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The Law-in-Action of the International Criminal Court

Published online by Cambridge University Press:  27 February 2017

Mahnousk H. Arsanjani  and
W. Michael Reisman
Mahnousk H. Arsanjani
Affiliation:
United Nations
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Extract

When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters.

—Missouri v. Holland (Oliver Wendell Holmes Jr., J.)
As the International Criminal Court (ICC) moves from an exhilarating idea to a carefully negotiated document and finally to an operational institution, the cogency of its conception will be tested by the manifold realities of international politics, not the least of which will be the practical and financial limits those realities may place upon investigation and prosecution. The drafters of the Rome Statute benefited from important previous experiments—the Nuremberg Tribunal and the International Criminal Tribunals for the Former Yugoslavia and for Rwanda. But once the Court is launched, the predecessors and prototypes that were so helpful in the drafting stages will be of less and less assistance. The ICC must operate in a substantially different context than the earlier efforts, and the problems it will encounter (and already is encountering) will be different from and may prove more formidable than those facing its prototypes.

Type
Developments at the International Criminal Court
Information
American Journal of International Law , Volume 99 , Issue 2 , April 2005 , pp. 385 - 403
Copyright
Copyright © American Society of International Law 2005

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References

1 Rome Statute of the International Criminal Court, July 17,1998, 2187 UNTS 3, reprinted in 1 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Official Records (1998) [hereinafter Rome Statute].

2 The Rwanda Tribunal is an ex post tribunal. The Former Yugoslav Tribunal is also essentially ex post, in that by the time of its operation, there was already a general outline of a political settlement, supported by a United Nations political and a NATO military presence in the arena.

3 Uganda: ICC Could Suspend Northern Investigations—Spokesman, IRIN News (Apr. 18, 2005), at <http://www.irinnews.org>.

4 Article 53, paragraph 1(c) of the Rome Statute, supra note 1, provides that in reaching a decision on initiating an investigation, the prosecutor shall consider whether, “[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.”

5 Pound, Roscoe, Law in Books and Law in Action: Historical Causes of Divergence Between the Nominal and Actual Law, 44 Am. L. Rev. 12 (1910)Google Scholar.

6 The Security Council’s referral of the situation in Darfur to the ICC, by Resolution 1593 (March 31, 2005), occurred after this comment was completed.

7 Trinidad and Tobago’s initiative in reviving the idea of establishing an international criminal court in 1989 was based on the concern that fragile national courts would be unable to deal with the crime of drug trafficking. An international criminal court would insulate national courts from the power and terror that those involved in such activities could bring to bear. Trinidad and Tobago’s idea was not acceptable to the great majority of states. Hence, the Rome Statute of the International Criminal Court moved in an entirely different direction. See Arsanjani, Mahnoush H., Reflections on the Jurisdiction and Trigger–Mechanism of the International Criminal Court, in Reflections on the International Criminal Court 57, 68 n.8 (Herman, von Hebef, Lammers, Johan, & Schukking, Jolien eds., 1999)Google Scholar.

8 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, para. 47, UN Doc. A/50/22 (1995); see also 1 Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Supp. No. 22, paras. 154–57, UN Doc. A/51/22 (1996).

9 This is apparent from the negotiating history of Article 14. Two concerns with regard to state referral emerged ii I the negotiations before and during the Rome Conference. One, expressed by nongovernmental organizations (NGOs), was that states would be reluctant to make referrals of situations to the Court and that the prosecutor should therefore be granted proprio motu powers to initiate investigations. The second was that states might abuse such an option by trying to send frivolous or politically motivated referrals with regard to situations in the territory of a political adversary. Suggestions were made throughout the preparatory negotiations to limit the potential for abuse.

One suggestion was to restrict the referral power by allowing referrals not from single States Parties but rather from groups of a specified number of States Parties. This suggestion did not attract widespread support as negotiations progressed. However, other proposals to prevent abuse were incorporated. One was to create an internal screening process to allow the Prosecutor to reject claims that were frivolous or not warranting international adjudication. Another was to require that interested States be notified and given an opportunity to effectively investigate and prosecute the crimes in question. The latter two proposals attracted considerable support and were eventually incorporated into the Statute, thereby offering safeguards against abuse and ensuring deference to legitimate national proceedings.

