Institute for Justice and Democracy in Haiti

Beyond Complementarity (cont’d)

Beyond Complementarity (cont’d)

II. The Impact of the ICC on National Prosecutions

No matter how well the ICC performs its tasks, national prosecutions will always be essential to the fight against impunity. The ICC Statute’s complementarity provisions recognize the importance of national trials, in both its complementarity rule and its provisions allowing the court to help local judiciaries.1 Yet because of its unique international profile and mandate, the Court can and should go farther. It should actively assist local judiciaries trying to prosecute human rights cases, and this assistance should be systematic and central to the Court’s work. This section will discuss why national prosecutions are essential, and analyze ways the ICC can maximize its support for these efforts.

A. The Importance of National Prosecutions

National prosecutions are important to international prosecutions because international courts can only prosecute a small fraction of the large-scale human rights violations that occur. They are also important from the perspective of the prosecuting country because victims generally prefer a good local prosecution to a good international one.2 National prosecutions are a valuable opportunity both to force the local justice system to perform better and to build public confidence in that system.

The ICC’s ability to take cases is limited by its own mandate, by the limits of its resources, and by political constraints on its jurisdiction. As a result, the Court will likely take only the most serious cases with significant symbolic value and those that generate sufficient political consensus. The Court’s mandate limits it to “the most serious crimes of concern to the international community as a whole.”3 This means that, quantitatively4 and qualitatively, the ICC will be reserved for high-level leaders or notorious episodes.5 Most violations will not justify engaging the ICC process, and even where the ICC conducts an investigation into an episode, it will be unable to pursue most of the potential defendants. The ICC will be useful in prominent cases because it will have a high political profile, large logistical capability, well-paid international staff, and the capacity for complex litigation. These factors also make it too cumbersome and expensive for the ICC to pursue minor incidents or low-level soldiers or paramilitaries.6

The ICC will not be able to reach some cases for political reasons, because of the possibility of a negotiated settlement,7 or because either the host state or an influential state party opposes it.8 The ICC Statute allows for delays in or removal of jurisdiction where the territorial state is prosecuting or has prosecuted,9 or at the behest of the Security Council.10 Although the jurisdictional limits can be used positively to encourage national prosecutions or resolve an ongoing conflict, both types of limits can also be abused to frustrate an important ICC prosecution. The Court is likely to refrain from acting in many cases because of the difficulties in making arrests or building adequate cases.

If local conditions permit a high-quality prosecution, national prosecutions are preferable from the standpoint of victims and local justice systems.11 A good local prosecution would have most of the advantages of a good ICC trial while at the same time generating national support for the justice system. It would also encourage the local judiciary to raise its standards of performance and be more responsive to the concerns of those traditionally excluded from the system. These benefits will not only advance the ICC’s objectives with respect to major human rights violations, they will also directly advance the related causes of human rights, administration of justice, and democracy reinforcement.

Furthermore, victims generally prefer a local prosecution to aninternational one.12 Although victims in Haiti are understandably skeptical about whether their system can provide an acceptable trial, they are also wary of a trial held outside the country, where the rules may be different. In a local trial, the victims would better understand the proceedings, and could exercise some leverage over the government and the judiciary. They could hear the verdict with their own ears, and be more certain that those convicted were incarcerated.13

Victims are also wary of an international tribunal applying different rules.14 For example, in Haiti there is an automatic jury for the most serious felonies, including murder, which ensures that the fact finders represent the victims to some extent, and understand the context of the crimes. Victims would not like to turn this job over to less accountable foreign judges. Victims are also concerned about the punishment given in an international trial. They fear that incarceration in the industrialized world may be better than freedom in their neighborhoods.15 Although it is not so with Haiti (which has abolished the death penalty), some victims criticize the International Tribunal’s inability to impose execution.16

Psychological benefits to the victims would be greater with a successful national trial. Victims of massive human rights violations are usually the leastpowerful in their own countries, and their countries are themselves often among the least powerful globally. Their victimization is only part of a larger context of disempowerment. As a result, any remedy to the victim’s problems must, as much as possible, empower them by involving them in all aspects. This includes decisions such as choosing whom to arrest and prosecute, what information to use, and trial strategy. Involving the victims would be much easier to do with a national prosecution: more victims could testify and therefore have the opportunity to tell their stories in public. More people could see the trial, either in person or on live television, and it would be in a more familiar format. Most importantly, asuccessfulnational trial would be evidence of a structural change in the society, usually the type of change that the repression was implemented to stop in the first place. In many countries the formerly oppressed would be punishing their former oppressors for the first time, through the medium of a justice system that was traditionally itself an instrument of oppression.

National prosecutions also afford the local judiciary opportunities to improve its performance and, if it is successful, to build public confidence in the system. The Raboteau case in Haiti, for example, acts as both a carrot and a stick: the case’s notoriety allows the judiciary to obtain resources and assistance that it cannot attract to other cases, and the spotlight forces those involved to perform at a much higher level. The resulting product of the system has, so far, been superior to that from cases in the past,17 and will set a higher standard for performance. The progress to date has increased faith in the justice system in those close to the case, especially the victims. If the trial is ultimately successful, confidence will rise nationwide, as will expectations for the judiciary to build on its success.

The ICC has enormous potential to help these essential national prosecutions. As discussed below, the Statute allows the Court to help in many ways, but does not require it to do so. Absent a conscious effort to integrate assistance to local judiciaries into the ICC’s programs, this potential could be lost in the day-to-day press of work on high profile cases. The fact that assistance to national prosecutions has not played a large role in the debates surrounding the Court thus far implies that such assistance is not a high priority. Accordingly, the Court should, in its planning and operational stages, systematically institutionalize assistance to local judiciaries into its programs. By going beyond passive complementarity, the Court could leverage its efforts, thereby multiplying its own effect on providing justice for the victims of human rights violations.

B. Helping National Judiciaries Overcome Obstacles to Prosecution

1. Supporting Better National Justice Systems

The ICC could most effectively aid national judiciaries with human rights cases by hiring and training staff from countries that need the most help, and by providing jurisprudence. In both cases, however, the potential advantages also carry the potential risk that international prosecutions will be privileged at the expense of national prosecutions, and that the gap between the two will widen. The Court should take measures to mitigate this possible harm.

