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- roccosan: Premise The uniqueness among the Judicial Systems of ICC is a challenge for the application of statistics to measurement about its activities. This is for two reasons: the absence of a reasonable term of comparison; the self-referentiality of the system of measurement. Both the features provide the occasion for a reflection about the meaning of measurement of an object that is strictly qualitative and hold an ontology bereft of... (more)
- chrisjlin: Prosecutorial Discretion in Investigations: A Balance Between Politicization and Independence Abstract I examine the possibility of enforcing a balance between discretion and independence, seeing as how the International Criminal Court (“ICC”) Prosecutor’s decision to investigate a specific country, individual or group is necessarily political, given the ICC’s method of functioning. Despite the occurrence of... (more)
- cgsanchez: The Al Mahdi Case Study: Establishing a Media Bias Baseline to Support Future Research Regarding how ICC’s Operations Affects Public Perception International media reaction to the case The Prosecution v. Ahmad Al Faqi Al Mahdi heard in the International Criminal Court reveals that the case’s timeline, a country’s governance structure, and whether or not the country is an ICC... (more)
- Hanni Maoz: Evaluation of the Court Performance: A Critical View of the International Criminal Court Indicators for Security Introduction In November 2015, the International Criminal Court (the ICC or the Court) released Report of the Court on the development of performance indicators for the International Criminal Court.1 This First Report contained qualitative and quantitative indicators that were supposed to allow... (more)
- Sebastian Barrios... Evaluating the performance of the ICC: the value of and challenges associated with measuring the expeditiousness of ICC’s proceedings I. Introduction One of the most persistent and often repeated criticisms of all international criminal tribunals has been that they cost too much money and take too long.1 After having been in operation for more than ten years, the International Criminal Court... (more)
- kbanafshe: Evaluating the Performance of the Court: To What Extent have the Actions of the ICC Transformed the Politics and Fostered Peace Within Central and Eastern Africa? The International Criminal Court (“ICC” or “the Court”) was established in 1998 to “exercise its jurisdiction over the most serious crimes of international concern.”1 The main mandate of the court is to bring wrongdoers to justice, however... (more)
- Mehrunisa Ranjh: Measuring Victim Access to the International Criminal Court: Peace as the Ultimate Goal of International Justice Introduction The creation of the International Criminal Court (“ICC”) was an attempt to traverse previously uncharted territory by setting up a permanent, truly international court that would remain impartial, expeditious, and transparent in the face of huge and often conflicting external pressures. The court was envisioned... (more)
- emrenslo: The Performance Indicator “Expeditiousness of Proceedings” Will Cause Unintended Negative Consequences Using “Expeditiousness of Proceedings” as a performance indicator, as currently envisioned by the ICC, has unintended negative consequences for the prosecutorial, judicial, and management aspects of the Court. I. Introduction The ICC released a... (more)
- pgsojo: Measuring Performance on Arrests and Visualizing a More Effective Way in Procuring Them Performance indicators to evaluate the success or failure of the International Criminal Court (ICC) in terms of its mandate of arresting suspects. It is clear how the world has always been in desperate need of a worldwide ruling court, where criminals of great atrocities would face justice internationally known and accepted. The ICC was... (more)
- aaacosta09: Measuring Performance: A Case Study of Positive Complementarity Catalyzed During the Preliminary Examination Stage in Colombia An effective way to evaluate the performance of the ICC is to measure the positive complementarity catalyzed by the Court during the preliminary examination stage in Colombia. Introduction The International Criminal Court (“ICC” or “the Court”) was... (more)
Comment on the Performance Question: “The ICC has established four key goals regarding, broadly, its proceedings, leadership, witness security, and victim access. What are the appropriate ways to measure the ICC’s progress towards those stated goals? How can the performance of the ICC as a whole be properly assessed?”
