation were relied on and community interests took precedence over individual rights to redress.
This emphasis on communal unity and equilibrium contrasts sharply with a traditional Western-style legal system. Western systems tend to emphasize individual rights and encourage vindication of these rights through litigation. In contrast to, for instance, a British system in which “criminal laws and attendant penal system […] served the objective of ‘keeping the multitude in order’ through ‘punitive measures’ so as to ensure an orderly society,”26 what would sentencing look like if directed by a system and society more like Ghana’s, “accustomed to viewing the problem of crime in terms of restoration of equilibrium”?27 It is worth noting that Ghana has been a State Party since 1999, when it ratified the Rome Statute.28
While colonization altered many of these systems, today the majority of people in a typical African country will conduct their daily lives and business in accordance with customary law.29 For example, customary law principles were clearly at work during Uganda’s process of national reconciliation flowing from the long-term insurgency of the Lord’s Resistance Army and the heavy violence that accompanied it.30 A proffered peace agreement included a traditional sacred ritual, the mato oput ceremony of the Acholi people, as part of its efforts at truth and reconciliation. The ceremony is “undertaken only in the case of intentional or accidental killing of an individual […] [and] involves two clans bringing together the perpetrator and the victim in a quest for restoring social harmony.”31
Of course, alternative justice mechanisms informed by customary law principles are not a guaranteed salve for a community attempting to heal. For example, during the gacaca courts implemented in Rwanda following the genocide, perpetrators were encouraged to tell the full truth. In some instances, this backfired, as those listening to the perpetrator’s recounting of their crimes became rightfully upset. The gacaca courts have also been criticized as good in theory, but in practice serving primarily as a political tool of the government, that forced Rwandans to perform scripted reconciliations which left the legacy of violence unchanged.32 Still, by the time the courts closed, they had processed more than two million cases for crimes of genocide.33 This is an incredible number that puts the ICC’s proceeding count to shame (the ICC has heard thirty cases over the past twenty-two years, albeit some with multiple defendants).34
From African customary law arise admirable principles to bring to the table in deciding how precisely to broaden the ICC’s current sentencing scheme. These include four key concepts for maintaining peace in a society:
Settle disputes with deliberation and discussion rather than force.
Correct wrongdoing through compensation rather than physical punishment.
Rely on impartial but community-connected arbiters to adjudicate and mediate conflicts or hearings.
Ground all proceedings in an overriding desire for fairness toward both victim and alleged perpetrator.
In any trial and sentencing, there is a need to balance truth with reconciliation, and community-based commissions may present the strongest opportunity to strike this balance when faced with crimes against humanity on a large scale. And, while traditional laws may at times perpetuate outmoded standards particularly in relation to gender given their roots in patriarchal society, with updates they represent a novel mode of justice that better represents the current norms in many African countries.
B. South Africa
South Africa has been a State Party since 2000, when it ratified the Rome Statute.35 South Africa claims a prominent place in the discussion of alternative remedies following large-scale conflict, as it implemented one of the most widely-known Truth and Reconciliation Commissions in the mid-1990s in response to the violence and human rights abuses perpetrated by the apartheid government and the white population against Black South Africans. The Commission was established by an act of the legislature, titled the Promotion of National Unity and Reconciliation Act, No. 34 of 1995.36
The Commission, for many South Africans, was an active employment of ubuntu, a South African legal concept that “holds those within its embrace to moral and ethical accountability, and plays a fundamental role in politics.”37 Ubuntu has been recognized by the South African High Court as being “an important source of law within the context of strained or broken relationships amongst individuals or communities.”38 Among other principles, it requires that a high value be placed on the life of a human being, it dictates a shift from confrontation to mediation and conciliation, it favors restorative rather than retributive justice, and “favours face-to-face encounters of disputants with a view to facilitating differences being resolved rather than conflict and victory for the most powerful.”39
The South African Truth and Reconciliation Commission had a mixed record. It took the testimony of approximately 21,000 victims; and 2,000 of them appeared at public hearings, but few hearings were actually held, and powerful perpetrators were acquitted.40 The Commission produced lengthy reports and recommendations including reparations, but implementation was uneven and the government systematically destroyed official records in the years leading up to the end of apartheid.41 Some would also point out that South Africa’s reconciliation process was a remedy of desperation. The state government likely instituted a truth commission because had another approach been taken (such as a formal trial), there was a strong likelihood that a coup d’état would have occurred.
Even so, for a country at war with itself and divided along racial lines, it was perhaps the best option for providing victims with an opportunity to have their voices heard, and holding the worst perpetrators accountable.
An alternative justice mechanism modeled on the South African commission presents an additional tension when considered in concert with the ICC. A key provision of South Africa’s Truth and Reconciliation Commission was its agreement to grant alleged perpetrators amnesty from prosecution to convince them to participate.42 If a Truth and Reconciliation process is incorporated into sentencing at the ICC only as a mitigating sentence to be delivered alongside imprisonment, it is questionable that the Court could ensure adequate buy-in from perpetrators and impacted communities.
A more general objection to incorporating non-Western remedies into the ICC’s current sentencing scheme is that such change would open the floodgates to remedies considered unsavory or immoral by many States Parties. For instance, a solution to conflict rooted in the “eye for an eye” world view, requiring additional violence beyond the initial crime to deliver justice to victims, would be counterproductive and unethical. Objections along these lines are straw men. Existing provisions in the Rome Statute such as Article 21 provide that all remedies within the ICC and States Parties systems comport with human rights principles and norms, and must themselves pass scrutiny under the Rome Statute’s definitions of criminal acts. Additionally, as discussed below, any amendment to the Rome Statute must be approved by a minimum of two-thirds of States Parties, a considerable hurdle that ensures such problematic remedies are highly unlikely to be incorporated. Overall, a broadening of sentencing to incorporate additional remedies after careful consideration by States Parties is recommended.
IV. Incorporating Non-Western Legal Principles and Remedies Into the ICC
A. Sentencing at the ICC: Articles 76, 77, and 78.
The Rome Statute provides a detailed guide for the ICC regarding the administration, choice of law, and procedures of the Court. This guide includes parameters for sentencing once an individual has been convicted of a crime by the Court. Currently, the available sentences for those convicted at the ICC are quite limited. They include imprisonment, a fine, and/or forfeiture of assets or proceeds derived directly or indirectly from the crime.43 Articles 77 (Applicable penalties) and 78 (Determination of the sentence) stipulate that prison sentences must not exceed thirty years, or a life term “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.”44
Article 79 provides that the resulting assets, proceeds, or property resulting from forfeiture or fines may be transferred to the ICC Trust Fund, which benefits victims of crimes within the jurisdiction of the Court. Additionally, Article 76 (Sentencing) provides for a further hearing after a conviction to determine the individual’s sentence, including considering “any additional evidence or submissions relevant to the sentence.” Article 76 gestures at the opportunity of a defendant to present any mitigating evidence, and likewise for the Prosecutor to present aggravating evidence, when a sentence is being determined. Indeed, Article 78 explicitly notes that when determining the length of a term of imprisonment, the Court “shall deduct the time, if any, previously spent in detention in accordance with an order of the Court. The Court may deduct any time otherwise spent in detention in connection with conduct underlying the crime.”
However, beyond lengthening or shortening a prison sentence, there is little nuance or variance in sentencing that could capture alternative visions of justice beyond incarceration. The Rome Statute provides States Parties with the first opportunity to prosecute crimes under State legal systems, rather than at the ICC, through its complementarity principle.45 Likewise, Article 53 provides that the Prosecutor can delay prosecutions “in the interests of justice” to allow the traditional justice mechanisms of non-Western countries to take precedence. Still, allowing States to prosecute a crime according to national laws is not the same as incorporating national laws or customs that differ from the ICC’s into the ICC’s sentencing procedure.
Similarly, Article 21 instructs the Court to apply “applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict,” as well as:
These standards of law, however, are most relevant in the investigation and trial phases, and are entirely absent from the sentencing scheme. As noted, under the Rome Statute the Court only has three options for sentencing: imprisonment, fine, or forfeiture. This is simply too narrow to accommodate alternative remedies or tools even if they are appropriate.
Finally, Article 80 states that the Court’s actions in sentencing do not impact (infringe on) any sentencing occurring within a State’s own legal system: “Nothing in this Part affects the application by States of penalties prescribed by their national law, nor the law of States which do not provide for penalties prescribed in this Part.” This provides flexibility to States Parties looking to reserve their right to impose a punishment on an individual perpetrator, but once more these processes are separate and apart from the ICC and its sentencing operation. This is distinct from an amendment to the ICC’s own sentencing guidelines that incorporates local customs or penal norms.
As views on the purpose and efficacy of imprisonment in achieving justice for victims and preventing future atrocities shift with deepening understanding of the ways in which incarceration may negatively impact such goals, it seems worthwhile for the ICC to consider broadening the possibilities for sentencing upon conviction, if only in a mitigation capacity.
The sentencing guidelines in the Rome Statute, which bind the Court, are written clearly and narrowly. As existing articles do not appear to grant grey areas or leeway at the sentencing stage, if alternative sentencing schemes are to be incorporated at the ICC, an amendment to the Rome Statute Articles 76, 77, and 78 is likely necessary.
B. Amending the Rome Statute
The process for amending the Rome Statute is laid out in Article 121. Per the text, “any State Party may propose amendments thereto.”47 Such proposed amendment must be submitted to the Secretary-General of the United Nations, who then circulates it to all States Parties. Article 121 provides a timeline for consideration of the proposed amendment: after three months have passed, the Assembly of States Parties at its next meeting “shall, by a majority of those present and voting, decide whether to take up the proposal. The Assembly may deal with the proposal directly or convene a Review Conference if the issue involved so warrants.”48
In order for an amendment to be adopted at the meeting or at a Review Conference, it must gain a two-thirds majority (if full consensus is not reached) of States Parties. If this hurdle is cleared, the amendment “shall enter into force for all States Parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them.”49
The procedure for amendment is clear, but it is far from easy. Two-thirds of States Parties is equivalent to eighty-two countries, all of which have widely different cultures, economies, legal norms, and interests. To facilitate consensus, one strategy could encourage countries associated with each other through existing regional human rights systems that have experience with alternative remedies to work together. These countries could collect testimonies, data on outcomes, and other resources to put together a refined proposal that inserts the most effective alternative remedies into the existing sentencing scheme. These materials would be key to convincing additional countries of the benefits of implementing such changes. They would also be critical should the proposal move on to a Review Conference to be studied and debated.
While amendment of the Rome Statute would be difficult, it is not unprecedented. The Statute has been amended approximately seven times since its initial ratification.50 If the ICC is to regain trust and truly serve as a global forum for accountability, its sentences must reflect the variety present in the legal systems of non-Western States Parties. With its substantial influence, it can help move international human rights law, and potentially national justice systems, toward a more restorative model of justice.
The ICC wields substantial influence in international law and, while its resources are not unlimited, its power to hold perpetrators of crimes against humanity accountable is considerable. However, to better serve its goals and diverse constituency, it must look beyond purely punitive sentences to sentences that provide opportunities for healing and constructive reconciliation. Non-Western normative principles relating to justice can and should be incorporated into the spirit of the ICC by amending the ICC’s sentencing guidelines located in Articles 76, 77, and 78 to include, either explicitly or through general language, remedies such as participation in truth and reconciliation activities and other restorative justice tools, in addition to the current sentences such as incarceration and financial compensation. This will increase the ICC’s ability to deliver holistic justice while better meeting victim’s needs.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Human Rights Watch, ICC: Defend Core Principles (Nov. 16, 2016), available online. ↩
Regional Systems, IJRC, available online (last visited Jul. 2, 2022). ↩
How can the ICC Maximize its Crime Prevention Impact?, ICC Forum (Oct. 6, 2011), available online. ↩
What More Can be Done to Secure Arrests?, ICC Forum (Feb. 13, 2014), available online. ↩
Florence Shu-Acquaye, The African Court and Human Rights: What Lies Ahead for the Merged Court, 2 HCR 139, 160 (2017), available online. ↩
South Africa Revokes ICC Withdrawal After Court Ruling, BBC News, Mar. 8, 2017, available online.
(South Africa’s High Court found the withdrawal unconstitutional and revoked it);
Merrit Kennedy, Under New Leader, Gambia Cancels Withdrawal from International Criminal Court, NPR, Feb. 14, 2017, available online.
(Gambia cancelled its withdrawal in 2017 after a new leader took office). ↩
Press Release, ICC, Mrs Fatou Bensouda Finishes Her Mandate as ICC Prosecutor (Jun. 15, 2021), available online.
(Her term concluded this year). ↩
Emilia Justyna Powell & Sara McLaughlin Mitchell, The Creation and Expansion of the International Criminal Court: A Legal Explanation, Midwest Pol. Sci. Ass’n Conf. 1 (Jan. 12, 2009), available online, archived, doi. ↩
Id. at 9. ↩
Id. at 1. ↩
David J. Scheffer, The United States and the International Criminal Court, 93 Am. J. Int’l L. 12 (Jan. 1999), available online, doi. ↩
See generally Adriaan Lanni, Taking Restorative Justice Seriously, 69 Buff. L. Rev. 635 (May 2021), available online. ↩
Indonesia and the Rome Statute, PGA, available online (last visited Jul. 2, 2022).
(While Indonesia participated in the 1998 Rome Conference that adopted the ICC Statute, it did not sign it, and therefore is not a State Party to the Rome Statute). ↩
Nick Miroff, The Paradox of Colombia’s Peace Deal for FARC, Wash. Post, Aug. 25, 2016, available online. ↩
Colombia, GIJTR, available online (last visited Jul. 2, 2022). ↩
Report Puts Colombia Conflict’s Death Toll at 260,000-Plus, AP, Aug. 2, 2018, available online. ↩
See generally Muna Ndulo, African Customary Law, Customs, and Women’s Rights, 18 Ind. J. Global Legal Stud. 87 (2011), available online. ↩
Samuel O. Manteaw, John Mensah Sarbah and African Value Systems in Legal Education, 27 UG L.J. 58, 75 (2014), paywall. ↩
Id. at 68. ↩
Id. at 72. ↩
Id. at 76. ↩
Id. at 94. ↩
Ghana, CICC, available online (last visited Jul. 2, 2022). ↩
Ndulo, supra note 19. ↩
International Crisis Group, Northern Uganda: Understanding and Solving the Conflict (Apr. 14, 2004), available online. ↩
Mato Oput Ceremony, JRP (May 10, 2010), available online. ↩
Susan Thomson, Rwanda’s Gacaca Courts, 121 Témoigner: Entre Histoire et Mémoire 143 (2015), available online, doi. ↩
About the Court, ICC, available online (last visited Jul. 2, 2022). ↩
South Africa, ASP, available online (last visited Jul. 2, 2022). ↩
Truth Commission: South Africa, USIP (Dec. 1, 1995) [hereinafter Truth Commission], available online. ↩
Zara Houshmand, Ubuntu and the Politics of Forgiveness, Mind and Life Digital Dialogues (2019), available online. ↩
Chuma Himonga, Max Taylor & Anne Pope, Reflections on Judicial Views of Ubuntu, 16 PER 1 (May 2013), available online. ↩
Truth Commission, supra note 36. ↩
Declan Roche, Truth Commission Amnesties and the International Criminal Court, 45 BJC 565, 566 (Jul. 2005), paywall, doi. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 77, available online. ↩
(Both the Preamble and Article 1 of the Rome Statute provide that the Court “shall be complementary to national criminal jurisdictions.”). ↩
Rome Statute, supra note 43, at Art. 21. ↩
Amendments to the Rome Statute, PGA, available online (last visited Jul. 2, 2022). ↩
When Non-Incarceration is Enough: Rethinking Inadmissibility Under Article 17
With the creation of the International Criminal Court (ICC) and the parallel development of bold new ideas surrounding restorative justice practices within the legal academy, the end of the twentieth century was a period of dramatic change for international transitional justice spaces.1 These practices reflect robust community participation in the determination of harm, afford wrongdoers more chances at restitution, and increase victim support with meaningful opportunities to express the impact of past and present harms.2 The Rome Statute’s emphasis on victim participation and reparations through international law is itself indicative of the growing desire for the implementation of restorative justice practices around the globe.3 However, the Rome Statute as currently applied is largely reflective of western adversarial justice practices that prioritize retribution through incarceration as a primary means of addressing criminal behavior. In part, due to its championing of this western adversarial model, the ICC has recently come under scrutiny for reinforcing western perspectives “as universal maxims valid for all people and nations.”4
The structure of the Rome Statute is reflective of the criminal codes of domestic legal systems.5 As the domestic legal systems of a growing number of states (including states subject to ICC jurisdiction) begin to turn away from incarceration as the primary tool for addressing criminal behavior, the question of whether a non-carceral system6 can deprive the ICC of jurisdiction under Article 17’s complementarity regime remains unanswered. This comment attempts to join a wider body of literature which asks whether the project of the ICC “leaves room” for alternative conceptions of justice beyond the Western, adversarial model.7 This comment does not attempt to articulate precise guidelines for when a case within a non-carceral system should be found to be inadmissible, but rather attempts to address whether the principle of complementarity is amenable to non-incarceration at all. As the ICC moves into a world where incarceration is increasingly de-coupled from prosecution and state-sanctioned systems of punishment, this comment explores whether non-carceral criminal legal systems can satisfy the complementary principle in accordance with Article 17 of the Rome Statute. This comment argues that the complementarity principle is compatible with non-carceral justice practices, and that the ICC would benefit from a broader interpretation of Article 17.
Section II discusses the complementarity principle and outlines a postcolonial critique of its application—that through determinations of inadmissibility under Article 17, the ICC elevates western adversarial legal traditions over others. Section III examines the interplay between Article 17and non-carceral justice practices, finding that because the Rome Statute does not specify that a nation must use criminal prosecution tied to the sanction of incarceration to avoid ICC action, the complementarity regime is compatible with non-incarceration as a matter of law. Finally, Section IV makes the normative claim that by broadening its institutional understanding of acceptable mechanisms for addressing criminal behavior under Article 17, the ICC can enhance its legitimacy in the 21st century and beyond.
II. Complementarity and the Post-Colonial Critique
Although the word “complementarity” does not appear within the Rome Statute, the principle of complementarity is codified as an issue of admissibility governed by Article 17 (and further supplemented by Articles 18 and 19). Article 17 gives the Prosecutor the ability to preclude ICC involvement in situations where alleged crimes would otherwise fall within the scope of the Court’s jurisdiction.8 At the core of the complementarity regime is the idea that domestic courts should deal with most cases of serious crimes, and that the ICC operates in limited circumstances as a “court of last resort.”9 In essence, the ICC should “complement” national criminal legal systems, rather than supplant them. Article 17 addresses the primary procedure by which a conflict of jurisdictions should be resolved.10 The principle of complementarity has allowed the ICC to localize international norms while giving priority to national justice practices when dealing with criminal behavior on a global scale.11
Under the complementarity principle, the central question before the ICC is whether a given case is inadmissible rather than admissible. Pursuant to Article 17(1), a case is deemed inadmissible if:
The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under Article 20(3); or
The case is not of sufficient gravity to justify further action by the Court.12
In order to determine unwillingness (as opposed to inability) in a given case, Article 17(2) provides that the Court should consider whether:
The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in Article 5;
There has been an unjustified delay in the proceedings which in the circumstances is inconsistent with an intent to bring the person concerned to justice; or
The proceedings were not or are not being conducted independently or impartially, and they were or are being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice.13
Either the accused or a state with jurisdiction can argue that local justice practices must take precedence and may challenge the Prosecutor’s finding of admissibility under Article 17 at any point up until the start of trial.14 In theory, complementarity would require that the ICC be deprived of its authority to proceed in situations where the affected state “genuinely undertakes its own investigations and efforts to bring to justice the most serious offenders and incidents.”15 In practice, the Court has been unclear about what exactly a case that deprives the ICC of jurisdiction should look like. The Prosecutor no doubt retains much discretion in their determination of whether a restorative justice effort undertaken at the national level can preclude ICC involvement.16 Under the tenure of the first ICC Prosecutor, Luis Moreno-Ocampo, the Office of the Prosecutor (OTP) signaled a hesitance to forgo ICC proceedings in favor of national justice practices where the state response did not include criminal prosecutions.17 Despite this hesitance, the OTP has kept open the possibility of treating alternative justice practices outside the realm of prosecution as sufficient to satisfy the Rome Statute’s complementarity requirements.18 To date however, the Court has never addressed the question of whether domestic prosecutions that do not carry the potential sanction of incarceration can nonetheless be considered “criminal proceedings” for the purpose of assessing the admissibility of cases before the ICC. As the Court has remained silent on this issue, critics have increasingly taken aim at the ICC for elevating the adversarial traditions of the Global North while simultaneously failing to accommodate non-western legal traditions of the Global South that de-center “punitive individualism.”19
This line of criticism takes as a starting point the assumption that the ICC’s inherent prosecutorial authority is derived from a western adversarial criminal law tradition that is “myopically focused on punishment.”20 The ICC’s application of the complementarity principle makes clear the Court does not offer the same degree of institutional recognition to non-western legal practices that prioritize restorative justice measures over incarceration. When the government of Uganda was referred to the ICC for potential action, some scholars argued for the deference to the traditional restorative justice practices of the Acholi people rather than ICC intervention.21 The Ugandan Government worked to combine local traditional justice mechanisms with a system of domestic prosecutions and a truth commission in order to address decades of widespread violence.22 Lacking clear guidance on whether the combination of these efforts should preclude ICC involvement, the OTP proceeded with their consideration of action anyway,23 arguably putting the reconciliation efforts underway at risk.24 This lack of guidance is no accident, however. During the Rome Statute’s five-week negotiation period in 1998, among the most contentious issues was the scope of complementarity, with drafters ultimately leaving the status and standing of alternative dispute-resolution mechanisms “creatively ambiguous.”25 This ambiguity allows the ICC to convey legitimacy onto western criminal codes through findings of inadmissibility under complementarity without explicitly addressing whether the adversarial formula of trial + conviction = incarceration is the only procedural framework that can deprive the ICC of jurisdiction. If the threat of a prison sentence tied to a “western-style prosecution” is a necessary component of the complementarity principle’s application, the Rome Statute is vulnerable to the postcolonial critique that the ICC as an institution “elevates the Global North’s adversarial legal traditions over others.”26 This critique, taken together with allegations that the ICC disproportionately targets African nations27 and remains rooted in western colonial attitudes28 suggests that the Court is at risk of losing credibility as a truly international institution through its (either real or perceived) reliance on narrowly-western criminal justice practices. As the next Section will discuss, Article 17’s inherent ambiguity also presents an opportunity for future scholars and advocates to rethink the conditions for inadmissibility under the Rome Statute.
III. Article 17’s Compatibility with Non-Carceral Justice Practices
The statutory framework of Article 17 ultimately reflects a delicate balancing of two primary interests among the ICC States Parties: ending impunity for the “core crimes” of the Rome Statute and respecting individual state sovereignty.29 Within this framework, it becomes clear that one of the primary difficulties in applying the complementarity principle is Article 17’s silence on the topic of punishment. The statutory test most relevant to assessing alternative justice mechanisms leaves open what the ICC should do, and to date ICC judges have been silent on the topic of whether punishment should factor into a finding of inadmissibility under Article 17, in particular the implicit test for whether a national proceeding is “genuine.”30 Indeed, no portion of the Rome Statute states that a nation must exclusively employ criminal prosecution with a sanction of incarceration in order to avoid ICC involvement.31 Only Article 80 explicitly deals with the issue of punishment in national proceedings, establishing that ICC sentencing rules have no bearing on national laws related to criminal penalties.32 While the primary motivation among the negotiating parties for the inclusion of Article 80 was to allow states to hand down harsher sentences than the ICC, it has the additional effect of affording states freedom to impose lighter sentences as well.33
Can a lighter sentence include one without incarceration? Based on previous statements related to the issue of punishment, it is unlikely that past ICC Prosecutors would answer in the affirmative. In 2013, the second ICC Prosecutor, Fatou Bensouda, sent a letter to the Chief Justice of the Constitutional Court of Colombia which made it clear that whatever sentence imposed by the high court on demobilized paramilitary and FARC members had to be “proportionate to the offences in question, and not illusory.”34 In the letter, the Prosecutor stated:
It is clear that Prosecutor Bensouda would likely find that a national prosecution moving forward untethered from the possibility of incarceration is indicative of an inability or unwillingness to deal with the alleged criminal conduct, which would create impediments to inadmissibility under Article 17(1)(b) and 17(c). Yet Article 17’s silence on punishment, coupled with the vast discretion afforded to the OTP, allows future Prosecutors to interpret such a national effort differently. A new ICC Prosecutor is not bound by the legal interpretations or statements of their predecessors,36 and no previous ICC decision establishes that incarceration is necessary as a matter of law to deprive the ICC of jurisdiction. Future ICC Prosecutors can, and should, broadly interpret Article 17 as being procedurally compatible with non-carceral practices aimed at addressing criminal behavior.
In today’s world, it is difficult to envision a nation-state doing away with incarceration entirely, and perhaps even more difficult to imagine that such a distinctly non-carceral system would pass the muster of Article 17 complementarity analysis given the constraints discussed. However, in light of the global trends37 towards restorative justice and away from punitive retributivism, it is important for the ICC to think beyond the present to guarantee the institution’s relevance into the future. Before turning to the normative issues of institutional relevance and legitimacy however, it is important to examine the procedural claim that the complementarity principle is in fact compatible with non-incarceration practices as a matter of law.
Let us first imagine a situation where Nation X, a party to the Rome Statute, has recently undergone major reforms to their criminal code in order to reflect a societal shift in attitudes towards punishment. Let us imagine, for the purposes of undergoing complementarity analysis, Nation X retains the ability to incarcerate in limited circumstances, but ascribes significantly more discretion to judges and factfinders to employ broad restorative measures as part of sentencing, particularly in the wake of national crises where resources are limited and victims are still wary of coming forward. Present in any given criminal case within Nation X is the possibility that incarceration will not play a role following a conviction, even for crimes and conduct that would normally fall within the scope of ICC jurisdiction. As written and applied, the Rome Statute is silent as to whether the ICC would lose its jurisdiction under the complementarity principle if Nation X were to proceed with a good-faith multi-pronged national response aimed at promoting forgiveness and rebuilding damaged community relationships, and the OTP knew that incarceration was an unlikely result of the prosecution.38
In order to make a case arising from Nation X inadmissible, a national authority would have to show that Nation X is genuinely dealing with a case that mirrors the case the ICC could make in terms of both conduct and suspects .39 In the scenario described above, Nation X would have to show that whatever statutory scheme they plan to employ directly impacts those most responsible for whatever “core crimes” are at play.40 Implicit in the same suspect test required by Article 17 is the institutional imperative to prevent future crimes by holding the most responsible to account for past egregious acts. But does this test necessarily require incapacitation through state-sanctioned incarceration? Though this real-world scenario does not exist today, one could imagine a hypothetical situation where perpetrators within Nation X’s case are (by the OTP’s own estimation) genuinely remorseful, no longer a threat to the general public, or are being surveilled and effectively incapacitated through non-carceral means. Thus, while there are practical constraints given the current nature of virtually all domestic criminal codes, there is no reason why a future Nation X could not pass the same suspect test assuming the people they are targeting through national efforts are the same alleged perpetrators being considered as potential targets for ICC action. Nation X would be under no obligation to show that their reformed criminal codes reflect the same definitions of crimes as the ICC.41 Thus, Nation X would only need to show that the person or people being investigated and prosecuted is allegedly responsible for the same conduct outlawed under the Rome Statute.
Having passed Article 17’s same suspect and same conduct test, Nation X would still face one significant hurdle in achieving inadmissibility—a showing that, taken together, the multi-pronged non-carceral measures described do not indicate an unwillingness or inability to prosecute. If the OTP were to determine that Nation X is attempting to employ these alternative justice mechanisms as a “device to shield people from criminal responsibility” or determine that Nation X’s “entire treatment of the matter domestically was a sham,” then the ICC can still assert jurisdiction under Article 17.42 However, while a complete lack of any intent to incarcerate may very well trigger one of these provisions according to the reasonable analysis of OTP staff in practice, it is important to note that the OTP is not legally required to do so. Indeed, the determination of whether an Article 17(1)(b) or Article 17(1)(c) roadblock exists is a matter largely left to the discretion of the Prosecutor. Thus, in the situation sketched out above where the OTP determines through its own domestic analysis that Nation X is proceeding in good faith and has the ability to see its ongoing prosecutions through to the end, no portion of the Rome Statute would require the OTP to assert ICC jurisdiction simply because Nation X will not incarcerate the accused perpetrator(s).
This hypothetical exercise involving Nation X demonstrates that, in some limited circumstances (and under a broader interpretation of the Rome Statute’s complementarity principle), non-incarceration could be enough for the ICC. Thus, as a matter of law, complementarity is compatible with non-incarceration. Recognizing that this compatibility has not yet been borne out in fact given the current realities of international criminal justice, the question still remains as to whether allowing non-carceral justice practices to deprive the ICC of jurisdiction in the future would be a good thing. As discussed in Section IV, the ICC could benefit from this broader interpretation of Article 17 and the institutional recognition that “not all prosecutions lead to incarceration, and there is no reason why prosecution must exclude processes leading to other types of punishment”.43
IV. Towards a Broader Interpretation of Article 17
An interpretation of Article 17 which limits the scope of inadmissibility to criminal proceedings tethered to carceral retribution is problematic because, as discussed, it adds a distinction which the Rome Statute does not make. While clearly relevant in the broad run of cases (at least for the foreseeable future) to a determination of prosecutorial willingness and ability under complementarity analysis, incarceration itself is not a necessary component of Article 17’s interpretation. In assessing the merits of interpreting complementarity as not requiring incarceration, the ICC should be analyzed from the standpoint of institutional legitimacy.
The ICC depends on support from its member states and recognition from the larger geopolitical community in order to assert legitimacy as an institution and relevance in shaping international legal norms. If the ICC hopes to maintain its place as a respected authority for international transitional justice, it must be open to institutional reorientation grounded in the best available methods for responding to, mitigating, and preventing criminal conduct. Whether practices fall under the umbrellas of restorative justice, Islamic justice, or indigenous justice (to name just a few), domestic legal systems around the world employ justice mechanisms that have their theoretical underpinnings outside of the western adversarial system in ways that embrace alternatives to both impunity and punitive retributivism.44 Even western nations, including non-parties to the Rome Statute, are beginning to embrace restorative justice ideas and fold them into their respective criminal codes. In the United States, for example, while the availability of practicable restorative justice remains low for murder cases and other capital offenses,45 the usage of some restorative justice practices is increasingly common in misdemeanor and juvenile cases.46 If the ICC is able to do more to offer institutional recognition of non-incarceration (and restorative justice more broadly), it is more likely that the institution can weather the neocolonial critiques previously mentioned and maintain its relevance in a rapidly evolving global legal landscape.
