International judicial responses to conflict have been characterised by ad hoc-ism and deference to externally driven reform agendas. This project revisits contemporary practice from the perspective of domestic constituencies. It examines the role of ‘local ownership’ from three angles.
Local ownership’ and the design and management of external judicial intervention
Pillar 1 reviews rationales and methodologies of external intervention in justice responses. Pillar 1 is a general framework study. It is primarily based on analytical research The analysis and findings will be tested by interviews with relevant stakeholders.
International organisations and governments are struggling to identify under what conditions institutional designs and justice mechanisms can improve human rights protection, enhance or contribute to the development of a rule of law-culture and foster successful conflict resolution (Sikking & Walling, 2007; Thoms, Ron & Paris, 2008). International justice has traditionally been conceived as an instrument for accountability and criminal adjudication of core crimes. It is considerably more difficult to establish whether and how it can leave a ‘lasting footprint’ for domestic societies and practice or contribute to “social justice” (Stover & Weinstein, 2005; Mani, 2008). The concept of ‘local ownership’ is seen a key prerequisite to sustainable peace. However, the key components of this concept, i.e. its means, implementation and contextual pre-conditions are still widely unexplored (OHCHR, Prosecution Initiatives, 2006; OHCHR, Hybrid Courts, 2008).
The project is designed to clarify the meaning and role of this concept in two types of external judicial intervention: international criminal adjudication and internationally managed law reform.
Reconciling the “input” of external interlocutors with the confidence of domestic stakeholders is “an issue not just at the moment of creation, but whenever any important decisions are made throughout [the] existence” of a justice mechanism (OHCHR, Hybrid Courts, 2008; Oomen, 2007). The project will explore when and in what forms (e.g. consent, consultation, dialogue, participatory processes) “domestic ownership” becomes relevant in the negotiation, design and operation of different justice mechanisms, i.e. international (ICC, ICTY, ICTR), hybrid (Special Court for Sierra Leone, Cambodia) and internationalised judicial entities (Kosovo, East Timor, Bosnia and Herzegovina). Who are the ‘locals’? How are their interests articulated and how can they be taken into account? To what extent should consultation reach beyond public representatives and involve civil society, professional bodies (e.g. local bar associations) or victim groups? To what extent is ‘local ownership’ linked to a sense of identity/community and is there a distinction between ‘individual’ and ‘collective interests’ (i.e. groups)? How can it accommodate competing visions of justice?
The need to strike a proper balance between international input and domestic interests is even more pronounced in cases in which adjudication is combined with law reform. Certain reforms may be necessary, in order to address legal vacuums or remove discriminatory practices after conflict. However, they raise challenging legal and policy challenges. In which areas is international capacity and reform required, and how should it be sequenced? What are the legal boundaries of judicial transformation? How can justice mechanisms or legal reforms be framed in a way that does not overburden domestic actors or institutions (e.g. standard-setting) or reduce confidence in the domestic system? How can it be achieved that justice is not perceived as a short-term “trade-off” to obtain concrete economic benefits (Mani, 2008)? What techniques may be applied to avoid a draining of ‘local’ resources or the creation of ‘parallel systems’?
Many of these questions and risks have been studied in the framework of individual case-studies (ad hoc tribunals, hybrid courts, UN administrations). We seek to examine processes and strategies (dialogue, sequencing, transfer of authority, ’legacy’ policies) by which international justice and reform efforts may engage to a greater with stakeholders’ interests. It starts with an analysis of existing practice. Then, it revisits techniques and policies that require further consideration in the design and management of external judicial interventions.
Societal impact of international criminal justice
Pillar 2 examines the societal impact of international criminal proceedings, based on analysis of the first practice of the International Criminal Court (ICC). Pillar 2 is based on a mixed method. It combines analytical research with empirical research. Certain media reports, public statements, opinion polls and acts of domestic institutions are publicly accessible. Societal attitudes, impact-measurement criteria and situation-compariters will be assessed on the basis of a range of accepted research methods, including qualitative interviews with various addresses (samples of victims groups, ICC officials, military and police officers, public officials), questionnaires, and assessment of existing population-based surveys.
The matrix and data for impact-measurement will be developed and processed in several stages, in conjunction with international and local partners.
We analyse the interrelation between “input” and “output”, i.e. the effects of international criminal prosecutions on domestic societies. International justice is characterised by lack of empirical research on the impact of international courts and tribunals (Kim & Sikkink, 2007). Existing human rights databases suggest that there has been a significant increase in the number of human rights trials (Kim, 2007). However, few attempts have been made to assess whether and to what extent the practice of international courts and tribunals has produced tangible results for societies in transition. There is an acknowledged need to move from a “faith-based” to a “fact-based” approach (Thoms, Ron & Paris, 2008). Such research is important on several levels: the determination of goals of international justice, the criminal policy of international courts and tribunals (e,g. choice of the level of suspects, objectivity of charges, case-management), communication and outreach strategy, cooperation and donor policies.