The ICC should, as part of its recruitment, target lawyers and judges from countries likely to have trials for crimes within the ICC mandate. The technical training and exposure to higher standards would make Court alumni able to assist with human rights trials in their native countries when the opportunity arose. The philosophical connection with an international network (with the possibility of future work abroad if the political situation required) would make the alumni more willing to take an active role in trials in their native countries. The ICC could foster this through a program of hiring investigators, prosecutors, and other staff from countries that are either already experiencing large scale violations of human rights or are likely to do so because of ethnic conflicts, a history of authoritarian rule, or other factors. For example, the Rwanda tribunal could have recruited Haitian lawyers or could now be recruiting lawyers from Sierra Leone, Congo, or other states likely to need the services of jurists trained in human rights trials. These lawyers could work on ICC cases and, when appropriate, return to their home countries to prosecute national cases. In the short term, the training would strengthen the national judiciary’s ability to prosecute (by providing trained, experienced personnel), and increase public confidence in national cases prepared by alumni who would carry the prestige of the ICC. In the long term, lawyers cycling out of the ICC could form a beachhead in the fight to make their respective national judiciaries more responsive to victims and more respectful of the law.

Recruiting lawyers from countries like Haiti would benefit the ICC directly, as well as promote its general goals. An individual from a country with a similar history, legal tradition, or infrastructure as the target country would have perspectives and abilities lacking in investigators with less shared experience. He or she would have an immediate advantage in surmounting cultural barriers, which would lead to better collection of information, and more accurate evaluation of testimony and other evidence. An interviewer with a shared culture would make victims feel more comfortable, and usually more free with their information.18

The ICC Statute permits the recruitment of lawyers likely to carry out national prosecutions down the road, but does not require or otherwise encourage a systematic program.19 Article 44 of the ICC Statute allows the Court to recruit investigators and other staff,20 and Article 36 encourages an equitable geographic representation in hiring.21 Yet a general recruitment, even enhanced by geographic equity, would not alone ensure that these positions go to the states that most need trained human rights lawyers. The most needy states are the least likely to have lawyers of “the highest standards of efficiency [and] competency” come to the attention of the prosecutor or registrar.22 To have a noticeable impact on the weakest national judiciaries, and to ensure a mix of perspectives beyond geographic, such as economic and cultural, the ICC must put in place a systematic plan for recruiting and hiring with a view to reinforcing the most needy national judiciaries.

The benefits of ICC recruitment in countries needing its help could be offset by “brain drain,” or the perception that there are two justices, with the international kind better financed, more prestigious and more effective. Therefore, ICC policies should be designed as much as possible to narrow the gap between the two “systems of justice.” Staff should be encouraged to return to their home countries and apply the lessons learned at the Court.23 The Court could make special leave provisions for work on selected national prosecutions, and even subsidize its staff members who return to work in national judiciaries.

The ICC will probably have little positive impact on local infrastructures or judicial salaries, since building courthouses, providing file cabinets, and paying salaries is well outside its mandate. Of course, to the extent that the ICC assists the national judiciary by sharing information on its investigations or prosecutions, it would relieve financial pressure in a particular case.24 Conversely, the ICC may have a negative impact on salaries and infrastructure. It may reduce foreign assistance to the national judiciary, either because donors feel that the ICC has fulfilled the need for justice, or simply because scarce resources diverted to the ICC cannot go elsewhere.25 By its mere existence, the ICC will have some positive impact on judicial training, as its decisions can serve as models for formal or informal judicial training.26

The ICC will likely have little direct effect on law reform or procedural reform, as these issues are beyond its mandate. To the extent it moves toward guaranteeing “lasting respect for the enforcement of international justice,”27 it might encourage countries to ratify useful international instruments. Its mandate would not allow it to directly attack the problem of resistance within the society to the prosecutions. However, it may do so indirectly, by the threat of an international prosecution.28

The ICC’s jurisprudence will likely help the national prosecutions in two ways: by providing precedents to national courts and by providing forms or templates to prosecutors. The ICC will likely settle many questions of law that it has in common with national courts. Although such resolutions would not be binding, they would be a useful guide. The law the Court applies, after its own Statute and rules, comes from both treaties and principles of international law, and general principles of law derived from national legal systems.29 The Court’s analyses pursuant to these authorities would be especially useful in countries without significant jurisprudence relevant to human rights cases.

In Haiti, for example, the judiciary has little experience with human rights cases or complex litigation. Consequently, the judiciary has little precedent on issues likely to arise in human rights cases, such as the legal responsibilities of subordinates and superior officers, accomplice or accessory liability, and definitions of terms like war crimes and crimes against humanity. ICC decisions would suggest a way to analyze these issues and a potential substantive result. In a similar manner, ICC decisions and pleadings submitted by parties would be useful as templates or references for prosecutors30 and lawyers in drafting complaints, or briefing important issues of law. As both jurisprudence and forms, the ICC pleadings and decisions would set a high standard for quality, which would encourage national actors to improve the quality of their work.

The limit to the usefulness of ICC materials will be the extent to which they are easily available in the non-industrialized countries. The Court’s judgments and “other decisions resolving fundamental issues” are to be published in Arabic, Chinese, English, French, Russian, and Spanish, the Court’s official languages.31 Although most judges and prosecutors speak one of these languages, it might be difficult for them to access the decisions. While a website could reach much of the world, the areas where it does not reach might be where the material would be the most useful. Accordingly, the ICC should have a program to systematically make available its decisions in developing countries via an appropriate technology.

ICC jurisprudence could also have a negative effect on national prosecutions by creating two standards of justice, one international and the other national. This could lead to a perception by national judiciaries or donor countries that national judiciaries simply cannot provide adequate justice. With Rwanda, for example, the International Tribunal receives frequent, usually positive attention in the international press, while the local prosecutions receive mostly negative attention, such as when they execute someone. Local authorities have often complained that the International Tribunal does not share its information with them, does not profit sufficiently from local expertise and information,32 or trumps local authority on extradition.33

The perception of a largegap between national and international tribunals could discourage local authorities from even trying to initiate human rights cases and donor countries from helping them try. The ICC would help close this gap any time it helps a local judiciary increase its capability. This could also ensure that cooperation goes both ways; besides providing help, it could make sure that the Court receives any help that local authorities can provide. Finally, the ICC should coordinate as much as possible with local authorities, keeping them fully informed about the Court’s activities and jurisprudence.