If the central pillars of a given nation’s criminal justice system are reflected within an international legal body’s practices in a meaningful way, it follows that the nation is more likely to see that body’s proceedings as legitimate and receptive to their ideas. By taking a broader interpretation of Article 17’s complementarity principle, the ICC would be widening its contract zone for the discovery of acceptable justice practices and allow more nations, including nations that are taking significant steps to deprioritize incarceration within their criminal codes, to see themselves reflected within an institution that purports to advance universal principles of criminal justice. A wider contract zone that more seriously accounts for restorative justice practices allows for a greater distribution of justice outcomes seen by those directly impacted by criminal conduct as fair.47 Because a broader interpretation of the complementarity principle would entail recognition of more practices that are familiar to nations in the context of their own domestic criminal systems, it follows that countries which widely employ non-carceral or restorative practices will be more likely to join the ICC if they haven’t already, and that member states that go on to incorporate these practices (or have already incorporated them) will be more likely to view the ICC’s greater mission and ongoing proceedings as legitimate.48
It is clear that a broader interpretation of Article 17 would allow the ICC to become more amenable to restorative justice practices as an institution. An empirical claim often surfaced among justice theorists is that restorative justice practices offer a greater likelihood for procedural and distributive justice as compared to existing adversarial practices.49 However, even those theoretically opposed to restorative justice practices have institutional reasons to desire an ICC that nonetheless recognizes the legitimacy of these practices. Cass Sunstein argues that the heterogeneity of human values and irreconcilable differences in personal morality makes it so that adjudicatory bodies necessarily deliver outcomes that parties accept for incompatible (often contradictory) ethical reasons.50 Attempting to illustrate Sunstein’s basic claim that incompletely theorized agreement surrounding legal outcomes is a good thing, Ray Nickson and John Braithwaite describe the following hypothetical scenario in which non-carceral practices could be construed as sufficient to withhold the invocation of ICC jurisdiction:
Because the institutional recognition of non-western restorative justice practice would amplify the ICC’s real and perceived relevance, even those who are less oriented towards rehabilitation, have practical reasons to read Article 17 more broadly. By broadening its conception of justice, the ICC improves its ability as an international transitional justice space to “deliver non-western as well as western conceptions of justice.”52 As such, Prosecutors within the ICC should choose to interpret Article 17 to encompass non-carceral and restorative justice measures that it deems sufficiently genuine.53 The Court can and should enhance its legitimacy by broadening its institutional understanding of acceptable mechanisms for dealing with criminal behavior. This would enable the ICC to take restorative justice more seriously without totally displacing extant legal narratives of what justice is, and allow for incompletely theorized agreement in the future on whether justice is being served in a particular case.
A potential objection to the claim that non-carceral practices are compatible with complementarity is that an overbroad reading of Article 17, if acted upon to deprive the ICC of jurisdiction in cases where states are moving forward with prosecutions without incarceration, may have the effect of increasing impunity. This objection posits that the perpetrators of heinous crimes over which the ICC would historically assert jurisdiction would have greater opportunities to craft credible inadmissibility arguments and avoid state-sanctioned punishment for past criminal conduct. Even under the careful watch of the OTP, and even if the state’s efforts are made in good faith on paper, critics of this comment’s normative claims may argue that a unduly broad reading of the complementarity principle would increase the probability that those most responsible for crimes within the ICC’s purview could escape accountability for their actions, thus undermining the primary purpose of the Rome Statute.
Even conceding that a broader reading of Article 17 would necessitate a minor recalibration of complementarity’s balancing act between state sovereignty and the struggle against impunity in favor of state sovereignty, a potential response to this objection is that the institutional benefits outlined previously outweigh the costs associated with an increase in the number of future individuals that escape prison time for conduct that, in today’s world, would absolutely warrant ICC jurisdiction. These benefits are most easily exemplified by an imagined future where the ICC has weathered institutional attacks directed from every conceivable angle and maintained its relevance and legitimacy for decades, even centuries, in the face of the fundamental shifts in societies’ attitudes towards conduct that has historically been construed as criminal. Just as the last one hundred years have seen significant changes to the way criminal codes are structured and the values they propagate, the next one hundred years will likely render national criminal legal systems unrecognizable from today’s perspective. If the ICC is to maintain, and perhaps enhance, its legitimacy over that same time period, the Prosecutor must consider pivoting away from the adversarial values exemplified by the Court thus far and take concrete steps to make the ICC a more international —and less narrowly-western—institution.
If the ICC hopes to maintain truly global relevance, it shouldn’t tie its hands by asserting an interpretation of Article 17 which categorically excludes non-carceral practices. The internal roadblocks within complementarity analysis (namely Article 17(1)(b)–17(1)(c) ) afford the Prosecutor wide discretion to invoke jurisdiction in the face of non-carceral practices without the ICC as an institution, or individuals within OTP, taking a position as to whether incarceration (or the threat of incarceration) needs to be present in every case that is found to be inadmissible. Neither the OTP, nor the members of the Court itself, have publicly taken such a position, and for the reasons previously stated, this is a good thing. Thus far, Article 17’s inherent ambiguity has left much open to interpretation. But if and when the time comes, it would be beneficial for the ICC to take a firmer position and affirmatively assert (as this comment has) that non-carceral practices are compatible with complementarity as a matter of law, as this would signal to the world that the ICC is attune to the prevailing ideas and arguments surrounding incarceration, punishment, and criminal law. Through a recalibration of the complementarity principle’s balancing of interests in favor of state sovereignty that results in more cases warranting ICC jurisdiction being dealt with on the national level, the ICC can contribute to an increase in civic trust among the nations that need it most: those that are attempting to rebuild confidence in societal institutions after deeply tumultuous times. This is because national proceedings, more so than international ones, have the ability to meaningfully restore public confidence in the same institutions that have previously failed members of society.54
In accordance with the recommendations set forth in this comment, the ICC Prosecutor should continually revisit the conditions for inadmissibility under Article 17 as the global need for criminal prosecutions changes moving forward. Even in total accordance with this comment’s recommendations, a reasonable complementarity analysis could very well find that a future prosecution without incarceration does not adequately address criminal behavior or otherwise subverts the spirit of the Rome Statute’s battle against impunity. This would likely be the case in almost any foreseeable application of Article 17 in today’s world. But a broader interpretation of Article 17 acknowledges that a future non-carceral national effort could deprive the ICC of jurisdiction, so long as the conditions for inadmissibility under the complementarity principle are otherwise met (however unlikely such a case may be).
While it may be difficult to imagine any situation where a fully functional non-carceral justice system could exist vis-à-vis the kinds of crimes targeted under the Rome Statute, it is nonetheless important to delineate the nature of the role that incarceration plays within the ICC’s complementarity analysis. This comment has attempted to do just that. Because the Rome Statute does not explicitly require a showing of incarceration, Article 17 is compatible with non-incarceration as a matter of law. As the world continues to shift away from incarceration as the primary mechanism for dealing with criminal conduct, the ICC ought to broaden its institutional understanding of justice by allowing for certain non-carceral (and in effect, non-western) justice practices to satisfy the complementarity principle. It is desirable to rethink the scope of the ICC’s inadmissibility analysis in ways that will enhance the ability of the Court as an international transitional justice space to deliver a wider range of acceptable procedural outcomes and incompletely theorized agreement on the question of whether justice has been served. In doing so, it is possible to envision an ICC that is better able to respond to criticisms that it fails to properly acknowledge the virtues of non-western justice systems, and one that is more likely to maintain institutional legitimacy in the decades to come.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See John Braithwaite, Restorative Justice & Responsive Regulation (2002), available online; Allison Morris, Critiquing the Critics: A Brief Response to Critics of Restorative Justice, 42 BJC 596 (Jun. 1, 2002), paywall, archived. ↩
See generally, Joanna Shapland, Forgiveness and Restorative Justice: Is It Necessary? Is It Helpful?, 5 OJLR 94 (Feb. 17, 2016), available online, archived, doi. ↩
See Linda M. Keller, Seeking Justice at the International Criminal Court: Victims’ Reparations, 29 T. Jefferson L. Rev. 189 (Nov. 2006), available online. ↩
Awol Allo, The ICC’s Problem is Not Overt Racism; It is Eurocentricism, Al Jazeera, Jul. 28, 2018, available online. ↩
See Fanny Benedetti, A Report on the Negotiations for the Creation of an International Criminal Court, 5 Hum. Rts. Br. 6 (1997), available online. ↩
(In the context of this comment, “non-carceral system” refers to either a system where incarceration is not available as a mechanism for punishment or one where it is available but not required in a given case). ↩
Martha Minow, Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court, 60 Harv. Int’l L.J. 1, 7 (2019), available online. ↩
Id. at 10. ↩
Id. at 9. ↩
See Paul Seils, ICTJ, Handbook on Complementarity: An Introduction to the Role of National Courts and the ICC in Prosecuting International Crimes 1, 29 (2016), available online, archived. ↩
See Office of the Prosecutor, ICC, Informal Expert Paper: The Principle of Complementarity in Practice (2003), available online, archived. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 17(1), available online. ↩
Id. Art. 17(2). ↩
See Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 251 (2008), available online. ↩
Minow, supra note 7, at 4. ↩
Id. at 11. ↩
See Kate Allan, Prosecution and Peace: A Role for Amnesty Before the ICC, 39 Denv. J. Int’l L. & Pol’y 239, 243–44 (2011), available online. ↩
See Office of the Prosecutor, ICC, Prosecutorial Strategy 2009–2012 (Feb. 1, 2010), available online. ↩
Ray Nickson & John Braithwaite, Deeper, Broader, Longer Transitional Justice, 11 Eur. J. of Crim. 445, 448 (Jul. 1, 2014), available online, doi. ↩
See Terry Beitzel & Tammy Castle, Achieving Justice Through the International Criminal Court in Northern Uganda: Is Indigenous/Restorative Justice a Better Approach?, 23 ICJR 41, 48 (Feb. 7, 2013), available online, doi. ↩
See Patrick Wegner, ICC Complementarity, Positive Peace and Comprehensive Approaches in Transitional Justice, Just. in Conflict (Oct. 13, 2011), available online, archived. ↩
See Minow, supra note 7, at 7. ↩
See Scott Worden, The Justice Dilemma in Uganda, USIP 5 (Feb. 1, 2008), available online, archived. ↩
Dwight G. Newman, The Rome Statute, Some Reservations Concerning Amnesties, and a Distributive Problem, 20 Am. U. Int’l L. Rev. 293, 321 (2005), available online. ↩
See Minow, supra note 7, at 17. ↩
See Is the ICC Targeting Africa Inappropriately?, ICC Forum (Mar. 17, 2013), available online; see also Asad G. Kiyani, A TWAIL Critique of the International Criminal Court: Contestations from the Global South, CPSA (2011) (Working Paper), available online. ↩
See generally, Makau W. Mutua, Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 Harv. Int’l L.J. 201, 212 (2001), available online. ↩
See Markus Benzing, The Complementarity Regime of the International Criminal Court: International Criminal Justice Between State Sovereignty and the Fight Against Impunity, 7 Max Planck Y.B. U.N. L. 591, 595 (2003), available online. ↩
Seils, supra note 10, at 66. ↩
See Keller, supra note 14, at 256. ↩
Rome Statute, supra note 12, at Art. 80. ↩
See Seils, supra note 10, at 64. ↩
Aaron Acosta, Measuring Performance: A Case Study of Positive Complementarity Catalyzed During the Preliminary Examination Stage in Colombia n. 40, ICC Forum (Jul. 15, 2017), available online. ↩
See Minow, supra note 7, at 11. ↩
See Daniel W. Van Ness, Restorative Justice: International Trends (Oct. 7, 1998) (Presentation, Victoria University), available online. ↩
See Minow, supra note 7, at 5. ↩
Id. at 46. ↩
Rome Statute, supra note 12, at Art. 5. ↩
See Seils, supra note 10, at 35. ↩
Minow, supra note 7, at 18. ↩
Keller, supra note 14, at 256. ↩
See Nickson & Braithwaite, supra note 19, at 445. ↩
Cynthia Alkon, Restorative Justice for Murder?, Indisputably (Jan. 6, 2013), available online, archived. ↩
Gordon Bazemore & Susan E. Day, Restoring the Balance: Juvenile and Community Justice, 3 Juvenile Just. J. 3 (Dec. 1996), available online, archived. ↩
See Heather Strang, Victim Participation in a Restorative Justice Process: The Canberra Reintegrative Shaming Experiments 190 (2002) (Ph.D. thesis, Australian National University), available online
(concluding that restorative justice appears to have the potential to allow affected parties to benefit more often than adversarial justice). ↩
See Emilia Justyna Powell & Sara McLaughlin Mitchell, The Creation and Expansion of the International Criminal Court: A Legal Explanation, Midwest Pol. Sci. Ass’n Conf. 38 (Jan. 12, 2009), available online, archived, doi. ↩
See Braithwaite, supra note 1, at 54. ↩
See Cass R. Sunstein, Incompletely Theorized Agreements Commentary, 108 Harv. L. Rev. 1733, 1772 (1994), available online. ↩
Nickson & Braithwaite, supra note 19, at 449. ↩
Id. at 448. ↩
See Keller, supra note 14, at 256. ↩
See Seils, supra note 10, at 9. ↩
A New ICC Justice Reflecting Regional Remedies: Reparations, Reconciliation, and Reform
This comment will look at the various ways that the International Criminal Court (ICC) could improve its functionality as a global system, by looking to the regional human rights systems and the ways that they have each pulled from their unique regional histories, to create systems that fit their regional needs and reflects a broader definition of justice than simply peace through punishment and general deterrence.
The issue of justice, how to define it and ultimately how to pursue it, could be brought up as an issue at any step of ICC investigation and prosecution—from jurisdiction and complementarity all the way to trial processes and the crimes individuals can be prosecuted under. This comment, however, will not address any of those issues. I believe that the most feasible place the ICC could implement change, without amending the Rome Statute, and still bring about positive attainable change for victims and the world as a whole, is through the remedies and reparations available to the Court. The last step of the process, remedies and reparations, are the part that arguably most impacts victims, whether individuals or whole societies. Yes, without a doubt, the holding of a trial and accountability of a criminal in and of itself can be reparative for individuals harmed by that person. However, I believe there is more that can be done. I believe there are measures, already being experimented with by the regional human rights systems, that are largely viewed as effective justice measures reflective of the needs and wants of the victims and societies they work with.
Accordingly, I will look to the regional human rights systems of the America’s and Africa for insight into creative and cultural reflective remedies that are not found in the ICC but could be integrated into it. Despite having similar and overlapping goals to the ICC, the Inter-American and African Regional Human Rights Systems pursue those goals through remedies and reparative justice mechanisms that are more reflective of their regional and cultural values. I propose that when an issue is brought before the ICC, and the country at issue is a party to one of the regional systems, the prosecutor should look to that system for guidance on the goals of the victims and the remedial measures used in those locations. I believe that the ICC could increase its effectiveness for victims, build rapport and legitimacy, and be more reflective of under-represented traditional and cultural legal norms, by integrating the reparative and remedial measures used by these regional human rights systems, into the existing Rome Statute language.
In Part II of this comment, I delve further into the background and goals of the ICC and both the Inter-American and African Regional Human Rights Systems. Part III then describes some of the most notable remedies available in each of these systems. Finally, Part IV, looks at where and how the ICC could integrate these remedies into the Rome Statute, as it exists today.
II. Background and Goals
A. Background and Goals of the ICC
The ICC has jurisdiction over four primary crimes—genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC works to find a way to hold individual people responsible for the most heinous, systematic, and grave crimes, and therefore regularly sees before it perpetrators of the gravest acts of violence and depravity on earth. If this task sounds challenging, that is because it is. In its almost two decades of work, the ICC has heard thirty cases and issued ten convictions.1 These numbers are modest by the standards of most courts; however, they are indicative of the work the Court has put in, despite staggering obstacles, namely: lack of support from the most powerful states in the world, sovereignty claims, admissibility and practicality issues stemming from trying to hold powerful people accountable, and any number of internal struggles due to funding and resource availability. Despite these struggles, the ICC has done what it can to pursue its vision of justice.
If one looks at the ICC website, the world’s first permanent international criminal court puts itself out as “participating in a global fight to end impunity” by seeking individual criminal justice.2 The ICC seeks “justice” which it defines as a prerequisite to a “future free of violence” sought through “long-term peace, stability, and equitable development in post-conflict societies.”3 Accordingly, the ICC sees justice as one in the same as peace and stability. Basically, the ICC is seeking world peace. While a laudable tagline for a beauty pageant contestant, the ICC has the daunting task of actually trying to create a peaceful world. This task would stop, and does in fact stop, any number of people from accepting the task as a reasonable pursuit. This is however not the stance taken by the many international lawyers who have devoted their life to holding criminals of the worst kind accountable through various international tribunals, and ultimately the ICC.
As a criminal court, the ICC’s pursuit of justice is done through individual criminal accountability and punishment, as well deterrence mechanisms. The focus on this particular definition of justice, fixating on the responsibility of the perpetrators of crimes, makes sense. Individual criminal responsibility is the primary premise of most criminal courts, whether domestic, regional, or international in character. That does not mean it is the only viable avenue through which to pursue this goal of peace and stability.
B. Background and Goals of the Regional Human Rights Systems
The Regional Human Rights System is a term which I use to describe the three institutionalized embodiments of human rights on the regional level. There are three regions that have individually taken on this process of institutionalization—Europe, the Americas, and Africa. The European system is the oldest and has two institutions—the European Court of Human Rights and the Council of Europe—both of which work with and apply the European Convention on Human Rights.4 The Inter-American Regional Human Rights System (Inter-American System) also possess two linked institutions—the Inter-American Commission and the Inter-American Court which apply the American Convention on Human Rights (American Convention)5 as well as the Declaration on the Rights and Duties of Man.6 Finally, the African Regional Human Rights System (African System) is the newest of the three systems. It is composed of the African Commission on Human and People’s Rights (African Commission) and the African Court on Human and Peoples Rights (African Court),7 which apply the African Charter on Human and People’s Rights (African Charter).8
While each of these three regional systems vary and are complex in their own right, for the sake of this comment, I will not discuss much more on the European system as it comes out of largely the same history as the creation of the ICC—World War II and the Nuremberg Trials—and therefore the remedies available to the European Court of Human Rights, such as compensation and investigation, are fairly well reflected in the Rome Statute.9
At the broad level, the goals of the regional human rights systems, while each separate and very different, are collectively focused on the relationship between individuals and states. The overlap, I would point out, between this conception of rights and the pursuits of criminal systems, is that a state only exists as far as individuals create it and give it meaning. Although the human rights system is focused on reform and changes to state institutions to stop ongoing and future atrocities, in order to do this, the responsibility of the leadership of the country—whether entire organizations or individuals—is a key point of reference for this process. Thus, again, the ICC and the regional human rights systems are, ultimately, not so very different.
The regional human rights systems share a common history of having been implemented with the goal of promoting rights that are considered fundamental within the respective regions, not just what the U.N. and the world community as a whole could agree on as the fundamental rights of humanity. Thus, the regional systems allow for a more particularized, as well as a more culturally and historically relevant vision, of rights of individuals. The systems were established largely before the ICC came into existence, during the period during and directly following the Cold War, when, due to the politics of the East-West divide, the work to stop mass atrocities could not be localized into one body.10 Rather, each of these regional systems took on the responsibility to protect individuals in their regions from atrocities perpetrated by states and did so with their particular regional histories and legal and cultural norms in mind. Accordingly, the regional systems have created a wide variety of tools to establish and protect human rights, stop abuses, and successfully pressure and deter future abuses through accountability of violators.11
1. The Inter-American Regional Human Rights System
The Inter-American System was established by the Organization of American States (OAS)—a coalition of the nations of North, Central, and South America created to “strengthen the peace and security of the continent” and settle “disputes that may arise among the member states.”12 As of today, all thirty-five independent states of the America’s are members of the OAS,13 and twenty-four states are parties to the American Convention.14
Historically, every part of the America’s was, at one time, a colony of European nations and, while this common history has resulted in different outcomes amongst the states, this history of colonization and the subsequent de-colonization process during the second half of the twentieth century, is a defining feature of the Inter-American System as it exists today.15 During the 1960s through the 1990s, many of the most influential nations in South America—importantly Argentina, Chile, and Brazil—experienced significant periods of authoritarian military rule which committed gross violations of human rights such as summarily executing, forcibly disappearing, and torturing thousands of their citizens.16 This history has influenced the substantive rights that the American Convention and the Declaration on the Rights and Duties of Man codify.17 Both documents have a strong focus on the rights that were threatened by colonization, decolonization, and the military government regimes unique to many Inter-American states. Even more than the substantive rights though, the remedies and efforts of the system to rectify wrongs done reflect this history and thus creative solutions to uniquely Inter-American issues have been created, as will be discussed in Part III.
2. The African Regional Human Rights System
The African System was created, similar to the Inter-American system, by a coalition of African states. This coalition, originally called the Organization of African Unity (OAU), was created in 1963 as a body primarily dedicated to eradicating colonialism.18 In 2001, the OAU was replaced by the African Union (AU) which today includes all fifty-five African states as members.19 In 1981, the OAU adopted the African Charter which then entered into force in 1986.
The African system, as it looks today, is the newest of the three regional systems, with the court’s establishment in 2006 and the first issuance of a decision on the merits in 2013.20 This novelty is certainly one reason that the African System has seen relatively little action or substantive success, despite the fact that the continent as a whole has seen plenty of mass atrocities and human rights violations that could have resulted in more substantive decisions. It is beyond the scope of this comment to discuss the reasons for Africa’s status as one of the more impoverished and violence-ridden regions of the world. However, a cursory review of history brings most people to the conclusion that the results of mass colonization, complete resource decimation by those colonizers, and the resulting de-colonization process, contributed heavily to the problems much of Africa, as a continent, currently faces.21
Even more then in the Inter-American system, the African system places a substantial degree of importance on sovereignty. To the African system, sovereignty seems to mean not only individual state sovereignty, but also African sovereignty for the continent as a whole. Coming out of a common history of colonization, the African Charter places massive importance on states sovereignty, territorial integrity, and independence.22 While this focus on individual state sovereignty is central to much of the reason for the existence of first the OAU and now the AU, there is simultaneously an underlying refrain of unity and solidarity among African states and importance placed on the non-interference in the internal affairs of member states by non-member states.23 African sovereignty as a whole, and non-interference from other parts of the world, are key features in the system, as it focuses on promotion and education of individuals on their rights as a way to protect people from atrocities and deter future violence. However, this idea of Africa as a collective, leaves open the possibility unseen in other systems, for AU members to work together and interfere in other African states affairs in a manner that would not be considered viable in other regions.24
C. Comparing the ICC to the Regional Systems
The regional human rights systems and the ICC do have some fundamental differences that must be addressed. First, the regional human rights systems typically place more focus on justice for victims, and society as a whole, which is reflected in their remedies. These systems were created with a different pursuit in mind than the ICC. Their focus is on furthering human rights in their regions. By this, I mean promoting, educating, and protecting those rights that through generally accepted principals, norm creation, and international conventions and treaties, are universally 25 accepted as fundamental rights owed to each individual, simply for being human. This focus is inherently positive—assuring rights are received and protected. It therefore places the well-being of individuals and victims at the center of the analysis. Whereas the ICC, as a criminal court, has an inherently negative function—holding individuals liable for crimes, which could also be phrased as invading the human rights of others.
Second, the regional human rights systems are largely focused on the responsibility of states in adhering, or not adhering, to the human rights guaranteed to individuals within the state. The ICC, on the other hand, focuses on the liability of individual perpetrators. This is the primary distinction that protects the ICC from claims of sovereignty invasions. If the ICC were to try to hold an entire country or region responsible for crimes of mass atrocities done within their borders, it might be more reflective of the actual political structure and occurrences in that conflict. But it would also likely lead to the destruction of the ICC as a whole. No country would sign onto a system that could hold the state, as a whole, liable, especially not if there were repercussions for that liability.
Ultimately, the ICC is not trying to hold whole states responsible for the harms done to individuals, while regional human rights systems are doing exactly that, with the goal of protection and promotion, not just retribution. However, both systems work with states directly to repair damage done, compensate victims, implement broad peace and stability, and educate and inform people of their rights and protections. All of this is done with the goal of minimizing mass atrocities and invasions of individuals rights in the future. In this way, while the ICC and the regional systems go about affecting change differently, ultimately, they are not so different. The goal of peace, stability, and creating a better world for future generations with less risk of violence and pain, is shared across systems.
III. Available Remedies
A. International Criminal Court
The ICC is a rigid system with a fairly unimaginative take on remedies. The Rome Statute articulates the remedies recognized by the ICC in only a few articles, found in Parts Six and Seven of the Statute—Articles 75, 77, and 79.26 Article 75 allows for reparations to victims stating that:
Further, Article 75 allows the ICC to, “determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.”28 Article 77 lays out the applicable penalties for a guilty verdict. The Court may impose a penalty of imprisonment either:
The Court is, in addition to imprisonment, permitted to order a fine under certain circumstances, or “a forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties”30 Finally, Article 79 allows for the creation of a trust to be established:
The Court “may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.”32
Based on the Rome Statute, the ICC would seem to only allow for the least creative of remedies—punitive imprisonment and monetary compensation. The Rome Statute is an encompassing document that is the end all and be all of ICC control. Thus, in order for remedies to be implemented, they must somehow find a way to fit into either one of these provisions articulating available remedies, or somewhere else that there is room for the prosecutor to maneuver new methods into, as are discussed in Part IV.
B. Regional Human Rights Systems
The regional systems, partially by their nature focusing on human rights and partially due to their histories of development, are much more focused on holding states accountable, rather than individual liability. However, the remedies used by these systems are transferable in nature in that they could be implemented by a criminal court just as easily as in the regional human rights courts. This is demonstrated, in part, by the fact that movement in the opposite direction already occurs. The regional bodies implement remedies that are traditionally accepted within the realm of human rights mechanisms, but also implement remedial measures that are commonly associated with criminal justice systems. The ability of human rights systems to extend their purview blends the lines between the norms of human rights and criminal jurisprudence in a way that supports the assertion that they are not necessarily so very different or non-transferable.
The regional human rights systems utilize remedies that are indicative of several broad goals being pursued: compensation, deterrence, reconciliatory and restorative reparations, as well as condemnation and retribution.33 Some of the more specific and interesting remedial options that have been utilized and discussed in these systems include: monetary damages, reform or repeal of problematic laws, investigations, requirements for domestic enforcement, and promulgation of rulings to countries. This means that not only must the states where mass atrocities have taken place hold the individuals perpetrating those acts responsible, but they must also disseminate information on the rights that were violated, and the court decisions to the public.
Further, the Inter-American Court can require states to locate and return the bodies of disappeared persons; require medical treatment be provided to those who have been abused; and require states to take responsibility for violative actions in such ways as formally apologizing, claiming responsibility, admitting to violations, and constructing memorials in remembrance of victims and events.34 Meanwhile, the African Court places a special degree of importance on education and dissemination of information, including within the text of the African Charter Article 4535 that the commission is tasked not only with promoting human rights across the continent, but also with disseminating information to the people of the region in order to educate and inform.36
Based on a review of these remedial options, the regional systems focus much more on reparative justice and information spreading about court decisions and rights that people possess. The goal of this seems to be not only to make sure that individuals themselves know that they have rights, and which ones; but also, a form of internal compliance and enforcement—the more people know that they have rights, and the more often that they see those rights being protected by courts and institutions, the more likely they are to demand the upkeep of those rights by utilizing those courts and institutions. It is theoretically, a self-perpetuating cycle.
Monetary compensation, future deterrence, condemnation of conduct, and retribution for perpetrators are the primary processes and goals pursued by the ICC. In this way, the ICC remains conduct and perpetrator focused. Meanwhile, the other options—reconciliation and restorative justice—come in many different forms and provide the option for courts to ask what they can do for victims, not as victims. These options turn the table from the court acting as a conduit of the victim, as though it was itself harmed by the conduct being such a grave violation of global justice; but rather as a form of reconciliation, to facilitate societies moving on by asking victims what they need, what they want to say, and how they want to move forward. These steps are:
Restorative and reconciliatory remedies are examples of courts attempting to help heal the relationships in societies that have been torn to pieces by the atrocious acts, often not just of one person, but of several or even many.38
Restorative justice and reconciliation also deals with the practical problem of what to do in situations of mass atrocities, when there is no one responsible individual (as there so often is not), but rather an institutionalized culture of violence and violations passed from one person down a chain, until it is no longer possible to decipher perpetrators from planners and vice versa. So commonly this is an issue that the ICC sees and is a critical failing of the system as it currently exists. The ICC focuses its attention completely on finding a few discreet individuals that played critical roles in the atrocities, to hold them and them alone accountable. Once it does, the Court tries (and often fails) to find ways to hold these individuals responsible for every harm done. Many of these people are criminally liable for their actions. However, the Court stretches and bends to make things fit actions of others to these people that simply do not fit, and in doing so, deadlocks itself into inaction as seen by the low number of cases heard, and even lower number of convictions.39
If the ICC broadened its views of justice and remedial measures to include some of the remedies that are culturally accepted in these regional systems, then remedies such as reconciliation, truth commissions, and restorative justice could, very viably, help fill some of these gaps and, while controversial, critically assist in reintegrating perpetrators into the harmed communities, especially when it is unrealistic or impossible to hold a large number of perpetrators accountable for every step of the planning and physical conduct of the violations. Thus, reintegration may be less of an option, and more of a distasteful requirement of moving forward. These perpetrators will continue to be there since the ICC cannot always hold all of them accountable. So, the societies that they remain in need a way to move forward, nonetheless. If the ICC focused less on the “blameworthiness of the conduct”40 and focused more on the consequences, it would allow the ICC to compensate victims more properly—meaning in a way that will allow healing and moving forward, according to the desires of those victims—and also more thoroughly pursue the goal of global peace and stability.
As some at the ICC would argue, the trial of a perpetrator itself is the key component of healing for victims who feel deeply the anger and outrage of the injustices done to them and their communities. This may certainly be true. However, just as the regional systems incorporate a degree of criminal conduct into their systems through compensatory monetary awards and, indirectly, in their judgements against states and those involved in the conduct, the ICC can and should incorporate remedial concepts beyond just imprisonment and monetary compensation to effectively pursue the goals it claims to be after.