Measuring Victim Access to the International Criminal Court: Peace as the Ultimate Goal of International Justice
The creation of the International Criminal Court (“ICC”) was an attempt to traverse previously uncharted territory by setting up a permanent, truly international court that would remain impartial, expeditious, and transparent in the face of huge and often conflicting external pressures. The court was envisioned as a bastion of global justice and fairness, and an advocate for the otherwise voiceless victims of atrocious crimes against humanity. Given these lofty goals, it is perhaps unsurprising that the court has faced more than its fair share of growing pains and criticisms along the way. Most recently, the alarming development of Burundi, the Gambia, and South Africa’s decision to withdraw from the court.1 Initially rationalized as a phenomenon contained to Africa,2 the concern over state withdrawals has ratcheted up in recent days as Russia has also withdrawn from the Court.3 In this moment of great flux and uncertainty for the court, it is more critical than ever for the court to pause and analyze its past performance and to course correct before it is too late. This kind of exercise can serve a number of important functions. It is necessary in order to recognize the meaningful work that has already been done, and to arm the court with a record of concrete facts and data as proof positive against its detractors. But the function of such an exercise cannot be purely ceremonial or self-laudatory, or the exercise itself becomes additional fuel to the firestorm of criticisms facing the court. Therefore, the court and supporters of the court must cast a truly critical eye upon its past performance with a renewed commitment towards striving to achieve its original promise as an instrument for a more peaceful and just future for the global community. To this end, the court has recently set out four performance indicators to assess the court’s performance.4 My contribution to this exercise is an analysis on whether the court currently allows for adequate victim access. I argue that the current level of victim access, though technically abiding by the mandates of the Rome Statute, is woefully inadequate to achieve the original vision and promise of the ICC.
The drafters of the Rome Statute devised a system that could achieve substantive justice for victims through the procedural safeguards of ensuring their access to the court. The Rome Statute was unique in setting up a court system that would take victims’ interests into account throughout the course of its investigations, trial process, and in determining what kind of reparations victims should receive.5 Therefore, the ICC was hailed as “the victim’s court” by many commentators at its inception.6 The major flaw in the victim participation model was that the although some victim participation was required, the court had massive discretion in whether to put victim concerns into practice. Thus, the court has chosen to focus almost entirely on satisfying the low threshold of ensuring token victim participation while not interrogating the larger vision of the Rome Statute: “the peace, security and well-being of the world.”7 I argue that active victim participation, consultation, and consideration should be a mandatory part of the ICC’s process because this process will ensure the substantive fairness and effectiveness of the court’s results. Through this mechanism, the court will be able to tailor its punishments and remedies in a way that will ensure victim focused justice.8 This, in turn will help create more community oriented and lasting solutions aimed at creating long-term peace rather than temporary retribution. This change will allow the court to finally live up to the spirit, and not just the letter of the law set out in the Rome Statute.
This comment will proceed in three parts. In Part One, I will attempt to arrive at the original purpose behind the creation of the ICC, through a brief examination of the text and purpose of the Rome statute. In doing so, I will try to answer the following question: what is the harm that the drafters of the Rome Statute intended to remedy through the creation of the court and how did victims figure into this overall scheme? In Part Two, I will first analyze whether victims do in fact “have adequate access to the court.”9 I will also consider how this reality of victim participation comports with the vision of the Rome Statute. Finally, in Part Three, I will use contemporary examples from various international adjudicative bodies to postulate ways in which the ICC can alter its own course before it has strayed too far away from its original promise. I will also outline the many benefits to be gained from such a re-orientation.
I. A Purposivist Reading of the Rome Statute
Unlike many treaties, the Rome Statute does not outline any special guidelines for its interpretation. Therefore, I will apply general rules of international treaty interpretation to figure out the intended role of victims within the court. Article 31(1) of the Vienna Convention on the Law of Treaties provides that:
Additionally, Article 32 provides that:
To this end, I will interpret the textual provisions dealing with victim participation alongside the object and purpose of the court as a whole. In doing so, I will attempt to answer the question: what is the harm that the drafters of the Rome Statute intended to remedy through the creation of the court and how did victims figure into this overall scheme?