Kirsch, Philippe & Robinson, Darryl, Referral by State Parties, in 1 The Rome Statute of The International Criminal Court: A Commentary 619, 622–23 (Cassese, Antonio, Gaeta, Paola, & John R.W.D., Jones eds., 2002)Google Scholar (footnote omitted).

10 John Holmes, the coordinator of the working group on complementarity who negotiated Article 17, states:

In the discussions, it was ultimately decided that further definition of total or partial collapse was not necessary, especially if an additional criterion existed. This additional factor was the State being unable to secure the accused or to obtain the necessary evidence and testimony. These two criteria were added to create the test for the Court in determining inability. Both criteria must be met for the Court to determine admissibility in this regard. The State must be unable to obtain an accused or key evidence and testimony, and its inability to do so must relate to the partial or total collapse of its judicial system. Some delegations were concerned that combining these two criteria could limit the Court’s ability to act, for example, if the accused and some evidence were obtained but other aspects of the national proceedings were affected by the collapse. To meet these concerns, the following phrase was added to the test: “or otherwise unable to carry out its proceedings”.

Holmes, John T., The Principle of Complementarity, in The International Criminal Court: The Making of the Rome Statute 41, 49 (Lee, Roy S. ed., 1999)Google Scholar (italics added).

Holmes gives the following as examples for the third criterion (the state is unable otherwise to carry out its proceedings): “the absence of sufficient qualified personnel to effect a genuine prosecution could be a determining factor even if the State has the accused and the evidence.” Holmes, John T., Complementarity: National Courts Versus the ICC, in 1 The Rome Statute of the International Criminal Court, supra note 9, at 667, 678 Google Scholar [hereinafter Holmes, National Courts].

11 See Mondev Int’l v. United States (NAFTA Ch. 11 Arb. Trib. Oct. 11, 2002), 42 ILM 85 (2003). In the context of diplomatic protection, the requirement of exhaustion of local remedies may be waived if the justice system is deemed defective. See Draft Articles on Diplomatic Protection Prepared by the International Law Commission on First Reading, Art. 16(a), (b) & commentaries thereto, in Report of the International Law Commission on the Work of its Fifty–sixth Session, UN GAOR, 59th Sess., Supp. No. 10, at 75–79, UN Doc. A/59/10 (2004).

12 Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, supra note 8, para. 47 (emphasis added).

13 Holmes, National Courts, supra note 10, at 677.

14 See, in this regard, ICC, Office of the Prosecutor, Informal Expert Paper: The Principle of Complementarity in Practice (2003) [hereinafter Informal Expert Paper], which provides in Part I, paragraph 5 that “[t]he principle of objectivity (Article 54(1)) should be extended to admissibility fact–finding and analysis, so that willingness and ability are assessed in an objective, uniform and principled manner.” This paper and other ICC documents cited below are available at the Court’s Web site, <http://www.icc–cpi.int>.

15 Michael Reisman, W., Book Review, 81 AJIL 263, 266, 267 (1987)Google Scholar (reviewing Encyclopedia of Public International Law, Instalment 7 (1984)).

16 Opened for signature May 23, 1969, 1155 UNTS 331 Google Scholar.

17 17 U.S. 316, 407 (1819).

18 See Arsanjani, supra note 7, at 58. In this regard, the Rome Statute differs from the statutes of the ICTY and the ICTR in two significant ways. The latter two statutes are comparatively brief, leaving considerable latitude for judicial elaboration through interpretation of their substantive provisions. Both of these statutes also leave the judges in control of the prescription of the rules of procedure and evidence. The drafters of the Rome Statute quite intentionally moved in the other direction. Not wishing to repeat the experience of the statutes of the two ad hoc criminal tribunals, the negotiators inserted a substantial number of provisions on procedural issues, in addition to the detailed description of crimes and provisions on jurisdiction. Indeed, they went even further, negotiating a separate agreement on the Rules of Procedure and Evidence. The purpose of all of these exercises was to leave little need for interpretation by the Court. For the Rules of Procedure and Evidence, see Assembly ok States Parties to the Rome Statute of the International Criminal Court, First Session, Official Records 10–107, UN Doc. ICC–ASP/1/3, UN Sales No. E.03.V.2 (2002).