2. Prioritization of Justice

Prioritization of justice among competing claims on a government is a political issue. The ICC’s likely impact on the question is complex and will differ with varying situations. The problem is especially complicated for outside actors trying to influence the priorities without understanding the broader context. Although it might be easy to say that Serbia or Myanmar should spend less on weapons and more on justice, it is not as simple to ask Haiti to pay teachers less so that judges can make more. In transitional countries it is often not just a matter of allocating money, but of allocating the time and energy of the limited group with the management capacity and power to implement the initiative.

The way in which the ICC could most help a national government move justice up on the list of priorities is by providing technical assistance to make the prosecutions as easy as possible. One reason that justice for human rights violators may be pushed down the list is the fear of failure. For a transitional government trying to consolidate democracy, especially one having mixed success, prominent human rights trials pose significant political, social, and security risks. If the trial is not successful, the government loses credibility and confidence in the justice system is further eroded, thus creating another flash point for criticism.34 Even if it is successful, it may require the diversion of too many resources from elsewhere.

To the extent that human rights prosecutions can be made less expensive and more achievable, they will be raised higher on the list of government priorities. By training national lawyers and officials, providing exemplary jurisprudence, and assisting the domestic effort with the collection, analysis, and preservation of evidence, the ICC would make national prosecutions more attractive to national decision makers, increasing the chances of having resources allocated in that direction.

The ICC’s most immediate political impact, of which it is both a cause and an effect, would be that justice for human rights violations is taken more seriously worldwide.35 This trend will give inspiration to advocates for prosecution and ammunition in the internal skirmishes over political priorities. It may also help make promotion of trials a foreign policy goal of donor nations.

3. Resistance to Prosecutions Within Society

The ICC would be effective in pushing reluctant states to prosecute, especially where there is a threat of the Court taking jurisdiction. The possibility of an ICC trial would encourage national prosecution, either out of pride, the fear of appearing unable or unwilling to enforce the law, nationalism, or a desire to keep one’s nationals from international jurisdiction.36 Looming ICC jurisdiction could push reluctant governments to prosecute, as well as provide support for governments sympathetic to prosecution against their internal opposition.

The ICC’s utility as a stick to encourage national prosecutions is limited, however, by the territorial state’s ability to keep the Court at bay. The easiest way to do this is through Article 17 of the Statute, which makes a case inadmissible if a state is investigating or prosecuting it, has decided not to prosecute, or has already prosecuted.37 Under Article 18, a state can defer an ICC investigation on the grounds that it is conducting its own investigation.38

The ICC Statute does allow for a case to be declared admissible if the territorial state is not willing or able to prosecute, but in practice this language will be very difficult to apply. To determine “unwillingness,” the Court must consider: a) whether the state was acting to shield the accused from responsibility, b) whether there has been a delay “inconsistent with an intent to bring the person concerned to justice,” and c) whether the state proceedings were independent and impartial.39 To determine “inability,” the Court must look for a “total or substantial collapse or unavailability” of the national system.40

These standards are sufficiently vague to allow a country acting in bad faith to go through the motions of a prosecution and either postpone it indefinitely or arrange an acquittal. The prosecution of the 1993 assassination of Haitian Minister of Justice Guy Malary provides an example of how a weak prosecutor could defeat the goals of the ICC. In the Malary case,the government actually tried to obtain a conviction, but blundered along the way. Although some individual actions appeared inconsistent with a desire or ability to prosecute, and the trial as a whole was a fiasco, finding either unwillingness or inability would have been very difficult under the Statute’s standards. A country acting in bad faith could engineer an outcome like the one in the Malary case quite easily.

From Malary’s assassination under the dictatorship until the restoration of democracy a year later, the “unwillingness genuinely to prosecute” was beyond question. In 1995, however, arrests were made in the case, and in 1996 two suspects were tried.41 The trial itself was a comprehensive exposition of the legal system’s shortcomings, as it was poorly investigated, prepared, and presented.42 Even the selection of the jury, which acquitted the defendants, was procedurally and substantively flawed.43

Despite these problems, there was clearly not an “unwillingness to prosecute” in the traditional sense—the government brought the case to trial and presented the inculpatory evidence that was at hand to a jury. There was no desire to protect the accused—in fact, despite an acquittal, both suspects spent three years in prison before being released for lack of evidence of any other crimes. There was not a “collapse or unavailability of the judicial system” in the classic sense, in that the government was able to arrest two prominent suspects and bring them to a public trial where the jury was able to make an unpopular decision to acquit. The mere passage of time, over seven years, could not make the case admissible under the ICC rules, since only a delay “which in the circumstances is inconsistent with an intent” to prosecute allows a finding of unwillingness.44

It would seem difficult under these circumstances for the ICC to make a finding of unwillingness and even more difficult to expose the acquitted defendants to double jeopardy by declaring the trial an intentional shield and inconsistent with an intent to prosecute.45 Yet the fact remains that seven years after the political assassination of the Minister of Justice, there has been no conviction and no preparation for a subsequent trial. This ambiguous situation was created by a government making some, if not its best, effort to investigate and prosecute a hard case.46 In any legal system, the potential for delays is large regardless of the prosecutor’s good faith. In developing or transitional states, justice and other governmental systems break down and tasks fall through the cracks between different actors. It is, in many cases, impossible to draw the line between legitimate difficulties and a lack of will, or attribute poor individual performances to the whole system.