The text of the Rome Statute mentions victims over forty times.12 Cumulatively, it grants victims a vast array of rights including: protection from retaliation, participation in the proceedings of the court, reparations, and the right to submit observations, or make representations to the Pre-Trial Chamber.13 The statute also calls for the creation of a “Victims and Witnesses Unit within the Registry” to oversee the protection of these rights.14 Whilst most of these rights concern the physical or psychological wellbeing of victims, there are some instances in which the statute gives victims the affirmative right to be heard or the right to be considered in the court’s decision making processes. The statute requires that the Prosecutor take “the interests of victims” into account in initiating an investigation, and in conducting an investigation.15 And although, it does not require judges to take victim interests into account when rendering their decisions, it nonetheless gives the court the authority to:
Therefore, consideration of the victims’ wishes and interests can play a direct role in the way in which a defendant is “punished” for his or her crimes.
Although there are a great deal of victims’ rights outlined in the Rome Statute, most of the language in the statute is either permissive or situation dependent. Therefore, it gives the prosecutor and other administrators of the court wide discretion in when to take victim’s interests into account. Given these ambiguities, we can consider the preamble of the statute next for some clarification on how to interpret victim participation in light of the big picture goals set out by the Rome Statute.
Although couched in general terms, there are a number of normative values baked into the preamble of the Rome Statute. The peace and stability of the world is heavily emphasized. It begins with a recognition of the “common bonds” that unite all people and a concern “that this delicate mosaic may be shattered at any time.”17 This statement implies that unity and togetherness is desired while anything that would seek to divide people is seen as a threat. Additionally, it acknowledges that “during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity” and that “such grave crimes threaten the peace, security and well-being of the world.”18 Thus, the preamble conceives violence committed against a discrete community of people as an act of aggression and a “shock” to the collective consciousness of the global community.
With this firm commitment to the communitarian values of unity and peace, the Rome Statute paradoxically views individualism as the means of achieving and maintaining these values. It vows:
To this end, it makes a commitment to:
This creates a fundamental tension between the goals of the court—a global, unified, and peaceful community—and the means of achieving these goals—prosecuting and punishing individuals who violate these community norms. Therefore, it conceives of a largely peaceful world threatened by a few “bad apples” whose removal from society, retribution, rehabilitation, and subsequent return to society would create a more peaceful world.19
Given the contradictions and ambiguities inherent in the general purpose statements of the preamble of the Rome Statute, it is even less clear what the intended role and rights of victims are. With a firm commitment to its normative conception of individualist justice, does the Rome Statute leave any room for victims’ input into preferred methods of bringing perpetrators to justice? I think that the Rome Statute lends itself to varying conceptions of justice, punishment, and even individualist v. communitarian commitments depending on a given situation. The court must include victims in determining the direction and scope of these general commitments contained within the Rome Statute because it cannot apply a one-size fits all approach to justice in the context of international criminal law.
II. The Status Quo: Do Victims Have Adequate Access to the Court?
In the recent Report of the Court on the Development of Performance Indicators for the International Criminal Court, the court set out the four performance indicators to assess its own performance including assessing whether [v]ictims have adequate access to the Court.”20 It is difficult to ascertain what the court means by “adequate.” I will construe “adequate” in light of the original purpose and mandate of the court to include a variety of different considerations: do victims feel like they can easily communicate with the court, and that if they are able to communicate with the court, they are being heard? Does the court maintain adequate contact with victims? Do victims feel a sense of closure or satisfaction from the court’s decisions? How could more active participation from victims influence the way in which the court conducts itself? Finally, what reasonable standard of victim participation and access should the court strive for?