The problem I see, however, is that the ICC seems to think it must pursue justice—world peace—all on its own. As a court of last resort, the ICC seems to have accepted the idea that it must do things one way, and only that way. It must treat every case the same, every criminal equally, and every victim as interchangeable with another. This is where I believe the ICC’s fault lies. Within the Rome Statute, as it exists right now with no amendment, there are places where the ICC could incorporate the legal mechanisms of other courts and systems. The ICC does not have to stand alone. It could incorporate other ideas, broaden its definition of justice, and support its goals with the ideas and creativity of other systems’ ideas that are already being experimented with and have been proven to work. The ICC would, I believe, be better for it.
There is no reason that the remedies that are unique to the regional human rights systems must remain only within those regional systems. Any effect that they result in at the regional level, could be transferred to the international system. Further the success of these remedies in the regional systems stem from regional pressure, non-governmental organizations involvement, and both internal and external naming and shaming that could be just as effective on the world scale.41
The most important reforms that I think the ICC must make, are in incorporating systems of reconciliation and restoration. These are broad categories that encompass many possible outcomes but are completely unrepresented in the current ICC system. Examples of what I mean by reconciliatory and restorative remedies mentioned previously are: investigations, reform or repeal of problematic laws, requirements for domestic enforcement, and promulgation of rulings to countries; as well as: truth commissions, locating and returning the bodies of disappeared persons, requiring—and assisting in—providing medical treatment to those who have been abused, and requiring states to take responsibility for violative actions in such ways as constructing memorials, claiming responsibility, admitting to violations, and formally apologizing, whether on behalf of the state, or as individual perpetrators.
The ICC is a fairly rigid system with boxes to check and minimal wiggle room at every step of the process. It is also a system that is trying to work for the world as a whole.42 Because of this, amendment to the Rome Statute—while possible—is infinitely more cumbersome and prohibitive than working within the confines of the Statute’s current remedial options. That being said, there are places within the Rome Statute, as it exists today, where the ICC could feasibly integrate all or some of the remedies found in the regional human rights systems discussed in Part III.B., in order to create a system of justice that is more indicative of the reparations important to victims in various regions and cultures. The places within the Statute where I think integration of these tactics could be implemented are as follows.
The first part of the ICC where I see room to integrate these alternative remedial measures is during the sentencing procedures as described in Articles 76 and 78. Article 76 of the Rome Statute is the general permission to the Court to sentence those people it finds guilty and states:
The drafters seem to have left room for the Court, in sentencing a guilty party, to take into account both mitigating and exacerbating factors such as the degree of involvement and the role played. Article 76(4) also already resembles several of the remedial measures discussed above such as requiring promulgation of rulings and admitting to and claiming responsibility for violations. Bolstering this, Article 78(1), discusses the determination of sentences giving the Court some leeway to “take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.”44 While this Article does go on to discuss primarily the imposition of sentences of imprisonment and the calculations therein, Article 78(1) at no point specifies that imprisonment need be the sole outcome after balancing and weighing the gravity of the crime, and the context of the situation as a whole.
Not everyone who comes before the ICC is necessarily the “biggest fish.” The ICC would like them to be, but sometimes the people it can get—whether jurisdictionally or physically—within its custody are simply the ones that got thrown to the wolves, the ones that got scared or felt guilty and admitted what happened. Thus, the ability of the Court to mitigate not only the time in prison to which it will sentence these people, but also whether there are alternative forms of retribution that could justify the ICC’s going after these smaller players in the eyes of defendants and defense counselors who see the placement of blame for others’ actions on individuals, to be a grave misplacement of justice. This ties into the next place where different forms of justice could come into play through different remedies, punishments, and reparative measures.
B. Remedies and Penalties
The most obvious place for the Court to extend its definition of remedies from solely imprisonment and monetary compensation is in the remedies and penalties that are listed. Article 75 of the Statute handles reparations to victims. Article 75(1) states:
Article 75(1) relates to reparations, or reparative damage. By its definition, reparative means repairing, fixing something broken, making something whole. The phrasing following that, of “relating to reparations […] including restitution” indicates that while restitution, compensation and rehabilitation are options which the Court can choose to implement in order to make the broken situation, person, or society whole again, they are not the only options. This “including” language is repeated again in Article 75(2), adding force to the argument that these are options that are not exhaustive.46
Article 75(3) states that:
Here, the Court is already allowing those in harmed societies with information either as to the perpetrator or the victims to come forward and give their accounts. Some at the ICC may argue that this is, in and of itself, enough to allow victims the opportunity to tell their stories and for the Court to take that into account in prison sentencing or monetary compensation (as are the only remedies really utilized by the Court presently). However, there is room within this article to take these accounts and not just use them as mitigating or exacerbating factors to a prison sentence, but rather to ask those victims, members of society, and defense witnesses, not only what happened, but where they would like to go from here, and what they need or want to occur in order to become whole again.
I would argue that imprisonment of a single perpetrator, while possibly gratifying for those who have lost friends, family, and parts of themselves, will not alone lead to justice for the victims or help the harmed societies move forward with any positive change. Rather, listening to the needs of victims, not just lashing out against the accused, will allow for movement forward and for these people to feel heard on the international level. This will not only increase actual justice done for the individual—providing them with what they truly need and want—but will also decrease the occurrence of small players taking the entirety of blame not suitable for them. This will increase the protections of due process for defendants who do not deserve all of the blame, while still allowing these trials of smaller players to result in remedies for victims, even if the instigators and planners of the atrocities are not able to be brought to punitive justice. All of this will increase the legitimacy of the ICC in the eyes of victims, defendants, and the world at large.
Next, Article 75(4) states:
Article 93 lays out the ways that State Parties are required to cooperate with requests of the Court, such as decisions on remedies under Article 75. Some of these forms of cooperation and assistance are:
Through the combination of Articles 75 and 93, the ICC already allows for cooperation between states and the ICC in determining what has occurred, but also has created an opening in deciding how available remedies will be implemented on a practical level by the Court, and within the States Parties. The Court has thus already laid the groundwork for the work being done in the regional human rights systems to be pulled into the criminal system. The atrocities being looked at in both the human rights and the criminal systems often are, if not the same, at the very least overlapping. Accordingly, having cooperation between the systems, and being able to pull in not only evidentiary and procedural information in investigations and prosecutions, but also cooperation in deciding what victims and societies actually need from the various courts would be vastly beneficial in increasing the efficacy and relevancy of the ICC to local victims for whom a criminal prosecution at a far away court may otherwise mean essentially nothing.
A final place within the remedies and penalties, as they are currently written in the Rome Statute where the ICC could try to extend the remedies available to them and implement more relevant and helpful outcomes for victims, is in the existing penalty articles—Articles 77 and 79. These two articles have to be mentioned for the sake of completeness even though they do not appear to leave much of the wiggle room seen in other areas of the Statute. It is true that Article 77—Applicable Penalties—provides for imprisonment, fines, or forfeiture of property,50 and Article 79 provides for the creation of a trust fund to be established for the benefit of victims and their families.51 These two articles are fairly singularly minded and, I would argue, the epitome of the limitations of the ICC. Article 77 is pecuniary. Article 79 is compensatory. Perpetrators are punished, victims are paid. However, that being said, just because these are the processes most clearly laid out, I do not think they exclude the possibility of other articles providing non-punitive, reparative, and reconciliatory remedies. They are simply the only remedies that could be broadly agreed to by the entire community of the world states. This is where the impacts of the individualized systems and the remedies they offer becomes culturally and regionally relevant.
Yes, Articles 77 and 79 are the universally agreed to available and codified remedies. However, that does not mean that they are exhaustive of the remedies that different regions feel are appropriate. Indeed, that is the whole point of the comparison to the Regional Human Rights systems. These alternative systems demonstrate the mechanisms and efficacy of those mechanisms that are viewed as viable and critical to the communities in the various regions. They represent the cultural and legal norms of the region and pursue forms of justice that are more representative of the needs of the specific victims of that locality. Accordingly, just because the ICC narrowly codifies only a very few remedial options, the ability to bring other remedies into the language of the Statute, can and should be done when the ICC handles cases that fall into one of these regional systems—as that will allow it to reflect the needs, desires, and norms of the various cultures.
C. Plea Bargaining
A final part of the Statute where remedial measures of the regional systems that are otherwise unseen in the ICC system, could be brought in is under Article 64(8)(a) and Article 65, which lay out what, in the United States, we might call a plea-bargaining process. Article 64(8)(a) states:
Article 65 then specifies that upon an admission of guilt, the Trial chamber will determine whether:
Although maybe not the most obvious place to think about implementing these alternative mechanisms, I think that it may be one of the most promising. This is a special procedure laid out for those circumstances when an accused makes an admission guilt. Article 65(5) expressly stipulates that this admission of guilt might come after discussions between the prosecutor and the defense. Thus, in this way, this article seems to have in mind a procedural process similar to a plea bargain. In this case, a guilty or allegedly guilty party discusses their options with the opposing counsel and comes to a solution that is marginally better for everyone involved—the victims get an admission of guilt, and the accused hopefully avoids the worst of the sentencing options. To me, this sounds (and always has sounded) a bit coercive and unsatisfying for absolutely everybody involved.
However, here, the article gives the Court at this point the power to convict, though not the requirement —the Court “may” convict.54 This is the case even if the Trial Chamber is satisfied that the accused made their admission voluntarily, in accordance with the facts and evidence as known, and with an understanding of their actions and the consequences (a likely guilty verdict). The Court is left with a great deal of leeway in deciding what to do with that guilty admission as nothing beyond the ability to convict is listed. Further Article 65(5) expressly states that these discussion between the prosecutor and the defense counsel—the outcome of the bargaining—will not be binding on the Court itself.
All of this put together, I believe, allows the Court to use their power in a plea-bargaining situation, to implement remedies that have the potential to create a much more satisfying outcome for everyone involved. At this point, the Court has an individual who has stood up and proclaimed their guilt. This proclamation could be the start, or the entirety, of an admission of responsibility, a formal apology, the start of reform in a country, or the beginning of a process of winding back ongoing institutional mechanisms of harm. The admission of guilt could start, essentially, a truth commission process for finding not only what happened with this individual, but more broadly what occurred. And all of this could be done with less punitive measures and more interest in keeping an eye on the needs, desires, and customs of the victims to find a more satisfying remedy to the atrocities they faced.
Ultimately, there are certainly other locations within the Statute in which bringing in additional remedies and more effective reparative measures could be implemented. But I believe that the articles brought up and discussed here are the most indicative of changes that could be implemented without really having to change the Statute at all.
The success of the Regional Human Rights systems to protect individuals, create change, and hold accountable individuals and entire state parties, stems largely from state-to-state social pressures, non-governmental organization influences, and material incentives and repercussions between states to hold each other accountable regionally.55 These are, in large part, the cause of the success of the regional system and are reflected in the remedies available and the implementation of those remedies within the systems. Although the regional human rights system and the ICC come about their goals in different ways—one from positive implementation of rights and the other from negative pursuit of punishment—I believe that the ICC could implement many of the remedies and pressure-processes available in these other systems and see an increase in the effectiveness of the system.
The notable problem with the definition of justice pursued by the ICC, as I see it, is the complete lack of attention given to victims of those “gravest crimes of concern to the international community.”56 The Court’s definition of justice is narrowly construed to a particular view of justice focused on punishment of criminals and individual accountability as a means of achieving its goal of peace and stability. However, there are other possible justice mechanisms that are not dictated solely by the ideas of punishment and peace but are rather focused on the definition of justice as defined by the needs, desires, culture, and legal norms of the individual victims and harmed societies. This multi-faceted definition of justice as simultaneously perpetrator, victim, and societally focused, is being employed and explored effectively in the Regional Human Rights systems and could extend to the ICC’s system of individual liability as it currently exists. Societal and victim-based justice, such as the systems of reparations, reconciliation, and reform, seen in the Regional Human Rights Systems could be used in conjunction with the existing perpetrator-based punishment and deterrence systems of justice pursued by the ICC. This would, I believe, enhance the ICC’s effectiveness in both reaching and adhering to its goals of justice, peace, and stability for the world.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
About the Court, ICC, available online (last visited Feb. 26, 2022). ↩
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950, entered into force Sep. 3, 1953, as amended), available online. ↩
Organization of American States, American Convention on Human Rights (Nov. 22, 1969, entered into force Jul. 18, 1978) [hereinafter American Convention], available online. ↩
Organization of American States, American Declaration of the Rights and Duties of Man (May 2, 1948), available online. ↩
Organization of African Unity, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Jun. 10, 1998, entered into force Jan. 25, 2004), available online
(establishing the African Court on Human and Peoples’ Rights). ↩
Organization of African Unity, African (Banjul) Charter on Human and People’s Rights, 21 Int’l L. Materials 58 (Jun. 27, 1981, entered into force Oct. 21, 1986) [hereinafter Banjul Charter], available online. ↩
European Court of Human Rights, Guide on Article 13 of the European Convention on Human Rights: Right to an Effective Remedy ¶ 34 (Aug. 31, 2021), available online. ↩
James L. Cavallaro & Jamie O’Connell, When Prosecution is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions, 45 Yale J. Int’l L. 1 (2020), available online, archived. ↩
Philip Alston & Ryan Goodman, International Human Rights: The Successor to International Human Rights in Context: Law, Politics, Morals 979 (Sep. 20, 2012), paywall. ↩
Member States, OAS, available online (last visited Feb. 26, 2022). ↩
Inter-American Human Rights System, IJRC, available online (last visited Feb. 26, 2022). ↩
(Although the United States and Canada are members of OAS, it must be said that their activity within the Inter-American commission and court have been minimal). ↩
Cavallaro & O’Connell, supra note 10, at 57. ↩
American Convention, supra note 5; Declaration on Rights & Duties of Man, supra note 6. ↩
Alston & Goodman, supra note 12, at 1025. ↩
Member States, AU, available online (last visited Feb. 26, 2022). ↩
Cavallaro & O’Connell, supra note 10, at 55. ↩
(This is a massive generalization and simplification of the situation in Africa. However as whole papers could be, and have been, written about this topic, I am making the academic decision to leave this assertion at its most simplified form). ↩
Alston & Goodman, supra note 12, at 1026. ↩
(The question of the universality of the rights that are accepted as human rights by the international community of states is a massive one that parallels the question on the universality of the ICC principals that we at the forum have been tasked with responding to. Both human rights and the ICC crimes and procedures, on their face, reflect somewhat western and global north centric visions. This can obviously be debated, and the influence of the global south and transitional states should not be understated in the influence they have had on norm evolution, treaty drafting, and the creation of these international systems as wholes. However, the purpose of this comment deals with remedies as a way to broaden the cultural and legal representation seen in this “universal” system. This is a question that arises only after decisions have been decided on the guilt of a criminal at the ICC and as a parallel, the guilt or liability of a human rights’ abuser in the regional human rights courts. As such, I will leave the question of the universality of the rights embodied in the realm of international human rights, and the crimes and procedures pursued under the Rome Statute, untouched. For the sake of this comment, I will assume that those rights, crimes, and procedures pursued are, at the very least, universally accepted if not universally reflective). ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Arts. 75, 77, 79, available online. ↩
Id. at Art. 75. ↩
Id. at Art. 77. ↩
Id. at Art. 79. ↩
Leiry Cornejo Chavez, New Remedial Responses in the Practice of Regional Human Rights Courts: Purposes Beyond Compensation, 15 ICON 372, 373–78 (Apr. 2017), available online, doi. ↩
Alston & Goodman, supra note 12, ↩
Banjul Charter, supra note 8, at Art. 45. ↩
Alston & Goodman, supra note 12, at 1027. ↩
Chavez, supra note 33, at 375. ↩
About the Court, supra note 3. ↩
Chavez, supra note 33, at 376. ↩
Alston & Goodman, supra note 12, at 979–1044. ↩
(To whatever degree that might be effectively occurring, this is the goal). ↩
Rome Statute, supra note 26, at Art. 76. ↩
Id. at Art. 78. ↩
Id. at Art. 75 (emphasis added). ↩
Id. (emphasis added). ↩
Id. (emphasis added). ↩
Id. (emphasis added). ↩
Id. at Art. 77. ↩
Id. at Art. 79. ↩
Id. at Art. 64(8)(a) (emphasis added). ↩
Id. at Art. 65 (emphasis added). ↩
Id. at Art. 65(2) (emphasis added). ↩
Alston & Goodman, supra note 12. ↩
About the Court, supra note 1. ↩
Article 53: Shifting From a Retributive Theory of Justice
The western ideal of prosecution and punishment are frequently posited as the only legitimate modes of justice not only within the western world itself, but through the implementation of policies that define the power and effectiveness of the International Criminal Court (ICC). Looking directly at the ICC and the objectives it contends to prioritize, it would be natural to assume that the entire world’s conception of justice operates within the same punitive framework.
However, despite how misleading the ICC may be in practice, there are non-western cultures that do not perceive justice in this same way. More importantly, even in western countries, populations of people are beginning to question and interrogate whether this instinctual response to justice is actually causing more harm than good.
More specifically, in the west, prosecution and incarceration have become the normal and intuitive responses to crime and deviancy.1 However, in recent years there has been a shift in momentum as more light is shed on the inhumane and ineffective practices that take place in our penal institutions.2 In the United States alone, supermax and for-profit prisons, mandatory sentencing, racial inequality within the legal system, and mass incarceration are all being called into question as legitimate modes of punishment and their underlying institutional goals are being interrogated.3
These criminal justice issues and others like them lend support to the contention that prosecution and punishment often cause great harm when used as a mode of justice, and thus necessarily should not be considered as the only legitimate way harm can be remedied.
It follows that because prosecution and punishment make up the core objectives of the Rome Statute,4 the ICC should be critiqued and scrutinized in the same way. The ICC was created to have universal reach and is “dedicated to promoting the rule of law,” and yet the ICC leaves out a huge subset of voices when they determine which cultural and legal practices count.5 The ICC does not “apply international criminal law in a balanced fashion [… and] the Court’s legitimacy has been called into question” as a result.6 This raises several questions:
Morality is culturally relative as are our responses to harm. There is no singular definition of what constitutes “good” or “just” or “fair”. These words are given definitions through societal norms, pressure, and groupthink. Therefore, how do we assign meanings to these concepts on an international level? Which conceptions of “fairness” and “justice” inform the decision of which crimes against humanity, genocide, and war crimes should be prosecuted, and which crimes should be remedied through non-punitive responses?
However, we should not be globalizing and universalizing existing power structures that are already being scrutinized by populations on a national level. If a tendency towards prosecution and punishment can cause such great harm on a national level, as we have seen through practice in the United States, then the ICC taking, upholding, and legitimizing that same approach will only cause greater harm on a much larger scale.
Thus, non-western countries are wrongly left out of the discussion and the approaches to crime and harm they have taken for centuries are often disregarded an illegitimate because they undermine the existing power structure of the western legal system. Ultimately, “international justice should have a more international, less narrowly western, character because it is international.”10
In this comment, I argue that the ICC should redefine its conception of “justice” within the meaning Article 53 of the Rome Statute if it wishes to be seen a legitimate force in international law. In Part II of my comment, I discuss how the western instinct to prosecute and punish often fails to facilitate justice in the ways we expect it to. Then, in Part III, I argue that the ICC should make an individualized inquiry into whether prosecution will facilitate justice in a particular case or whether there are other, non-western, modes of justice that would be better accommodating for the relative victims. Finally, in Part IV, I set out how this reconceptualization of justice fits within the Rome Statute framework through Article 53 and thus affords the Prosecutor the tools necessary to take a practical and noticeable shift away from prosecuting crimes.
II. A Western Instinct to Prosecute Often Fails to Facilitate Justice in the Ways We Expect it To.
Most folks who uphold western legal ideals do so because they have faith that through prosecution, punishment, and incarceration, they can successfully remedy harm, hold perpetrators accountable, and deter future criminal acts. These outcomes are assumed; however, in practice, they are not always the reality. And perhaps, more importantly, these western ideals prioritize punitiveness over healing.11
I would even venture to argue that prosecution never leads to accountability and that it was never intended to. When we prosecute crimes, the onus is typically on making the perpetrator pay as opposed to making the victim whole. However, in order to have accountability, there needs to be an understanding and interrogation of what the actual harm was, how the perpetrator was responsible for that harm, and the steps the perpetrator can take to address and remedy that harm, in accordance with the victim’s wishes.
Instead, the west prosecutes and incarcerates at alarming rates and instead of remedying the harm towards the victim, the state creates more harm by dehumanizing and punishing instead of rehabilitating. On the other hand, there are some modes of justice that do impose accountability, such as “truth commissions, reparations, traditional confession and reintegration rituals, [as well as] other non-penal means” that the ICC could consider as legitimate alternatives.12 So why then is prosecution considered the only mode of justice when the Prosecutor is deciding whether or not to take on a particular case “in the interests of justice”?
This is mainly a result of the west, and subsequently the ICC, adopting a retributive theory of justice. Retributive justice is the idea that perpetrators should be punished for their crimes simply because they deserve it, and not because it remedies a harm or creates some other benefit for the victims or society as a whole.13
For the reasons discussed above, this is the wrong approach. For one, it fails to address the cause of the crime and thus provides little utility in preventing future harms.
Furthermore, it makes the assumption that crime necessitates punishment, which is a flawed and limited western way of thinking.
Instead, a retributivist focuses on the punishment of the perpetrator regardless of what would make the victim whole, essentially ignoring the root cause of the crime and allowing harm to perpetuate.
While there may be some cases where prosecution is necessary to remedy a harm inflicted upon a victim, it should not be an instinctual decision. When the Prosecutor is considering whether to decline prosecuting a case “in the interests of justice,”16 an individualized determination of how to achieve justice, with a focus on addressing the harm and centering the victim, is necessary if the ICC wants to legitimize itself by including non-western legal traditions in their deliberations.
The Rome Statute’s Preamble describes the ICC as an instrument designed to contribute to the prevention of “grave crimes [that] threaten the peace, security and well-being of the world.”17 Some argue that international prosecution is necessary for the crimes covered by the ICC “in order to prevent their recurrence through the deterrence, incapacitative, or norm-reinforcing effects of punishment.”18 Those who support this contention believe that if genocide, crimes against humanity, and war crimes are regularly prosecuted and punished, there will be a deterrent effect in preventing those crimes from happening on a global scale.19 These expected benefits, however, even on a national level, are unpredictable and often unrealized. On an international level, this unpredictability is intensified.
For example, a rebel against their own government who commits crimes against humanity is less likely to be deterred by the threat of prosecution than a government who would place more weight on the legal and social consequences.20 Moreover, “a growing consensus in the deterrence literature suggests that the swiftness and especially the likelihood of punishment may more effectively deter crime than severity of punishment.”21
Without the necessary resources, the ICC is unable to reliably prosecute the covered crimes at a frequency necessary for any deterrent effect to take place. Paired with the difficulty of identifying perpetrators in the types of crimes covered by the ICC, the likelihood of punishment is likely too small to have any real deterrent effect, at least small enough to make deterrence a weak justification for prosecution as a mode of justice.
III. Claim Two
A. Prosecution Can Sometimes Derail Peace
Not only does a prosecution-centric mode of justice often fail to remedy the harm caused to the victims themselves, but it can also cause more harm to the victims of a crime or to innocent third parties who are forced to face the fallout from an unwanted ICC investigation into crimes committed in non-western countries. This is often coined the “peace vs. justice dilemma: doing nothing results in impunity because of the state’s blanket amnesty, but bringing charges threatens disaster for innocent third parties.”22
This is the perfect example of a situation where a broadening of the conception of justice within the meaning of Article 53 would pave the way for a better and less harmful avenue to justice while still upholding the objectives of the ICC. Namely, if the ICC were confronted with a situation in which prosecuting the crime would cause more violence or harm, they would have an arsenal of other well-tested and non-western modes of justice available to them that would entitle them to decline to prosecute a case in the interest of justice if it were in the best interest of the victims and communities involved.
Prosecution does not come without its risks and the ICC should take a step back from their retributive perspective and consider the social and political implications involved in the trying of a case and whether they would be causing more harm than good. For example, among other possibilities, the Prosecutor may have to determine whether an ICC prosecution would either:
end an insurrection or deter a surrender;
lead rebels to flee or lead rebels to kill innocent third parties; or
reconcile hostile ethnic groups recovering from an ethnic war or fuel more hatred between them.23
The question then becomes whether prosecution is the appropriate end goal, regardless of any possible consequences.24 The ICC seems to answer this question in the affirmative by insisting that the ICC is a judicial as opposed to a political body.25 But law is inherently political and any insistence to the contrary seems to be an attempt to cover up this fact.
Thus, the ICC needs to take an individualized look at whether prosecution is in the best interests of justice in a particular case by weighing the possible consequences of prosecution against its necessity and any alternative modes of justice that could meet the same objectives.
Again, prosecution is not necessarily the wrong decision in every case but it should not be the instinctual one.
B. Prosecution May Neglect the Wants of Non-Western Victims
The ICC should be adopting non-western legal traditions into their definition of justice but these legal traditions should still be implemented in accordance with the wants of the victims in a particular case. The issue with the ICC’s practice currently is that countries with non-western legal customs and practices are often unable to get justice through ICC prosecution alone.
The idea of justice, along with morality as a whole, is culturally relevant. Thus, in order to understand and facilitate justice for a particular victim or group of victims, it is essential to understand the social practice of its legal community.28 The policies of the ICC should thus prioritize a wide array of social practices if its aim is truly global justice. Namely, you cannot render justice on an international scale unless your conceptions of justice apply internationally as well.
In other words, you cannot apply the same mode of justice universally and expect it to satisfy every culture’s definition. And unless the ICC purports to hold itself out to be a western hegemony, it should be concerned about that implication.
The ICC needs to implement:
However, still, it should be noted that traditional modes of justice are complex, and it will take effort to compile and understand these notions:
These notions will often be difficult to understand and access unless the ICC physically brings forces to the ground and into these communities to gather insight. These investigations can take place gradually, through the individual inquires that should be taking place at the initial stage when the Prosecutor is determining whether or not to decline to prosecute in a particular case.
In this comment, I challenge the ICC not to abandon the concept of prosecution altogether, but to simply consider and rework its opinion on non-western legal traditions and legitimize them in the same sense.
IV. A Reconceptualization Through Article 53
A. Declining a Case in the Interests of Justice
Article 53 of the Rome Statute provides, in relevant part, that:
Although the ICC does not provide explicit insight into what would qualify as within the interests of justice, this statutory language does give us several factors to balance, including what is in the best interests of the victims.34 This language in the Statute holds weight because it explicitly affords the Prosecutor a legal means of taking a step back from a western instinct to prosecute where prosecution is not what the victims want or in situations where the harm caused by the perpetrator will not be remedied through prosecution alone.35 In contrast to the retributive approach we see so often in the west:
Thus, I invite the Prosecutor of the ICC to take this opening, an opening that is fully supported by the laws and objectives governing the ICC, and find ways to facilitate more justice for a greater number of people. When such a clear inclusion of other modes of justice exists within the Rome Statute, it raises the question of why the ICC has not already included non-western legal traditions into their definition of “justice” as its used in Article 53.
While there are many things unclear about the language contained in Article 53, including in which situations a prosecutor may be prohibited from declining to prosecute a case,37 what is clear is that:
The ICC should elect to give non-western cultures a voice in the international legal realm, especially when to do so would not violate the Rome Statute, and more importantly would often prevent more harm from being perpetrated—a common consequence of prosecution.
B. When the Interests of Justice Would Still Require Prosecution
As aforementioned, there still remains the question of when, where it’s not in the best interest of the victims, the interests of justice would nevertheless necessitate prosecution.38 This is relevant because, although prosecution is never ideal, at least “where the prosecutor is exercising reasoned discretion rather than acting in arbitrary or politically biased ways,” the decision is “governed by principled criteria reflecting the purposes for which the ICC was created.”39
What should be considered successful through this process of redefining what justice means is not necessarily an abolition of prosecution altogether, but a more inclusive ICC that legitimizes and gives weight to the belief systems of non-western cultures.
On a practical note, it is important to recognize that traditional legal traditions may not always be feasible and able to work or comply with the objectives of the ICC. Again, what is essential to this mission is getting on the ground and gaining insight into legal traditions that can then be contemplated as possible alternatives to prosecution when we taunt a promise of justice.
For example, some legal traditions may have the unwanted effect of upholding undesirable power authorities, thus creating more harm.41 Or, alternatively, perhaps a legal tradition is not universally held throughout a county and is thus not desired by a large majority of victims.42 It is therefore vital to recognize that “not all customary laws are necessarily benign.”43
The decision to decline or to prosecute is going to necessitate an individualized determination on a case-by-case basis, taking into account, and prioritizing, what the victim desires and balancing that desire against any possible consequences that may result from that action or inaction.
Thus, it is necessary to do the work and consider exactly “what standards customary mechanisms must meet” in order to satisfy both the conditions of Article 53 and “those who insist that only Western models will suffice.”44 For the former consideration, we must only look towards the necessary procedural safeguards.45 For the latter, it all comes down to what mode of justice will facilitate the most accountability,46 as opposed to strictly looking to punishment as the end goal.
The ICC should rethink its practice of commonly viewing prosecution as the only legitimate mode of justice. The ICC has essentially internalized a western framework for what justice and accountability look like—namely, punishment. However, the ICC is not just the west, it’s international. It follows that the ICC’s conception of justice should be as well.
It is not just non-western countries that are beginning to question the effectiveness and morality of prosecution as a means to facilitate justice. Prosecution is intertwined with incarceration, a combination that commonly produces more harm than it remedies. This level of harm is then exasperated when taken to an international level.
A western outlook on justice is a retributive one, based on the idea that perpetuators deserve to be punished for their crimes, regardless of other social implications. However, a retributive theory fails to take into account the actual harm caused and how to remedy that harm—a healing that rarely occurs through prosecution. The ICC should take a more victim-centered and transformative approach to facilitating justice because what should be prioritized is not the perpetrator, but making the victim whole, in whichever way that looks like for them.
Moreover, prosecution is not just ineffective at deterring future harms, but at times it can bring more harm than good. In every decision there are conflicting interests, and its often difficult to ascertain whether a prosecution will in fact facilitate justice or whether it will derail peace.
When determining whether or not there is an alternative to prosecution that fits within the definition of justice as described in Article 53, it is essential that the ICC take an individualized inquiry into whether prosecution is in the best interests of justice within a particular case.47
More specifically, the ICC should prioritize the voices of non-western victims, who are often shut out of the decision-making process. This is not to say that prosecution must be abandoned altogether, but traditional legal systems need to be included in a very legitimate way. Namely because justice is relative, and by excluding huge subsets of people from being able to achieve justice through the ICC, the ICC loses some of its own legitimacy.
Article 53 of the Rome Statute provides a practical and legitimate mode of implementing non-western legal traditions into the framework of the ICC. Article 53 assigns the Prosecutor the right to decline a case if it’s within the interests of justice. The specific language of the Statute even prioritizes the wants of victims, thus providing a very explicit mechanism to then prioritize restorative justice.
