Better co-ordination between international and domestic courts could improve response to mass atrocities

The EU and the international community have made a large financial investment towards the establishment and operation of major international criminal tribunals which aim to prevent perpetrators of mass atrocities from escaping prosecution, and improve the enforcement of international law. But the contribution of these tribunals has been disappointing, and has covered only a limited number of mass atrocity situations. The number of international prosecutions has been small, dealing with only a fraction of the number of individuals suspected of perpetrating international crimes, with a large number of those accused by the International Criminal Court (ICC) still at large.

Against this backdrop of the shortcomings of existing international judicial institutions, the DOMAC research project has sought to develop a more comprehensive approach to international criminal law. This would view national, regional and international courts as complementary parts of a single machinery of justice that would operate in a coordinated manner. This approach may encourage a more rational allocation of material and political resources among different criminal courts and the restructuring of international institutions in ways more conducive to the promotion of criminal justice at other levels.

DOMAC aimed to find out if the structure and funding of the international criminal justice system maximised impact and improved the likelihood of an effective domestic response to mass atrocities. It considered a wide range of situations of armed conflict or occupation, including the Balkans, East Timor, Rwanda, Congo, Sudan, Northern Ireland and Colombia.

Based on the findings, DOMAC proposes the formation of formal or semi-formal links between national and international courts, closer alignment of procedures and work methods, the generation of incentives for national courts to prosecute, reallocation of resources, sharing of staff, and the lending of support by international courts to the operation of national courts.

The six inter-related work packages into which the programme was divided covered:

  • The normative impact of international criminal courts on domestic jurisdictions. The normative influence of the International Criminal Court (ICC) on domestic jurisdictions is structurally embedded in the principle of ‘complementarity’. This principle stipulates that national courts should have priority with regard to prosecution and trial of international crimes. Only if national jurisdictions fail to perform their task properly is the ICC called to intervene. The ad hoc tribunals which were initially established to exercise primary jurisdiction, such as the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), have also gradually expanded their normative influence over those domestic jurisdictions.
  • A quantitative analysis of data on the outcomes of trials on mass atrocities in seven countries.
  • Mapping formal and informal capacity-related and outreach initiatives operated by international criminal tribunals, and identifying their impacts such as employment and training of local staff and lawyers.
  • A study of the interplay between national and international courts in specific mass atrocity situations, to understand the dynamics that might improve synchronisation or which lead to competition between them, and to explore problems caused by lack of co-ordination.
  • An investigation of the role of the ECHR in encouraging domestic legal systems of state parties to the European Convention on Human Rights, to prosecute serious violations committed in the context of armed conflicts, military occupation or situations of prolonged internal unrest as a result of terrorist activities. It also studied the jurisdiction of the International Court of Justice in relation to gross violations of human rights, its impact on national prosecutions, and the inter-relations between cases at the ICJ and parallel cases at international criminal tribunals.
  • The issue of reparations to victims of mass atrocities.

Among its main conclusions, DOMAC found that both domestic courts and international tribunals are increasingly taking note of and referring to each other’s findings. The workload in national courts in Serbia, Bosnia and Herzegovina (BiH) and Kosovo has increased since the end of the Balkan conflict, coinciding with domestic reforms and the completion strategy of the International Criminal Tribunal for the former Yugoslavia (ICTY). However, the average length of sentences for serious crimes in East Timor, at 7-10 years, suggests some leniency in the domestic criminal process, and the finding that in Colombia, government forces and troops who are convicted have a greater success on appeal than rebel forces convicted of the same offences, suggests certain biases against opposition forces. As regards local capacity building, DOMAC found evidence of significant deficits in long-term planning, coherence and co-ordination of activities, resulting in inefficiency, lack of impact and lack of sustainability of promising capacity development initiatives.

DOMAC found that international courts can and do have an impact on national criminal proceedings, but co-operation until now has been sub-optimal. Regarding reparations, victims tended to look for two outcomes – accountability, with perpetrators taking responsibility for their actions; and returning to one’s former life, which took precedence over monetary compensation.

To enhance the role of the European Court of Human Rights and Council of Europe institutions DOMAC recommended:

  • A more robust approach to ‘just satisfaction’ under article 41 of the European Convention on Human Rights, by indicating the specific remedial measure to be adopted by a respondent state.
  • The adoption and expansion of pilot judgments1 should be considered as a means to improving compliance, particularly in situations which involve large numbers of similar violations and where there is no great dispute over the facts.
  • The Committee of Ministers should ensure effective use of new enforcement mechanisms envisaged under Protocol 14, for example referring instances of failure to comply with final judgments back to the Court.
  • In cases of persistent non-compliance, the Committee of Ministers should consider suspension or withdrawal of membership of non-complying states under article 8 of the State of Council of Europe.
  • Member States should make more use of the inter-state complaint procedure under article 33 of the European Convention on Human Rights – risks of politicisation could be avoided by bringing cases jointly by coalitions of states.

Regarding international courts, DOMAC recommends:

  • Reducing the number of cases referred to them, and channelling funds to capacity development at the local level.
  • Integrating an exit strategy or legacy component into the design and structure of international courts.
  • A more coherent and sustainable strategy of local capacity development. For example, undertaking needs assessments before offering input, and opting for long-term co-operative solutions, such as the transfer of information protocols, and internship programmes.

At the national level, courts should:

  • Strengthen their ownership of post-mass atrocity criminal prosecution processes, and regard international courts as a source of expertise and assistance rather than legal threat. National courts should formulate more clearly their expectations from international courts, contributing to more balanced rapport between the two sets of institutions.
  • NGOs should refocus their expectations and efforts in the field of capacity development, resource allocation and campaigning, to produce a better synergy between national and international criminal prosecution processes in the aftermath of mass atrocity situations.

All publications are available to download on the DOMAC website – see: http://www.domac.is/reports/

 

1 See: http://www.echr.coe.int/NR/rdonlyres/DF4E8456-77B3-4E67-8944-B908143A7E2C/0/
Information_Note_on_the_PJP_for_Website.pdf

DOMAC - Impact of international criminal procedures on domestic criminal procedures in mass atrocity cases (duration: 1/2/2008 – 31/1/2011). FP7 Socio-economic Sciences and Humanities, Activity 4 “Europe and the world”, Research area 4.2 “Conflicts, peace and human rights”. Collaborative project (small and medium scale focused research project).

See: http://www.domac.is

Contact: Thordis Ingadottir, thi@ru.is