19 Article 10, which was designated as Article Y in the negotiations before and during the Rome Conference, was originally intended to be included as a paragraph of the article that defines the crimes under the Statute. But at the Rome Conference, once there was agreement on the definition of the crimes and the jurisdiction of the Court in separate articles, Article Y was retained as a separate provision; and since the negotiations on this part of the Statute (Part 2), led by the Bureau of the Committee of the Whole, lasted until the end of the conference and bogged down over controversial questions of jurisdiction and the crime of aggression, the fact that Article Y, as Article 10, had no title, was overlooked.

20 See also Article 10, in Commentary on the Rome Statute of the International Criminal Court 315–21 (Triffterer, Otto ed., 1999)Google Scholar; Bennouna, Mohamed, The Statute’s Rules on Crimes and Existing or Developing International Law, in 2 The Rome Statute of the International Criminal Court, supra note 9, at 1101 Google Scholar.

21 Informal Expert Paper, supra note 14. The terms of reference of the paper list the participants but state that “the Group operated in a collegial manner to try to develop a collective report, and hence the views reflected in this document do not necessarily reflect the views of each individual member.” Id. at 2.

22 Id., pt. III(a)(1), paras. 17–18.

23 Id., pt. IV(a), paras. 59–66.

24 Id., para. 61.

25 Id., para. 62.

26 ICC, Office of the Prosecutor, Paper on Some Policy Issues Before the Office of the Prosecutor, pt. I, at 3 (Sept. 2003).

27 Id., pt. II(1.1), at 5 (emphasis added).

28 Uganda submitted its instrument of ratification to the Rome Statute on June 14, 2002. In accordance with its Article 126, the Statute entered into force for Uganda on September 1, 2002, the first day of the month after the sixtieth day following the deposit of the instrument of ratification. The situation in northern Uganda in relation to crimes committed on and after September 1, 2002, thus falls within the temporal jurisdiction of the Court.

29 ICC Press Release, Prosecutor of the International Criminal Court Opens an Investigation into Northern Uganda (July 29, 2004).

30 The prosecutorial initiatives are subject to review and challenge under Articles 18 and 19 of the Statute. See infra pp. 396–97.

31 United Nations Consolidated Appeals Process, Uganda: Mid–Year Review 2004, at 3 (copies can be obtained from the UN Office for the Coordination of Humanitarian Affairs, [email protected]).

32 Uganda Amnesty Act, 2000, available at <http://www.c–r.org/accord/Uganda/accord11/keytext.shtml#7>.

33 Anti–Terrorism Laws Undermine Amnesty Act of 2000, in Norwegian Refugee Council, Global IDP Project, Profile of Internal Displacement: Uganda 48 (July 7, 2004), available at <http://www.db.idpproject.org/Sites/idpSurvey.nsf/wCountries/Uganda>. The government has also indicated that it would amend the Amnesty Act to exclude the commander of the LRA. See New Amnesty Law to Exclude Top LRA Leaders, IRIN News (Dec. 17, 2003), at <http://www.irinnews.org>; Acholi Religious Leaders Against Amendment to Amnesty Law (Feb. 12, 2004), at <http://parliament.go.ug/details.php?newsld=350>; see also Whose Justice? Perceptions of Uganda’s Amnesty Act 2000: The Potential for Conflict Resolution and Long–Term Reconciliation (Refugee Law Project, Makerere University, Kampala, Working Paper No. 15, Feb. 2005), available at <http://www.refugeelawproject.org>>Google Scholar (suggesting that despite challenges to its implementation, the amnesty law in general has been perceived as a vital tool for conflict resolution in northern Uganda).

For the major features of the Anti–Terrorism Act, see Bossa, S. B. & Mulindwa, Titus, The Anti–Terrorism Act, 2002 Google Scholar (Uganda): Human Rights Concerns and Implications, Paper presented to the International Commission of Jurists (Sept. 15, 2004), available at <http://www.icj.org/IMG/pdf/Paper_Bossa.pdf>.

34 A coalition of nongovernmental organizations (Civil Society Organizations for Peace in Northern Uganda) said in a report regarding the situation in northern Uganda, as quoted by IRIN News:

The war in the region is a dirty war—a war in which civilians have become the principal strategic targets and victims of violence; in which civilians have become the field upon which the conflict is fought, and through which victory is being sought . . ..