Still, implementing Article 53 will require an individualized look at what mode of justice is best suited on a case-by-case basis. A mode of justice which forces the greatest amount of accountability while limiting the harm it causes itself should be the aim of this inquiry.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See Vivien Stern, An Alternative Vision: Criminal Justice Developments in Non-Western Countries, 28 Soc. Just. 88, 88–89 (2001), paywall. ↩
Id. at 89. ↩
Theresa Reinold, Constitutionalization: Whose Constitutionalization: Africa’s Ambivalent Engagement with the International Criminal Court, 10 ICON 1076, 1078 (Oct. 3, 2012), available online, doi.
(“The ICC seeks to establish a culture of accountability and send a signal to would-be perpetrators that no one is above the law. These are the fundamental normative propositions underlying the Rome Statute.”). ↩
Id. at 1080. ↩
Id. at 1081. ↩
Id. at 1086. ↩
Ray Nickson & John Braithwaite, Deeper, Broader, Longer Transitional Justice, 11 Eur. J. of Crim. 445, 448 (Oct. 17, 2013), available online, doi. ↩
Stern, supra note 1, at 88. ↩
Eric Blumenson, The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court, 44 Colum. J. Transnat’l L. 801, 804 (May 9, 2006), available online, archived. ↩
Id. at 819. ↩
Hiroyuki Tosa, Global Constitutional Order and the Deviant Other: Reflections on the Dualistic Nature of the ICC Process, 18 IRAP 45, 60 (Dec. 15, 2017), available online, doi. ↩
Blumenson, supra note 12, at 834. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 53, available online. ↩
Blumenson, supra note 12, at 821. ↩
Id. at 819. ↩
Id. at 825. ↩
Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics 3 (2009), paywall, doi. ↩
Id. at 8. ↩
Blumenson, supra note 12, at 813. ↩
Id. at 825. ↩
Id. at 824–25. ↩
Id. at 820–21. ↩
Id. at 827. ↩
Id. at 840. ↩
Mark Van Hoecke & Werner Krawietz, Western and Non-Western Legal Cultures, in Rechttheorie 197 (Werner Krawietz ed., 2002), paywall. ↩
Stern, supra note 1, at 92. ↩
Reinold, supra note 4, at 1081. ↩
Joanna R. Quinn, Atrocity, Customary Mechanisms and the International Criminal Court: The Case of Uganda, CPSA 10 (Jun. 3, 2006) (Presentation and Working Paper), available online. ↩
Blumenson, supra note 12, at 841. ↩
Rome Statute, supra note 16, Art. 53. ↩
Blumenson, supra note 12, at 813–14. ↩
Id. at 813.
(“A prosecutor who wishes to decline an admissible referral based on its deleterious consequences would have to invoke Article 53 of the Rome Statute, which permits the prosecutor to forgo an investigation or prosecution if doing so would not serve the interests of justice.”). ↩
Quinn, supra note 31, at 14. ↩
Blumenson, supra note 12, at 816.
(“There are, however, significant legal questions regarding the extent of the prosecutor’s discretion to decline to prosecute a grave crime within ICC jurisdiction.”). ↩
Blumenson, supra note 12, at 816. ↩
Id. at 819. ↩
Quinn, supra note 31, at 12. ↩
(“[Customary laws] have undergone their own troubled history and evolution, and their content may not necessarily be uniformly acceptable to all citizens or communities in the country.”). ↩
See Rome Statute, supra note 16, Art. 53. ↩
International Criminal Court: The Potential for Complementarity with the Inter-American System
In recent years, international law experts have begun to acknowledge the potential for learning opportunities and collaboration between the International Criminal Court (ICC) and regional human rights systems.1 They have also highlighted the important role that the Inter-American System has been playing over the years in deterring atrocities and ensuring accountability.2 This comment provides a creative suggestion to take such collaboration one step further based on the values, goals, and procedural rules of both institutions.
More specifically, this comment evaluates in what context, if any, should the ICC not proceed with an investigation or prosecution of a potential case due to activity in the Inter-American system which has addressed such criminal behavior. This comment argues that, in cases where the Inter-American system has already adjudicated the case with the same facts and parties to the dispute and such case is currently in the monitoring stages, the ICC should find that the case is inadmissible because complementarity has been satisfied under Article 17(1)(c). When mentioning the Inter-American system, this comment is referring to both the Inter-American Commission (Inter-American Commission) on Human Rights and the Inter-American Court of Human Rights (Inter-American Court).
Furthermore, in Part II, this comment provides a background on the prosecutorial differences between the Inter-American Court and International Criminal, as well as on the goals of regional human rights institutions and international courts. In Part III, the procedural phases of both the Inter-American system and the ICC are compared to each other to show that the Inter-American system has the potential be an effective and just, albeit indirect, forum to lead to the prosecution of international crimes, ensure accountability for mass atrocious, and prevent such crimes from reoccurring. This section begins by showing how a case can be brought up in both the Inter-American System and the ICC. It will then compare the jurisdiction and admissibility rules of the Inter-American Commission and ICC.
Moreover, this comment highlights some of the criticisms that the ICC has faced and discuss the opportunity ahead for the ICC to become a more effective forum to not only investigate and prosecute international crimes, but also to help effectuate change from within the states to prevent such atrocities from being committed again. This comment suggests how both the Inter-American system and ICC can benefit from a stronger rapport and how they can learn from effective practices, as well as regional and local knowledge.
Additionally, this comment suggests a creative way to interpret the complementarity rules of Article 17 of the Rome Statute and incorporate the duplication procedure clause, Article 33 of the Inter-American Commission Rules of Procedure, in order to find a case which is currently in late stages of litigation in the Inter-American System inadmissible. In the alternative, this comment urges the Prosecutor to delay a decision on preliminary examination of such case in order to give additional time to the Inter-American system to pressure a state party to domestically investigate, prosecute a defendant, and provide a remedy to the victims. Finally, in Part IV, concluding remarks are provided.
The subsequent section addresses the differences and similarities between the ICC and the International Court in terms of its role, approaches, and goals in order to identify potential for collaboration and complementarity.
A. Prosecutorial Differences Between the Inter-American Court and the International Court
Although the Inter-American Court of Human Rights is not a criminal court, it arguably functions as a “quasi-criminal court.”3 Another difference between the Inter-American Court of Human Rights and the ICC is that the former holds individuals responsible, while the latter holds states accountable for their crimes. However, through two “interpretive twists,”4 the Inter-American Court has used the remedies of its sentences to order states to investigate, prosecute, and punish human rights violators, as well as monitoring the state’s compliance of its recommendations to determine whether progress has been made in the state’s domestic criminal processes.5 As a result:
Unlike the ICC, the Inter-American Court does not prosecute the crimes itself, but rather leaves such work to the domestic systems of its state parties at the state’s own financial cost.7 However, in its sentence, the Inter-American Court may review whether national criminal procedures comport with inter-American system standards of human rights,8 as well as provide specific suggestions to enhance domestic procedures. As such, it “is taking on a quasi-criminal jurisdiction.”9
Furthermore, human rights courts have been known to “engage earlier and in an ongoing way; they approach problems armed with a broader range of tools.”10 Accordingly, the Inter-American Court stays involved throughout the process by monitoring the states’ performance, as well as by engaging with the parties, including the Inter-American Commission on Human Rights, the State, and the victims and their representatives to gather information, through request for information or hearings for the compliance reports.11 On the other hand:
Furthermore, another important aspect of the Inter-American Court’s approach is that it:
As such, the Inter-American Court has the potential of being an efficient complementary forum for the resolution of international crimes as will be illustrated below.
B. Goals of Regional Human Rights Institutions and International Courts
International courts can accomplish a range of goals, including:
In its Preamble, the ICC particularly noted that it has the goal “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”16
In contrast, regional human rights institutions, such as the Inter-American Commission, have explicitly stated that they seek to promote and protect human rights in region.17 Similarly to the ICC, the Inter-American Court has made prosecution of serious crimes a part of its agenda.18 Overall, the two most important shared goals by both the regional human right institutions and the ICC are accountability and prevention.19
This section compares the procedural phases of the Inter-American Court of Human Rights and the ICC to illustrate that the Inter-American Court is a fair and effective alternative forum to address international crimes. Prior to delving into such analysis, it is important to note that the Inter-American Commission on Human Rights is the first instance forum in the Inter-American System. Human rights cases in the Inter-American System are first brought to the Commission. If the parties are unable to reach a friendly statement and the state party in question has accepted the jurisdiction of the Inter-American Court of Human Rights, then the case could be heard by the Tribunal. As such, the Inter-American Commission and Inter-American Court will be compared and contrasted to the ICC together.
A. The Decision of which Forum to Bring a Case
When evaluating where to bring a case, victims of human rights violations and their representatives have several options, including the United Nations Special Mechanisms, the ICC, and the Regional Courts, such as the Inter-American Commission and Inter-American Court of Human Rights, the European Court of Human Rights, and the African Court on Human and Peoples’ Rights. The availability of the above-stated routes will depend on the individual case, procedural rules, and membership of the victim’s state. For the purposes of this comment, the focus is on a general summary of two routes: The Inter-American System and the ICC one.
In the Inter-American System, it is important to note that the case begins at the Inter-American Commission of Human Rights level. Accordingly, “[a]ny person or group of persons or nongovernmental entity legally recognized in one or more of the Member States of the OAS” can bring a petition before the Inter-American Commission alleging a violation of a protected right by one of the Inter-American human rights instruments.20 After several procedural steps, the case goes to the admissibility stage, then to the merits stage.21
Prior to its decision on the merits, the Commission will set a time for the parties to express whether they wish to engage in a friendly settlement and it puts itself at the disposal of the parties.22 The Commission might stop the friendly settlement interventions between the alleged victim and the state member in dispute if it determines that the case will not be resolved through this process or one of the parties:
If a friendly settlement is reached, then the Commission will adopt and publish a report.24 On the other hand, if such settlement is not reached, the Commission will continue to process the case and reach the merits stage.25
Furthermore, the parties will have the opportunity to submit observations on the merits to lay out their legal arguments and present evidence. Then, in case it finds a violation of human rights, the Commission will consider all the arguments and draft a preliminary report with recommendations to the state.26 The state will have to report on the actions it has taken to comply with such recommendations and the petitioner will have to inform the Commission whether it would like the case to be sent to the Inter-American Court and present information to support such position.27
However, it is important to note that not every state has accepted the jurisdiction of the Inter-American Court pursuant to Article 62 of the American Convention.28 If the member state has accepted the jurisdiction and the state has not complied with the recommendations of the Commission, then the Commission will submit the case to the Inter-American Court where the case will later be adjudicated.29 For the states that have not accepted the contentious jurisdiction of the Court, the process will not move forward to the Court and the Commission will issue a final report with its conclusions and recommendations if the matter has not been resolved within a timeframe of three months.30 Furthermore, the Commission will take into account the status of compliance when deciding whether to publish the report and where.31
In contrast, in the ICC, the case can be referred by a state party, by the United Nations Security Council, or the Prosecutor may consider a case proprio motu.32 Such considerations take place during the preliminary examination stage in which the Prosecutor will determine whether jurisdiction and admissibly grounds, discussed below, have been met.33 Moreover, investigators will “travel to the country to interview victims, witnesses, and sometimes suspects. They may visit crime sites and gather physical evidence.”34 After such preliminary evaluation, which can last many years, the Prosecutor can decide whether to end the case or move it to the next stage—the investigation—and eventually indict suspects.35 Moreover, it is important to note that according to Article 16 of the Rome Statute, the Security Council may request the Court to defer an investigation or prosecution for twelve months.36 Such request can be renewed.37
As indicated above, both routes are very long and time consuming, but the Inter-American System is particularly victim-centered. It provides an opportunity for victims to be heard and participate, as well as providing channels of communications for all parties involved throughout all the procedural stages. Whether the case can be heard by either institution will depend on the jurisdiction and admissibility rules, discussed below.
According to Article 1 of the Rome Statute, the ICC can exercise jurisdiction over “the most serious crimes of international concern.”38 Article 5 of the same instrument states the crimes that fall under the jurisdiction of the Court such as genocide, crimes against humanity, war crimes, and the crime of aggression.39 Furthermore, there are preconditions for the exercise of jurisdiction, such as the crimes must have been committed in the territory of state party to the Rome Statute, by a national of a state party of the same instrument,40 or the case must have been referred by the United Nations Security Council.41
On the other hand, according to the Rules of Procedure of the Inter-American Commission on Human Rights, the Inter-American Commission can consider “alleged violations of the human rights enshrined in the American Convention on Human Rights and other applicable instruments, with respect to the Member States of the OAS.”42 Although the human rights violations addressed by regional institutions, such as those of the Inter-American system, are not named genocide, crimes against humanity, war crimes, and the crime of aggression as in the Rome Statute, they still involve crimes that fall within the subject matter jurisdiction of the ICC, including “killings of civilians, widespread torture, mutilation, forced disappearances, and arbitrary detention against large numbers of people.”43 Such crimes involve the right to life and right to human treatment, for instance.
Article 17(1) of the Rome Statute sets forth, in part, the following rules of inadmissibility:
In contrast, the Inter-American Commission admissibility rules are set in Articles 31 and 33 of its Rules of Procedure. Pursuant to Article 31, the Commission can hear cases when domestic remedies have been exhausted, but provides the following exceptions:
Although the rules of inadmissibility of both courts are slightly different, they both position themselves as courts of second instances and attempt to provide a forum where victims can adjudicate their cases when justice has failed them domestically.
Furthermore, in terms of the subject matter of the cases, Article 33(a) of Rules of Procedure of the Inter-American Commission on Human Rights further limits the type of cases that the Commission may consider by excluding those which are:
However, Article 33 clarifies that the Commission can hear the above-stated cases in two circumstances:
These specific subject matter limitations of the Inter-American system are not present in the Rome Statute. This comment argues that such standard could be a useful tool for the ICC to incorporate in its practice when considering issues of complementarity under Article 17 of the Rome Statute.
D. Criticism of the ICC and Opportunities Ahead
The ICC has received several criticisms, including for its Africa biases and its poor prosecution record for its inability to secure convictions or even prosecute individuals from powerful nations.48 In terms of prosecutions, in the nineteen years since the Court began to sit, the ICC prosecutors have convicted eight defendants and acquitted four defendants.49 Moreover, some cases before the ICC also involved witness intimidation and indictees evasion of capture which essentially dissolved the case.50 Furthermore, the ICC has received criticism for bringing his case to trial without sufficient evidence to prosecute, such was the case of Côte d’Ivoire relating to the former President Laurent Gbagbo.51
When comparing regional human rights institutions with the ICC, it is notable that:
In particular, the sentences of the Inter-American Court have had an impact “nearly as significant as that of the ICC, ICTY and ICTR combined, despite its relatively modest budget.”53
Such results are particularly impressive when considering that the ICC’s budget is far higher than the other regional institutions.54 In the time period ranging from 2011–2018:
As a result of the arguably inefficiency of the ICC, James L. Cavallaro and Jamie O’Connell recently have made the persuasive argument that the ICC should consider changing its strategy and adopt an approach more like that of regional human rights institutions and courts.56 Some of these aspects may include:
More specifically, the ICC should:
They argue that evidence “suggests these local processes tend to have more profound and durable effects, provoke less resistance, and cost less than purely international legal processes.”59
Additionally, it is important to acknowledge the important and relevant knowledge of international criminal law that the Inter-American system has acquired due to its regional political and socio-economic circumstances. The system is no stranger to mass atrocities perpetuated by military regimes and/or civil conflicts, which occurred in several countries across the region, such as Argentina, Peru, Colombia Guatemala, and El Salvador.60 Such experience is demonstrated by the strong and comprehensive Inter-American system jurisprudence relating to atrocity and accountability.61 In particular, it has developed human rights standards relating to “law on forced disappearance amnesties, the victim’s right to the truth, and the right to judicial process.”62 Additionally, the system has also made overall contributions to state’s processes and reforms of accountability.63 Some of these measures include:
As demonstrated, the Inter-American system’s work is very relevant and overlaps with the ICC’s work which makes it worthwhile to explore ways for the systems to support and exchange relevant information with one another.
In addition to learning and partnering with the ICC, the issue could explore the opportunity to consider finding complementarity with the Regional Human Rights systems in certain circumstances. An argument for complementarity between the ICC and Inter-American system is developed below.
E. The Case for Complementarity
The ICC should consider incorporating the duplication of procedures rules, which can be found in Article 33 of Inter-American Commission Rules of Procedure, into its interpretation of Article 17(1)(c) which states that the Court finds that cases are not admissible when “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under Article 20, paragraph 3.”65 As previously mentioned, Article 33 of the Inter-American Commission rules of procedures considers that a case is inadmissible when it is either pending settlement before another international governmental organization in which the state to the dispute is a member or it duplicates a petition already examined by the Commission or another international governmental organization unless the procedure in question involves merely a general examination of the human rights situation rather than specific facts.66 The other exception is when “the petitioner before the Commission or a family member is the alleged victim of the violation denounced and the petitioner before the other organization is a third party or a nongovernmental entity having no mandate from the former.”67
Accordingly, this comment suggests that the ICC should not move forward with cases involving the same facts and parties to the dispute, including victims and the State members, that are before the Inter-American system, the Commission or the Court, when they have already decided that human rights violations have occurred, have issued recommendations to State parties and are currently monitoring the state’s compliance. As previously mentioned, the Inter-American Commission and Court spend a lot of time monitoring the situation, engaging with the parties and several relevant stakeholders, and asking states for updates on compliance of their recommendations. Due to all this ground work that can take many years, it is important to give the Inter-American system the opportunity to see the case through at that stage of the case. In such a scenario, this comment suggests that the ICC should take an indirect approach and collaborate with the Inter-American system rather than moving to the investigation and prosecution stages.
There are several reasons to support the argument in favor of complementarity.
First, the Inter-American system procedural process provides due process guarantees, plenty of opportunity for parties to engage, and for the evidence to be reviewed. Although bringing up a case before Inter-American system is a long process, it is a process that has proven to be effective, in terms of both results and costs.68
Second, albeit indirectly, the regional human rights systems have been more effective in securing accountability for atrocities than the ICC.69
Third, similar to the ICC, the Inter-American system has also made a commitment to combat crimes.70
Fourth, the Inter-American System shares several of the ICC’s goals such as prevention and accountability for atrocity.71
Fifth, this approach can bring several benefits to the ICC. It will clear some of the Court’s docket which will enable it to take the indirect approach, suggested by James L. Cavallaro and Jamie O’Connell, which could potentially permit that staff time and financial resources to be invested into building rapport in the region, including through:
One of the concerns which can be anticipated in this complementarity system relates to due process. Some might challenge the idea and claim that an indirect prosecution of the defendant by the Inter-American Court, which would essentially entail the Court ordering the State to conduct such proceedings domestically, would be sufficient to fulfill the Article 20 part of Article 17(1)(c) of the Rome Statute because that person was not directly prosecuted by the Court. Additionally, some might argue that the defendant could not be afforded due process guarantees by such indirect prosecution since the defendant did get “standing […] even as its decisions directly affect their rights and freedom.”73 However, it is important to note that even though the Inter-American Court or Commission is not directly prosecuting the defendant, it is monitoring such prosecution and exerting pressure on the state to prosecute the defendant in domestic courts directly. This is arguably what states are expected to do anyways as a forum of first instance. Only if they are “unwilling or unable genuinely to carry out the investigation or prosecution”74 or the state decides not to prosecute, among other requirements, can the case potentially be open for review by the ICC.75 Thus, the Inter-American system essentially provides further due process protections, because of its monitoring and follow-up, than would be available to the defendant in his domestic system.
In terms of the Inter-American Court’s “quasi-criminal review,” Huneeus, an international law expert, highlighted that it was perceived by many as “an illegitimate expansion of the Inter-American Court’s mandate.”76 However, she stated that “after some initial resistance, states have accepted the evolution of the Court’s supervision of compliance with its rulings.”77
In the alternative to interpreting Article 17(1)(c) to enable complementarity with a regional human rights system, this comment suggests that the ICC should hold off on opening an investigation and give the Inter-American system a chance to complete the case before their bodies. Although prosecuting an individual is a very important goal, it is also important to effectuate changes and reforms within the national processes to prevent the same crime. Both the past history of the ICC in terms of their preliminary examination of Colombia, as well as Article 16 of the Rome Statute78 indicate that the drafters of the Rome Statute believed and acknowledged that there are circumstances in which it is important to let local developments play out without direct intervention from the ICC. Although an action before the Inter-American system would also constitute international intervention in a sense, it would be a regional one that specifically works with local actors to ensure legal accountability.
Although this comment argues that in certain cases the ICC should not pursue certain cases that are being handled by the Inter-American system, it does not mean that the ICC should not stay involved if it determines that this is a case of high interest. Despite the international community’s criticisms of the ICC, a threat of prosecution by the ICC still remains a powerful tool to exert pressure on states. The ICC could leave a case in preliminary examination for many years, as it did in Colombia, to influence change from within without having to prosecute the case itself.79 Additionally, the ICC could also issue public statements voicing concerns about a particular situation,80 which would help raise awareness of the situation and put pressure on states. This would make the ICC an incredibly ally to the Inter-American Court, as well as further build a strong rapport with regional human rights institutions.81
As Huneeus pointed out, a partnership with the Inter-American system can be highly beneficial to the ICC in terms of regional legitimacy, exit strategy, and restorative justice, and.82 In terms of regional legitimacy, the Inter-American System has a deeper knowledge of the customs, laws, and legal systems of the region.83 In regards to exit strategy, Huneeus argues that the ICC would likely only prosecute high level officials, but the Inter-American system “could monitor the state, pressure it to take on the remainder of cases, and continue its involvement even after the ICC closed its case, making it easier for the ICC to exit.”84
The ICC can also learn about the concept of restorative justice from the Inter-American system as it has developed, through the years, unique, victim and reconciliation focused remedies from which the ICC can draw.85 Some of these unique remedies includes “ordering states to conduct rituals of remembrance, such as to construct shrines and memorials, and to hold public ceremonies in which states officially apologize to the victims.”86 Additionally, the Inter-American Court “orders remedies that seek rehabilitation of the victims and, more generally, both the construction of a historical record and societal acknowledgement of the crimes.”87 As such, “it has ordered states to enhance victim participation in the criminal proceedings, to continue the search for victims of forced disappearance, to apologize officially to victims and their relatives, and to construct memorials, among other remedies.”88
Lastly, the Inter-American Court has established the concept of transformative reparations, which was announced in the landmark Cotton Field case. The court recognized a context of structural discrimination against women and stated that “the reparations must be designed to change this situation, so that their effect is not only of restitution, but also of rectification.”89
As demonstrated in this comment, the possibilities of collaboration between the Inter-American system are endless. The ICC could benefit from closely evaluating the Inter-American system approach as a second instance forum. It is important for the ICC to consider that courts cannot end impunity, ensure accountability, and prevent mass atrocities from recurring or happening at all on their own. In order to be successful, the Court will need the collaboration of several actors, such as civil society, the state, and the support of the international community. The Inter-American system’s experience has shown how investing in relationships and building capacity on the ground can lead to strong and cost-effective results.
Interpreting the complementarity rules to incorporate regional human rights institutions in certain circumstances could be a new way of collaborating. As such, this comment argued that where the Inter-American system has already adjudicated a case, with the same facts and parties to the dispute, and such case is currently in the monitoring stages, the ICC should find that case inadmissible because complementarity has been satisfied under Article 17(1)(c). Alternatively, in such cases, the ICC should defer a decision on preliminary examinations to give the Inter-American system more time to pressure the state in securing a domestic conviction.
Such approach can be highly beneficial to the Inter-American Court, the victims, and the ICC. The Inter-American Court will benefit since “its orders and supervision would, at times, be backed by the threat of direct prosecution by the ICC.”90 Moreover, the victims would benefit by having the case continue in the system since the Inter-American system process is very victim-centered and the Inter-American Court is known for providing innovative reparations, including transformative reparations, to victims. Lastly, such approach can also be beneficial to the ICC because by deferring some cases to the regional human rights systems, it would free resources that would otherwise be allocated to individual cases or trial costs. Such resources can potentially be invested in building rapport with state members and capacitating domestic institutions.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See Alexandra V. Huneeus, International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts, 107 Am. J. Int’l L. 1 (Jan. 2013), available online, archived, doi; James L. Cavallaro & Jamie O’Connell, When Prosecution is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions, 45 Yale J. Int’l L. 1 (2020), available online, archived. ↩
Huneeus, supra note 1; Cavallaro & O’Connell, supra note 1. ↩
See Huneeus, supra note 1. ↩
Id. at 1. ↩
Id. at 2. ↩
Alexandra V. Huneeus, The Shared Goals but Distinct Roles of Criminal and Human Rights Court, 111 ASIL Proceedings 108, 108–09 (2017), available online, doi. ↩
See Huneeus, supra note 1, at 2. ↩
See Merriam Webster, Deus ex Machina, available online (last visited Jul. 2, 2022)
(defining the term as a character or thing that suddenly enters the story in a novel, play, movie, etc., and solves a problem that had previously seemed impossible to solve). ↩
Huneeus, supra note 10, at 109. ↩
Cavallaro & O’Connell, supra note 1, at 8. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online. ↩
What is the IACHR?, OAS, available online (last visited Jul. 2, 2022). ↩
See Huneeus, supra note 1, at 1. ↩
Cavallaro & O’Connell, supra note 1, at 9–10. ↩
Rules of Procedure of the Inter-American Commission on Human Rights, OAS, Article 23 (Dec. 2000, as amended Oct. 2002) [hereinafter IACHR Rules of Procedure], available online. ↩
Id. Art. 37. ↩
Id. Art. 38(2). ↩
Id. Art. 41(4). ↩
Id. Art. 41(5). ↩
Id. Art. 41(6). ↩
Id. Art. 43. ↩
Id. Art. 44. ↩
Id. Art. 45. ↩
Rome Statute, supra note 16, at Arts. 12, 13, 14. ↩
Cavallaro & O’Connell, supra note 1, at 11. ↩
Id. at 12. ↩
Rome Statute, supra note 16, at Art. 16. ↩
Id. Art. 1. ↩
Id. Art. 5. ↩
Id. Art. 12. ↩
Id. Art. 13. ↩
IACHR Rules of Procedure, supra note 20, at Art. 27. ↩
Cavallaro & O’Connell, supra note 1, at 9. ↩
Rome Statute, supra note 16, Art. 17. ↩
IACHR Rules of Procedure, supra note 20, at Art. 31. ↩
Id. Art. 33(1). ↩
Id. Art. 33(2). ↩
Cavallaro & O’Connell, supra note 1, at 3–4. ↩
See State of Defendants, ICC, available online (last visited Jul. 2, 2022).
(Under “State of Defendant”, check either “Convicted” or “Acquitted” and wait for page to refresh). ↩
Cavallaro & O’Connell, supra note 1, at 58. ↩
Id. at 61. ↩
Id. at 7. ↩
Id. at 46. ↩
Id. at 59. ↩
Id. at 6. ↩
Id. at 4. ↩
Id. at 7. ↩
Id. at 6. ↩
Id. at 44–45. ↩
Id. at 45. ↩
Huneeus, supra note 1, at 7. ↩
Cavallaro & O’Connell, supra note 1, at 45. ↩
Rome Statute, supra note 16, at Art. 17(1)(c). ↩
IACHR Rules of Procedure, supra note 20, at Art. 33. ↩
Id. Art. 33(2). ↩
Cavallaro & O’Connell, supra note 1, at 6. ↩
Id. at 7. ↩
Huneeus, supra note 1, at 1. ↩
Cavallaro & O’Connell, supra note 1, at 9–10. ↩
See Id. at 64. ↩
Huneeus, supra note 1, at 14. ↩
Rome Statute, supra note 16, at Art. 17. ↩
Huneeus, supra note 1, at 12. ↩
See Rome Statute, supra note 16, at Art. 16. ↩
See Cavallaro & O’Connell, supra note 1, at 12. ↩
Id. at 24. ↩
IACHR Rules of Procedure, supra note 20, at Art. 33. ↩
Huneeus, supra note 1, at 43. ↩
Id. at 42. ↩
Id. at 43. ↩
Id. at 23. ↩
See González et. al. v. Mexico (“Cotton Field”), Judgment: Preliminary Objection, Merits, Reparations, and Costs ¶ 450 (IACHR, Nov. 16, 2009), available online. ↩
Huneeus, supra note 1, at 23. ↩
Colonialism and Considering Historical Context in the ICC
The International Criminal Court (ICC) has come under the scrutiny of legal scholars for its reliance on Western ideas of justice and its disproportionate prosecution of non-Western actors. This criticism is based in the ICC’s foundational text, the Rome Statute, and the bases for investigation and prosecution of international crimes, as well as the sentencing of defendants. The Rome Statute’s system of investigation, trial, and sentencing invariably resembles the legal systems of the United States and other similar Western systems of “justice.” The ICC uses this system to a much similar result as the United States legal system—disproportionately prosecuting Black and Brown individuals and ignoring underlying systems of oppression that lead to the conflicts in the first place. Not only has the ICC prosecuted exclusively African individuals, but the sentencing guidelines outlined in the Rome Statute offer no weight to the conditions of the states in which the conflicts arise and who might be at fault for those conditions. The Rome Statute doesn’t offer the possibility that historical context might mitigate sentencing or lead to the prosecution of historical bad actors whose actions were a direct cause of the harm for which the court is prosecuting a defendant.1 This comment argues that the Rome Statute and the ICC, in functioning as de facto Western systems of punishment, act in furtherance of colonialism and exacerbate its far-reaching harms. It further argues that while reform of the Rome Statute is unlikely and insufficient, amending the Statute to explicitly allow for the consideration of historical context when prosecuting international crimes will lead to less discriminatory outcomes. Alternatively, the Rome Statute, as it is written, should be read to allow for the consideration of historical context as a mitigating factor when considering sentencing.
Part II outlines the ICC’s current system of prosecution and sentencing under the Rome Statute, parsing through the particularly relevant sections of the code that hold potential for either amendment or reinterpretation. Of note are the provisions of the Rome Statute that detail the procedures for sentencing and determining whether reparations ought to be distributed to the victims of the crimes at issue.
Part III reviews the ICC’s history of investigation, prosecution, and sentencing, paying particular attention to the regions most prosecuted and investigated and how they have been impacted by colonialism. Part III then lays out the overall argument of this comment—the ICC’s lack of consideration of historical context condemns it as a colonial system by which Black and Brown individuals, suffering from the harms of historic and ongoing forms of colonialism, are prosecuted for crimes for which white individuals are not held accountable.