A government wanting neither a legitimate national trial nor ICC jurisdiction could intentionally create the same ambiguity. It could send investigators out and have them return without sufficient evidence because witnesses are hard to find or afraid. Procedural irregularities could be planted and defendants could be freed on technicalities. Witnesses could recant.47 A good faith prosecutor could be overmatched at trial. Selection of the jury pool, and of the jury itself, could be easily manipulated. If done well, such a strategy would make it impossible for the Court to declare the state unwilling or unable to prosecute.48

If a sham investigation or prosecution does not deter the ICC prosecutor, a territorial state could try to convince the ICC that the case is not of sufficient gravity,49 challenge a prosecutor’s refusal to defer to the investigation,50 and appeal the Pre-trial Chamber’s rejection of this challenge.51 It could also convince the prosecutor that “an investigation would not serve the interests of justice” because of the age or infirmity of the accused, among other things.52

A prosecution could also be delayed or prevented by pressure from either the target state or one of its allies. A state could apply financial pressure by declining to pay its assessed contributions to the ICC. It could reward or punish specific prosecutors or prosecutions by withholding or making voluntary contributions.53 States could use their cooperation, provision of expertise, evidence, or materials as leverage on specific cases or with the Court as a whole. Judges are nominated by states and elected by the States Parties,54 as is the Prosecutor,55 and many may look forward to future employment with their national governments.56 Prosecutors can be removed by a simple majority vote of the States Parties.57 States can apply pressure through the Security Council to defer the investigation for a twelve month renewable period.58 If none of these strategies worked, a target state could subsequently make it very difficult for the prosecutor to conduct an investigation on its soil and encourage allied nations to do the same. Thus, a reluctant state party could delay a proceeding while the support for it erodes, or even prevent a proceeding altogether.

There is also the risk that a potential ICC proceeding could serve to discourage national prosecutions by decreasing the pressure on the state to prosecute. This would happen where there is public pressure for justice that the state, despite its efforts, has difficulty satisfying. The prospect of an ICC prosecution could relieve national and international pressure on the government by redirecting attention to the Court. If the ICC prosecutes, the conviction of prominent defendants might decrease the pressure on the local judiciary to pursue the remaining defendants. The state may then be tempted to say that “justice has been done.”59 An acquittal by the ICC, given the image and capabilities of the Tribunal, would likely discourage future national efforts.60

4. Collection, Analysis, and Preservation of Evidence

The ICC could complement a national judiciary by assisting with the collection, analysis, and preservation of evidence. For example, the ICC could pass information gathered through its prosecution of the most prominent defendants on to the national judiciary for the trials of subordinates. In addition, the prosecutor could, after an investigation, decide that the national judiciary would be the better forum for prosecution, transfer the file, and defer to the local court. Where there are common issues of fact, the ICC could also share information about a prosecution involving one country with a second country.61 To maximize the potential of this assistance, the ICC should institutionalize a systematic program for sharing evidence with national courts.

The assistance that the ICC provides in practice, however, will ultimately depend on both the amount of evidence the ICC is able to accumulate and its willingness to share. The ICC would be most effective in providing scientific and technical assistance, collecting information from third parties, and obtaining information from victims, witnesses, and defendants outside of the national court’s jurisdiction. The Statute allows the Court to provide information to a state that is investigating a crime in the ICC’s jurisdiction or other serious crime (for example, crimes committed before the ICC came into being, or crimes where there was no nexus with an ICC member). The assistance can include providing evidence from the Court’s investigation or trial and allowing the questioning of detainees.62

Although the ICC Statute does not expressly provide for it, the Court will have access to a high level of scientific and technical expertise.63 The ICC could lend this technical assistance to corroborate eyewitness testimony, including forensic anthropology evidence,64 medical examinations of victims, statistical analysis,65 and ballistics evidence where still available. Where the ICC is investigating ongoing violations, especially with refugees, it could arrange for almost contemporaneous medical examinations of victims. The ICC could also develop a program of collecting and preserving evidence in ongoing situations, including victim and witness testimony, photographs, and clothing.

Much of this type of information would be collected outside the prosecuting state’s borders.66 The national judiciary may not have the same access to such information if, for example, the transitional government was not effectively in power at the time. Indeed, this was the case with the constitutional government of Haiti during the dictatorship. The transitional state may also have goodrelations with the country of refuge, or the prosecutors may not have the resources for international travel. Although the ICC’s disclosure of such information may be limited by witness confidentiality concerns or tactical decisions to keep the information secret as long as possible, in the case where the territorial state is conducting prosecutions, those concerns are slight.67

In many cases, the amount of useful information that the Court could collect on its own is dwarfed by the information available from third party states. Haiti is a good example of this: the repression took place before journalists, foreign governments, and international human rights missions—just about everyone but the constitutional government. Information could be collected in such a case from witness interviews, intelligence reports, intercepted communications, and satellite and other photographs. Information produced by others but seized by the third party state could also be collected by the Court. Obtaining this information would depend largely on the amount of political leverage the ICC possesses and is willing to exercise. The ICC Statute allows the Court to request documents and other cooperation for mutual legal assistance from state parties or intergovernmental organizations.68 The ICC, however, has no way of enforcing this order against an uncooperative state.69 Even if it possesses evidence provided by a state, it cannot turn it over to a national prosecution without the source state’s consent.70

History shows that third state cooperation cannot be assumed. The commission of experts for Yugoslavia received substantial cooperation from some quarters, but disappointingly little in others.71 Information furnished to the International Criminal Tribunal for the Former Yugoslavia (ICTY) has varied widely according to the donor states’ political objectives.72 Although the United States sent 20,000 troops to stop human rights violations in Haiti,73 and is spending millions on Haiti’s justice system, it has been much less generous in providing information important to the human rights trials.74 Experience in analogous situations shows that political pressure can sometimes bear fruit.75 The ICC should use its unique visibility and moral clout to obtain as much information as possible from reluctant states.

Several factors mitigate the ICC’s ability to obtain cooperation. The first is that, especially in its formative years, the ICC may be unwilling to risk alienating potential or actual states parties to the treaty or it may be wary of scaring off prospective parties. Second, a requested state may invoke a national security exception to disclosure.76 The ICC Statute does force the state to justify the invocation of this exception and allows the ICC to make an independent judgment as to the exception’s applicability.77 In the end, however, the enforcement of this judgment on a reluctant state is a political matter for either the Security Council or the Assembly of States Parties.78 Even if a state did provide information to the ICC, a confidentiality restriction may prevent it from being passed on to the national prosecution.79

A national investigation could also help the ICC, as the strengths and weaknesses of the two would be complementary.80 Although the ICC will likely have relatively strong scientific, technical, and administrative expertise, it will almost certainly be short on local knowledge, including informer networks and cultural information important to evaluate both witness credibility and defendant responses to interrogation. Collaboration with the local investigation will therefore be mutually beneficial.