A serious protection vacuum exists in the region. . . . Gross abuses of international humanitarian and human rights law are perpetrated against civilians on a grand scale, with culpability on both sides.

. . . .

The government has so far failed in its obligation to mobilise a fully effective strategy for humanitarian protection in northern Uganda . . . . These [military] strategies have in fact contributed to the production of the humanitarian protection crisis, [because] the military offensive has not proven itself successful in adequately protecting civilians from abuses by the LRA.

This process has flooded the region with small arms, creating local armies with no formal accountability, that themselves prey on the vulnerable, and are exploited by the powerful.

. . . . .

Seventy percent of IDPs [internally displaced persons] claim that lack of food and hunger are the most serious threats that they face, and malnutrition rates continue to be of concern while lack of access to fuel wood was a key concern . . . .

The report was launched on December 10, 2004, in the northern town of Gulu. Uganda: Northern Conflict Creates Protection Crisis—NGOs, IRIN News (Dec. 14, 2004), at <http://www.irinnews.org>; see also Behind the Violence: Causes, Consequences and the Search for Solutions to the War in Northern Uganda (Refugee Law Project, Makerere University, Kampala, Working Paper No. 11, Feb. 2004), available at <http://www.refugeelawproject.org>>Google Scholar (reviewing the reasons for violence in northern Uganda and making a series of recommendations, notably against a military solution).

35 See Refugee Law Project (Faculty of Law, Makerere University), Position Paper on the announcement of formal investigations of LRA by the ICC (July 28, 2004), available at <http://www.refugeelawproject.org>. This paper criticizes the referral to the ICC and the acceptance by the ICC prosecutor of the referral, noting that the latter “raises a number of practical and legal issues, which the drafters and supporters of the Rome Statute never envisaged and which undermine the legitimacy of the ICC at the grassroots level,” in particular “the disjuncture between international conceptions of justice and local community traditions, values, and notions of justice.” Id. at 1. The paper poses several pertinent questions:

— Can an investigation by the ICC help bring an end to an ongoing conflict?

— Is the Prosecutor informed of the political context in which the referral was made in December by the Government of Uganda? And does the political context matter?

— Should the Prosecutor have taken into consideration the interests of those affected by the war before going public? Is he aware of those interests?

— What are the likely consequences of the Prosecutor’s announcement on the victims?

— Can those affected by the ongoing war challenge his decision?

— What power and procedural guidelines does the Statute establishing the ICC give the Prosecutor in dealing with situations as complex as the war in northern Uganda?

— If the Prosecutor goes ahead to institute the investigations as planned, what are the consequences on those living in the war zone, especially potential witnesses?

— How will the ICC protect victims and witnesses in northern Uganda while the perpetrators are still [at] large? Particularly considering that the State itself has failed to guarantee the security of its citizens?

— Will the Ugandan People’s Defense Force (UPDF) be investigated as well? If so, what cooperation will the Prosecutor’s Office get from the Government?

Id. at 1–2.

The prosecutor’s initiative in northern Uganda has been characterized as “disruptive” to the peace process because “it discourage[s] LRA members from seeking amnesty pursuant to a Ugandan law passed in 2000—with vigorous support from the Acholi community” and ‘potentially undermines traditional mechanisms of reconciliation and reintegration. The threat of prosecution may serve as a stick, but the carrot of amnesty and reconciliation must be retained in order to reinforce the peace process.” Southwick, Katherine, North Ugandan Conflict, Forgotten but Still Deadly, Yalf Global (Mar. 9, 2005), at <http://yaleglobal.yale.edu>Google Scholar.

36 Perpetrators of crimes, victims, or witnesses may take refuge in other states, which, if parties to the Rome Statute, are obliged to cooperate with the Court under Part 9 of the Statute. But the obligation is contingent on various legal and political factors. In the absence of an indictment or in case of challenges to admissibility and jurisdiction, the obligation of cooperation of a state party could be limited. Under Article 95 of the Statute, if admissibility is challenged under Articles 18 and 19, a state may postpone the execution of a request for cooperation pending a determination by the Court, unless the Court has specifically decided that the prosecutor may pursue the collection of evidence. In some situations, subregional, regional, or tribal politics may dispose some actors against cooperation, despite the fact that the field of investigation requires their cooperation. The Statute does not appear to provide effective means of enforcement. While a state’s noncooperation may be raised at the Assembly of States Parties to the Rome Statute, the Assembly can do little in terms of sanctions or enforcement.

