Reflecting on the Legacy of the ICTY: The Past (24 Years) and the Future

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Last week at the ASP, a side event that I attended alongside other fellow delegates from the Canadian Partnership for International Justice (CPIJ), reflected on the International Criminal Tribunal for the Former Yugoslavia’s (ICTY) 24-year long fight to end impunity and hold accountable those most responsible for serious violations of international humanitarian law. The CPIJ delegates and I were also honoured to meet with former ICTY Judge, Mr. O-Gon Kwon, who was recently elected President of the ASP until 2019. Mr. O-Gon Kwon offered his expertise on a number of topics, including the ICTY. For instance, he was asked about the most important lesson the ICC could learn from the ICTY, in his experience as a judge. In his response, Mr. O-Gon Kwon highlighted the component of greater victim participation and protection as a significant improvement of the ICC as compared with the ICTY.

Reflecting on the legacy of the ICTY over the past 24 years is crucial. We must take the time to look at the past and quantify what seemed to work well, and, perhaps more importantly, what the Tribunal has been unable to address or has underdelivered on, in part, as a result of its ambitious mandate, budgetary factors and other logistics. By recognizing the limitations and/or constraints of the Tribunal, the international community will only then be in a better position to offer recommendations for future advancements in the field of international criminal law and justice.

The ICTY side-event featured five panelists: Migel de Serpa Soares (opening remarks); Stephen Mathias, Assistant Secretary-General for Legal Affairs; Judge Carmel Agius, ICTY President; Serge Brammertz ICTY/MICT Prosecutor and John Hocking, ICTY Registrar. Mr. Elbio Rosselli presented the closing remarks.

In his speech, Miguel de Serpa Soares distinguished two particular areas of the Tribunal that could be improved in order to increase the future effectiveness of international legal institutions. First, he underscored the financial realities of the Tribunal. Both the length of trials and the associated costs have raised questions about efficacy. Second, he listed the treatment and protection of victims as something that must be accounted for. The fact that it may be a victim’s first time being involved in a legal proceeding can be a very overwhelming experience. This must be considered throughout the justice process to ensure victim protection – especially protection from their offenders.

Serge Brammertz honed in on the Tribunal’s success by recognizing the institution for being an effective information gathering tool. Such information collected over the years has contributed to facilitating the truth and educating societies on the crimes that were committed as well as the brutal reality that transpired in the siege of Sarajevo and the Srebrenica genocide, for instance. Mr. Brammertz also highlighted the ICTY’s jurisprudence on command responsibility as something that will prove useful for current and future criminal justice institutions, since holding commanders responsible for their involvement in crimes can, in turn, increase the likelihood of fostering a deterrence effect.

The final two speakers, Mr. John Hocking and Mr. Elbio Rosselli, offered a very – perhaps overly –  positive assessment of the ICTY. For instance, Mr. Hocking stated that the ICTY treated every person with humanity and dignity and, further, claimed that “when we respect human rights and when we respect human dignity, it is there that we advance the protection of human rights for all”. Consequently, he expressed his opinion that the ICTY’s success was in prosecuting, with due process, those considered most responsible for the crimes committed in Former Yugoslavia and, further went on to say that, thanks to its contribution, “criminal justice is not anymore a question of ‘if’ but a question of ‘when and how’.” In a similar vein, Mr. Rosselli indicated that the decision to create the Tribunal demonstrated profound commitment to ensuring that egregious violations of international law do not go unpunished.

The voices missing from the panel included those of victims and civil society actors on the ground in Bosnia-Herzegovina. They would have provided a more objective and holistic analysis of the work of the ICTY.

To date, the ICTY has indicted 161 individuals. To some, especially those directly involved in the investigation and prosecution phases and the inner workings of the Tribunal, this number may be hailed as a success. While it is no question that the ICTY has made important advancements in the field of international criminal law, it is, however, also essential to consider the legacy of the ICTY within the countries of the Former Yugoslavia, and for the victims and survivors. Domestic hostility towards holding war criminals to account is still very much a reality in Bosnia-Herzegovina, Serbia and Croatia. Given this, though, has the fact that the ICTY has not been able to counter such domestic hostility dampened the Tribunal’s legitimacy? These types of considerations should continue to guide our discussions on future reflections on the ICTY.

o-gon kwonMr. O-Gon Kwon with the 2017 Canadian Partnership Delegates

This blog post and Nicole Tuczynski’s attendance at the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.