Human Right Center and Berkeley University recently conducted a comprehensive study of over 622 victim participants of the ICC, by interviewing victims from Uganda, the Democratic Republic of the Congo, Kenya, and Côte D’Ivoire about their interactions with the court.21 Although the victim participants were generally quite critical of their interactions with the ICC, there was a near complete consensus across victim participants that they valued their interactions with the ICC most when they felt that the court was giving them a voice, and listening to their stories in order to bring about positive change.22 One Kenyan victim participant noted:
Another victim participant from Kenya stated:
Another participant from Côte D’Ivoire explained that:
Although these victims were physically far from The Hague, the mere perception that their voices were being heard by the court gave them both moral and psychological satisfaction. This participation allowed victims to re-frame their traumatizing experiences through the act of sharing them with the world in the pursuit of justice. These experiences illustrate the importance of at least fostering a perception among victims that their voices are heard and considered by the court when it makes decisions regarding the people who hurt them in unimaginable ways.
The report also found that victims often lacked trust in the ICC as a result of the court’s “failure to keep in regular contact with victim participants” during the course of investigations.26 One particular victim put this feeling amongst the victim population succinctly by stating:
This perception signals how the court’s lack of communication with the victims leads to perceptions that victims have been abandoned or used by the court. This is anathema to the idea of “adequate access” for victims because if victims feel abandoned, it removes them completely from being active participants in their own case.
Many victims also reported an expectation or implicit promise by the court to them that they would get receive monetary reparations of some sort.28 Many victims felt duped when they failed to receive monetary compensation or when this compensation took longer than expected.29 Overall, this is another indication that victims are not receiving adequate information of court policies, are not being apprised of their options for compensation, and are given no say in these options. This is another context in which it is important for the court to provide victims complete information a mechanism for letting the court know their preferred method of compensation, whether economic or otherwise. Giving victims the ability to choose their method of compensation is included in the Rome Statute and is fundamental to allowing victims to regain their dignity and agency in the wake of the atrocities they have suffered.
As these accounts show, the ICC has a very minimal actual presence in the lives of the victims it purports to protect. Even greater than the ill effects of this piecemeal approach to victim outreach and management upon victims themselves, is the impact of such an approach on the legitimacy and effective functioning of the ICC. The fundamental problem with failing to track what outcomes the majority of victims want, and failing to go through some sort of advice and comment period where victims have the ability to make their preferred remedial outcomes known to the court, is that the court no longer has any legitimate basis upon which to craft remedies. Thus, it often imposes Western values of justice and retribution in situations where these values cause more harm than good.
Scholars have tracked the dichotomy between the results victims want and the results that are generally acceptable under the current structure of the ICC. Whereas victims often want peace and stability, the ICC’s priority is on prosecution and retribution. As one victim put it:
This statement is very much in line with what studies of victim’s preferred outcomes have shown. One such study of Ugandan victims showed that the main priorities for respondents:
Additionally, “[o]nly 3 percent of respondents mentioned justice as their top priority.”32
These statistics show that often, victims are more concerned with accountability rather than payback, revenge, or retribution. Victims often value truth-seeking and reconciliation and are willing to “compromise through amnesties or pardons in order to allow the peace process to succeed.”33 The study found that “most respondents (65%) said those who received amnesties should first apologize before returning to their communities.”34 This is striking because it shows that victims are often willing to forgive a perpetrator after adequate effort has been put into revealing the full extent of that perpetrator’s crimes, and some sort of apology has taken place. Therefore, instead of the ICC assuming that all victims across all cultural contexts want convictions and incarceration for their perpetrators is not only false and futile but also a huge waste of the court’s resources. If the court involved victim groups in every aspect of its procedures, the court could tailor prosecutions, plea bargaining deals, post-conviction relief and reparations all to meet the needs of the affected communities and to strive for peace rather than temporary solutions.
A perfect example of this is Uganda where victims envisioned the ICC’s role very differently from how the court envisioned its role in the country. Victims saw the ICC as a “useful source of pressure on the LRA to participate in peace negotiations but [did] not want the court to hinder a settlement that [would] end the war and bring a sustainable peace.”35 Therefore, victims were both optimistic and cautious about the effect the court would have on the LRA. Had the court sought the help and advice of victim groups from the beginning of its intervention in the country, it could tailor its approach towards the LRA with the victim’s interests in mind to not only prosecute for past crimes but also prevent future crimes from occurring or for being the catalyst of more strife.