The ICC Statute allows broad sharing of evidence between the Court and national judiciaries.81 What it does not do is institutionalize programs that ensure that such assistance will be an integral part of the Court’s work. Without such programs, it is possible that assistance to the states that need it the most, the poorer or more fragile countries, will be overlooked in the day-to-day pressure of the ICC’s caseload. A request for information delivered by a wealthy state with frequent contact with the Court, influence over its finances, and access to the international media would receive prompt attention under the Statute. Absent a systemic program for processing the requests, an inquiry from a prosecutor mailed from a small, poor country far from the Hague might end up permanently at the bottom of someone’s to-do box.

5. Arrests

The ICC could best help national prosecutions with arrests by providing information to justify warrants, and information that would help to identify and locate suspects. Although under certain provisions a person arrested pursuant to a Court warrant could be transferred for a national prosecution, these provisions are extremely limited.82 As with evidentiary assistance, the ICC’s help in apprehending individuals is technically possible, but ultimately will depend on the political will of other states to help it and its own willingness to share the information.

The ICC has broad powers to issue arrest warrants on the application of the prosecutor to the pre-trial chamber.83 A warrant may be issued for any of several reasons, including the existence of reasonable grounds to believe the person has committed a crime within the ICC’s mandate, or in order to ensure the person’s appearance at trial, prevent the obstruction of the investigation or court proceedings, or prevent the continuing commission of crimes under investigation by the prosecutor.84 The ICC’s ability to have these warrants executed is of great benefit to a national prosecution, even if the arrestees are not subsequently handed over to the national effort. Initially, if arrestees are obstructing the ICC prosecution, it is likely that they are also wielding influence over the domestic effort. If they are instrumental for the ICC prosecution, they are likely to have valuable information that the local prosecutors could access via interrogations.

The ICC will be able to arrest some categories of offenders beyond the reach of national judiciaries, such as those protected by official immunity or a statute of limitations in the national court. Under the Statute, a defendant’s official capacity does not exempt him from criminal responsibility,85 and no statute of limitations applies.86

The ICC, however, has no police force, and its ability to execute warrants is circumscribed by its reliance on domestic authorities for enforcement.87 Its ability to issue warrants and obtain arrests is only as effective as the state that is executing the warrant wants it to be. This limitation is amply illustrated by the ICTY, whose 1996 warrants against Radovan Karadzic and Ratko Mladic remain unexecuted, despite their public appearances in a country occupied by NATO peacekeepers.88 Defendants could easily evade arrests in countries that have a weak or corrupt police force or are not parties to the ICC Statute. Furthermore, arrestees are brought before a national tribunal before their surrender to the ICC, which provides another opportunity for influence to be exerted to prevent transfer to the Court.89

The ICC could probably convince states to apprehend and deliver defendants to it that a national judiciary could not.90 This ability stems in part from the perception that an international tribunal would be more respectful of a defendant’s rights, but also to a large extent from the tribunal’s high media profile and ability to exert political pressure. This confidence in the Court over national judiciaries is reflected by the priority given to the Court where a state party arrests an accused who is also the subject of a national extradition request.91 However, this power is likely to be severely limited in situations where the defendant is found in a state unwilling to cooperate because of a political or strategic affinity with the accused, or where the defendant has been given de facto asylum after a political compromise.

People arrested pursuant to an ICC warrant can, in some cases, be transferred to a national court. A person convicted by the Court can be extradited from the host state to another state for trial,92 with Court approval,93 after he has served his sentence. The person could not, however, be tried again for crimes for which he has been acquitted or convicted by the Court.94 A person arrested pursuant to an ICC mandate could also be extradited from the arresting state to a third state, although the Court’s request would usually have priority.95

The Statute does not provide for transfer of prisoners directly from the ICC to a requesting state, which prevents the ICC from contributing to the national effort in three ways. The first is in a situation where the prosecutor determines that there is evidence of criminal behavior, but not enough proof of a crime under the ICC’s jurisdiction. For example, there could be ample evidence that the person was involved in murder, but not that it was part of an attack that was sufficiently widespread or systematic to justify a crimes against humanity conviction.96 A second way is when the prosecutor determines that a national prosecution would be preferable because the victims prefer it, because the national prosecution would help develop the national judiciary, or because the national courts could do a better job.97 The third would be if the person were acquitted despite evidence of criminality, because there was an absence of one of the elements of war crimes, crimes against humanity, genocide, or aggression.

6. General Insecurity

Although the ICC will have little impact on the overall security situation of a country attempting to prosecute human rights violations, it could mitigate the effect of insecurity on national prosecutions by protecting key witnesses and sharing the witnesses, or their information, with the national prosecution.

The ICC could not protect most of the witnesses likely to be used in a national case, but it could integrate the most important ones into its prosecution and protection programs. A fewwitnesses beyond the reach of defendant intimidation would not only ensure some testimony, but would also relieve pressure on those remaining in the country. The ICC Statute does not define the parameters of witness protection, but has general provisions for witness protection and the creation of a Victims and Witnesses Unit.98 Presumably, the program will eventually include all necessary pre-trial security, and where necessary, post-trial relocation.

If the ICC does have a program of comprehensive protection for key witnesses, it could gear the program to help national prosecutions by consulting with national authorities, if appropriate, on the selection of witnesses to be protected. A witness’ potential assistance to national prosecutions should be a factor in determining whether to offer protection. The actual protection afforded should include protection for the witness to testify at a national trial and appropriate protection after that if appearance at the national trial increases the person’s risk.

Conclusion

The ICC presents a historic opportunity for the international community to take a stand against large scale violations of human rights. However, the Court offers only a limited forum for the international community to take a stand; many of the cases concerning large-scale violations of human rights are prosecuted by national judiciaries. The national courts can try many more cases than the ICC ever could, in a setting that is generally better for the victims and for developing national systems.

The ICC’s ability to help national prosecutions, as with its own ability to prosecute, depends largely on states, and how much those states are willing to let it or help it perform those functions. But the ICC Statute specifically authorizes many ways of providing assistance, and there are many other ways that fit within the existing framework. To maximize these opportunities, the Court should integrate assistance to national prosecutions into the core of its work, especially hiring, investigation, witness protection, and arrest activities. Such assistance will help the ICC to be more responsive to the conditions of its target countries, and it will support the judiciaries in a difficult process of transition while they come to terms with the past. Most important, providing assistance to national judiciaries is the only way that the world will have accountability for the majority of crimes under the ICC’s mandate.