Part IV posits two ways by which the ICC can begin to move away from the ongoing pattern of prosecuting Black and Brown individuals from non-Western states disproportionately:
amending the Rome Statute to explicitly require the consideration of historical context in all prosecutorial decisions, and
reading the Rome Statute as it is written to allow for the consideration of this historical context in the sentencing phase.
Part IV also discusses the obvious limitations and burdens that arise with each of these proposals.
II. Current System under the Rome Statute
The Rome Statute provides detailed guidelines for the procedures for investigating, charging, trying, and sentencing international crimes and the individuals responsible for them. The Statute also defines the jurisdictional scope of the ICC—which crimes it can prosecute and when it can choose not to do so. The Statute’s language (at least in its English translation) bears resemblance to the legal systems of the Western world, specifically those of the United States. The Statute is indisputably a predominantly Western-influenced system of international law that relies heavily on structures, procedures, and rules akin to those used in America and Europe. For example, the Rome Statute’s description of the ICC’s jurisdiction 2 resembles the American court system’s jurisdictional rules.3 Similarly, the idea of a prosecutor, 4 as it relates to the role within the ICC, has origins in British and colonial systems of law.5 The Rome Statute’s use of the phrase “in the interest of justice”6 is indistinguishable from the same standard in the New York Criminal Procedure “Clayton motion.”7 In this borrowing from Western legal traditions, the Rome Statute, and thus the ICC, prioritize Western ideals of “justice” and retributive methods of accountability, rather than considering conflicts and bad acts more holistically and with regard to larger context. This biased method of prosecuting international crimes in effect perpetuates the inequality and devastation that are a result of Western colonialism by placing additional burden on individuals in regions afflicted by colonialism and punishing them disproportionately for acts that almost certainly would not have occurred but for the colonial regimes’ involvement. The Rome Statute does not provide an explicit method of considering the historical context of the relevant conflict or situation in the investigation, indictment, trial, or sentencing procedures. Neither has the Prosecutor or other relevant actors in the ICC impliedly considered historical context at any stage in the ICC’s system.
There are numerous portions of the current Statute that offer opportunities for consideration of historical or current colonial context. Article 31 of the Statute delineates grounds that justify the exclusion of criminal responsibility for an individual.8 This is an appropriate process in which to implement additional consideration of the larger context surrounding a crime, specifically the context of colonial regimes and their impact on the region. This context could also be considered in the initiation of an investigation,9 confirmation of charges,10 and sentencing stages.11 Regardless of when in the process the analysis of surrounding circumstances occurs, this context must be considered integral to the outcome of the ICC’s prosecution of an individual and grounds for immediate dismissal of such a case.
III. The ICC and Colonialism
The ICC has faced criticism for its disproportionate investigation and prosecution of situations and defendants in Africa.12 Some argue that this is not a result of bias or the use of a system inherently colonial in nature, but rather due to the prevalence of corrupt regimes in the continent and the inability of African nations to resolve matters independently.13 This explanation ignores the history of the “Scramble for Africa” and the “decolonization” of Africa that led to widespread instability and resulting conflicts.14 Without explicit acknowledgment of and accounting for this history and ongoing colonialism and interventionism, the ICC functions as a colonial tool, prosecuting the individuals reeling from the effects of Western greed rather than the original bad actors.15
A. The ICC’s Focus on Africa and non-Western States
The ICC has, thus far, only pursued prosecution for Black and Brown individuals from countries who indisputably face tragedy due to the lasting effects of historical and ongoing colonialism. The ICC has named fifty defendants in total, forty-seven of them from Africa.16 The ICC has a total of seventeen investigations, ten in Africa.17 The ICC has undertaken investigations and preliminary investigations focusing on harms caused by Western powers such as the situation in Afghanistan, although the description of the investigation does not mention the United States and vaguely describes the focus of the investigation as “crimes listed in the Rome Statute allegedly committed in the context of the armed conflict between pro-Government forces and anti-Government forces.”18 The situation in Palestine is also under investigation by the ICC, although the ICC’s website has taken a blatantly neutral stance, declining to identify a single bad actor, rather describing the investigation as focusing on crimes that “were allegedly committed by members of the Israeli Defense Forces, Israeli authorities, Hamas and Palestinian armed groups.”19 Many of the preliminary investigations that suggest the potential for prosecuting individuals from Western powers have been closed following the Prosecutor’s decision not to proceed.20 The ICC has, to this date, only convicted individuals from Africa.21
B. Colonialism’s Impact on Africa
Scholars have confirmed that where conflicts occur, especially in regions such as Africa, Southeast Asia, and the Middle East, a history of colonialism or control by Western or Soviet powers exists.22 For example, one study revealed that a history of British colonialism in a region is positively associated with present-day ethnic conflict.23 Each of the individuals who has been convicted by the ICC or is in ICC custody comes from a region plagued by the devastation of colonialism and the failures of the movement to decolonize Africa—these regions are Mali, Sudan, the Central African Republic (CAR), the Democratic Republic of Congo (DRC), Kenya, and Uganda.24 The conflicts in each of these regions can either be traced back to historical colonialism or explained as the result of present-day colonialism.
The Taureg rebellion in Mali, the conflict surrounding the crimes for which the ICC prosecuted two defendants, has been regarded as the result of ongoing efforts by the French government to colonize and exploit the resources of Mali.25 In fact, the French military remains involved and present in Mali in order to “fight terrorism” but, as reporters suggest, the real reason behind the French military presence is “to protect French economic and geostrategic interests.”26 The French involvement in the region has been named as the primary reason for the conflict.27
Sudan’s history of colonization by Turco-Egyptian and British regimes left the region economically unstable and conflict-ridden.28 Sudan’s surplus of petroleum reserves have been targeted by Western powers, including the U.S., in recent years.29 The current involvement in the region, without acknowledgement of its colonial history, has brought about ongoing conflict.30 However, rather than prosecute those Western powers for their intervention in and exploitation of the region, individuals who have faced the consequences of such exploitation have been indicted.31
3. Central African Republic
The French colonial rule of the CAR imposed forced labor, conscription and relocation to Congo for construction of a railway, as well as conscription into the French army during World War II.32 However, even after CAR gained independence in 1960, France’s influence did not end.33 The French’s exploitation of the region’s resources, as well as its political influence, continued to cause conflict in the region.34 That conflict, and France’s military intervention in 2013, are critically relevant to the prosecution of four individuals from the CAR.35
4. Democratic Republic of Congo
The Belgian government reigned over the Congo region and granted concessions to private companies in order to extract natural resources from the region, including diamonds, rare minerals, and fossil fuels.36 The abusive colonial regime, as well as the politically motivated decolonization efforts, led to corrupt and unstable governance and ongoing conflict in the region, often related to ethnic tension.37 The current conflicts have been the grounds for the investigation of six individuals from the region.38
The British colonial history of Kenya was characterized by tribal displacement, forced labor, and “the creation of ethnically exclusive reserves.”39 This history has directly spurred ongoing ethnic violence and political conflict and Kenya and its people remain in an utterly vulnerable position.40 These political and ethnic wars are the grounds for an investigation of five individuals by the ICC,41 including Paul Gicheru who was indicted for conduct relating to the ICC’s proceedings involving other individuals from Kenya.42
Uganda has been characterized by some of the most devastating and long-lasting conflicts in Africa.43 British colonial rule in Uganda, which brought together multiple independent ethnic groups under a common government, can be identified as a source of the ongoing ethnic conflict in Uganda.44 The ethnic disputes, and actions related to those disputes, are the basis of the ICC’s investigation into Uganda and indictment of one individual from the region.45
In each of these indictments, trials, and sentences, the context of colonialism and interventionism by Western powers has not been considered in either reducing criminal liability or mitigating the sentencing of the individual.
IV. Incorporating these Models into the ICC and the Rome Statute
Given the nature of the purpose of the ICC and its disproportionate prosecution of Black actors from non-Western states that suffer most from the harms of colonialism, the Court’s function and legitimacy cannot be realized without amendment to the Rome Statute in order to require consideration of historical context in the prosecution of crimes. Alternatively, the consideration of larger context can be impliedly read into the current language of the Rome Statute, although this method would rely on the individuals responsible for the various steps outlined in the Rome Statute, such as the Prosecutor and the different committees.
A. Amending the Rome Statute
Amendment of the Rome Statute, while a suggestion many would describe as impractical and not worth consideration, it is an entirely inadequate and perhaps even counterproductive option. Bolstering the legitimacy of a tribunal inherently colonial in nature and impossible to separate from the harms of a Western system of justice likely serves to reduce the chances of the abolition of such a court. There is no amendment to the text of the Statute that would serve to dissolve its roots in interventionism and its favoritism of white Western nations operating under the systems that it itself deems to be legitimate. Even a sweeping overhaul of the Statute, given the procedures necessary to realize any amendment,46 would likely result in the same type of system that provides very convenient loopholes to discriminatory practices and plausible deniability of those practices rooted in ideas of “prosecutorial discretion” and “the interest of justice.”47 Nevertheless, given the purported goals of the Court to “end impunity”48 and achieve “long-term peace, stability and equitable development in post-conflict societies,”49 the international community ought to be able to push the Court towards anti-colonial practices and recognition of the widespread devastation caused by those leaders of the Western world in the pursuit of imperialism often realized through crimes the Court now prosecutes.
In order to achieve this movement, the Court must acknowledge the history of colonialism and ongoing forms of colonialism as they pertain to current ongoing tensions within and between nations. This Comment does not attempt to prove what has been proven by many legal scholars before—that many modern-day conflicts, especially those conflicts implicated in ICC investigations and prosecutions, have a non-splintered, traceable root in colonialism.50 Rather, this comment assumes consensus around that proven contention and recommends it be given weight in the procedures delineated in the Rome Statute. One potential method of acknowledgement can be achieved through the mere consideration of that context, and other relevant historical context, in each step of the ICC’s legal process. This ideally would occur through amendment of the text of the Statute to require such consideration in each investigation, charge, trial, and sentencing. Consideration not simply in an acknowledgement of the context but as a mandatory factor in determining whether to proceed with such investigation, whether a charge is appropriate, whether the evidence presented at trial is sufficient, whether sentencing is proportionate, and who is responsible for any reparations to victims.
This historical context should be considered in the determination and collection of reparations to be distributed to victims of the crimes at issue. Given that a link exists between the conflict that brought about the crime at issue and a colonial regime, any reparations to the victims the Court decides is appropriate ought to come either in part or completely from the government responsible for that colonial system. While this suggests a type of punishment only appropriate after an entire trial or a plea, there is no debate as to whether these colonial regimes existed, and little debate as to whether those regimes had lasting damaging effects on the region, thus, reparations are appropriate regardless.51
Another portion of the Rome Statute that lends itself to this process is at the pre-trial confirmation hearing.52 Whereas the Statute simply requires the Prosecutor to support each charge against the accused “with sufficient evidence to establish substantial grounds to believe that the person committed the crime charged,”53 the Prosecutor should be required to rebut a presumption, using relevant evidence, that the charges are invalid as a result of their substantial relation to the effects of colonialism on the region or ongoing interventionism.
Regardless of the stage this analysis is done, the Statute must prohibit and require the immediate discontinuation of prosecution where the link between the conflict relevant to the individual’s charges and intervention by foreign nations—either by military occupation, economic control, manipulative trade practices, or other means of asserting domination or control over another nation—is inextricable, regardless of whether the acts committed by the individual are at all related, on their face, to a resistance to or the results of colonialism. Where civil war, genocide, mass poverty, starvation, and other terrors are a direct result of colonialism, individual criminal liability is inappropriate and inhumane. This is not to suggest that individuals who engage in such despicable acts as those prosecuted by the ICC ought to be without accountability because of the very relevant context, but criminal prosecution and the prison sentence that results are misguided means of response and do not actualize the goals of “end[ing] impunity”54 or encouraging “stability and equitable development in post-conflict societies.”55
Accountability at the individual level must be pursued through alternate procedures, and the ICC must implement procedures to—or form relationships with decolonial entities that work to—account for and attempt to address the very real harms of Western imperialism and other forms of historic and ongoing colonialism. This comment does not provide specific recommendations for achieving those goals, but potential alternate systems of accountability have been modeled by non-Western communities and imagined by abolitionist scholars.56 The damage caused by colonialism is irreversible,57 but scholars have recommended strategies for decolonization, decentring, and disalienation to remedy the deep structural damages of colonialism.58
There are obvious limitations and deterrents to this proposal. For one, even if adopted, none of these amendments would appropriately account for the damage caused by colonial powers, nor would they prevent any future harm.
Another limitation to the proposed amendment of the Rome Statute is the likelihood that it could ever be adopted. The Rome Statute offers a process for amending the text that requires the proposed amendment to be sent to the Secretary General of the United Nations, then circulated to all States Parties, and then voted on at the Assembly of States Parties which occurs annually or at a Review Conference.59 The amendment will only be adopted if a two-thirds majority of States Parties present vote to adopt it, and then will only go into effect if seven-eighths of the States Parties complete the ratification or acceptance process.60 Given the seemingly radical nature of the amendments proposed, as well as the limitations and extra burden that would accompany these changes, it is highly unlikely that the States Parties would vote to amend the Statute in such a way.
The amendments proposed would carry with them a large burden for the Prosecutor, counsel for the defendant, the Pre-Trial Chamber, and the other parties active in the investigation, indictment, trial, and sentencing procedures and rely on subjective analyses. For example, requiring the Prosecutor to present evidence sufficient to rebut a presumption that the crime in question is related to the effects of colonialism requires gathering historical data, seeking out experts, and the presentation of copious amounts of data. Furthermore, this evidence would be considered by individuals (i.e., judges, committee members) with preconceived notions of the effects of colonialism. These amendments are inherently limited by the subjectivity involved when deciding whether a crime at issue is linked to or a direct result of colonialism or interventionism. Whether scholars and historians agree that conflict in a region has its roots in former or present influence by Western powers, a crime at issue could be deemed unrelated to that history by a Prosecutor particularly motivated to prosecute an individual.
Finally, and importantly, the victims of the crimes at issue likely are not concerned about whether the acts that caused very real harm to themselves and their communities were due, in part, to a larger context of strife caused by imperialism or outside control. The effects of these crimes on the victims are not mitigated by this context and do not make the process of recovery, if it is even available to them, any easier, less painful, or quicker.61
B. Utilizing an Alternate Reading of the Rome Statute’s Language
While the circular reasoning equipped by individuals who recommend against offering remedies that are seemingly impractical or unlikely to be pursued falls apart under even the slightest scrutiny, an alternate to amending the Rome Statute—a suggestion often dismissed without regard, leaving little room for that potential to be considered and realized—is invoking an alternate reading of the Rome Statute as it stands to allow for a similar type of consideration of colonial context recommended above. While this recommendation obviously does not provide the assurance of an amendment requiring this process, it can be implemented without an administrative process requiring the proposed amendment to be offered at a meeting of the Assembly of States Parties, which occurs annually, and a two-thirds majority vote to adopt.62
This alternative requires reading the potential for consideration of historical context into each procedural step separately, wherever possible.
The Rome Statute grants the Prosecutor extensive discretion regarding which situations to investigate and which to decline to continue pursuing. Not only may the Prosecutor initiate investigation procedures proprio motu (on their own initiative, without a referral from a State Party), the Prosecutor can decide unilaterally that a situation referred to the Court does not warrant further investigation.63 In analyzing a situation and deciding whether to request authorization of an investigation, the Prosecutor is given the authority to seek out and consider information outside of the facts of the situation, including from “intergovernmental or non-governmental organizations, or other reliable sources he or she deems appropriate.”64 This leaves room for the Prosecutor to request and consider information regarding the larger context of the situation before it is even investigated; this can include considering the link between that situation and colonialism. The Prosecutor should seek out reliable sources for this analysis and not simply presume that the link does not exist or is not significant. If that link is found to exist, the Prosecutor should exercise its discretion and refuse to prosecute individuals in relation to that situation. The Rome Statute provides additional discretion to the Prosecutor in the decision to initiate an investigation where it requires considering whether:
This similarly leaves room for consideration of the larger context surrounding the situation and making the decision, based on that context, not to pursue investigation.
If the Prosecutor decides that a situation provides a reasonable basis to investigate, they must seek authorization from the Pre-Trial Chamber.66 While the Pre-Trial Chamber has less unilateral power (given the ability of the Prosecutor to raise subsequent requests regarding the same situation if authorization is denied), this procedure presents the opportunity for individuals other than the Prosecutor to engage in these determinations. Here, the Pre-Trial Chamber should consider the material provided by the Prosecutor and deny authorization if a link between the situation and the effects of colonialism exists.
Once an investigation has been initiated and the Prosecutor is considering whether to move forward with charges against a defendant, the Rome Statute invites the Prosecutor not to proceed with prosecution if it would not be “in the interests of justice, taking into account all the circumstances.”67 This decision by the Prosecutor must be confirmed by the Pre-Trial Chamber to take effect.68 Thus, the Pre-Trial Chamber should confirm this decision if there is reason to believe that the relevant situation has roots in colonialism and its aftermath.
3. Pre-Trial Hearing
The Rome Statute requires a hearing, prior to trial, in order to confirm the charges against the defendant.69 As mentioned above, this process provides a unique opportunity for the charges to be analyzed against the presumption of them being linked to the effects of colonialism, and for the Prosecutor and the person charged to provide evidence of the surrounding contextual landscape. However, as the Rome Statute is written, the Prosecutor is only required to show proof that this individual committed the crimes for which they will be charged, which does not leave much room for consideration of other context.70
The Rome Statute allows the ICC to exclude an individual from criminal responsibility given certain circumstances such as an individual’s mental defect or lack of capacity, or their intoxication during the act for which they are being charged.71 The Statute also excludes an individual from criminal responsibility if the conduct for which they are being charged was:
Many African leaders who face prosecution by the ICC are “mere puppets of neo-colonial interest” and thus not acting autonomously.73 Even when that is not the case, it is not a stretch to suggest that the dire circumstances surrounding many of the conflicts investigated by the ICC constitute a “threat of imminent death” or “serious bodily harm.”74 It is similarly reasonable to posit that, in those dire circumstances, an individual may engage in conduct that they otherwise would not, had it not been necessary or seemed critical to their survival or avoidance of serious bodily harm. Whether the individual intended to cause greater harm than those present in their circumstances is a difficult analysis but one that should be approached with a presumption that the individual who committed the acts is not committing evil for evil’s sake. Lastly, the impacts of colonialism and imperialism are most certainly beyond the control of the individuals upon whom these practices are inflicted. While it is highly unlikely that a Prosecutor consider the context of ethnic conflict, poverty, displacement, or other circumstances resulting from interventionist policies as “duress” such that it absolves an individual of criminal responsibility, it is important to recognize how willing these systems are to absolve guilty when coercion is immediately recognizable for what it is, but when the finding of duress requires an acknowledgement of the invasiveness and violence of colonialism, the systems are unempathetic and ignorant to those substantial harms.
Even while duress at the hands of colonial circumstances might never be recognized by the ICC, the Rome Statute offers a broader opportunity to absolve an individual of criminal responsibility, allowing the Court to consider “ground[s] for excluding criminal responsibility other than” the ones explicitly listed, “where such a ground is derived from applicable law as set forth” in the Statute.75 The applicable law, which includes the laws of the Statute itself, certainly classify colonial acts of genocide, “forcible transfer of population,” “deprivation of physical liberty,” “persecution against any identifiable group,” apartheid, and “pillaging,” as crimes.76 Even more obvious is the description of the “crime of aggression” which very clearly depicts a colonial intervention:
The Statute itself disallows these acts, very often present in colonial regimes, and thus allows for the consideration of such acts as grounds for excluding criminal responsibility.
It is important to note that absolution from criminal responsibility does not require a belief that the individual should not be accountable to their harms or that the victims of such harms do not deserve reparations or other forms of relief. Criminal liability, especially within the carceral and retributive system that is the ICC, does nothing to address the harm caused,78 ensure similar harms do not occur in the future,79 or adequately address the needs of victims.80
Considering historical context in deciding the appropriate sentencing after a conviction is likely to be the most universally accepted and easy to implement reading of the current Rome Statute.81 The consideration of circumstances that could mitigate sentencing is already a practice of Western legal traditions and the ICC itself.82 The Rome Statute even allows the Trial Chamber to hold an additional hearing to allow evidence to be presented specifically relevant to the sentencing of an individual.83 Furthermore, the Statute gives deference to the “individual circumstances of the convicted person” in the determination of the sentence.84 In this way, the consideration of larger circumstances is already explicitly permitted, and even encouraged, by the Rome Statute, without needing to employ alternate interpretations of the text.
In considering the colonial underpinnings of the conflict at issue, the ICC should consider whether the defendant, who has been convicted and is awaiting sentencing, is themself a victim of a crime—namely, the crimes listed above that occur in settler colonial regimes and interventionist systems. Since no individual is being charged for those crimes, it is not necessary to undertake a larger process to answer this question; rather it should be presumed that if the region from which the defendant came has seen a history of colonialism, they themself have been a victim of the circumstances that result from such a system. If the individual can be considered a victim of any of those crimes, they should receive reparations in the form of financial aid to themselves or their family, they should be considered less culpable for the crime at issue, and/or their sentencing should reflect a lesser culpability.
Even if the defendant cannot be considered a victim of any crime that the ICC recognizes to be within its jurisdiction, the historical context of the region from which the individual came, and the larger context surrounding the conflict in which the individual participated, must be considered factors that mitigate sentencing. It is necessary to acknowledge that individuals who commit such evil acts only as a result of the most dire circumstances should not receive punishment that is never even considered for the colonizers.
The limitations to reading the consideration of historical context impliedly into the Rome Statute are numerous. This proposal requires the voluntary participation of the Prosecutor and other ICC actors. Considering the additional work involved with such a reading (discussed below), it is not likely that any of these individuals would take on such a burden on their own accord. Moreover, this avenue of progress relies on the popularity of this proposal, a proposal that is not likely to be eagerly accepted by all States Parties. Thus, it is not likely to ever take effect in any practical sense.
The proposal to adopt a reading of the Rome Statute that allows for the consideration of larger context involves more work and time at each step of the ICC’s procedure. Not only would this decrease the efficiency of the Court, but it would also reduce the perception of its efficacy by those who are less eager to consider this context to be relevant to the prosecution of present crimes and those who value carcerality and retribution.
Furthermore, like the proposals amending the Rome Statute, this proposal relies on subjective analyses that, especially without strict guidelines written into the Statute and considering the voluntary nature of this process, are likely to produce inconsistent results that do not achieve the larger goal of acknowledging and accounting for the effects that colonialism in the ICC’s prosecution.
The Rome Statute and the ICC it created function as ostensibly and effectively Western systems of “justice.” The Statute’s adoption of British, American, and French terms and processes, and the ICC’s exclusive prosecution of African individuals, characterize the system as colonial in nature. Although likely impractical and certainly inadequate, proposals to either amend the Rome Statute or adopt an alternate reading of the Statute’s current language to account for the larger context of the crimes it is prosecuting may be a step towards achieving an international system of accountability that does not exacerbate the harms of imperialism.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Kamari Maxine Clarke, Is the ICC Targeting Africa Inappropriately or Are There Sound Reasons and Justifications for Why All of the Situations Currently Under Investigation or Prosecution Happen to Be in Africa?, ICC Forum (Mar. 17, 2013), available online
(“Africa and not the United States, Joseph Kony and not George Bush, crimes against humanity and not pre-emptive intervention form the basis for the court’s action.”). ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], available online. ↩
See Introduction to the Federal Court System, U.S. Dept. of Just., available online (last visited Jul. 3, 2022). ↩
Rome Statute, supra note 2. ↩
Abraham S. Goldstein, Prosecution: History of the Public Prosecutor, Encyclopedia.com, available online (last visited Jul. 3, 2022). ↩
Rome Statute, supra note 2. ↩
The People of the State of New York v. Robert Clayton, 41 App. Div. 2nd 204 (Apr. 2, 1973), available online; § 210.20 Motion to Dismiss or Reduce Indictment, N.Y. L. Crim. Proc., available online (last visited Jul. 3, 2022). ↩
Rome Statute, supra note 2, Article 31. ↩
Id. Article 53. ↩
Id. Article 61. ↩
Id. Articles 76, 77, 78. ↩
See, e.g., Thierry Cruvellier, The ICC, Out of Africa, N.Y. Times, Nov. 6, 2016, available online; Callum Ross, Selective Justice and Persecution? The African View of the ICC-UNSC Relationship, E-Int’l Rel. (Sep. 16, 2018), available online. ↩
M. Cherif Bassiouni & Douglass Hansen, The Inevitable Practice of the Office of the Prosecutor, ICC Forum (Mar. 17, 2013), available online. ↩
See I. William Zartman, Europe and Africa: Decolonization or Dependency?, 54 Foreign Aff. 325 (Jan. 1976), paywall, doi; Stelios Michalopoulos & Elias Papaioannou, The Long-Run Effects of the Scramble for Africa, Vox EU (Jan. 6, 2012), available online. ↩
See Khansa Maria, Is the International Criminal Court a Colonial Institution?, CIRS (Feb. 28, 2021), available online. ↩
50 Defendants, ICC, available online (last visited Jul. 3, 2022). ↩
Situations Under Investigations, ICC, available online (last visited Jul. 3, 2022). ↩
Situation in the Islamic Republic of Afghanistan, ICC, available online (last visited Jul. 3, 2022). ↩
International Criminal Court, Questions and Answers on the Decision on the International Criminal Court’s Territorial Jurisdiction in the Situation in Palestine (Feb. 15, 2021), available online. ↩
See, e.g., Preliminary Examination: Registered Vessels of Comoros, Greece and Cambodia, ICC, available online (last visited Jul. 3, 2022)
(showing that the investigation into the Israeli raid was closed because “the information available did not provide a reasonable basis to proceed with an investigation.”);
Office of the Prosecutor, ICC, Situation in Iraq/UK: Final Report (Dec. 9, 2020), available online
(explaining how, in light of abuses committed by the British army against Iraqi civilians in detention, and although the UK’s domestic process has not led to a single case submitted for prosecution, “a result that has deprived victims of justice,” the Office of the Prosecutor has closed the preliminary examination). ↩
31 Cases, ICC, available online (last visited Jul. 3, 2022)
(listing eight defendants who have been convicted, all of whom are African). ↩
Sandra Marker, Effects of Colonization, Beyond Intractability (Nov. 2003), available online. ↩
Robert Blanton, T. David Mason & Brian Athow, Colonial Style and Post-Colonial Ethnic Conflict in Africa, 38 J. Peace Research 473 (Jul. 2001), paywall, doi. ↩
31 Cases, supra note 21; see also 50 Defendants, supra note 16
(additionally listing eight defendants in ICC custody). ↩
See Genevieve Jesse, The French Intervention in the 2012 Malian Conflict: Neocolonialism Disguised as Counterterrorism, 3 SUURJ 96 (2019), available online. ↩
See Pape Samba Kane, The French Colonial Designs in Mali, Al Jazeera, Aug. 22, 2019, available online. ↩
See Id. ↩
See Conn Hallinan, South Sudan: Colonialism’s Dead Hand, FPIF (Feb. 5, 2014), available online; Riek Machar Teny-Dhurgon, South Sudan: A History of Political Domination—A Case of Self-Determination, Afr. Stud. Center (Nov. 19, 1995), available online. ↩
See Hallinan, supra note 28. ↩
See Id. ↩
International Criminal Court, Case Information Sheet: The Prosecutor v. Germain Katanga, ICC-01/04-01/07 (Jul. 2021), available online (last visited Jul. 3, 2022); International Criminal Court, Case Information Sheet: The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06 (Jul. 2021), available online (last visited Jul. 3, 2022). ↩
See Jan S.F. van Hoogstraten, Central African Republic, Encyclo. Britannica, available online (last visited Jul. 3, 2022). ↩
Rodolfo Zamora Rielo, War and Colonialism in the Central African Republic, Granma (Sep. 6, 2017), available online. ↩
31 Cases, supra note 21. ↩
See Sara Lowes & Eduardo Montero, Lasting Effects of Colonial-Era Resource Exploitation in Congo: Concessions, Violence, and Indirect Rule, VoxDev (Jan. 11, 2021), available online. ↩
Alex Chestnut, The Democratic Republic of the Congo: A Case Study of War and Failed Peace, Beyond Intractability (Jun. 2020), available online. ↩
31 Cases, supra note 21. ↩
See Leighann Spencer, Kenya’s History of Political Violence: Colonialism, Vigilantes and Militias, The Conversation (Sep. 28, 2017), available online. ↩
31 Cases, supra note 21. ↩
International Criminal Court, Case Information Sheet: The Prosecutor v. Paul Gicheru, ICC-01/09-01/20 (Jan. 2022), available online (last visited Jul. 3, 2022). ↩
Fredrick Kisekka-Ntale, Roots of the Conflict in Northern Uganda, 32 J. Soc., Pol. Econ. Stud. 421 (2007), available online. ↩
31 Cases, supra note 21. ↩
Rome Statute, supra note 2, Article 121. ↩
(Given the reliance on States Parties signing onto the Rome Statute, it is unlikely that any version of an international criminal court that does not allow for political pressure, or other outside influence, to affect prosecutorial decisions without noticeably affecting the legitimacy and efficacy of such a court would be approved). ↩
About the Court, ICC, available online (last visited Jul. 3, 2022). ↩
See e.g., Elizabeth Schmidt, Conflict in Africa: the Historical Roots of Current Problems, Persp. on Hist. (Jul. 26, 2016), available online.