The project will study the effects of international investigations and prosecutions on the basis of the first investigations and prosecutions of the International Criminal Court (ICC) (Democratic Republic of Congo (DRC), Uganda, Sudan and the Central African Republic (CAR)), and the empirical and methodological problems associated with impact-measurement.
The project will first identify to what extent goals of international criminal justice can be translated into measurable outcomes. To what extent did investigation or prosecution have a general or specific deterrent effect on affected communities and beyond? Did they help marginalize or incapacitate the perpetrators who undermined public respect for the rule of law? What impact did individual prosecutions have on the victims of perpetrators or the broader community of victims in a particular conflict? Did ICC proceedings manage to communicate a sense of fairness to affected communities? To what extent did they contribute to the elucidation of historical facts or education and memorialisation?
It is difficult to determine complex social phenomena (e.g. deterrence, incapacitation, reconciliation) through quantitative indicators or chains of causation. The project will thus inquire to what extent and on the basis of which indicators these outcomes can be assessed . How does international criminal justice affect cost-benefit analysis of perpetrators, e.g. by expanding the expected costs of repression, loss of legitimacy (e.g. damage to national/international reputation) or by limiting the space for political and social support? What impact do trials have on new generations of military and police officers or victims? What impact did international decisions have at the domestic level, i.e. to what extent were they applied and enforced by domestic agents and judiciaries?
Relevant facts and data will be collected by a number of methods: analysis of local and international press reports and radio broadcasts, public opinion polls, existing population-based surveys , questionnaires, interviews with victims, military and police officers and analysis of legal practice at the domestic level. These findings will be complemented by data provided by the ICC and NGOs.
It will then be determined to what extent individual effects can be assessed separately from other influences, and to what degree they result from a combination of factors (reliability assessment).
Most of the outcomes can only be assessed on the basis of longer-term effects. The project will thus contain an inter-temporal dimension and study how attitudes and effects developed over time in a respective situation (see Approach & methods). Situation-specific findings will be tested against relevant acts and activities of the ICC in the period of assessment, and records and data in other ICC situations. This will provide a compariter for evaluation.
Contribution of international criminal justice to domestic capacity-building and harmonisation
Pillar 3 analyses whether and under what circumstances ICC justice may contribute to capacity-building and legal harmonisation in post-conflict situations. Pillar 3 is developed by way of a mixed method. The status of domestic legislation in ICC-situation countries and statistics on victim participation are accessible via assistance of the ICC Registry and Parliamentarians for Global Action. Impact- related and contextual factors regarding the “catalyst effect” of ICC investigations and prosecution will be developed in cooperation with political scientists and the Jurisdiction, Complementarity and Cooperation Division (JCCD) of the ICC. They will then be verified through analysis of local press, public statements and documents and interviews with stakeholders in situation-countries and researchers.
We will explore the nexus between ”output” and the empowerment of domestic constituencies. It examines to what extent international criminal justice may (i) engage local communities in justice and (ii) contribute to the strengthening of domestic justice systems and legal harmonization in post-conflict situations.
It is widely acknowledged that international justice mechanisms may foster accountability and human rights awareness in an in indirect manner, i.e. by way of their ‘demonstration effect’’ (OCOHR, Hybrid courts, 2008). In the context of the ICC, this impact is increased through the application of the complementarity principle which serves as a potential “catalyst for compliance” (Kleffner, 2006), and the possibility of victim participation in proceedings. In some situations, the ICC membership and intervention has not only triggered the enactment of domestic implementing legislation, but encouraged the direct application of statutory principles by domestic military court (DRC) or constitutional courts (CAR).
The project examines to what extent ICC membership and international investigation and prosecution has served as a catalyst for domestic justice and implementation of international legal standards in ICC situation-countries. It will analyse the scope and forms of local justice responses to ICC activities, domestic law reform activities, reception of ICC jurisprudence and the scope of victim participation in ICC proceedings.
This impact will be assessed from a comparative and cross-situational perspective. This focus will include analysis of factors that influence the level of capacity-building and domestic empowerment, i.e. existence of an environment conducive to reform, impact of state attitudes, convergence of international and domestic agendas.
The project will further study techniques (judicial dialogue, cooperation, transfer of knowledge) that may be used to foster the implementation and harmonization of international criminal law in post-conflict societies. This includes analysis of the timing and modalities of ICC engagement (e.g. exit strategies) as well as a possible sharing of labour between the ICC and domestic authorities (Burke-White, 2008). The project will further explore risks of ‘positive complementarity’ (e.g. a premature shifting of the burden of responsibility) and possible downsides of harmonisation, such as the incorporation of foreign legal transplants in the definition of crimes or the law of criminal procedure.
This research is fundamental for three types of constituencies: local communities affected by crime, national judicial actors and political authorities as well potential donors and international organisations engaged in rule of law reform.