Epilogue

After this Article’s submission, the Raboteau Massacre trial reached its conclusion. The jury convicted sixteen of the twenty-two defendants in custody, most of whom received life sentences. The judge convicted all thirty-seven in absentia defendants, including the leaders of the dictatorship, all members of the military high command, and leaders of FRAPH, the main paramilitary organization. The court awarded $150 million in compensatory damages.

National and international observers agreed that the trial was well-prepared and fundamentally fair to defendants and victims alike. The United Nations Independent Expert on Haiti, Adama Dieng, called the trial “a landmark in the fight against impunity” and “a huge step forward” for the Haitian justice system.99 The United Nations Support Mission to Haiti (MICAH) added that the Raboteau Massacre case, along with another trial held in August, “prove that the Haitian justice system is capable of effectively prosecuting” human rights cases, “while respecting the guarantees of the 1987 Constitution and International Treaties to which Haiti is a party.”100

The Raboteau trial’s success was especially gratifying because it was the result of several initiatives coming together and performing well. Two of the prosecutors and the presiding judge were recent graduates of the Judicial Academy. Two others had recently been promoted to their positions. The victims and witnesses were highly credible and consistent, in large part due to the work of the BAI. The police and prison officials performed their tasks with professionalism. A special office coordinated the extensive logistics flawlessly, and international expert testimony sealed the case against the defendants.101

The trial’s principal lesson to the international community is that a poor country with an underdeveloped judiciary making a difficult democratic transition can still provide high-quality justice for its victims. Justice for Raboteau required persistence by the victims and officials, time, and some help from outside. Much of this help—the BAI’s technical and material assistance; the international expertise in forensic anthropology, genetics, and military organization; and training of judges and prosecutors—could effectively be provided by the ICC to countries like Haiti through a program integrated into the Court’s core activities.

 


. “[E]ffective prosecution [of serious crimes] must be ensured by taking measures at the national level..,” and the ICC “shall be complementary to national criminal jurisdictions.” See ICC Statute, supra note 1, preamble.

. See infra note 114 and accompanying text.

. ICC Statute, supra note 1, art. 1.

. For example, the International Criminal Tribunal for Rwanda (ICTR) reached its sixth conviction in December, 1999, Press Release, ICTR, ICTR/INF09-2-216en-Arusha (Dec. 6, 1999), while the Rwandan courts had tried over 1,400 by then. De Beer, supra note 40, at 7. See alsoStoetling, supra note 33, at 671 (stating that Rwandan courts have handled a far greater number of prosecutions than the better known international criminal tribunal).

. See generally M. Cherif Bassiouni, Policy Perspectives Favoring the Establishment of the International Criminal Court, 52 J. Int’l Aff. 795 (1999).

. Michael P. Scharf, Balkan Justice 224 (1997) (the trial of Dusko Tadic by the International Criminal Tribunal for the Former Yugoslavia (ICTY) cost the Tribunal some twenty million dollars).

. Id. at 44 (opposition by British negotiator Lord Owen to pursuing Serb leaders during negotiations); Christopher Black & Edward S. Herman, An Unindicted War Criminal, Z Mag., Feb. 2000, at 25–26 (indictment of Slobodan Milosevic did not come until after negotiations had fallen apart and NATO started bombing).

. See infra notes 150–61 and accompanying text. In the ICTY context, several countries, notably Russia, oppose the trial of high level Serb leaders. Augusto Pinochet would have presented an intriguing challenge to ICC jurisdiction, given the differences, even among NATO countries, about the wisdom of trying him outside of Chile. Although in many cases the political opposition to ICC jurisdiction would also preclude national jurisdiction, in some cases the host country is attempting to prosecute, against the resistance of other states. See Press Release, Human Rights Watch, More ‘Pinochet Style’ Prosecutions Urged (Mar. 3, 2000) (citing mass murderers currently being sheltered in third countries, including Ethiopia’s Mengistu Haile Mariam in Zimbabwe and South Africa, Uganda’s Idi Amin and Milton Obote in Saudi Arabia and Zambia, respectively, and Paraguay’s Alfredo Stroessner in Brazil). See alsosupra note 11 and accompanying text.

. ICC Statute, supra note 1, art. 15.

. Id. art. 16.

. However, with respect to victim reparation, a process in the ICC could be preferable to the domestic forum. For example, article 75 of the ICC Statute permits the Court to enter a judgement against an individual defendant, which then is enforceable in the jurisdiction of any state party. Furthermore, the Court can provide an award from a trust fund for the victim in certain cases. This is an advantage in a state where there are few resources for compensating victims, or where a victim would have difficulty enforcing a local judgement against a defendant residing abroad. This procedure is not automatic upon the request of a victim; it requires a prosecutor or judge to initiate it. It could also never reach the majority of victims of a series of large scale human rights violations.

. If asked simply whether they would prefer a national prosecution to an international one, some victims say they prefer the international because they assume it would be better quality and that the international tribunal would be able to adjudicate all of the accused and obtain all of the evidence. When it is explained that international tribunals often experience some of the same problems as local courts, all victims I spoke with said they would prefer a local trial, if the quality were comparable to the international one.

. Thérèse, a resident of Cité Soleil, is a victim of several Haitian dictatorships as well as an ardent pro-democracy activist. She reported that she believes in Jesus without seeing, see John 20:29, but would not do the same for the ICC, or any other work of man. The distrust of prosecutions outside the country would be stronger among people with historical reasons to distrust foreign involvement in their affairs.

. See Stefaan Vandeginste, The International Criminal Tribunal for Rwanda: Justice and Reconciliation, 11 Relief & Rehabilitation Network Newsletter 4, 5 (1998) (the modern “vengeful” justice represented by the ICTR contrasts with the traditional role of justice in Rwanda, reestablishing social order and repairing interpersonal relations), available at http://www.odihpn.org.uk/newslet/acrobat/n11e.pdf.

. ICC sentences are served in a state designated by the Court, from a list of volunteers. ICC Statute, supra note 1, art. 103(1)(a). As there is no provision for ICC subsidy of the incarceration, volunteers are most likely to be wealthy countries. Prison conditions for ICC prisoners are to conform to international treaty standards and to be the same as for other prisoners convicted of similar crimes in the enforcing state. Id. art. 106.