(“Many of today’s challenges are the outcome of colonial political and economic practices, Cold War alliances, and attempts by outsiders to influence African political and economic systems during the decolonization and post-independence periods.”);
See also Helyeh Doutaghi & Jay Ramasubramanyam, By Not Investigating the U.S. for War Crimes, the International Criminal Court Shows Colonialism Still Thrives in International Law, The Conversation (Apr. 15, 2019), available online. ↩
(In fact, reparations are appropriately owed to all individuals in the region affected by colonialism, but it is not within the scope of the ICC to require this level of sweeping redress, especially considering the ICC’s limited jurisdiction over individuals and not entire countries or governmental systems as a whole). ↩
Rome Statute, supra note 2, Article 61. ↩
About the Court, supra note 48. ↩
See, e.g., John Braithwaite, Valerie Braithwaite, Michael Cookson & Leah Dunn, Anomie and Violence: Non-Truth and Reconciliation in Indonesian Peacebuilding (2010), available online; Ray Nickson, Great Expectations: Managing Realities of Transitional Justice (Aug. 8, 2014) (Ph.D. thesis, Australian National University), available online, doi; Catherine Lu, Redressing and Addressing Colonial Injustice, 11 Ethics & Global Pol. 1 (2018), available online, doi. ↩
Antony Anghie, The Heart of My Home: Colonialism, Environmental Damage, and the Nauru Case, 34 Harv. Int’l L.J. 445 (Sep. 1993), paywall. ↩
See Lu, supra note 56. ↩
Rome Statute, supra note 2, Article 121. ↩
See, e.g. Ray Nickson & John Braithwaite, Deeper, Broader, Longer Transitional Justice, 11 Eur. J. of Crim. 445 (2014), available online, doi
(describing the failings of international laws in the justice it purports to offer to victims). ↩
Rome Statute, supra note 2, Article 121. ↩
Id. Article 15. ↩
Id. Article 53. ↩
Id. Article 15. ↩
Id. Article 53. ↩
Id. Article 61. ↩
Id. Article 31. ↩
Charles Achaleke Taku, Has the International Criminal Court Inappropriately Targeted Africa?, ICC Forum (Mar. 17, 2013), available online. ↩
See Ann Laura Stoler, Duress: Imperial Durabilities in Our Times (Nov. 2016), available online. ↩
Rome Statute, supra note 2, Article 31. ↩
Id. Articles 5, 6, 7, 8. ↩
Id. Article 8 bis. ↩
See, e.g., Catherine Gegout, The International Criminal Court: Limits, Potential and Conditions for the Promotion of Justice and Peace, 34 TWQ 800 (2013), available online, doi. ↩
See David Wippman, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L.J. 473 (1999), available online. ↩
See Gegout, supra note 78. ↩
(While the practice of incarceration as punishment for a crime is inherently unjust and inhumane, this comment does not enter into a critique of prison systems or argue against prison time as a form of punishment in order to remain focused on the lesser goal of arguing for a practical shift in the ICC’s procedure to better account for historical context). ↩
See, e.g., Rule 4.433: Matters to be Considered at Time Set for Sentencing, Cal. Rules of Ct. (as amended Jan. 1, 2018), available online (last visited Jul. 3, 2022); Rome Statute, supra note 2, Article 78. ↩
Rome Statute, supra note 2, Article 76. ↩
Id. Article 78 ↩
Using Cultural Context to Award More Meaningful and Salient Remedies to Victims
The Rome Statute mandates both categories of remedies available to the International Criminal Court (ICC) as well as, in many cases, the individuals to whom remedies can be awarded.1 However, the ICC’s interpretation of justice and law comes mostly if not entirely from Western legal systems including the United States and Western Europe.2 As a result, the ICC is criticized for its failure to incorporate non-Western law and legal tradition into the way it gives awards to victims and uses long-term prison sentences as the only method of retributive justice.3 Article 77 of the Rome Statute states the applicable penalties that may be imposed by the Court including imprisonment, fines, and the forfeiture of proceeds and other property and assets.4 Article 75 states the possible remedies that may be awarded to victims including, but not limited to, restitution, compensation, and rehabilitation.5 Finally, Article 79 gives the power, through the Trust Fund, to benefit victims and their families.6 Though the ICC is restricted to the mandate of the Rome Statute, there has still been criticism from non-Western states and States Parties regarding the disconnect between justice within the ICC and that of other non-Western cultural law.7
The most profound criticism has come from states that incorporate Shari’a law into their legal code. For these states, the Westernization of what is communicated as a global system of law for all seems like disregard for the validity of Shari’a law.8 This is not only taken as a lack of validity for states and their sovereign governments and laws, but for traditional cultural values.9 However, the gap between non-Western laws and penal systems and those of the ICC is not insurmountable. The process of colonization and decolonization in most if not all of the non-Western States Parties resulted in formal Penal Codes that tend to reflect Western laws.10 Though Shari’a law may not be formally incorporated into the process of prosecution and the legal doctrine of the ICC without a complete reform of the Rome Statute, there is opportunity to incorporate non-Western legal tradition into the way a process of restorative justice is approached. As Van Hoecke states, there is a need to look at “the background against which a legal system is functioning.”11
Section II of this comment examines the domestic penal codes and recent approaches to hybrid or non-retributive justice mechanisms of non-Western States Parties in the Middle East, Northern Africa, Sub-Saharan Africa, Asia, and South America, as well as the reception and public perceptions of both from within local communities. Section III highlights the important similarities and critical differences in the analysis. Finally, Section IV discusses some of the ways that the ICC can capitalize on the areas in which the Rome Statute gives the Court discretion to involve victims and communities to look at the cultural salience of particular remedies, arguing that the incorporation of non-retributive traditional justice mechanisms will improve the value of the Court to victims and begin to better reflect non-Western legal traditions as well as Western ideology.
II. Non-Western Regional Justice in Law and Culture
A. Middle East: Jordan
1. Domestic Laws
Jordan’s legal system, including its Penal Code, reflects both the Islamic and British influence on the culture and governance of the state in 1960 when the Penal Code was drafted.12 Though it was amended in 2011, it remains a conglomeration of both legal traditions. Though the state retains some Shari’a law, this law only applies to personal and family matters.13 Like many other states with Western influence on their legal traditions, penalties for the most severe felonies—those most comparable to or the same as those within the jurisdiction of the ICC—are derived from the secular Penal Code.14 Articles 118 through 122 address crimes and penalties for violations of international law, seemingly in accordance with international norms.15 These felonies and others including murder are heard by Jordan’s Major Felonies Court and Courts of Cassation.16 Article 14 of the Penal Code grants these courts the discretion to sentence penalties for the most severe offenses including life imprisonment, life imprisonment with hard labor, and even death.17 Unlike other felonies, war crimes are prosecuted separately, and are heard by distinct military courts.18 This highlights the level of severity and gravity of these crimes, as well as the way they are taken as such by Jordanian legislators.
Though Jordan effectively implemented a moratorium on carrying out the death penalty in 2006, executions resumed in 2014 and were supported by a vast majority of the population.19 When surveyed in late 2014 by the Centre for Strategic Studies based in Amman, Jordan, 81% of people surveyed responded that they support capital punishment.20 Not only is it believed that capital punishment is a deterrent for similar offenses in Jordan, Abuqudairi suggests that it also prevents tha’r revenge killings by the family members of victims.21
Human rights activists have suggested that the reason for such substantial support for capital punishment was first, that there was insufficient understanding of human rights, and second, that courts lacked sufficient alternatives that satisfied victims.22 In Jordan, a life sentence is only twenty years, rather than the lifetime of a prisoner as it might suggest.23 Dissatisfaction with this remedy has resulted in rioting and anger among citizens, and suggests a norm or preference for more severe retributive justice in response to the most heinous crimes.24
2. Traditional Justice in Jordan
Jordan has a fairly Westernized formal legal system, but it operates alongside a traditional tribal system of punitive justice as well.25 In traditional culture, the family is the center of civil society, and as Jain describes, “an injury to one is an injury to all.”26 Thus, a system of collective responsibility and punishment is integral to tribal law.27 Tribal law is far more informal and varies regionally, but has several commonalities.28 The most important of these is the speed at which tribal law moves, more effectively preventing revenge killings of family members for the wrongs committed by another.29 Formal courts and prosecution do not align with this collective mentality: prosecution of one offender does not prevent these revenge offenses.30 When surveyed, only 12% of Jordanians believed that the formal court system alone should resolve conflicts involving the most egregious offenses, like murder.31 Instead, people prefer to rely on either only tribal law or a combination of the two.32 They are not only more accessible, but understandable to the community.33 Right now, the two systems operate alongside each other, rather than in congruence. It is critical, however, when looking at Jordan’s justice mechanisms to understand traditional approaches as well.
One of the primary approaches is a punitive practice called jalwa, which requires the perpetrator and family to leave the tribe or community.34 Traditional values include honor, respect for tribal leaders, and avoiding shame—making this expulsion particularly effective in its cultural context.35 This traditional approach lends itself to being labeled as retributive, but has also been reported to promote peace and reduce related killings. A traditional approach that aligns with the values of people affected by the crime such as this one tends to garner favor, supporting the idea that familiar remedies are more effective in giving victims the sense that justice has been served.
B. Northern Africa: Tunisia
1. Domestic Laws
Tunisia’s criminal justice system is based on the French model, which again can be attributed to its colonial influences prior to independence.36 Like Jordan, Shari’a law does not have an effect on the penal system, though it is culturally relevant and ingrained in the lives, families, and sense of justice of many Tunisians.37 The Tunisian Penal Code still assigns the strictest penalties to crimes including murder, rape, terrorism, and national security crimes.38 In fact, military courts in Tunisia preside over crimes that threaten national security, regardless of who is responsible for the commission of the crime.39 However, the judicial system is highly criticized as politicized, easily and substantially influenced by politics, and not independent.40
As of 2007, Tunisia was a supporter in the movement toward abolishing capital punishment until 2020, when a series of brutal rapes and murders led to a social media campaign calling for the reinstatement of the death penalty as punishment for the most brutal acts.41 However, with broad public support from Tunisians and the Tunisian Penal Code, Tunisian President Kais Saied endorsed, but has not yet enacted, a reinstatement of the death penalty.42 International human rights organizations have criticized the statement, but many Tunisians still believe the option to impose harsh retributive punishment for the most severe wrongs is appropriate.43
2. Restorative Justice in Tunisia
Following the 2011 Arab Spring revolution in Tunisia, a process of transitional justice began with adjudication in Tunisia’s Specialized Criminal Chambers.44 The goal of the process was that of most restorative justice mechanisms: accountability, apology, and reparations.45 First, a truth and dignity commission began accepting submissions on acts of aggression from victims in 2014, and by 2016 it had received more than 30,000 submissions.46 This speaks to the value for victims in both justice being served and truth being told to recover from conflict.47 Trials of the ten people indicted by the Specialized Criminal Chambers began in 2018, and those indicted were charged with violent suppression of the revolution and citizens involved or related to those involved.48 However, even now a single verdict has not been reached.49 This reflects the recurrent difficulty of Tunisian courts to render impartial decisions that serve the interests of justice.
Some scholars including Kazemi have looked at the potential value of incorporating more cultural traditions into transitional justice mechanisms in Tunisia, like traditions and values in Islam.50 The theory is that incorporating local norms, values, and discourse will make the process more viable and progress more lasting.51 There is perhaps value in culture and local communities being further incorporated into transitional justice, as the majority of people surveyed in Tunisia who were awarded reparations post-revolution were not satisfied.52 When asked what people want, 37% said they simply sought acknowledgment of the wrongs committed, 29% wanted more compensation, and 28% want an admission of wrongdoing.53 Community-based reparations and efforts at truth and reconciliation are likely to be impactful to Tunisian victims of crimes of aggression, even with a fairly high percentage of approval for retributive justice, and will especially be powerful if they are culturally-attuned to the people.
C. Sub-Saharan Africa: Uganda
1. Domestic Laws
The dichotomy between Uganda’s Penal Code and traditional justice mechanisms is perhaps the most complicated of any of the states being analyzed in this comment. Uganda’s Penal Code is a direct product of its colonization, a Western model has been implemented in the Ugandan government, and purports to punish crimes including treason, terrorism, rape, and murder.54 Because their Penal Code does not address war crimes, crimes against humanity, crimes of aggression, or genocide directly, this comment examines the crimes treated as most severe by the Penal Code. The most severe criminal offenses in Uganda are typically penalized with capital punishment or a life sentence.55 Though mandatory capital punishment was found to be unconstitutional in Susan Kigula v. Attorney General, many citizens found the twenty year life sentence to be inadequate.56 It was after Stephen Tigo v. Uganda redefined a life sentence to mean “the natural life term of a convict” that a reduction in the use of capital punishment began to occur.57 Regardless, surveys of the public suggest that 53% of the Ugandan population support capital punishment.58
Courts in Uganda do not tend to apply traditional justice mechanisms in their sentencing decisions, instead keeping systems of Western justice and traditional justice separate from one another.59 The Western-influenced court system in Uganda has been criticized as unfair and unjust, as police can make arrests prior to investigation, can be bribed for release, can torture for admissible admissions, and trials are typically remanded for up to a year.60 This seems to be the clearest example of strong dissonance between civil society and the domestic legal system among the states analyzed in this comment. Gabagambi quotes Ugandan scholar Simon Robins, who said that the continuation of inherited laws from the English legal system is irrational because they are irrational to the people.61
2. Restorative Justice in Uganda
Based on traditional values and justice mechanisms passed down through generations of small ethnic groups in Uganda, many communities prefer to restore than to punish.62 Rather than derive a sense of justice being served through imprisonment, there is a cultural emphasis on rebuilding communities and restoration following conflict.63 When people can participate effectively and engage in a process that reflects the traditional components of conflict resolution and justice including arbitration, social teaching, reconciliation, and compensation for wrongdoing, justice is more impactful.64 When a person is imprisoned, they cannot be part of the process of reconciliation—and as a result, victims from traditional communities may feel dissatisfied by justice regardless of whether time and effort has been spent. The fact of the matter is that a huge chasm exists between courts, prosecutions, and Western remedies, and traditional restorative justice ceremonies.
Gabagambi describes a series of these ceremonies, all of which take place among traditional ethnic groups in Uganda:
These traditional justice mechanisms are reportedly far more common and accepted across Sub-Saharan African traditional societies than many Western-imposed remedies—even those which are intended to be restorative.66 This is one of the regions in which community and victim participation are most critical to the efficacy and perceived positive impact of remedies awarded by other foreign courts like the ICC, due to the cultural gap in remedies and punishments.
D. Southeast Asia: Cambodia
1. Domestic Laws
The Cambodian Penal Code is clearly Western-influenced in its structure as well as in its categorization and designation of crimes and penalties. Unlike the previous penal codes this comment analyzes, Book 2 of the Cambodian Penal Code specifically elucidates the definitions and associated penalties for crime against persons, which includes genocide, war crimes, and crimes against humanity.67 Article 183 pertains to genocide, its definition, and the associated penalty of life imprisonment.68 Article 188 addresses crimes against humanity, which is also penalized with life imprisonment.69 Article 193 rules on war crimes, and similar to Article 8 of the Rome Statute, sets forth a long list of acts that qualify as war crimes.70 The penalty, again, is life imprisonment.71 Even the participation in preparation or facilitation of these acts carries specific sentences of twenty to thirty years imprisonment.72 Cambodia’s Penal Code seems to recognize that these crimes are even more severe than acts like murder, and as such the penalties are more severe.
However, some criticism of the Cambodian justice system echoes those of the other States Parties in this analysis. The actual sentences handed down by courts to perpetrators of atrocities—like torture and murder—do not reflect the crimes committed.73 In the trial of Cambodian police who were ultimately convicted for torture and murder in detention, officers were only given four to seven year sentences.74 Victims did not have the opportunity to speak at trial, and the public opinion was that justice was not served.75
2. Restorative Justice in Cambodia
After Cambodia’s 1975–1979 genocide, several efforts at restorative justice were made, some more successful and meaningful than others. The first attempt at a transitional tribunal in 1979 ultimately failed, and was considered by the people to be an “illegitimate show trial”.76 After nearly twenty years, the government of Cambodia solicited help from the United Nations to establish a tribunal for retributive transitional justice on a domestic level.77 The Extraordinary Chambers in the Courts of Cambodia (ECCC) began addressing the complaints of “any person who has suffered from physical, psychological, or material harm as a direct consequence of the crimes” committed during the genocide.78 Though the ECCC does offer the opportunity for victims to seek truth and justice, ensure remembrance, and prevent future acts of genocide, it is not perfect either.79 Many of the victims, at this point, are no longer alive to benefit from reparations or truth telling and apology.80 Regardless, there has been substantial support for trials and accountability.81
Ultimately, after eleven years of proceedings in the ECCC, three senior leaders considered to be most responsible were convicted of genocide in addition to the conviction for crimes against humanity they had already received, adding validity and gravity to the atrocities committed.82 A question tends to arise: was it worth the $300 million that could have been applied to other forms of restorative justice? As Mydans states:
Though people want to see former leaders who committed grave atrocities suffer, reconciliation and the healing of trauma is also ingrained in Cambodian traditional values.84
Dicklitch and Malik address more traditional concepts of justice, including yuttethor, which include the traditional moral practices of mutual understanding and agreement.85 Part of Khmer society in Cambodia includes this conception of justice, and the idea of dharma, that part of justice is rebalancing the wrong that has been done.86 Despite years of effort, people in Cambodia are somewhat unimpressed by the ECCC, and as Dicklitch and Malik quote, “justice must not only be done, it must be seen to be done.”87 Distant and opaque procedures followed by unfamiliar legal procedures do not always produce that result.
E. Latin and South America: Colombia
1. Domestic Laws
The Colombian Penal Code is the most formalistic of the documents reviewed in this analysis, and includes a distinct chapter for provisions on each type of offense with details including relevant definitions, elements of offenses, and ranges for sentencing. Unlike the previous states analyzed, the terms for imprisonment of severe crimes like insurrection, rape, or homicide are relatively brief.88 Colombia only recently imposed life sentences in a constitutional reform that extended the definition of “life” from sixty years to natural life, and only for those found guilty of rape or child murder.89 Though the Colombian government considered the death penalty as well in these same reforms, it has not yet been enacted, as Article II of the 1991 Constitution provides for the right to life.90 The courts in Colombia have been criticized as well: though crimes seem to be heavily penalized, those who are charged rarely serve the sentences stipulated by law.91
Colombia has a special court, the Special Jurisdiction for Peace (JEP), which has the power to charge Colombians with offenses including war crimes, that are beyond the purview of the ordinary courts.92 In the wake of the 2016 agreement that concluded more than fifty years of conflict between the Colombian government and a rebel group, the FARC, the JEP was established to charge individuals on both sides of the conflict for war crimes, in alignment with international standards.93 The action taken in this respect reflects both commitment to genuine retributive justice and these peace accords, and demonstrates the role penalties and imprisonment plays in Colombia’s own restorative justice process.
2. Restorative Justice in Colombia
As referenced above, the JEP, peace agreement, and other related efforts extend further than simply charging those most responsible with war crimes. Efforts to demobilize, award amnesty or lighter sentences to former participants willing to tell the truth and for those who did not violate human rights, reintegration programs, and restitution to victims and communities have accompanied the process of restoring and transitioning to a state of peace.94 Many Colombians and experts believe that the combination of reparations, retribution, and restoration of the rights of victims will be the key to transitioning past a conflict that has lasted a lifetime for most Colombians.95 Though some Colombians are doubtful of restorative justice mechanisms, arguing that former members of the FARC will never tell the truth, a more restorative approach to justice is tailored to those who do admit to wrongdoing.96 In some ways, this suggests that part of the progress made by these restorative justice efforts will be the creation of a common history and narrative about the crimes and atrocities that occurred within the country over decades of conflict. These justice mechanisms are still fairly new, but have been successful enough for the ICC’s Office of the Prosecutor to conclude its seventeen-year preliminary investigation into the conflict in Colombia.97
III. Non-Western Legal and Cultural Distinctions and Similarities to the ICC
A. Concurrence With Western Legal Culture and the ICC
All of the States Parties analyzed in this comment have experienced colonial Western influence that permanently, or at least for the time being, impacted the development of their legal system domestically. They place the same emphasis on the most severe crimes, including murder, rape, and terrorism, and several have special laws and courts to address the types of offenses that are elucidated in Articles 6, 7, 8, and 9 of the Rome Statute.98 It is relevant to note that these States Parties, at least in law, recognize the gravity of these crimes in a manner that reflects the mandate of the ICC. Several States Parties, including Uganda, Jordan, and Cambodia, have engaged the ICC or other international arbiters of human rights and justice to facilitate the process of transitional justice within their own state, or the state of their neighbors.99
Tunisia serves as a supportive voice for the mission of the ICC in Northern Africa, and was the first in the region to sign the Rome Statute.100 Uganda, though sometimes a voice of doubt regarding the ICC and the manner in which it seems to focus on Africa, has also called upon the Court to prosecute members of the Lord’s Resistance Army (LRA). 36% of Ugandans who are aware of the ICC and its role believe they had a positive impact in Uganda, and contributed to the remission of the LRA101 Though different in traditional values, these States Parties have sufficient similarity to the ICC to see the value in the Court’s prosecutorial capacity when used appropriately.
Though in Cambodia several officials had been charged with crimes against humanity in 2014, the ECCC’s trials and genocide verdict affirmed that the crimes within the Rome Statute are among the most heinous, and should be met with severe punishment including imprisonment.102 In fact, this 2018 verdict was the first time a tribunal had given a guilty verdict on genocide charges after the Cambodian Genocide.103 Colombia is somewhat unique in its transitional justice process in that it was the subject to a seventeen-year long preliminary investigation by the Office of the Prosecutor.104 However, the JEP satisfied complementarity to such an extent that the ICC closed the preliminary investigation, simply emphasizing further the shared values between the Colombian peace process and the mandate of the Court.105
All of these States Parties believe, at least to an extent, in the value of retributive justice. This is demonstrable in their Penal Codes, the reception to justice and justice being served among citizens, traditional forms of retribution, and the manner in which the States Parties attempt to provide justice in the form of both retribution and restitution. Similar to the remedies afforded by the Rome Statute in Articles 75, 77, and 79, which give the ICC the power to award both prison sentences up to a life term as well as a number of forms of restitution for victims.106
Many of these States Parties have also grappled with a question that commonly arises before the ICC: how to award restitution that best serves victims when there are hundreds of thousands, or even millions, of victims. Some of the approaches including community building, provision of health care for people who have been disabled, and new memorials, history, and textbooks for students reflect the efforts made by the ICC’s Trust Fund.107 Very apparently, there is substantial positive overlap between the ICC’s definition of justice and that of the Non-Western States Parties.
B. Critical Differences
There are also some important distinctions between non-Western legal systems and traditions and the approach taken by the ICC when sentencing war criminals and awarding reparations. Even domestically there is a gap between traditional justice still used today within communities and formal judicial systems.108 First and foremost, many States Parties do still use capital punishment as a penalty for the most severe offenses.109 Under Article 21(3) of the Rome Statute, the Court does not have the discretion to award any penalty that conflicts with human rights, including the right to life.110 Thus, this is a difference that the Court cannot overcome. However, even these States Parties have been discouraged and urged not to use or resume use of the death penalty.111 The other differences between traditional justice mechanisms and the ICC speak more to culture and tradition.
States Parties including Uganda, Cambodia, and Jordan have cultural traditions and values ingrained in their history and in their communities, some of which provide a more salient sense of justice than that of prison sentences dealt by unfamiliar and distant courts.112 People often need or want to participate in obtaining their own justice, and to rebuild a sense of community and wholeness with the wrongdoer. This has been integrated into many of the approaches being taken in the Colombian peace process now as well.113 Reintegration is part of rebuilding traditional communities, and often this is precluded by imprisonment. However, the ICC has obligations under Rome Statute Article 77 regarding the sentencing of perpetrators, and they lack the discretion to leave a decision regarding punishment to a single affected community, especially when many different and distinctive ethnic groups have been affected, all with their own process of serving justice.114
There are some gaps and differences between the ICC and traditional justice mechanisms that are precluded by the Rome Statute as of now, and without reform to the Court’s mandate itself, cannot be bridged. However, the Prosecutor has more flexibility than it sometimes seems, especially with regard to who is prosecuted, when, how victims are involved in the process, and how communities and individuals are awarded restitution.115 This is where potential lies for the ICC to take additional steps to incorporate non-Western legal values and traditions. As Ferstein points out, Article 75(1) is not an exhaustive list, and the traditions of other legal cultures can be incorporated into the types of remedies awarded.116
IV. Implications of Similarities and Differences for the ICC and the Office of the Prosecutor
A. When the ICC Prosecutes and Who
The case of Cambodia’s transitional justice process presented an interesting consideration for international and domestic court systems prosecuting grave offenses: timing. Cambodia’s first attempt at a process of transitional justice took place immediately after the genocide ended, and was largely regarded as a failure.117 However, the next did not begin to take effect until nearly thirty years later, and has also been criticized for coming too late.118 The ICC has been criticized for their timing and sensitivity to how an indictment will impact an ongoing conflict as well. The Rules of Procedure and Evidence allow the Court to consult with and involve experts in its processes, and herein lies an opportunity for the ICC to better incorporate the cultural considerations and traditions into their existing institutional structure.119 Demonstrating the involvement and applying the knowledge of experts in both local affairs and culture has the potential not only to bolster the impact of the justice served, but to be more effective and minimize negative externalities related to the action taken.120 Incorporating valuable cultural insight into the timing of a prosecution can have the demonstrative effect of greater regard for other cultural opinions and legal procedures.
In domestic transitional justice mechanisms of the States Parties analyzed, courts often prosecute those considered most responsible to maximize the utility of the tribunals and demonstrate justice being done. The ICC attempts to do the same, but sometimes falls short and prosecutes individuals still high ranking and guilty of atrocities, though not necessarily the individuals who would be most responsible. It is true that in some cases, like that of Dominic Ongwen, a child soldier turned LRA commander in Uganda, the ICC prosecutes at the request of the local government itself.121 However, with regard to the Prosecutor’s decisions regarding who to prosecute, some criticism has arisen. Some international observers and scholars are skeptical that the Court is prosecuting who they should be—and this is another point at which the Court should turn to non-Western legal values to inform their decision, and should do so on a case-by-case basis. The ICC has the ability to work with victims and community leaders to identify those actors whose indictment would best reflect justice being served in the respective culture, and make the time and energy spent more valuable to those who have actually been affected by the conflict at issue.
B. Remedies Available Under the Rome Statute
An important takeaway from the previous analysis of States Parties is that different remedies have different value depending on the culture. As Starr states, the prevailing attitude is the more remedies, the better.122 However, Quinn makes the important point that finding a precise combination of culturally-tailored approaches for a particular case is far more effective.123 The ICC can learn from this with regard to the manner in which they use Article 75 and Article 79 to award restitution to victims.
Rule 97(2) of the Rules of Procedure and Evidence for the ICC also gives the Court the opportunity to engage experts in developing appropriate remedies for victims and affected communities through the Trust Fund.124 The War Crimes Research Office suggests that the Court should use this as a means to reach out to both victims and scholars from the affected communities, giving a more active and potentially less traumatizing voice in the restorative justice process to affected people.125 With the insight of victims, reparations can be tailored in a way that meets the needs of affected communities more efficiently, and incorporates traditional values and non-Western legal modalities that also align with the Rome Statute. The ICC cannot prosecute every bad actor, but they can play a role in facilitating traditional restorative justice mechanisms like those detailed in Section II as part of the reparation process, and even facilitate reconciliation with lower-ranking bad actors as well.
Affected communities are the best resource for the ICC: victims in all States Parties analyzed express that they want a voice, and the feeling that their dignity has been restored.126 Engaging with these actors will increase the value of remedies awarded by distributing them in a way that makes sense to people meant to benefit from it. The ICC will struggle less with the issue of limited resources and drawing a line with regard to who is a victim by working with the relevant communities to maximize the utility of the remedies awarded in a culturally-aware manner. Finally, the ICC can become a truly international institution by incorporating restorative justice approaches from cultures beyond the West.
The ICC has the opportunity to take a multi-faceted approach to incorporating non-Western legal traditions into its work. First, taking the time to consider cultural and political considerations with regard to the timing of indictments will reflect better incorporation of non-Western concerns and values, as well as reflect a deference for traditional mechanisms on a local level. Better informing the decision of who to prosecute by working with victims and state governments may also work to satisfy States Parties that their voice and opinion is relevant, and increase the utility of a single indictment. Victims also benefit from a carefully calculated combination of approaches to justice that best matches their traditional values, even if not an exact parallel. Some of these remedies include giving victims a voice and a role in bringing about justice, establishing a common truth about atrocities that occurred, rebuilding communities, reintegrating former bad actors into traditional societies, therapy, medical care, education, traditional ceremonies, and even, in many cases, retribution and punishment. Articles 75 and 79 of the Rome Statute are especially important in bringing about this change.127 Though it specifies a list of remedies available to the Court, the available remedies are not limited to that list alone. The Court has grappled time and time again with awarding appropriate remedies, using resources as effectively as possible, and satisfying victims with a sense that justice has been served. Bringing in victims and local leaders as experts gives the Court the opportunity to satisfy more than one of these aims, and serves as a form of justice in and of itself. With culturally sensitive and tailored approaches to the implementation of various remedies to victims and communities, the ICC can start incorporating non-Western legal traditions into a victim-centered approach now.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
How the Court Works, ICC, available online (last visited Jul. 2, 2022). ↩
Mark Van Hoecke & Werner Krawietz, Western and Non-Western Legal Cultures, in Rechttheorie 197, 203 (Werner Krawietz ed., 2002), paywall. ↩
Shahrzad Fouladvand, Complementarity and Cultural Sensitivity: Decision-Making by the International Criminal Court Prosecutor in the Darfur Situation, 14 Int’l Crim. L. Rev. 1028, 1045 (Oct. 2014), paywall, doi, earlier version available online. ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 77, available online. ↩
Id. Art. 75. ↩
Id. Art. 79. ↩
Fouladvand, supra note 3, at 1049. ↩
Siraj Khan, Arab and Islamic States’ Practice: The Sharí’ah Clause and Its Effects on the Implementation of the Rome Statute of the International Criminal Court, in Islam and International Criminal Law and Justice, 2 Nuremberg Acad. S. 145 (Tallyn Gray ed., Nov. 16, 2018), available online, archived. ↩
Id. at 152. ↩
Van Hoecke, supra note 2, at 201. ↩
Id. at 216. ↩
Jordanian Legal System, U.S. Embassy in Jordan, available online (last visited Jul. 2, 2022). ↩
Hashemite Kingdom of Jordan, The Penal Code for the Year 1960 (English Translation, Nov. 24, 2011) [hereinafter Jordanian Penal Code], available online.