Over the course of modern western history, there have been varying conceptions of the meaning of justice. For much of this time, the idea of justice has been at odds with the idea of peace on both the domestic and international stage.36 Conventional ideas of justice were centered around the concept of seeking retribution from the perpetrators of crime at the exclusion of all other motivations.37 It was reasoned that visible and harsh punishment for one perpetrator would lead to deterrence of crime across the board as others would reconsider their impulses to commit crime in fear of the punishment.38 Thus, retribution served the feel-good impulses of gaining revenge for the harmed party, punishing the guilty party, and setting a stark example for others prone to commit crime.39 There was little consideration of what would happen once the guilty party returned back to society from his or her punishment or isolation, and even less to how the perpetrator would be able to live alongside his victim and vice versa.40 Even though retribution seldom leads to peace, it is still the preferred model of punishment in the US and many other Western societies.41
This consequences of retributive justice are even more stark in the context of modern international criminal law. The majority of crimes that implicate international law are committed by and against communities that have coexisted in close geographical proximity to one another for centuries. Much of the violence between these communities is cyclical with a long history of atrocities committed on both sides. Applying traditional ideas of retribution to such communities might lead to peace in the short run but will ultimately perpetuate cycles of violence and instability. By failing to include victim voices throughout the various processes of the court, and by focusing on prosecution and punishment above all, the ICC has failed to consider particularized cycles of violence within nations which require a particularized approach to the concepts of justice, punishment and reparations.42 Because of this, the court has failed to take heed of the voices of the victims calling for reconciliation and healing rather than retributive justice, and come up with short sighted solutions.
III. Course Correction: Transitioning to a Peace Based Conception of Justice
One of the oft cited justifications for the ICC’s lack of strict internal goals and objectives is the relative youth of the court. When faced with facts about how few investigations and prosecutions have been completed over the course of the past 14 years for example, the court has deflected by saying that this is the result of the court still not having a large enough sample size of past cases to use as a benchmark to evaluate its future performance. But this is not strictly true. It is true that the court’s own repertoire of cases is short but it is not true that the court has nothing to compare itself against. The rise in globalization and increasing reliance on international law has provided plenty of successful and unsuccessful models of international adjudicative bodies for the court to compare itself to. The premise that we have to wait to build ICC specific standards is deeply flawed.
In fact, the ICC itself came out of a tradition of temporary tribunals set up to deal with specific conflicts that first began with the Nuremberg Military Tribunal (“IMT”), the court system set up to try the remnants of the Nazi leadership shortly after the end of World War II.43 Subsequent tribunals of this sort included the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”). There was no affirmative right for victim participation in the Nuremberg trials. The ICTY was the first special tribunal set up to try crimes against humanity since Nuremberg and was the sight of a number of innovations in international criminal law practice.44 The victim participation measures instituted by the ICTY included the “Victims and Witness Units” to support victims in their interactions with the tribunal.45 The tribunal also had the power to develop special procedural rules or measures for the protection of victims and witnesses.46 Finally, ICTY was the first time an international criminal court attempted to institute a system of victim reparation and compensation.47 Nonetheless, victims had no formal role within the ICTY.48 A number of studies on victim perceptions regarding the fairness of the ICTY’s adjudications have found that victims are generally skeptical about the neutrality and effectiveness of the ICTY.49 Furthermore, there is no evidence to show that the societies where these tribunals operated have achieved lasting peace between the formerly hostile communities.50 In fact, the Bosnia and Herzegovina that emerged from the conflict continued to be deeply divided along ethnic lines. Twenty years after the conflict, the federation is crippled by lingering anger and despair between the two communities.51 There is still similar strife between the Hutus and Tutsis of Rwanda.52
Unlike the retributivist models of international justice which continue to face their fair share of criticism, there are alternative rehabilitative and reconciliatory models of justice that the court should seek to emulate.53 One such model, outside of the context of human rights is the World Trade Organization’s (“WTO”) dispute resolution body.54 Although the ICC and the WTO deal with very different situations and pressures, there are some fundamental lessons that the ICC can learn from the WTO Dispute resolution system. By the 1980s, The General Agreement on Tariffs and Trade (“GATT”) was starting to face serious difficulties in keeping up with changing realities of modern international trade.55 The GATT’s dispute settlement system was rife with problems a lack of disciplined procedures and difficulties reaching agreements between parties.56 Therefore, in 1995, the old GATT system was replaced by the WTO and the WTO dispute resolution system.57 This new system emphasized, among other things, prompt settlement of disputes through arms-length discussion between parties of their problems with the goal that parties would settle disputes themselves.58 Prior to adjudication, all parties are required to go through consultation and mediation.59 This new dispute resolution system became one of the most successful adjudication bodies in international law.60