The author has had conversations with several of the victim plaintiffs in the Raboteau and Cite Soleil cases (1999) who have expressed disappointment that the defendants would be incarcerated in foreign countries.

. Le Génocide et les Massacres au Rwanda en 1994, La Justice en Question (report on file with the author).

. The complaints, pleadings and other documents filed by the victims’ lawyers are well above the norm and have been copied by lawyers in other cases. The Ordonnance de Renvoi, which details the accusations against each, is probably the highest quality document ever produced by the Haitian judiciary.

. The author’s experience in Haiti provides countless examples of Haitian or African colleagues understanding a situation, or establishing a relationship with a witness much better or faster than a colleague from an industrialized nation (including the author himself). If there is a shortage of qualified candidates, an investment by the Court in raising smart, motivated candidates up to the appropriate level would be rewarded by performance both with the Court and back in the home country.

. See Working Group of the A.B.A. Sec. of Int’l L. & Prac., Draft Rules of Procedure and Evidence for the International Criminal Court R. 28 (1999) [hereinafter ICC Draft Rules].

. ICC Statute, supra note 1, art. 44.

. Id. art. 36. This rule would allow the ICC to hire staff with training in trauma and gender for the Victims Unit. The same logic that applies to hiring developing world lawyers and investigators applies to this unit. Hiring developing world staff would both provide valuable experience to these individuals and aid the ICC in that many victims may feel more comfortable dealing with a person from a similar background.

. ICC Statute, supra note 1, art. 44(2). Without a structure in place, the tendency will be to hire from countries that need the least help, those with the strongest talent pool. This will be exacerbated if the ICC makes frequent use of gratis personnel of state parties under Article 44(4), who will come disproportionately from wealthy countries. However, Article 44(4) does limit this use to “exceptional circumstances,” which should be respected.

. Policies that will encourage staff to return to their home countries include applying maximum terms for certain categories of staff, liberal leave policies, and seniority credit for work done with national prosecutions.

. See ICC Statute, supra note 1, art. 53; ICC Draft Rules, supra note 122, R. 36–38. The prosecutor could invoke her power to investigate and assist in preparing the case for trial and then ultimately defer to the national prosecution.

. Donor countries frustrated with the lack of progress in national judiciaries often look for ways to divert judicial assistance and other funds away from the national government. See generally Request for Proposals for Its Administration of Justice Program in Haiti, USAID, Doc. 521-99-007, Sec. C (on file with author).

. The value of training may be mitigated if the local judges, seeing that the models of justice require a logistical capability beyond that available, use that as an excuse for resignation.

. ICC Statute, supra note 1, preamble.

. Among the accomplishments of the effort to try Augusto Pinochet in Spain was its effect on the national discourse on impunity in Chile. As the Chilean government pursued Pinochet’s release, it was forced to answer critics by saying that the national judiciary was up to the task of prosecuting the former dictator. It appears that this process will lead to Pinochet’s trial in Chile. Clifford Klaus, Pinochet Reportedly Stripped of Immunity in Secret Court Vote, N.Y. Times, Aug 2, 2000, at A4.

. ICC Statute, supra note 1, art. 21.

. In the civil law system, they would be useful to the juge d’instruction, an office which combines prosecutorial and judicial functions during the pre-trial phase. In Haiti, materials from both Rwanda and Yugoslavia have been used in pre-trial preparation.

. ICC Statute, supra note 1, art. 50.

. See Vandeginste, supra note 117, at 5 (describing gulf between ICTR and local population, and the problems caused by it).

. See de Beer, supra note 40, at 30.

. The Haitian judiciary continues to be criticized for the handling of the Malary case four years later, and fear of a repetition engenders caution among judicial officials, according to discussions by the author with Ministry of Justice and other judicial officials from 1994 to the present.

. Accord Bassiouni, supra note 108.

. This leverage comes in the form of the ICC’s ability to assert jurisdiction over a situation without the consent of the state party either by referral from the Security Councilor on the prosecutor’s own motion. See ICC Statute, supra note 1, arts. 13, 15.

. Id. art. 17(1)(a)–(c).

. The Pre-Trial Chamber can override the state’s request or stop the deferral, but that too can be appealed. Id. art. 18.

. Id. art. 17(2).

. Id. art. 17(3).

. The author observed the trial.

. See Petitioner’s Memorandum of Supplemental Information at 3, Lawyers Comm. for Human Rights v. Republic of Haiti, Case No. 11,335, Inter-Am. C.H.R. (filed Feb. 19, 1999) (arguing that the investigation and trial were so “riddled with abnormalities and errors” that the Haitian government failed to meet its international obligation to provide judicial protection) (on file with author). See also Amnesty International, Haiti: A Question of Justice 16 (1996) (noting “serious deficiencies” in the trial); Human Rights Watch, Haiti: A Thirst for Justice, a Decade of Impunity 23 (1996) (describing lack of preparation by the prosecution and the prosecution’s weak presentation of the case).

. See supra note 144. See also Human Rights Watch, supra note 145, at 23 (noting failure of prosecution to object to seating of a jury openly hostile to the prosecution).

. ICC Statute, supra note 1, art. 17(2)(b).

. Id . art. 20(3).

. Cf . Lawyers Committee for Human Rights, supra note 145, at 13 (arguing that “the trial exemplified how the Government of Haiti failed to discharge its minimum responsibility for the diligent prosecution of human rights offenses”).

. Again, this can happen with international tribunals. In the ICTY Tadic trial, a major prosecution witness conceded after his testimony that he had lied, tainting the whole case. Scharf, supra note 109, at 199.

. Another issue would be the ICC’s interest in taking a case that was a difficult one to prove and its ability to do a better job than the territorial state, especially if the cooperation of local officials was in doubt. Furthermore, if the territorial state did not want one of its citizens to be put into the ICC’s hands, his non-arrest could be easily arranged.

. See ICC Statute, supra note 1, art. 17(1)(d).

. Id . art. 19.

. Id . art. 18(4).

. Id . arts. 53(1)(c), 53(2)(c).