37 Remarks by ICC Prosecutor Luis Moreno–Ocampo, 27th Meeting of the Committee of Legal Advisors on Public International Law, Strasbourg (Mar. 18, 2004) (quoting President Museveni of Uganda (emphasis added) (ellipsis in original)), at <http://www.iccnow.org/documents/statements/others/ICCProsecutorCADHI18Mar04.pdf>.

38 See United Nations Consolidated Appeals Process, Democratic Republic of the Congo 2004, at 4 (copies can be obtained as for the report supra note 31). See also the statement by the spokesman for the secretary-general on April 16, 2004, regarding dialogue between the Ugandan government and the rebels in the north:

The Secretary–General welcomes the announcement made on 14 April [2004] by President Yoweri Museveni of Uganda, in which he reiterated his readiness to talk with the leaders of the Lord’s Resistance Army (LRA), either directly or through intermediaries, in order to reach a peaceful resolution of the conflict in northern Uganda.

UN Press Release SG/SM/9258, AFR/901 (Apr. 16, 2004).

The European Union’s commissioner for development and humanitarian aid, Luis Michel, said on December 16, 2004, that flexibility and mutual understanding between the Ugandan government and the LRA were essential in the effort to end the longstanding conflict in northern Uganda. Uganda: EU Official Urges Flexibility in Effort to End Conflict, IRIN News (Dec. 17, 2004), at <http://www.irinnews.org>. Egeland, Jan, the United Nations under–secretary–general for humanitarian affairs, commended Ugandan government efforts to end, through dialogue, the conflict with the LRA in northern Uganda. Uganda: Historic Opportunity for Northern Peace Process— UN, IRIN News (Dec. 8, 2004), at <http://www.irinnews.org>Google Scholar. Jean–Marc, de la Sablière, French ambassador to the United Nations, in the context of the meeting of die Security Council with President Museveni of Uganda on November 26, 2004 Google Scholar, is reported to have told the press that “our message to Uganda was that the humanitarian crisis in the north should be settled as soon as possible” and that “[t]he president [Museveni] told us that there were good prospects for peace in Uganda.” He said that “[a]ll the international community and the Council are concerned with . . . what is taking place in northern Uganda,” adding that “[w]e are concerned about the situation of child soldiers—it is not only to condemn the situation, but we need to find a solution.” Security Council Urges Museveni to End Conflict in North, IRIN News (Nov. 26, 2004), at <http://www.irinnews.org>.

39 Remarks by ICC Prosecutor Luis Moreno–Ocampo, supra note 37 (emphasis added).

40 The government of Uganda and the LRA have been holding on–and–off peace talks. On April 16, 2005, the Office of the Prosecutor held meetings with members of the Ugandan Parliament and leaders of the Acholi, Iteso, Lango, and Madi communities of northern Uganda. Thereafter, Yves Sorokobi, an ICC spokesman, stated, “If it is in the interest of justice to proceed with a peace agreement, the ICC is ready to suspend its investigation.” The same report states that “Moreno–Ocampo was reported by international media as saying if a solution to end the violence was found, and continuing the investigation did not serve the interests of justice, then the ICC would stop the probe.” Uganda: ICC Could Suspend Northern Investigations—Spokesman, supra note 3. For the joint statement, see ICC Press Release, Joint Statement by ICC Chief Prosecutor and the Visiting Delegation of Lango, Acholi, Iteso and Madi Community Leaders from Northern Uganda (Apr. 16,2005), at <http://www.icc–cpi.int>.

41 In the context of the International Court of Justice, prior to oral hearing the parties may request that the Court delay hearings. The Democratic Republic of the Congo submitted a claim, in 1999, to the ICJ against Uganda, accusing it of armed intervention in the Congo. Three days before oral hearings, in November 2003, the Congo requested that the Court delay the hearing to enable diplomatic negotiations in which the parties were engaged to be conducted in an atmosphere of calm. Uganda informed the Court that it supported the proposal. The Court, while regretting the “unexpected situation,” agreed to the postponement of the oral hearing. ICJ Press Release 2003/39 (Nov. 7, 2003).