Although substantially different from the WTO in almost all respects, the ICC can learn a number of lessons from this example: most importantly, that the climate of world politics is in constant flux, and that international organizations such as the ICC must be adaptable and willing to adapt in order to remain relevant in the face of these changes. The world in 2016 is seeing an unprecedented number of global crises which have led to mass displacement, widespread atrocities, and untold suffering for millions of people. In order to meet the challenges of this volatile era, the world needs an effective, quick acting ICC that is focused on solving problems and creating peace rather than simply laying blame or punishing. In order to do this, the ICC has the most to learn from victims.
Another lesson the ICC can learn from WTO is that it is efficient for a court system to have both formal and informal dispute resolution mechanisms. Currently, the ICC’s only mechanism for meting out justice is through prosecutions and convictions. But, like the WTO, the ICC should consider setting up an informal case resolution mechanism in addition to its existing formal system, where victims and perpetrators are given the chance to enter into dialogues with one another for the express purpose of reconciliation and long term stability. Creating an ancillary body dedicated to oversee this more informal system would exponentially increase the capacity of the ICC to handle cases. This would mean that the court would have a greater ability to do justice in this world. An ancillary body to handle informal case resolution would also allow for greater victim participation in the process of ensuring that justice is done. This would subsequently allow victims the opportunity to tell their stories alongside other victims and obtain some level of healing.
Even if the court does not create an ancillary body or ancillary procedure for informal reconciliation between victims and perpetrators, the court should incorporate principles of restorative justice into its primary substantive and procedural approaches to case resolution.61 While Western models of retributive justice have yielded mixed results to the long term peace and stability of a society, restorative justice has been deployed successfully by many societies throughout history and in modern times, to create lasting peace. This is especially important for the cases the ICC handles because the majority of the court’s cases have concerned developing nations where traditional and local conceptions of justice often align more closely with restorative rather than retributionist policies. Therefore, it will be less disruptive in these societies to apply principles that are closest to their own criminal justice principles. Additionally, as many surveys of victims have shown, the vast majority of victims prefer peace and other indicators of societal stability such as health care, and economic development, to conventional ideas of justice (only 3 percent of Ugandan victims listed “justice” as one of their main priorities).62
The major criticism of a forgiveness based, victim focused philosophy of justice is that it does not have a deterrent effect on either the specific people involved in committing the atrocities or on non-involved parties who may have the impulse to commit similar crimes but be deterred by the prospect of harsh punishment.63 Although criminal justice scholars have contested whether harsh retributionist regimes do in fact have a greater deterrent effect, I will provide an alternative argument for why a forgiveness-based, victim-focused court might lead to more deterrence overall than the current punishment based model. I argue that the greatest tool for deterrence in the court’s arsenal is the court’s own legitimacy. Currently, the court is facing a wave of harsh criticisms regarding its efficiency, effectiveness, and impartiality. The culmination of these criticisms has brought the court’s legitimacy to an all-time low as South Africa, Burundi, the Gambia, and Russia have withdrawn from the court.64 The best way to fight back against these criticisms and regain legitimacy is to strive towards the vision of the court originally imagined by the drafters of the Rome Statute: a vision that imagined a court that would be an instrument for justice through peace.65
Peace as the ultimate goal of the court would be far more effective than prosecutions. While successful prosecutions might deter one specific perpetrator from committing similar crimes in the future and maybe scare some people away from committing similar crimes, peace is much more effective guarantee of future deterrence. In a well-functioning society with economic stability and plenty of opportunities, there is generally much less incentive to commit crime. Additionally, forgiveness can lead to reconciliation between societies that may have been caught up in endless cycles of violence and retaliation for centuries. Breaking these cycles of violence is the best way to ensure that “the most serious crimes,” the crimes that fall within the ICC’s jurisdiction, happen less frequently.