. Id . art. 116. Article 116 allows assistance from governments, organizations, individuals, and corporations, but does not restrict the contribution to the Court’s general funds.

. Id . art. 36.

. Id. art. 42.

. Both former chief prosecutors of the ICTY left for their national supreme courts. Black & Herman, supra note 110, at 25 (former Chief Prosecutor Louise Arbour named to Canada’s highest court).

. ICC Statute, supra note 1, art. 46(b).

. Id . art. 16.

. An analogy can be made to the prosecution of the Raboteau case in Haiti. Although it is the trial of one specific event, which was far from the worst episode of the dictatorship, it is often called “the trial of the coup d’état.” This has led some to express fears that once the “trial of the coup d’état” is over, there will be no need to try the hundreds of other potential accused on behalf of the hundreds of thousands of victims.

. The ICC Statute prohibits national court trials for the same crimes of a person acquitted by the ICC. ICC Statute, supra note 1, art. 20.

. An example of an applicable case would be Operation Condor, where several South American dictators cooperated in exterminating pro-democracy activists.

. ICC Statute, supra note 1, art. 93(10).

. Id. art. 54 (a prosecutor shall “extend the investigation to cover all facts and evidence relevant to whether there is criminal responsibility”). See also ICC Draft Rules, supra note 122, R. 91; M. Cherif Bassiouni, Commission of Experts Established Pursuant to Security Council Resolution 780, 5 Crim. L.F. 279 (1994).

. See An Inter-American Team of Forensic Anthropology Consultants, supra note 31, at Introduction, D1 (noting that forensic anthropologists provided important assistance to the Haitian Truth Commission and Raboteau case).

. See id. (stating that the anthropology consultants performed a statistical analysis of hospital records and truth commission information).

. For example, interviews of refugees, scientific or medical examinations of refugees, physical evidence in their possession, statistical analyses, and many other types of evidence would not necessarily be collected within the prosecuting state’s borders.

. The Haitian Truth Commission investigators asked all of their witnesses whether they wanted their testimony kept secret. Although the military and paramilitary groups posed a significant threat at the time, almost no witnesses outside of Port-au-Prince asked for confidentiality, and less than one third in the capital requested confidentiality. (In the course of his work investigating and prosecuting human rights cases, the author has reviewed hundreds of interview forms prepared by CNVJ investigators.) See generally Truth Commission Report, supra note 5.

. ICC Statute, supra note 1, arts. 86, 87.

. Id. art. 87. All the Court can do, with respect to non-cooperation by either a state party or non-party, is to communicate the non-cooperation to the Assembly of Parties or, where applicable, the Security Council.

. Id . art. 93(10)(b)(ii)(1).

. See Bassiouni, supra note 166; Scharf, supra note 109, at 46.

. See Black & Herman, supra note 110, at 25–28 (NATO members provided ample documentation of Serb responsibility for war crimes during NATO’s bombing of Serbia in April and May 1999, but refused to supply requested materials regarding similar Croat atrocities).

. The legal justification for the invasion was based on the doctrine of humanitarian intervention resulting from the widespread human rights violations. S.C. Res. 940, U.N. SCOR, 49th Sess., 3413th mtg. at 1, U.N. Doc. S/RES/940 (1994).

. The FRAPH/FADH documents, which belong to Haiti, are the most obvious example, but the United States has also been reluctant to turn over its own documents. See supra note 78 and accompanying text. One exception is provided by a Freedom of Information Act request, through which the State Department provided documents for the Raboteau case. These documents discredit the military’s humanitarian intervention pretext for the operation. See S.C. Res. 940, supra note 176, at note 150.

. The campaign for information about Nazi assets held by Swiss banks is an example of a strategy combining legal and political pressure. More recently, international campaigns have successfully induced the United States to release documents involving human rights violations in Chile. See Press Release, Human Rights Watch, CIA, State, NSC Documents Declassified on Chile (June 30, 1999); Argentines Exhort Albright on Files, Associated Press Newswire, Aug. 16, 2000; Equipo Nizcor, Honduras le Pide a los Estados Unidos la Desclasificación Completa de los Documentos Sobre la Base El Asuacate (2000) (internet announcement citing Associated Press reports, on file with the author).

. See ICC Statute, supra note 1, arts. 72, 93(4).

. Id . arts. 72(5), 87(7).

. Id. art. 87(7).

. Id. art. 55.

. This is assuming that the national system was inclined towards prosecutions in the first place.

. See supra text accompanying note 164.

. ICC Statute, supra note 1, art. 90.

. Id. art. 58.

. Id . art. 58(1).

. Id . art. 27.

. Id . art. 29.

. Id. art. 59. It is not entirely clear from the text of the ICC Statute if there would be the possibility of a direct enforcement mechanism via some form of United Nations peace keeping force that could potentially execute warrants. But see F.M. Lorenz, Combating Impunity: The Practical Limits on Military Force, 14 Nouvelles Études Pénales 465 (1998).

. Scharf, supra note 109, at 150–54, 224–25.

. See ICC Statute, supra note 1, art. 59.

. See Le Genocide et les Massacres au Rwanda en 1994, la Justice en Question (report on file with the author). In some cases, countries turned defendants over to the Rwanda tribunal who had been arrested pursuant to a Rwandan extradition request. However, the ability of the ICC to obtain arrests from third countries might be decreased with the possibility that the defendants could be turned over to a state prosecution.

. See ICC Statute, supra note 1, art. 90.

. Id . art. 107.

. Id . art. 108.

. Id . art. 20.

. Id . art. 90.

. Seeid. art. 7.

. Seesupra notes 115–20 and accompanying text.

. “The court shall take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.” ICC Statute, supra note 1, art. 68(1). See id. art. 43(6) (creating a Victims and Witnesses Unit).

. Press Release, United Nations Independent Expert on Haiti, Raboteau Verdict in Haiti “A Landmark in Fight Against Impunity,” but Case Not Yet Finished, Says UN Independent Expert (Nov. 20, 2000), available at http://www.unog.ch/news2/ documents/newsen/hr00090e.html.

. Press Release, United Nations Support Mission to Haiti (MICAH) (Nov. 20, 2000) (author’s translation) (on file with author).

. See Brian Concannon, Justice in Haiti: The Raboteau Trial, Human Rights Tribune, Dec. 2000, at 11.

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