42 Rome Statute, supra note 1, Art. 19(1) (emphasis added).

43 Three principles underlie the Statute. The first is the principle of complementarity. The second is that the Statute is designed to deal only with the most serious crimes of concern to the international community as a whole. The third is that the Statute should, to the extent possible, remain within the realm of customary international law. Arsanjani, Mahnoush H., The Rome Statute of the International Criminal Court, 93 AJIL 22, 24–25 (1999)Google Scholar.

44 Holmes, National Courts, supra note 10, at 678.

45 Informal Expert Paper, supra note 14, pt. IV(a), para. 64.

46 United Nations Consolidated Appeals Process, supra note 38, at 18.

47 Second Special Report of the Secretary–General on the United Nations Organization Mission in the Democratic Republic of the Congo, UN Doc. S/2003/566, at 3, para. 10 [hereinafter Second Special Report].

48 Id.

49 Id.

50 Ituri: “Covered In Blood,” 15 Human Rights Watch, Democratic Republic of Congo, No. 11(A), July 2003, chs. 3, 5; see also Second Special Report, supra note 47, at 3, paras. 11–12.

51 ICC Press Release No. pids.009.2003–EN, Communications Received by the Office of the Prosecutor of the ICC (July 16, 2003).

52 Statement of the delegate of the Democratic Republic of the Congo in the Sixth Committee, UN Doc. A/59/C.6/SR.6, para. 14 (2004) [hereinafter Statement of DRC delegate].

53 Id.

54 Article 16 of the Rome Statute, supra note 1, provides:

Deferral of investigation or prosecution

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

55 Remarks by ICC Prosecutor Luis Moreno–Ocampo, supra note 37.

56 Article 53, paragraph 1(c) of the Statute accords considerable latitude to the prosecutor in a decision as to whether to initiate an investigation. As noted above, it provides that in deciding whether to initiate an investigation, the prosecutor shall consider whether, “[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.” This provision, which was intended to cover situations of national amnesty and truth commissions, may not allow the prosecutor to select from the leaders and rank–and–file which category of the accused of the crimes under the Statute should be prosecuted by the Court and which should be left to national judicial systems. Arsanjani, Mahnoush H., The International Criminal Court and National Amnesty Laws, 93 ASIL Proc. 65 (1999)Google Scholar.

57 Relationship Agreement Between the United Nations and the International Criminal Court, Oct. 4, 2004, UN Doc. A/58/874 (entered into force Oct. 4, 2004).

58 ICC Press Release, supra note 51.

59 Statement of DRC delegate, supra note 52, para. 15.

60 Report of the Secretary–General, The Rule of Law and Transitional Justice in Conflict and Post–Conflict Societies, UN Doc. S/2004/616*, paras. 54–55.

61 The members of the Board of Directors are Queen Rania A1–Abdulah, Dr. Oscar Arias Sánchez, Mr. Tadeusz Mazowiecki, Mme. Simone Veil, and Archbishop Emeritus Desmond Tutu. The members of the board are elected by the Assembly of States Parties to the Rome Statute for a term of three years and will serve in an individual capacity on a pro bono basis.

62 Report of the Secretary–General, supra note 60, para. 42.

63 Id.

64 Id., para. 43.

65 In his report, supra note 60, the secretary–general observed:

The location of the Yugoslavia and Rwanda tribunals outside the countries where the crimes were committed has allowed them to benefit from more adequate operational facilities and has helped protect their security and independence. However,... there are a number of important benefits to locating tribunals inside the countries concerned, including easier interaction with the local population, closer proximity to the evidence and witnesses and being more accessible to victims. Such accessibility allows victims and their families to witness the processes in which their former tormentors are brought to account. National location also enhances the national capacity–building contribution of the ad hoc tribunals, allowing them to bequeath their physical infrastructure (including buildings, equipment and furniture) to national justice systems, and to build the skills of national justice personnel. In the nationally located tribunals, international personnel work side by side with their national counterparts and on–the–job training can be provided to national lawyers, officials and staff.

Id., para. 44.

66 Pound, supra note 5, at 36.