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The ICC in the Context of Libya: Principle of Complementarity, Al-Senussi and Deterrence

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One of the interesting side events that took place today, on day three of the ASP, included a panel discussion around the importance of the International Criminal Court’s (ICC) role in the pursuit of deterrence. Additionally, the concept of complementarity, specifically pertaining to the case of Abdullah Al-Senussi and the context of Libya, was of focus. Of the four panelist participants, each offered a very unique perspective and contributed a multitude of viewpoints, which provided for a very enriched and wholesome conversation. Some points, however, were at odds with one another. Therefore, the purpose of this blog is to elaborate on each of the panelist’s contributions to the areas of complementary, the role of the ICC as a tool for deterrence and the Al-Senussi case, in the order in which they were presented.

The Deputy Prosecutor of the ICC, James Stewart, first spoke about the Court’s challenge in the Libyan situation. He recognized that, from the beginning, the Court lacked the very resources it needed. Given this, the ICC quickly realized that it had to take immediate action to develop a closer relationship with Libyan prosecution authorities and, further, to grow its partnership with external actors, such as Italy, the United Kingdom and the Mediterranean Naval Force. In response to this, the Office of the Prosecutor of the ICC produced a Strategic Plan. Mr. Stewart particularly highlighted the relevance of Strategic Goal 9 in the document, whereby states have an interest to assist the workings of the Court for the reason that, in turn, they are able to retrieve information from the ICC about particular cases. Likewise, the ICC has a positive interest to work closely with these partners to develop a coordinated investigative and prosecutorial strategy to close the impunity gap. In a very general sense, Mr. Stewart made sure to stress the reality of the Court. Due to time constraints and the fact that the ICC cannot deal with a high volume of cases, when it comes to the principle of complementarity, the Court must immediately look to see whether there are general proceedings being undertaken at the domestic or local level. If this indeed happens to be the case, then the work of the ICC must stop there.

Second to speak on the panel was Jennifer Trahan, Associate Clinical Professor at New York University. Ms. Trahan narrowed her discussion by emphasizing her concerns with the principle of complementarity in the Rome Statute, particularly by way of utilizing the case of Al-Senussi. The case of Al-Senussi was ruled inadmissible under the jurisdiction of ICC, given that Libyan authorities had undertaken investigations within their own national capabilities. However, Ms. Trahan noted her reservations about domestic capacities to implement robust complementarity. In the context of Libya, Ms. Trahan declared that the Al-Senussi ruling was particularly troubling given that Libya is a country that retains the death penalty, and so inadmissibility is more concerning in this type of circumstance. She further made mention of the fact that national proceedings (as in the example of Libya’s response to the Al-Senussi case) would have to be completely lacking in fairness – wherein which they would provide no justice – before they could be considered admissible under the arm of the ICC. Finally, her conclusions hinted at the fact that the domestic Al-Senussi trial was so flawed that, in theory, the Office of the Prosecutor could re-open the case in the future.

The third panelist, Fleur Ravensbergen, Assistant Director Dialogue Advisory Group, spoke about her work in directly communicating with perpetrators, bringing forward a very unique angle to the panel, but also a very controversial one. Ms. Ravensbergen began her presentation by alluding to the two overarching goals of the Dialogue Advisory Group, the first being to separate the sin from the sinner and the second relating to distinguishing between methods and goals. On the former point, Ms. Ravensbergen clarified that the goal is to speak with people on the extreme side of armed groups and, while indeed recognizing that their actions were unacceptable, to adopt a more positivist approach in accepting that these armed groups can change their behaviours. On the latter point, Ms. Ravensbergen highlighted that if we, as a society, want to move away from violence, we need to talk to the very people who are creating violence. By doing so, we are then better able to inform perpetrators that, though they may hold extreme ideas, they do not need to channel them through violence. Finally, Ms. Ravensbergen revealed her fairly positive outlook of the ICC by noting that perpetrators are paying attention to the ICC and its work, as they do not wish to appear on the ICC’s docket. This fact can influence the behaviour of perpetrators.

Last, the audience heard from Elham Saudi, Director for Lawyers for Justice in Libya. In her passionate talk, Ms. Saudi pressed the Deputy Prosecutor of the ICC to do more in the situation in Libya. She recommended that the ICC take on a greater role in the area of outreach to repair and restore the relationship between the Court and the people on the ground in Libya. Ms. Saudi’s main point was that, while the Court was highly regarded in Libya in 2011 (when the first three arrest warrants were issued by the Court), the ICC has since lost its appeal to Libyans. Consequently, on the ground, civil society has felt as if they were “used” by the ICC in the initial stages of the Court’s intervention.

In conclusion, this panel has alluded to some of the persisting challenges that remain in the case of Libya and the workings of the ICC, shed light on some of the potential areas for future improvement (such as the application of the principle of complementarity) and, finally, emphasized the need for continued conversations and dialogue with external civil society actors and organizations on the discussed areas.

This blog post and Nicole Tuczynski’s attendance at the 16th Assembly of States Parties in the framework of the Canadian Partnership for International Justice was supported by the Social Sciences and Humanities Research Council of Canada.