(The Jordanian Penal Code was amended in 2011 in a manner that does not change this analysis). ↩
Jordanian Legal System, supra note 12. ↩
Jordanian Penal Code, supra note 14, at Art. 14. ↩
Jordanian Legal System, supra note 12. ↩
Areej Abuqudairi, Why Did Jordan Resume the Death Penalty?, Al Jazeera, Dec. 28, 2014, available online. ↩
Jordanian Legal System, supra note 12, at 3; id. ↩
Abuqudairi, supra note 19. ↩
Riya Jain, The Opportunity for Legal Pluralism in Jordan, YRIS (Jan. 2021), available online. ↩
Human Rights Watch, The Administration of Justice in Tunisia: Torture, Trumped-Up Charges, and a Tainted Trial (Mar. 1, 2000) [hereinafter HRW Legacy Report], available online, archived. ↩
See Mohamed Elewa Badar, Islamic Law (Shari’a) and the Jurisdiction of the International Criminal Court, 24 Leiden J. Int’l L. 411 (Jun. 2011), available online, archived, doi. ↩
See United States Department of State, 2007 Country Reports on Human Rights Practices: Tunisia (Mar. 11, 2008) [hereinafter Tunisia Human Rights Report], available online; HRW Legacy Report, supra note 36. ↩
Tunisia Human Rights Report, supra note 38. ↩
Id. at 4; HRW Legacy Report, supra note 36. ↩
Simon Speakman Cordall, Tunisia President Calls for Return of Death Penalty Following Brutal Killing, The Guardian, Oct. 1, 2020, available online. ↩
Id.; Heinous Crime in Tunis Triggers Hot Debate Over the Death Penalty, The Arab Weekly, Sep. 29, 2020, available online. ↩
Amnesty International, Tunisia: Struggle for Justice and Reparation Continues for Victims 10 Years After the Revolution (Jan. 14, 2021) [hereinafter Tunisia: Struggle for Justice], available online. ↩
Elham Kazemi, Transitional Justice in Tunisia: Any Role for Islam?, E-Int’l Rel. (Oct. 19, 2018), available online, archived. ↩
Tunisia, ICTJ, available online (last visited Jul. 2, 2022). ↩
Tunisia: Struggle for Justice, supra note 44. ↩
See e.g. Kazemi, supra note 45. ↩
Id. at 2. ↩
Id. at 3. ↩
See e.g. Uganda, Penal Code Act 1950 [hereinafter Ugandan Penal Code], available online (last visited Jul. 2, 2022). ↩
Parliamentarians for Global Action, Situation of the Death Penalty in Uganda: Impact of the Death Penalty, Relevant National and International Legal Frameworks 3 (Oct. 7, 2015) [hereinafter Death Penalty in Uganda], available online. ↩
Id. at 4. ↩
Id. at 5. ↩
Id. at 6. ↩
Human Rights Watch, The June 29 Agreement on Accountability and Reconciliation and the Need for Adequate Penalties for the Most Serious Crimes § IV (Jul. 2007), available online. ↩
Brooke J. Oppenheimer, From Arrest to Release: The Inside Story of Uganda’s Penal System, 16 Ind. Int’l & Comp. L. Rev. 117, 122 (2005), available online. ↩
Julena Jumbe Gabagambi, Update: Comparative Analysis of Restorative Justice Practices in Africa, Hauser Global L. Sch Prog. § 1 (Sep. 2020), available online. ↩
Id. at § 3.4. ↩
Joanna R. Quinn, Social Reconstruction in Uganda: The Role of Customary Mechanisms in Transitional Justice, 8 Hum. Rts. Rev. 389, 398 (Jul. 2007), available online. ↩
Gabagambi, supra note 61, § 3.4. ↩
Samuel O. Manteaw, John Mensah Sarbah and African Value Systems in Legal Education, 27 UG L.J. 58 (2014), paywall. ↩
Kingdom of Cambodia, General Provisions for the Implementation of Criminal Law (translated Jun. 29, 2011) [hereinafter Cambodian Criminal Law], available online. ↩
Id. at 38. ↩
Id. at 40; Rome Statute, supra note 4, at Art. 8. ↩
Id. at 41. ↩
Id. at 36–41. ↩
Victims Demand Tougher Punishment for Cambodian Police Convicted of Torture, Murder in Detention, RFA, Jan. 21, 2021, available online. ↩
Emily Gleeson, Transitional Justice in Cambodia—Too Little Too Late?, E-Int’l Rel. 2 (Mar. 22, 2016), available online, archived. ↩
Id. at 3. ↩
Victims Participation, ECCC, available online (last visited Jul. 2, 2022). ↩
Sun Narin, No Justice Without Remembering, D+C (Mar. 4, 2017), available online. ↩
Renee Jeffery, Taking Transitional Justice to Cambodia’s Youth, The Interpreter (Mar. 26, 2019), available online. ↩
Seth Mydans, 11 Years, $300 Million, and 3 Convictions. Was the Khmer Tribunal Worth It?, N.Y. Times, Apr. 10, 2017, available online; Khmer Rouge Leaders Found Guilty of Cambodia Genocide, BBC News, Nov. 16, 2018 [hereinafter Khmer Rouge Guilty], available online. ↩
Seth Mydans, Khmer Rouge Leader Appears in Court to Appeal Genocide Conviction, N.Y. Times, Aug. 17, 2021, available online. ↩
Virorth Doung & Sophal Ear, Transitional Justice Dilemma: The Case of Cambodia, 7 Peace and Conflict R. 1, 9 (2010), available online. ↩
Susan Dicklitch & Aditi Malik, Justice, Human Rights, and Reconciliation in Post-Conflict Cambodia, 11 Hum. Rts. Rev. 515, 519 (Jan. 9, 2010), paywall, doi. ↩
Id. at 522. ↩
See Republic of Colombia, Poder Público—Rama Legislativa, Ley 599 de 2000 por la cual se expide el Código Penal (Jul. 24, 2000) (Colom.) [hereinafter Criminal Code of Colombia], available online. ↩
Colombia Imposes Life Sentence for Rape, Child Murder, AFP, Jul. 23, 2020, available online. ↩
Graciela Rodriguez-Ferrand, Colombia: Constitutional Reforms Proposed to Increase Punishment for Violent and Sexual Crimes Against Minors, Global Legal Monitor (Nov. 12, 2019), available online. ↩
Arlen Guarín, Carlos Medina & Jorge Andres Tamayo, The Effects of Punishment of Crime in Colombia on Deterrence, Incapacitation, and Human Capital Formation, IADB (Jul. 2013) (Working Paper Series 7), available online. ↩
Julie Turkewitz, Colombia Seeks Justice for War Atrocities Via New Court, N.Y. Times, Mar. 6, 2021, available online. ↩
Paula Torres, Yaneth Gina & Sergio Jaramillo, Transitional Justice and DDR: The Case of Colombia, ICTJ 2 (Jun. 2009), available online. ↩
Fabio Andrés Díaz Pabón, Transitional Justice and the “Colombian Peace Process”, in Truth, Justice and Reconciliation in Colombia 5 (Fabio Andrés Díaz Pabón ed., May 11, 2018), available online. ↩
Turkewitz, supra note 92. ↩
Genevieve Bates & Kelebogile Zvobgo, The ICC Doesn’t Look So Interventionist After All, Foreign Pol., Dec. 8, 2021, available online. ↩
See generally Jordanian Penal Code, supra note 14; Jordanian Legal System supra note 12; Tunisia Human Rights Report, supra note 38; Ugandan Penal Code, supra note 54; Cambodian Criminal Law, supra note 67; Criminal Code of Colombia, supra note 88; Rome Statute, supra note 4, at Arts. 6, 7, 8, 9. ↩
Mark Kersten, Between Disdain and Dependency—Uganda’s Controversial Place in the ICC–Africa Relationship, Just. in Conflict (Mar. 29, 2017), available online; Craig Etcheson, The Challenges of Transitional Justice in Cambodia, MEI (Jan. 3, 2014), available online. ↩
Tunisia and the Rome Statute, PGA, available online (last visited Jul. 2, 2022). ↩
Uganda: Knowledge and Perception of the ICC, Harv. Humanitarian Init., available online (last visited Feb. 26, 2022). ↩
Khmer Rouge Guilty, supra note 82. ↩
Luis Jaime Acosta, ICC Closes Preliminary War Crimes Examination into Colombia After 17 Years, Reuters, Oct. 28, 2021, available online. ↩
Bates & Zvobgo, supra note 97. ↩
Rome Statute, supra note 4, at Arts. 75, 77, 79. ↩
See, e.g., Etcheson, supra note 99; Quinn, supra note 64; Díaz Pabón, supra note 95. ↩
Jain, supra note 25. ↩
See generally Jordanian Penal Code, supra note 14; Jordanian Legal System, supra note 12; Ugandan Penal Code, supra note 54; Cambodian Criminal Law, supra note 67. ↩
Rome Statute, supra note 4, at Art. 21(3). ↩
Amnesty International, Tunisia—Reform of Repressive Laws and Practices Lagging 5 (May 2017), available online; Khetam Malkani, Majority of Jordanians Support Capital Punishment—Poll, The Jordan Times, Dec. 23, 2014, available online; Death Penalty in Uganda, supra note 55, at 1. ↩
Gabagambi, supra note 61, at 3.4; Dicklitch & Malik, supra note 85, at 522; Jain, supra note 25. ↩
Turkewitz, supra note 92. ↩
Rome Statute, supra note 4, at Art. 77. ↩
Carla Ferstman, Reparations Should Be About Promoting Victims’ Dignity and Agency: The ICC Should Avoid Paternalistic or Bureaucratic Approaches to Determining Victims’ Needs and Wants, ICC Forum (Feb. 6, 2012), available online. ↩
Fouladvand, supra note 3, at 1043; Manteaw, supra note 66, at 66; Ferstman, supra note 115. ↩
Gleeson, supra note 76, at 2. ↩
Doung & Ear, supra note 84. ↩
International Criminal Court, Rules of Procedure and Evidence, ICC-ASP /1/3, R. 97(2) (2013) [hereinafter 2013 RPE], available online, archived. ↩
Susana SáCouto & Katherine A. Cleary, WCRO, The Case-Based Reparations Scheme at the ICC (Jun. 2010), available online. ↩
Kersten, supra note 99. ↩
Sonja B. Starr, Rethinking “Effective Remedies”: Remedial Deterrence in International Courts, 83 N.Y.U. L. Rev. 693, 707 (May 21, 2008), available online. ↩
Quinn, supra note 64, at 394. ↩
2013 RPE, supra note 119. ↩
SáCouto & Cleary, supra note 120, at 20. ↩
Thomas M. Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int’l L. 279, 282 (Aug. 20, 2011), available online. ↩
Rome Statute, supra note 4, at Arts. 75, 79. ↩
Using Article 53 of the Rome Statute to Incorporate Alternative Justice Mechanisms into the International Criminal Court’s Jurisprudence and Practice
The International Criminal Court (ICC) has faced criticism for failing to incorporate non-Western legal traditions and practices, as well as other alternative justice mechanisms, into its jurisprudence and practice. This criticism is justified, as focusing exclusively on adversarial criminal prosecution at the ICC can be contrary to the desires of victims of international crimes, make peace and reconciliation harder in the communities affected by these crimes, and be too remote in location from these victims since the trials take place in The Hague, Netherlands, a city far from most conflict zones.1 Incorporating alternative justice mechanisms into the ICC’s jurisprudence and practice can serve to further the Court’s mission of preventing international crimes and ending impunity for the perpetrators of such crimes in a manner more acceptable to victims and other parties within an affected country.2
Rather than reforming the Rome Statute or fundamentally changing the ICC, Article 53 of the Rome Statute can be used to incorporate alternative justice mechanisms into the ICC’s jurisprudence and practice. Under Article 53, the Office of the Prosecutor (OTP) has the ability to exercise discretion and decline an investigation or prosecution when it is in the “interests of justice.”3 This comment argues that the OTP should use this discretion in certain cases and allow non-Western legal traditions and practices as well as truth commissions, two alternative justice mechanisms, to hold accountable perpetrators of international crimes. These two alternative justice mechanisms would not otherwise be a part of the Court’s applicable law under Article 21 of the Rome Statute. This comment focuses on laying out and analyzing the conditions that should be met before the OTP invokes its Article 53 discretion and foregoes criminal prosecution for these alternative justice mechanisms. Finally, this comment analyzes the problems that will inevitably come up trying to fulfill these conditions and potential solutions to address those problems.
II. Article 53’s “Interests of Justice” Provision
Article 53(1)(c) states that in deciding to initiate an investigation, the Prosecutor shall consider whether an investigation would not serve the “interests of justice.”4 It further states that the Prosecutor can consider the interests of victims when deciding to launch an investigation.5 The Prosecutor can decline an investigation even if there is a reasonable basis in the law and facts to proceed with one, as long as he or she believes it is not in the “interests of justice.”6 Similarly, Article 53(2)(c) states that the Prosecutor, upon an investigation, can decide not to prosecute because the prosecution is not in the “interests of justice,” even if there is a sufficient legal or factual basis.7 “Interests of justice,” within Article 53, appears to take on a broad interpretation of justice, where non-Western legal traditions and practices, in addition to truth commissions, can be taken into account.8 This is based on an ordinary reading of the text along with how Article 53 allows the Prosecutor to take into account broader factors such as the age and infirmity of perpetrators, the role of perpetrators in the alleged crime, and the interests of victims.9
Western notions of law and justice differ significantly from the legal traditions that have developed in the non-Western world, particularly Africa, and they can conflict with how victims in non-Western countries want to hold accountable those who have harmed them.10 If victims in non-Western countries prefer using their legal traditions and practices as a method of accountability for international crimes, the OTP should consider using its Article 53 discretion and defer an investigation or prosecution. This would certainly be in the interests of justice and the victims, as those directly affected by international crimes, can hold accountable their perpetrators in a manner they prefer. Using non-western legal traditions and practices is not entirely antithetical to the ICC’s mission. These traditions and practices generally seek accountability, the establishment of facts, and some form of compensation to victims. This is the case, for example, with mato oput, which has been the choice of traditional justice for the Acholi people in Uganda.11
It would also be in the “interests of justice” to defer an investigation or prosecution if victims would prefer a truth commission as a mechanism for accountability. This is currently happening in Colombia, where a truth commission is being used to end a decades-long civil war in the country.12 Truth commissions can be an expeditious way of ending a conflict, promoting reconciliation, and moving a country forward. Truth commissions can also assist victims by giving them a forum where they can be acknowledged and give an account of their harrowing experiences.13 There is also no inherent contradiction between a truth commission and the ICC’s mission.14 These commissions still hold perpetrators accountable for crimes, although in a less contentious way. Truth commissions typically involve perpetrators apologizing to victims and explaining their role in a particular conflict as well as the crimes they have committed. Truth commissions can also establish a comprehensive record of the mass atrocities that unfolded during a conflict that can lead to societal acknowledgment of international crimes, educate future generations, and make recommendations for the future.15 This can prevent future international crimes and mass atrocities.
Furthermore, holding ICC trials in a Western city like The Hague also sends a message of continuing imperialism to certain non-Western countries, even if it is not intended. This Western imperialism criticism can be used by despots indicted by the ICC as a way of delegitimizing the Court. By incorporating alternative justice mechanisms and allowing them to take place in an affected country, the ICC can deflect criticism that it is a continuing form of imperialism. This can help the Court focus on its mission more effectively, especially in non-Western countries. Additionally, the ICC tends to hold accountable those most responsible for international crimes, which generally includes high-ranking government and military officials. Rank and file offenders are typically not tried at the ICC. By utilizing alternative justice mechanisms, these rank and file offenders can also be held accountable, and the ICC can further its mission of ending impunity for international crimes.
It would not be in the “interests of justice” to interfere with a desire by victims in an affected country to implement an unconventional alternative justice mechanism as a means of accountability by demanding criminal prosecution at the ICC.16 The OTP taking into account broader factors when it comes to deciding whether to pursue an investigation or prosecution is certainly in the “interests of justice.”
III. The Conditions That Should Be Met Before an Article 53 Deferral
The OTP cannot use its Article 53 power and defer every single case where non-Western legal traditions and practices, or truth commissions, could be applicable. Several conditions should have to be met before such a deferral is granted. The OTP would have to look at the specific facts and circumstances of each case and make an individual decision on deferral based on whether the conditions have been met. If each of the conditions has been satisfied in a particular case, the OTP should consider a deferral of an investigation or prosecution. An alternative justice mechanism will then take place in the country affected by mass atrocities. The following section of this comment will lay out and analyze the conditions that should have to be met before a deferral is granted. It will also discuss problems related to fulfilling those conditions and potential solutions to those problems.
A. Victims Must Agree to an Article 53 Deferral and the Use of an Alternative Justice Mechanism
The first and most important condition that should be met before an Article 53 deferral is that victims of international crimes agree to the deferral and prefer the use of an alternative justice mechanism over prosecution at the ICC. In order to get the opinions of victims, the OTP would need to actively engage with community leaders and victims in the affected country to get a sense of how these victims want to move forward. Community leaders within a country can also conduct polling among the victims to get a sense of their views and can then offer the OTP a recommendation on how to proceed. If the general consensus among victims within an affected country is to support the use of an alternative justice mechanism, the condition of agreement from victims should be considered fulfilled and weigh in favor of an Article 53 deferral.
In Uganda, the Lord’s Resistance Army (LRA) has been engaging in an insurgency, committing numerous crimes against humanity, war crimes, and other atrocities against Ugandan civilians. The LRA has abducted children, turning the girls into sex slaves and the boys into child soldiers.17 These children have been forced by the LRA to kill, torture, and rape others.18 Despite these atrocities, a number of tribal elders and leaders in Uganda believed that the ICC indictments of LRA leaders interfered with the process of peace in their country.19 The Acholi tribes of Uganda and their leaders were the most vocal in demanding an end to ICC prosecution and in supporting their traditional justice mechanism of mato oput to hold accountable LRA leaders and fighters.20 Mato oput is a traditional ceremony that includes an effort to establish the truth, a payment of compensation to victims, and a final drinking of a bitter potion by offenders.21 In Uganda, discussions also included using a truth commission to supplement such traditional justice ceremonies.22
One problem that emerged in Uganda, and that is likely to emerge in any given conflict, is that there are going to be many victims from various different ethnic and religious communities affected by mass atrocities. These diverse victims are likely to disagree on whether they prefer standard criminal prosecution or an alternative justice mechanism. In Uganda, not all Ugandan victims of LRA violence were Acholi.23 Other tribes affected by LRA crimes preferred that the ICC prosecute LRA members.24 In addition, different groups of victims might have different alternative justice mechanisms they prefer to use.
To address complex situations like this, the OTP can take a two-fold approach. The victims that prefer an alternative justice mechanism would be allowed to hold perpetrators accountable in that way. If there are different groups preferring different alternative justice mechanisms, the perpetrators would have to participate in those as well. In exchange for participating in the alternative justice mechanism or mechanisms, the OTP can still prosecute high-level perpetrators for victim groups that prefer criminal prosecution, but mitigate their sentences or reduce the number of crimes they are indicted for at the ICC. This strategy can allow the OTP to hold liable offenders in a way that satisfies the differing demands of various groups of victims.
This approach could be difficult to implement, as it is hard to imagine a party engaged in war, such as the LRA, agreeing to a ceasefire and engaging in an alternative justice mechanism without having ICC prosecution removed completely from consideration. Additionally, perpetrators are unlikely to participate in an alternative justice mechanism without the complete removal of prosecution because anything they say could be used against them in a future prosecution. To remedy this, the OTP could engage in plea bargaining. The OTP can convey a mitigated sentence offer to certain offenders in exchange for them participating in the alternative justice mechanism certain victim groups are seeking. This could incentivize hesitant offenders to accept a deal in a manner favorable to them.
B. Victims Participating in the Alternative Justice Mechanism Need to Be Protected from Violence, Harassment, and Trauma
Victims who agree to participate in an alternative justice mechanism need to be protected from harassment, violence, and retribution for simply partaking in the process. The protection of victims is another condition that should be fulfilled before an Article 53 deferral is granted. This was particularly a problem in Rwanda, when the traditional gacaca courts were trying those accused of participating in the Rwandan Genocide. The International Criminal Tribunal for Rwanda handled the prosecution of high-level army and government officials for their involvement in the Rwandan Genocide.25 Rwanda then implemented the gacaca court system to hold accountable rank and file perpetrators.26 Gacaca uses traditional Rwandan practices of conflict resolution, and accused perpetrators of genocide were tried within their own neighborhoods based on their confessions and the testimony of community members.27 However, the gacaca courts and their implementation had a variety of problems, one of which was the harassment of victims who participated in the gacaca courts.28 Perpetrators, for instance, would describe their crimes in graphic details to intentionally trigger survivors.29
The OTP must ensure victims are not harassed by anybody for simply participating in the alternative justice mechanism like in Rwanda, as the interests of victims are paramount. The OTP should reject a deferral if the safety of victims cannot be assured. One way of ensuring the safety of victims, even after a deferral is granted, is by making clear that the OTP has the power to reconsider a deferral decision. The OTP can reinitiate an investigation or prosecution based on “new facts or information” under Article 53(4) of the Rome Statute and should threaten to use this power if victims are harassed or subject to violence after a deferral is granted.30 The OTP can make sure that parties on the ground know of this provision and can send a message that harassment of victims will not be tolerated. The threat of an ICC indictment and prosecution can be a powerful tool in protecting victims even as an alternative justice mechanism takes place.
Lastly, no victim should be forced to participate in the alternative justice mechanism even if they supported an Article 53 deferral. Victims of mass atrocities have already gone through significant trauma and pain. They should participate in the alternative justice mechanism voluntarily by their own desire. Victims who wish to participate in the process but desire anonymity and privacy should also be granted reasonable accommodations. This is particularly important in the context of sexual crimes. Often, it is humiliating and traumatizing for victims to listen to perpetrators openly talk about how they sexually assaulted or raped them. It could also be traumatizing for the victims to have their family members or neighbors in their community hear about the sexual violence they endured. Therefore, any anonymity and privacy demands from victims should be satisfied. In conclusion, the well-being and safety of victims should be at the center of any alternative justice mechanism.
C. The Use of an Alternative Justice Mechanism Should Facilitate Reconciliation and the Ending of a Conflict
An Article 53 deferral should also serve the purpose of facilitating reconciliation and the ending of a conflict, which is another condition that should have to be met. ICC indictments or prosecutions tend to increase tensions in an ongoing conflict and exacerbate the situation in the affected country. If a deferral also aggravates tensions, prolongs a conflict, or fails to bring an end to a conflict, then it defeats the purpose of granting one.
In Uganda, for example, the LRA promised they would engage in alternative justice measures if ICC prosecution was removed from consideration.31 Although it never came to fruition, this would have ideally ended the conflict and would have allowed all affected parties in Uganda to reconcile and rebuild their country.
In Colombia, the formation of a recent truth commission has the potential of ending an almost six decades-long conflict.32 Fuerzas Armadas Revolucionarias de Colombia (FARC) is a communist guerrilla force that has been involved in a longstanding conflict against the Colombian government. In September 2016, the Colombian government and FARC representatives signed the final peace agreement ending Colombia’s protracted conflict.33 The agreement included the formation of a truth commission that would strive to create a comprehensive record of the decade’s long war.34
The potential for peace like in Colombia is one of the main reasons why the OTP should consider an Article 53 deferral. The ending of a conflict can be helpful from a humanitarian perspective, as civilians would no longer be affected by the devastations of war. Affected countries can also move toward reconciliation quicker. However, the use of alternative justice mechanisms could still be a divisive issue for parties in an affected country, and their implementation does not always ensure reconciliation or peace. Certain groups of perpetrators might be averse to participating in alternative justice mechanisms for various reasons. Thus, the OTP must be convinced that deferral would help facilitate reconciliation and an end to a conflict.
D. The Alternative Justice Mechanism Must Be Capable of Handling International Crimes and Mass Atrocities
Another condition that should be met is that the alternative justice mechanism must be capable of handling and holding accountable people accused of serious international crimes. This condition is more of an issue with many non-Western legal traditions and practices than it is with truth commissions, as truth commissions in the past have dealt with serious crimes. Many non-Western legal traditions and practices, such as mato oput, have traditionally been used in inter-clan disputes involving relatively minor crimes, such as a single act of murder.35 They were never intended to deal with international crimes and mass atrocities.36
Specifically, traditional ceremonies like mato oput require the victim and offender to come together and reconcile.37 It is difficult to imagine such a pairing of victims and offenders in cases of international crimes given the complex nature of wars and mass atrocities. It is highly likely in post-conflict situations that many offenders might not remember who they had committed crimes against. In addition, compensation of victims could be an issue if the offenders don’t know their victims.38 Compensation can also be difficult to scale for mass atrocities, and offenders are unlikely to have the resources to properly compensate victims.39 Lastly, non-Western traditional ceremonies could also take decades to complete given the sheer number of perpetrators that are likely to participate.
One solution could be to adapt and reform the non-Western legal traditions and practices of victims so that they can be capable of dealing with international crimes.40 It would be formalized into a pseudo-traditional justice system that would still retain many of the traditions and practices of a particular group but also incorporate ways of dealing with the previously mentioned problems.41 Another option can be to combine non-Western legal traditions and practices with a truth commission. Non-Western legal traditions would try to achieve individual accountability when a victim knows his or her specific offender.42 Truth commissions can get to the wider truths of a conflict and can allow offenders who don’t remember their victims to confess to their crimes and help create a record for the future.43 A last option could be for the ICC to still indict or put on trial the most responsible and high-ranking perpetrators but reduce their sentences or lessen the number of charges if the perpetrators undergo an alternative justice mechanism.
It is also critical that community leaders and other locals in the affected country reform the non-Western legal traditions and practices of a particular victim group. This is so that the emerging pseudo-traditional justice system has legitimacy in the eyes of victims, perpetrators, and the entire affected country. If the OTP is actively involved in the reformation process, it could be seen as a form of lingering Western imperialism. As a result, victims and perpetrators alike would not feel comfortable participating in the reformed legal traditions and practices. The OTP can help provide guidance, perhaps through third parties such as non-governmental organizations, but it should not actively try to shape the reformation process.
E. The Country Hosting the Alternative Justice Mechanism Must Have the Ability to Do So
The OTP must also be convinced that an affected country is capable logistically of hosting alternative justice mechanisms on its territory. Using alternative justice mechanisms for international crimes will undoubtedly lead to the participations of thousands of people. Accordingly, careful planning and preparation are critical if an alternative justice mechanism on such a scale is to succeed. Otherwise, the alternative justice mechanism can fail to achieve its goals. For example, in South Africa, the truth commission formed after apartheid had logistical and resource constraints.44 As a result, victims were left disappointed, feeling that efforts to address their concerns were inadequate and carried with minimal effort.45
One problem in post-conflict situations is that affected victims are likely displaced from where they normally live. They are often times displaced into neighboring countries or refugee camps. Traditional villages are also left in shambles or replaced by these refugee camps.46 As a result, the host country may not have any suitable locations or even the infrastructure to host traditional ceremonies or a truth commission.
The easiest way to ensure suitable locations and infrastructure is to increase funding to the host countries so that they can rebuild facilities and infrastructure to host alternative justice mechanisms. In the past, non-government aid groups, Christian organizations, and other peace organizations have helped fund traditional rituals in Uganda.47 States Parties to the Rome Statute can also donate funds so that countries are able to quickly and efficiently host alternative justice mechanisms. In order to gain legitimacy from victims, perpetrators, and the country as a whole, the affected country must host these alternative justice mechanisms. Allowing other countries, especially those in the West, to become hosts would be a non-starter, as victims and perpetrators would distrust the process and refuse to participate in it. Any semblance of legitimacy for the alternative justice mechanism in the eyes of these parties and the affected country would disappear.
The OTP must also be satisfied that those participating and hosting the alternative justice mechanism are not put in harm’s way or placed in any dangerous situation. Ideally, if a deferral is granted and alternative justice mechanisms are beginning, a conflict would have ceased in the affected country. However, low intensity fighting can still be ongoing in parts of a country when there are attempts to host an alternative justice mechanism. Some parties might have rejected offers to join the alternative justice mechanism, continuing to still engage in war. Therefore, to grant a deferral, the OTP should be convinced that settings where the alternative justice mechanisms are going to take place are kept safe from attacks or other dangers. Perhaps peacekeepers from the United Nations or soldiers from third-party countries can help protect and secure the settings, assuming there is still fighting going on in the affected country.
F. Capable, Competent, and Honest People Must Manage and Adjudicate the Alternative Justice Mechanism
Another condition that should be satisfied is that competent, capable, and honest individuals should manage and adjudicate the alternative justice mechanism. These adjudicators would have to be from the victim group who has suffered the atrocities in a conflict. They must be locals, ideally community leaders or tribal elders from the affected victim group, who have legitimacy among the population. They cannot be judges or adjudicators from other countries. When non-Western legal traditions and practices are being used for accountability, the selected adjudicators must be competent enough to host and adjudicate them. The selected adjudicators must have fluency in the legal traditions and practices of their ethnic or religious group and must be able to facilitate its implementation in a fair, unbiased way. Assuming the legal traditions and practices are reformed to be able to handle international crimes as discussed previously, these adjudicators must also understand the new reformations to their traditional practices.
In Rwanda, judges running the gacaca courts were poorly trained and educated, which raised serious fairness concerns about how the courts were handled.48 Judges would render decisions on a whim rather than a body of legal text and often without a proper explanation for the reasoning.49 This would lead to conflicting rulings and decisions in similar cases with similar facts.50 Therefore, it is important that those adjudicating the non-Western legal traditions be well-versed in the traditions and render fair conclusions based on sound reasoning. This is less of an issue when truth commissions are carried out, as there is less of a fluency on a particular legal tradition or a body of legal text that is needed.
Furthermore, in a post-conflict situation, it is reasonable to assume there is going to be a shortage of adjudicators and other people willing to manage these alternative justice mechanisms. This includes community leaders and tribal elders from an affected victim group, as many will likely have been killed or have fled to surrounding countries to escape war. This was a problem in Rwanda after the genocide, as most of Rwanda’s judges and lawyers had been killed throughout the course of the conflict.51 This is why Rwanda had to rely on poorly trained and educated judges to handle the gacaca courts. Additionally, traditional ceremonies and practices hold less influence with younger people, and as a result, they would not be suitable adjudicators. If a significant number of older people are killed off in a conflict, the lack of knowledgeable people capable of adjudicating could present a problem. Therefore, the OTP must be convinced that enough competent people within an affected country exist to be able to adjudicate alternative justice mechanisms.
Lastly, the corruption of those adjudicating alternative justice mechanisms must be addressed. The judges in the gacaca courts in Rwanda were susceptible to corruption due to the conditions in the country.52 This undoubtedly led to sham prosecutions of certain offenders and less legitimacy for the gacaca courts. Particularly, judges were not compensated, making them eager to take bribes and favor certain offenders.53 Additionally, the gacaca courts took place in local settings, making it almost certain that the judges would know the offenders.54 This meant they were more lenient towards offenders they knew or with which they had family connections. The OTP must ensure such corruption is rooted out before agreeing to grant a deferral. In order to ensure compliance even after a deferral is granted, the OTP can threaten to use its Article 53(4) power and reopen an investigation or prosecution by stating that they discovered “new facts or information.”55 Making sure that adjudicators handling an alternative justice mechanism know of this power will be critical to keeping corruption at bay and ensuring a fair process for all those participating.