If the ICC strives to become an instrument of peace and stability in the world, this will increase the chance of nations willingly subjecting themselves to ICC jurisdiction. Currently, there is no good indication that the ICC or other courts in the same vein have actually caused increased stability in any region. Conversely, bodies like the WTO dispute resolution arm which have a proven track record of fostering good and healthy relationships between nations, have no problem attracting and retaining nation states as members. Unlike the ICC, the WTO dispute resolution body fosters stability within and between nations by allowing for effective conflict resolution and the healthy rebuilding of damaged relationships. It is ironic that conflict resolution in the context of international trade is such a widely accepted practice while the same practice in the context of victims of violent civil strife is much less accepted and sought after. One would imagine that it should be the other way around, that the victims of rape, and torture, who have lost loved ones and who are subsequently expected to live in eternally broken and fractured societies be given all the chances possible to find peace while the world might overlook a few fractured business relationships. But alas, we are not there yet.
The ICC came into existence to fill a void in the world: a permanent court of criminal justice always striving to protect the interests of the most vulnerable in society: the victims of atrocious crimes against humanity. In recent years, the ICC has strayed a little from this original promise by forgetting it raison d’etre: the creation of a more fair and peaceful world for victims and perpetrators alike. It must regain a strong commitment to this original purpose if it is to survive the challenges of the upcoming decades.
Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).
See Joel Wickwire, South Africa to Withdraw From International Criminal Court, Liberty Voice, Nov. 7, 2016, available online; Sewell Chan & Marlise Simons, South Africa to Withdraw From International Criminal Court, N.Y. Times, Oct. 21, 2016, available online; ICC to Investigate Burundi Political Violence, Al Jazeera, Apr. 25, 2016, available online. ↩
See, e.g., Aryeh Neier, Africa Versus the International Criminal Court, Project Syndicate, Nov. 7, 2016, available online. ↩
Russia Pulls Out From International Criminal Court, Al Jazeera, Nov. 16, 2016, available online.
(“‘The court has unfortunately failed to match the hopes one had and did not become a truly independent and respected body of international justice,’ the ministry said, adding that in the ICC’s 14 years of work ‘only four verdicts’ have been passed, while $1bn was spent on expenses.”). ↩
International Criminal Court, Second Court’s Report on the Development of Performance Indicators for the International Criminal Court (Nov. 11, 2016), [hereinafter Second Report], available online, archived. ↩
Sam Boris Garkawe, Victims and the International Criminal Court: Three Major Issues, 3 Int’l Crim. L. Rev. 345 (2003), HeinOnline paywall, Brill paywall. ↩
See id.; Jo-Anne Wemmers, Victims and the International Criminal Court: Evaluating the Success of the ICC with Respect to Victims, 16 IRV 211 (2009). SAGE paywall, ResearchGate paywall. ↩
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, UN Doc. A/CONF.183/9 [hereinafter Rome Statute], Preamble, available online. ↩
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, 819 (2006), available online. ↩
The term “adequate access to the court” has been set out as one of four performance indicators in a recent report by the court on the development of performance indicators. See Second Report, supra note 4. ↩