G. Some Form of Adverse Consequence for Perpetrators Must Exist Within the Alternative Justice Mechanism
Another critical condition that should be met prior to an Article 53 deferral is that each perpetrator seeking amnesty by participating in the alternative justice mechanism has to be subjected to some form of adverse consequence. This means that the blanket granting of amnesty without any conditions to those who have committed mass atrocities should be unacceptable to the OTP, even if it hinders the ending of a conflict. Amnesties should also not be granted for an entire ethnic or religious group if only a handful of people from the group participate in the alternative justice mechanism. Blanket amnesties are in direct conflict with the ICC’s mission of ending impunity for perpetrators of international crimes.56
Each perpetrator seeking amnesty needs to take part in the alternative justice mechanism and individually face consequences for his or her actions. However, this does not mean that the adverse consequence has to necessarily be one that is practiced in the Western world, such as incarceration or fines. It also does not mean that the offender has to be punished severely. Rather, the offender must, at a minimum, do something to earn a reprieve. The OTP should also be certain that the alternative justice mechanism does not lead to the collective punishment of an entire ethnic or religious group.
Within truth commissions, having offenders being granted amnesty on the condition of cooperation with the commission can constitute a form of adverse consequence.57 Offenders can be asked to apologize to victims and give an explanation of their role in a particular conflict. This differs considerably from a blanket amnesty, as the offenders are doing something to earn a reprieve. Additionally, forcing offenders to participate in a truth commission leads to social condemnation and the shaming of the offenders within their communities, which is also a humiliating consequence.58
As an example, in East Timor, a truth commission was established to investigate mass atrocities and other human rights violations that took place during the Indonesian occupation of the country. The truth commission conditioned the granting of an amnesty on offenders demonstrating visible remorse to the people affected by their crimes.59 This could be done through a public apology, reparations, or community service to those affected.60 These are the specific acts offenders were required to take in East Timor to earn an amnesty, which are adverse consequences they suffered.
Similarly, non-Western legal traditions and practices also require that offenders engage in some sort of apology to victims which is followed by compensation to these victims. They generally do not involve blanket amnesty. For example, as explained previously, mato oput in Uganda requires some sort of compensation to victims and a final drinking of a bitter potion, acts that can be considered adverse consequences. Thus, most non-Western legal traditions and practices can satisfy this condition for deferral as well.
Despite these alternative justice mechanisms having some adverse consequence to them, critics will argue they are still insufficient to punish those accused of international crimes. They will claim that the alternative justice mechanisms are not proportional to the gravity of these crimes. One rejoinder to this criticism is that the maximum punishment under the ICC is a term of thirty years imprisonment, with eligibility for a reduction in the sentence after twenty years, or life imprisonment for more serious crimes, with eligibly for a reduction in the sentence after twenty-five years.61 These punishments are certainly not proportional to international crimes like genocide, and potentially, no term of incarceration can ever be.62
However, as previously mentioned, the ICC could potentially still combine an alternative justice mechanism with mitigated incarceration in certain cases. The ICC can continue to indict a small number of high-level officials who are accused of particularly egregious crimes in the course of a conflict. Their sentence would be mitigated if they chose to participate in an alternative justice mechanism. However, only the most prominent high-level officials would be indicted, not all of them. They would have to be high-level officials with a particularly notorious record of barbarism and cruelty throughout a conflict. Less prominent high-level officials and rank and file offenders would exclusively be dealt with an alternative justice mechanism.
This limited use of incarceration can be a compromise for critics who claim relying exclusively on an alternative justice mechanism is not a sufficient punishment for international crimes. However, as discussed previously, the potential for incarceration can dampen a desire by certain offenders to participate in an alternative justice mechanism. The OTP would have to negotiate a plea bargain with these offenders beforehand and offer a mitigated sentence.
Lastly, the OTP must ensure that any alternative justice mechanism used by a particular group does not subject perpetrators to any form of cruel or extremely degrading punishment. In some cultures, corporal punishment or the execution of perpetrators might be deemed acceptable. The OTP must draw limits and ensure that these kinds of punishments are not used. Allowing or sanctioning these kinds of punishments will stain the ICC’s reputation and can lead down a dangerous path where, later on, even worse treatment of perpetrators takes place, such as extrajudicial killings. Additionally, many of the States Parties to the Rome Statute, particularly European countries, are vehemently opposed to capital punishment. Sanctioning its use through alternative justice mechanisms would certainly raise problems for the ICC.
H. The Alternative Justice Mechanism Must Require a Confession and Explanation from Perpetrators in Order to Establish a Complete Record of a Conflict
Closely related to the previous condition, in order to qualify for a deferral, the alternative justice mechanism should also require a confession and explanation from each perpetrator. This means that each perpetrator participating in the alternative justice mechanism must detail his or her role in the conflict as well as the crimes he or she committed. The confession and explanation should be thorough enough to help establish a complete and accurate factual record of a particular conflict, which is critical for true reconciliation to take place in a country.
In Guatemala, a truth commission was established after the end of the country’s civil war. However, the truth commission was prohibited from assigning any individual responsibility.63 Human rights organizations believed that a report would be useful if it unequivocally mentioned the perpetrators of the criminal acts committed throughout a conflict.64 These organizations believed that a watered-down report could not make any meaningful contribution in building a more prosperous future for Guatemala.65
To avoid such a situation, the alternative justice mechanism must require an explanation and confession from each perpetrator. Each victim is entitled to all the information their perpetrators know about the crimes they committed in a conflict. A thorough record will ultimately have a list of crimes committed throughout a conflict along with their perpetrators. Only by obtaining a complete and accurate record can an affected society learn from its mistakes and prevent mass atrocities in the future.
I. There Must Be Inclusive Participation, and All Parties Must Be Treated Equally and Fairly in the Alternative Justice Mechanism
The last condition that should have to be satisfied before an Article 53 deferral is that all those affected by a conflict and mass atrocities should be allowed to participate in the alternative justice mechanism. No offenders or victims should be denied from participating if they desire to do so. The purpose of a deferral is to ensure everyone within the affected country is able to come together and reconcile. Excluding one group of offenders or victims would jeopardize the whole process and ensure the failure of the alternative justice mechanism.
Additionally, no exemptions from participating in an alternative justice mechanism should be granted to certain parties. In Rwanda, the gacaca courts excluded crimes committed by soldiers of the Rwandan Patriotic Front (RPF), which has been the country’s ruling party since 1994.66 This undoubtedly corrupted the gacaca courts, as a certain group of perpetrators were never held accountable for their actions and were able to commit mass atrocities with impunity. Victims affected by RPF violence were never able to seek justice, and as a result, the gacaca courts could not provide equal justice to all victims.
The OTP should ensure no such deals are struck if a deferral is granted, where a certain group of perpetrators are excluded or granted immunity from participating in an alternative justice mechanism. This should include the ruling political party or government of an affected country at the time the alternative justice mechanism is about to take place. No government or political party in power should be allowed to hide or obfuscate its role in a conflict, regardless of how contentious or controversial this would be. In addition, allowing an exception for certain government or party officials can lead to arbitrary and unfair results.67 A person who committed a minor offense in a conflict and had participated in the alternative justice mechanism would be stigmatized and face some form of accountability, while certain government officials or members of a ruling political party who committed more serious offenses would escape with impunity.68 This would defeat the whole purpose of a deferral and ensure victims are denied a chance at holding their perpetrators accountable, like in Rwanda.
It has been the ICC’s mission to prevent international crimes and hold the perpetrators of such crimes accountable. To achieve this mission, the ICC has relied exclusively on a Western conception of accountability, focusing solely on criminal prosecution. As a result, the criticism directed at the Court for failing to utilize non-Western legal traditions and practices, as well as other alternative justice mechanisms, is fair. The ICC is a unique court that has the potential to exercise jurisdiction all over the world, and an institution with such a global reach should rely on differing mechanisms of accountability.
As this comment discussed, drastic measures or reforms are not necessary. By using its existing Article 53 power, the OTP can defer an investigation or prosecution, and incorporate alternative justice mechanisms into the ICC’s jurisprudence and practice. Requiring that several conditions be met before the OTP decides to grant a deferral can ensure that the deferral process is used properly as an alternate mechanism of justice and not as a way for perpetrators to escape liability. Once a deferral is granted, the OTP’s job does not end. The OTP must still monitor how the alternative justice mechanism is being implemented in the affected country. In particular, the OTP must ensure that the conditions that were initially fulfilled and that prompted the deferral are still being met. If at any time the OTP sees that the alternative justice mechanism is not making progress, is failing to meet its goals, or the conditions of deferral are no longer being met, it should utilize its Article 53(4) power and reconsider launching an investigation or prosecution based “new facts or information.”69
Whether by using truth commissions or non-Western legal traditions and practices, parties in affected countries can settle long-standing conflicts in a manner more acceptable to them. This could reduce tensions long after a conflict is over and allow an affected country to heal quicker, as ICC indictments and prosecutions can continue to be divisive even after a conflict ends. In conclusion, the OTP should consider publishing a policy paper explaining how an Article 53 deferral can be used as a way of incorporating alternative justice mechanisms, and begin a path toward a more inclusive ICC.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
Martha Minow, Do Alternative Justice Mechanisms Deserve Recognition in International Criminal Law?: Truth Commissions, Amnesties, and Complementarity at the International Criminal Court, 60 Harv. Int’l L.J. 1, 2–3 (2019), available online. ↩
International Criminal Court, Understanding the International Criminal Court (Mar. 12, 2021), available online (last visited Jun. 23, 2022). ↩
Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 53, available online. ↩
Id. Art. 53(1)(c). ↩
Linda M. Keller, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209, 248 (2008), available online. ↩
Rome Statute, supra note 3, at Art. 53(2)(c). ↩
Darryl Robinson, Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court, 14 EJIL 481, 488 (2003), available online. ↩
Dana Zartner, The Culture of Law: Understanding the Influence of Legal Tradition on Transitional Justice in Post-Conflict Societies, 22 Ind. Int’l & Comp. L. Rev. 297, 298, 302 (Jan. 1, 2012), available online. ↩
Keller, supra note 6, at 230. ↩
Nyasha Laing, Colombia’s Truth Commission Prepares to Embark on the Extraterritorial Truth-Telling Process, ICTJ (Aug. 22, 2018) [hereinafter Colombia’s Truth Commission], available online. ↩
Declan Roche, Truth Commission Amnesties and the International Criminal Court, 45 BJC 565, 574 (May 3, 2005), paywall, doi. ↩
Robinson, supra note 8, at 484. ↩
Id. at 481. ↩
Keller, supra note 6, at 213. ↩
Id. at 213–14. ↩
Zartner, supra note 10, at 306. ↩
Keller, supra note 6, at 224–25. ↩
Id. at 230. ↩
Id. at 231. ↩
Id. at 225. ↩
International Criminal Tribunal for Rwanda, Holocaust Memorial Day Trust, available online (last visited Jun. 23, 2022). ↩
Emma M. Costello, Justice for Whom? The Gacaca Courts and Restorative Justice for Survivors of Sexual Violence in Rwanda (2016) (B.A. Thesis, University of Michigan), available online. ↩
Rome Statute, supra note 3, at Art. 53(4). ↩
Keller, supra note 6, at 217. ↩
Colombia’s Truth Commission, supra note 12. ↩
Keller, supra note 6, at 230. ↩
Id. at 231. ↩
Id. at 232. ↩
Id. at 235–36. ↩
Id. at 232. ↩
Tim Allen, Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda, in Courting Conflict? Justice, Peace and the ICC in Africa 47, 50 (Nicholas Waddell & Phil Clark eds., Mar. 2008) [hereinafter Ritual Abuse], available online. ↩
Id. at 231. ↩
Roche, supra note 13, at 577. ↩
Keller, supra note 6, at 210, 214. ↩
Ritual Abuse, supra note 41, at 48. ↩
Human Rights Watch, Justice Compromised: The Legacy of Rwanda’s Community-Based Gacaca Courts (May 31, 2011) [hereinafter Legacy], available online. ↩
Costello, supra note 26. ↩
Legacy, supra note 48. ↩
Rome Statute, supra note 3, at Art. 53(4). ↩
Robinson, supra note 8, at 484. ↩
Minow, supra note 1, at 16. ↩
Id. at 18–19. ↩
Id. at 19. ↩
Rome Statute, supra note 3, at Arts. 78, 110. ↩
Keller, supra note 6, at 268. ↩
Christian Tomuschat, Clarification Commission in Guatemala, 23 Hum. Rts. Q. 233, 243 (May 2001), paywall, doi. ↩
Id. at 243. ↩
Legacy, supra note 48. ↩
Tomuschat, supra note 63, at 244. ↩
Rome Statute, supra note 3, at Art. 53(4). ↩
The Deferral Request Under Article 18(2) of the Rome Statute as an Emerging Tradition in the Context of Complementarity: The Situation in Afghanistan
I. Prelude: An Emerging Tradition in Complementarity
This discourse seeks to engage critically with the overarching legal issues basically revolving around the deferral request under Article 18(2) of the Rome Statute in the aftermath of the Taliban takeover of power in Afghanistan. Article 18(2) provides that:
[Notification mentioned in this article refers to notification under the preceding article 18(1)]. I identify the deferral request as an emerging tradition and trend in the contextualized view of the principle of complementarity.
In the two weeks preceding the completion of withdrawal of the US forces from Afghanistan, which was initially scheduled for August 30, 2021, the Taliban took over control of power in Afghanistan in an unprecedented rapid fashion [See media coverage on the Taliban takeover, for instance, available online]. This takeover occasioned a hasty and abrupt exit, from power, of the erstwhile civilian administration, thereby engendering a complete collapse of the existing political regime. It also engendered considerable legal discourse and concern about the status of the outstanding Afghanistan deferral request, at the time pending at the International Criminal Court. This discourse makes a participatory contribution to the development of the emerging legal trend in the broader context of complementarity.
II. Prosecutor’s Request for Authorization of an Investigation
On October 30, 2017, the ICC Prosecutor notified the Presidency of her decision to request judicial authorization to commence an investigation into the situation in the Islamic Republic of Afghanistan [This notification was made by the Prosecutor pursuant to regulation 45 of the Regulations of the Court, ICC-02/17-1-Anx1.]. Consequently, on November 3, 2017, the Presidency, in its decision, assigned “with immediate effect, the situation in the Islamic Republic of Afghanistan to Pre-Trial Chamber III” [The Presidency, Decision assigning the situation in the Islamic Republic of Afghanistan, November 3, 2017, ICC-02-17-1]. On November 20, 2017, the ICC Prosecutor formally submitted the request to the Pre-Trial Chamber for judicial authorization of an investigation pursuant to article 15 [Article 15(1) provides that: “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court”. Article 15(3) provides further that: “If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected…”]. The request was “to authorize the commencement of an investigation into the Situation in the Islamic Republic of Afghanistan in relation to alleged crimes committed on the territory of Afghanistan in the period since May 1, 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002.” [ICC-02/17-7-Conf-Exp. Public redacted version ICC-02/17-7-Red, ¶ 376.] The request by the Prosecutor considered the situation in Afghanistan as a non-international armed conflict (NIAC). On April 12, 2019, the Pre-Trial Chamber II declined the Prosecutor’s request. It rejected the request on the basis that an investigation into the situation in Afghanistan at that stage would not serve the interests of justice. [Decision by Pre-Trial Chamber Judges Antonie Kesia-Mbe Mindua (Presiding), Tomoko Akane and Rosario Salvatore Aitala, ICC-02/17-33.] The Prosecutor decided to appeal to the Appeals Chamber, against this rejection [The Prosecutor raised two grounds of appeal: (1) that the Pre-Trial Chamber erred in law in seeking to make a positive determination of the interests of justice; and, further or alternatively, (2) that the Pre-Trial Chamber abused its discretion in assessing the interests of justice].
In a landmark judgment, the Appeals Chamber of the ICC, on March 5, 2020, decided to amend the impugned decision of the Pre-Trial Chamber, and authorized the Prosecutor to commence an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002”. [The Appeals Chamber, Judgment on the appeal against the decision on authorization of an investigation into the situation in the Islamic Republic of Afghanistan, ICC-02/17-138.]
In its findings, the Appeals Chamber noted that “the Pre-Trial Chamber is not called under article 15(4) of the Rome Statute to review the Prosecutor’s analysis of the factors under article 53(1)(a) to (c) of the Statute” [Ibid.]. It further found that “the Pre-Trial Chamber’s authorization of an investigation should not be restricted to the incidents specifically mentioned in the Prosecutor’s request under article 15(3) of the Statute and incidents that are ‘closely linked’ to those incidents” [Ibid.]. It should be noted, however, that the Rome Statute mandates the Prosecutor to “extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the Statute” [Rome Statute, Art. 54(1)(a)]. It is further worth noting that the ICC has already opened an investigation into alleged atrocity crimes, including crimes against humanity and war crimes allegedly committed in Afghanistan by the Afghan National Security Forces, the Taliban, and the US military and CIA personnel. [Hilland A. & Gilfedder C., The International Criminal Court and Afghanistan, September 3, 2021, available online]. This scenario has, however, been changed, as will be discussed in the ensuing sections, when considering the request by the new Prosecutor Karim Khan for the authorization of the resumption of the investigation in Afghanistan.
III. Article 18(2) Deferral Request
Pursuant to the authorization by the Appeals Chamber for the Prosecutor to conduct an investigation into the situation in the Islamic Republic of Afghanistan, the Prosecutor issued a notification of the decision dated March 12, 2020 to the Government of Afghanistan, State parties and other concerned states, in terms of article 18(1) of the Rome Statute [Article 18(1) requires the Prosecutor to “notify all State Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States”].
Upon receiving the Prosecutor’s notification under article 18(1), the Government of Afghanistan, on April, 15, 2020, within the 30-day time limit, formally requested the Prosecutor to defer the investigation to Afghanistan national investigations and proceedings, under article 18(2) of the Rome Statute, to allow it time to furnish evidence in connection with the investigation to hold the alleged perpetrators to account [ICC-02/17-139-Anx1. The Government of the Islamic Republic of Afghanistan made a deferral request by way pf a letter addressed to dated March 26, 2020, the ICC Prosecutor, signed by its Ambassador to The Netherlands]. The Afghanistan Government requested a deferral of the Prosecutor’s investigation into cases that have been investigated or are being investigated by the national authorities in Afghanistan [Ibid.]. It would appear that, by making the deferral request, the Government of Afghanistan sought to assert that it was indeed conducting genuine investigations, contrary to assumptions by the ICC.
The article 18(2) deferral request found its legal foundation on the principle of complementarity. It signifies the operation of the principle which requires that the ICC should only intervene in cases where the national authorities are not willing or unable genuinely to investigate and prosecute core crimes [See article 17 of the Rome Statute.]. The principle seeks to ensure that the Court does not duplicate, or take precedence over, domestic investigations unless warranted by inaction on the art of the national criminal jurisdiction. It underscores the principle that the State must enjoy primacy over the ICC, in the investigation and prosecution of the Rome Statute crimes. It follows, therefore, that the national authorities of Afghanistan have and enjoy primacy, over the ICC, with regard to domestic investigations of the alleged war crimes and crimes against humanity. However, it has been argued that this is based on a complementarity criteria that differ slightly from when a defendant challenges complementarity in a specific case, where the Court determines the ability and willingness of the State to investigate and prosecute the individuals most responsible for the alleged crimes [See generally, Makaia C., Afghanistan’s request for deferral: A procedural dead end, Leidenlawblog, March 18, 2021, available online].
It is critical to note that this was the first (and the only) time a deferral request was made in the jurisprudential history of the ICC [See ICC-02/17-152 17-05-2021 1/12 EK. Response to Submissions on Behalf of Certain Victims Who Participated in the Litigation Under Article 15(4) (ICC-02/17-146-Anx and ICC-02/17-148-Anx). Pre-Trial Chamber II. Situation in the Islamic Republic of Afghanistan, at ¶ 3.]. Prior to the Afghanistan request, the Court had never been seized with a matter requiring to interpret article 18 so closely. Article 18(2) enables a requesting State to halt the Court’s exercise of its jurisdiction over potential cases preemptively, if the State in question can establish that it has or has had an ongoing genuine investigation on the relevant facts.
The Government of Afghanistan, in its formal letter requesting for deferral, asserts that it is investigating or has investigated both Afghan nationals, and others within its jurisdiction, for alleged war crimes and crimes against humanity [ICC-02/17-139-Anx1]. It states that those investigations and proceedings cover allegations of crimes committed by Afghan forces, the Taliban and the related groups, other terrorist groups and international forces” [Ibid.].
The deferral request stated further that the alleged crimes that have been or are being investigated by the authorities of Afghanistan cover both war crimes and crimes against humanity including aerial bombardments of civilians, attacks on civilians and civilian properties, the killing and injuring of civilians, detentions and torture, and destruction of civilian properties [Ibid.]. It was indicated that of the 151 cases listed, only 28 had been prosecuted or had resulted in convictions and the remaining were still under investigation and/or arrest warrants have been rendered to the Afghan National Police and National Directorate for Security. [See Makaia, C., supra. See deferral request by Afghanistan, tabulated under the section of letter (attachment) titled: “The Summary Outline of National Investigations and Proceedings”].
The Afghanistan deferral request disclosed a breakdown of the alleged cases as follows: that there were 26 cases of war crimes alleged against Afghan National Security Forces (ANSF) and the international forces; 33 cases of war crimes and 3 cases of crimes against humanity allegedly committed by the Taliban forces and affiliated groups; 4 cases of war crimes and 3 cases of torture committed in the Pul-e-Charkhi prison, Bagram detention centre, Kabul detention centre, and the detention centers operated by the National Directorate for Security (NDS) in Kabul and other provinces; 30 cases of war crimes and 5 cases of crimes against humanity that were being investigated where the identity of the perpetrators were unknown at the time of the submission of the deferral request [See also Gossman, P, ICC investigation vital for justice in Afghanistan, Human Rights Watch, June 11, 2020, available online].
The request mentioned the crimes allegedly committed by the Taliban and groups affiliated to it as including murder, torture, burning civilians, hostage-taking, suicide attacks, forced marriage of women and child rape. The cases against the ANSF included the commission of murder, injury, civilian killings (committed by the NDS) and destruction of civilian objects. The cases against the Afghan air force supported by international forces (“Resolute Support Mission forces”) included airstrikes on civilian houses and objects in provinces of Kapisa, Nangrahar and Badghis. Alleged crimes committed by the ISKP members included suicide attacks, killing civilians and shutting down schools by force [Ibid.].
However, the Government of Afghanistan had been unable to confirm, with cogent evidence, the status of its on-going or concluded investigation [Makaia, C., supra]. The request did not, however, disclose whether any of the suspected individuals subject of an arrest warrant had effectively been arrested [Ibid.].
IV. Prosecutor’s Notification of Status to the Pre-Trial Chamber
On April 16, 2020, the Prosecutor notified the Pre-Trial Chamber that the Government of Afghanistan had requested to defer her investigation into the situation in the Islamic Republic of Afghanistan [A year later on April 16, 2021, the Prosecutor made another Notification of status to the Pre-Trial Chamber. Notification on status of the Islamic Republic of Afghanistan’s article 18(2) deferral request, ICC-02/17-142.]. The Government requested for more time, before June 12, 2020, to be able to submit additional information and supporting materials covering the historical and on-going investigation. The ground for seeking additional time were that the Covid-19 pandemic hampered the process of gathering essential documents and materials to support the deferral request. In her notice to the Pre-Trial Chamber, dated April 15, 2020, the Prosecutor Bensouda intimated that she accepted the arguments by the Afghan government [See work by Qaane, E., A request to delay: Another Afghan government attempt to prevent an ICC war crimes investigation? Afghanistan Analyst, May 13, 2020, available online]. Owing to extraordinary circumstances concerning the Covid-19 pandemic the Prosecutor acceded to this request [ICC-02/17-138, ¶¶ 1–4].
It is critical to note that once this deferral request was made, the Prosecutor was obliged to consider the deferral of the investigation to Afghanistan, unless the Pre-Trial Chamber, on the application of the Prosecutor, decided to authorize the investigation. No such application was ever made to the Pre-Trial Chamber, and so the deferral request consideration remained in place, until the new Prosecutor Karim Khan applied for authorization for the resumption of the investigation [Request to authorize resumption of investigation under article 18(2) of the Statute, Pre-Trial Chamber II, September 27, 2021, ICC-02/17-161].
Under Article 18 of the Rome Statute, the Prosecutor verifies if the cases presented by the Afghan government are against the alleged perpetrators that her or his office would most likely zero in. The Prosecutor’s deferral to Afghanistan’s investigation is open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on Afghanistan’s unwillingness or inability genuinely to carry out the investigation [Article 18(3) of the Rome Statute.].
On June 12, 2020, Afghanistan provided to the Prosecutor voluminous material regarding cases it submits to have investigated or is in the process of investigating. This was to demonstrate that the government of Afghanistan was indeed seized with the domestic investigation and prosecution, in support of its deferral request, under the principle of complementarity.
In order to conduct a more comprehensive assessment of the extent of the the domestic investigation and prosecution, the Prosecutor requested for more as much information as possible from Afghanistan [Prosecutor’s notification of status on the situation in Islamic Republic of Afghanistan, op. cit.]. In light of the on-going conflict at the time, logistical constraints, and the Covid-19 pandemic limitations, the Prosecutor liberally allowed Afghanistan to provide the requested material within a 60 day time-limit, with a possibility for a further extension [Ibid.]. A number of meetings have been held between the Prosecutor and the Afghanistan Government, and the Prosecutor indicated they have been productive in reinforcing the efforts of the Prosecutor to review the deferral request.
After the review of the information and evidence, the new Prosecutor Karim Khan is now convinced, the ICC investigation into the relevant cases should not be deferred, but resumed. The Prosecutor could still investigate the cases that the request of the Afghanistan government does not encompass, for instance the alleged crimes committed by US nationals, but for now he has deprioritized most of those investigative aspects concerning the US nationals and Afghan national security personnel [See Request to authorize resumption of investigation under Article 18(2) of the Statute, Pre-Trial Chamber II, September 27, 2021, ICC-02/17-161].
V. Article 18(2) in the New Taliban Era
The previous Afghanistan regime encountered several impediments, which are likely to continue to bedevil the Taliban regime. Some of the challenges included, the maintenance of the National Reconciliation, General Amnesty and National Stability Law which have prevented the previous regime from effectively providing justice to the victims [See Makaia, C., supra].
It may be argued that the Prosecutor Karim’s deprioritizing of the investigation of US forces and CIA personnel may also have connection with the fact that none of the 151 cases submitted by the Afghan government are related to the alleged crimes attributed to the US forces and the CIA by the Prosecutor Bensouda in her original application to Pre-Trial Chamber for authorization to commence the investigation [Request for authorization of an investigation into the situation in the Islamic Republic of Afghanistan, pursuant to article 15, November 20, 2017].
The question to be posed now is whether the Taliban authority is willing and able genuinely to administer justice in relation to historical and on-going war crimes and crimes against humanity committed in Afghanistan. The evidence appear to suggest that atrocities have been committed in Kandahar, Panjshir, and other parts of the country.
Formidable impediments exist that tend to frustrate the efforts of the ICC to investigate and prosecute historical and ongoing heinous crimes allegedly committed by the Taliban, who are currently effectively in authority and control of national investigative and prosecutorial apparatus of the government of Afghanistan [Makaia, C., supra].
The ICC relies largely upon the cooperation of its member states to effectively access information and evidence vital for its own investigation, and also to effect arrest if necessary. It is highly debatable that the Taliban would offer the necessary cooperation in relation to ICC investigations targeting atrocities allegedly committed by its own fighters or leaders.
With respect to the non-nationals of Afghanistan, article 18(2) is still instructive, particularly, where it provides that “within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction…” (emphasis supplied) [See arguments by Elroa, in the Leidenlawblog and Makaia, C., op. cit.]. Arguably, positively read and construed, article 18(2) allows Afghanistan to investigate other nationals. It is critical to explore the scope of that provision citing “within its jurisdiction…”. Jurisdiction does not necessarily solely mean a territorial one [Ibid.].
VI. The New Prosecutor Karim Khan and Article 18(2) Deferral Request
The new Prosecutor, Karim Khan, in his early official statement on August 17, 2021, concerning the situation in Afghanistan, did express deep concern about the escalating violence in the situation in Afghanistan [Statement of the new Prosecutor Karim Khan, available online]. He echoed “the views of the United Nations Security Council over reported incidents on the territory of Afghanistan that may amount to violations of international humanitarian law under the Rome Statute” [See generally, UN Security Council, “The situation in Afghanistan” August 16, 2021, UN Doc. S/PV 8834 (“United Nations Security Council Emergency Meeting”)]. The reports, he said, included allegations of extrajudicial executions in the form of revenge killings of detainees and individuals who surrendered, persecution of women and girls, crimes against children and other crimes affecting the civilian population at large [Ibid.]. The Prosecutor concluded by affirming that his “office will continue to monitor the Afghanistan situation, and will act, as necessary, in accordance with the responsibilities under the Rome Statute.”
The Prosecutor followed up on the preceding undertaking, by another statement indicating he had on September 27, 2021 filed an application, before the Pre-Trial Chamber, for an expedited order under article 18(2) seeking authorization to resume investigation into the situation in Afghanistan [Request to authorize resumption of investigation under article 18(2) of the Statute, ICC-02/17-161. Statement of the new Prosecutor Karim Khan, available online]. While applauding the Government of Afghanistan for its constructive engagement with his Office prior to August 15, 2021, he observed that recent developments in Afghanistan and the change in the national authorities, represent a significant change of material circumstances with import for his Office’s ongoing assessment of the deferral request [Article 18(3) of Rome Statue provides that: “The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation.]. His conclusion was that there was no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan [Ibid.]. The Prosecutor, however, expressed optimism for constructive engagement with new Afghanistan national authorities in accordance with the principle of complementarity.
It is instructive to point out that the Prosecutor, notes that, if authorized to resume his investigation, owing to limited resources, his focus would narrow down to crimes allegedly committed by the Taliban and the Islamic State-Khorasan Province, and seek to deprioritize other aspects of the investigation [Ibid.]. Presumably, this effectively leaves out of the investigation, the US forces and the CIA personnel, as well as the members of the former Afghan National Police and other Afghan security agents, such as those under the National Directorate for Security.
It is evident from the Prosecutor’s observations that the situation in Afghanistan, during and after the Taliban takeover of control, demonstrate a continued state of non-international armed conflict [See Rome Statute, Article 8(2)(d)]. Upon the authorization by the Pre-Trial chamber, it remains to be seen how the Prosecutor will overcome the formidable challenges of securing the cooperation of the Taliban authorities in conducting the investigation, let alone the preservation of evidence within the territorial control of the Taliban. There is also bound to be concern as to why the US Forces and the CIA agents have been left, by the Prosecutor, out of the scope of his intended resumed investigation. It will be interesting to see how the Prosecutor Karim Khan maneuvers his way around all the mentioned issues.