Vienna Convention on the Law of Treaties, art. 31(1), May 23, 1969, 1155 U.N.T.S. 331, available online. ↩
Id. at art. 32. ↩
See generally Rome Statute, supra note 7. ↩
See generally Mark A. Drumbl, Collective Violence and Individual Punishment: The Criminality of Mass Atrocity, 99 Northwestern Law Review 539 (2005), available online. ↩
See supra note 4. ↩
Stephen Smith Cody, Eric Stover, Mychelle Balthazard & K. Alexa Koenig, The Victims’ Court? A Study of 622 Victim Participants at the International Criminal Court, UC Berkeley HRC, 12 (2015), available online, archived. ↩
Id. at 14. ↩
Id. at 52. ↩
Id. at 64. ↩
Id. at 35. ↩
Id. at 71. ↩
Id. at 68. ↩
Phuong Pham, Patrick Vinck, Eric Stover, Andrew Moss, Marieke Wierda & Richard Bailey, UC Berkeley HRC et al., When the War Ends: A Population-Based Survey on Attitudes about Peace, Justice, and Social Reconstruction in Northern Uganda (Dec. 2007), available online. ↩
Id. at 3. ↩
Blumenson, supra note 8, at 803. ↩
See Drumbl, supra note 19, at 577. ↩
Thabo Mbeki & Mahmood Mamdani, Courts Can’t End Civil Wars, N.Y. Times, Feb. 5, 2014, available online.
(“Central to the kind of justice dispensed at Nuremberg was the widely shared assumption that there would be no need for winners and losers (or perpetrators and victims) to live together in the aftermath of victory.”). ↩
Garkawe, supra note 5. For a comprehensive analysis of the Nuremberg Trials and the ways in which early international tribunals differed from more modern courts like the ICC, see Ann Tusa & John Tusa, The Nuremberg Trial (Skyhorse 2010), excerpts. ↩
See also Winston P. Nagan & Aitza M. Haddad, The Holocaust and Mass Atrocity: The Continuing Challenge for Decision, 21 Mich. St. Int’l L. Rev. 337 (2013), available online. ↩
Garkawe, supra note 5, at 348–50. ↩
Marko Attila Hoare, Genocide in Bosnia and the Failure of International Justice, Kingston University, Working Paper Series No. 8 (Apr. 2008), available online.
(At least one author has posited that this perception of bias or unfairness may be another result of lack of victim participation in the criminal trials. If this posited correlation is true, this is another reason for the ICC to involve victims more actively in the court’s proceedings. Failure to include serious considerations of victim perspectives and motivations could compromise the court’s long-term legacy). ↩
Mbeke & Mamdani, supra note 42. ↩
See Julian Borger, Bosnia’s Bitter, Flawed Peace Deal, 20 Years On, The Guardian, Nov. 10, 2015, available online; Mbeke & Mamdani, supra note 42. ↩
Alice Gatebuke, The Peace That Wasn’t: Rwanda 20 Years After the Genocide, Huff. Post, Apr. 21, 2014, available online. ↩
See generally Martha Minow, Forgiveness, Law, and Justice, 103 Cal. L. Rev. 1615 (2015), available online. ↩
Understanding the WTO: Settling Disputes, WTO, available online (last visited Dec. 16, 2016). ↩
See Machteld Boot-Matthijssen, The International Criminal Court and International Peace and Security, 11 Int’l Crim. L. Rev. 517 (Jan. 2003), ResearchGate paywall. ↩
See Pham et al., supra note 31, at 3. ↩
Minow, supra note 53, at 1631. See also Courtney Hillebrecht, The Deterrent Effects of the International Criminal Court: Evidence from Libya, 42:4 Int’l Interactions (forthcoming May 5, 2016), available online, archived. ↩
See Wickwire, supra note 1; ICC to Investigate Burundi Political Violence, supra note 1; Russia Pulls Out From International Criminal Court, supra note 3. ↩
See Jeremy Sarkin, Enhancing the Legitimacy, Status, and Role of the International Criminal Court Globally by Using Transitional Justice and Restorative Justice Strategies, 6 IJHRL 83 (Aug. 3, 2012), available online. ↩