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How Can International Criminal Courts Have a Greater Impact on National Criminal Proceedings? Lessons from the First Two Decades of International Criminal Justice in Operation

Published online by Cambridge University Press:  23 September 2013

Yuval Shany
Yuval Shany*
Affiliation:
Hersch Lauterpacht Chair in Public International Law. The research for this chapter was supported by a European Research Council Starting Grant for Frontier Research and by the Seventh Framework Programme under Grant Agreement No 217589 (Impact of International Criminal Procedures on Domestic Criminal Procedures in Mass Atrocity Cases (DOMAC)). I am grateful to Ms Natalie Rosen for her assistance in researching the article and to members of the ERC research group on Conditions for Effective International Adjudication (http://www.effective-intl-adjudiction.org) for their helpful comments on an earlier draft. [email protected]
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Abstract

International actors and observers have afforded greater attention in recent years to the role of national courts in bringing to justice perpetrators of international crimes. Not only are national courts typically less expensive to operate than international courts, they also enjoy at times more legitimacy in the eyes of local constituencies than their international counterparts. They can also reach deeper into society and cast a wider net than international criminal courts. Indeed, there is an increased tendency to view international criminal courts as mechanisms primarily designed to support and complement the work of national criminal procedures, and to pay closer attention to the interaction between the two sets of judicial institutions. It is against this background that the Project on Studying the Impact of International Courts in Domestic Criminal Procedures in Mass Atrocity Cases (the DOMAC project) has sought to draw lessons from the experience accumulated by the interactions that took place between national and international courts in the two decades that have passed since the establishment of the International Criminal Tribunal for the former Yugoslavia. This was done in the hope that such lessons may guide such interactions in the future. Indeed, DOMAC reports have looked into interactions relating to specific legal aspects (applicable laws, prosecution rates, sentencing policies and capacity development) and/or at specific geographical regions (for example, the Balkans, Africa, Latin America, East Timor) and provide many interesting stories of success and failure, from which valuable lessons can be learned. The purpose of this article is to offer, on the basis of the said DOMAC reports, some general observations on the impact of international courts on domestic criminal processes (in the aftermath of mass atrocity situations), and to discuss the structural deficiencies that may have led until now to sub-optimal levels of cooperation and division of labour between international and national criminal procedures. On the basis of these critical observations, a number of general recommendations for future policy planners will be considered. The article first describes some of the main impacts of international courts on domestic courts handling mass atrocity cases. It then discusses four overarching problems, which may have hampered such interactions: the lack of a comprehensive legal response to mass atrocities, inadequate allocation of resources, the absence of ultimate responsibility over the international response, and legitimacy deficits. The concluding section sketches a number of proposals based on the discussion in the two immediately preceding sections.

Keywords

international criminal lawinternational criminal courtsimpact of international law on domestic lawcriminal procedurescapacity developmentjudicial legitimacy
Type
Articles
Information
Israel Law Review , Volume 46 , Issue 3 , November 2013 , pp. 431 - 453
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2013 

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References

1 ‘The States Parties to this Statute … Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes’: Rome Statute of the International Criminal Court (ICC Statute) (entered into force 1 July 2002) 2187 UNTS 90, preamble.

2 Bibas, Stephanos and Burke-White, William W, ‘International Idealism Meets Domestic-Criminal-Procedure Realism’ (2010) 59 Duke Law Journal 637, 639–41Google Scholar.

3 Wippman, David, ‘The Costs of International Justice’ (2006) 100 American Journal of International Law 861Google Scholar. See also Romano, Cesare PR, ‘The Price of International Justice’ (2005) 4 The Law and Practice of International Courts and Tribunals 281CrossRefGoogle Scholar; Ford, Stuart, ‘How Leadership in International Criminal Law is Shifting from the US to Europe and Asia: An Analysis of Spending On and Contributions to International Criminal Courts’ (2011) 55 Saint Louis University Law Journal 953Google Scholar.

4 In fact, the number of cases before international criminal courts has been in a state of decline. Whereas the ICTY Office of the Prosecutor (OTP) issued 161 indictments, the ICTR OTP issued only some 85 indictments. The Special Court for Sierra Leone (SCSL) handled 13 indictees, and fewer than five indictees were charged by the Lebanon and Cambodia tribunals. In addition, the ICC has not charged more than six indictees in any one of the country situations it handles. The exception to this trend has been the record of the internationalised courts in East Timor, Bosnia and Herzegovina, and Kosovo, which handled larger numbers: 87 defendants in Timor-Leste (until 2005, out of 391 indictees), 72 defendants in Bosnia and Herzegovina (until 2009, out of 139 indictees), and 37 defendants in Kosovo (until 2009, out of 65 indictees).

5 Hence, for example, none of the individuals charged by the ICC with crimes in relation to the Uganda situation were arrested; similarly, all three Sudanese individuals affiliated with the government of Sudan who have been charged with committing crimes against the civilian population in Darfur were not surrendered to the court.

6 Strohmeyer, Hansjörg, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’ (2001) 95 American Journal of International Law 46CrossRefGoogle Scholar.

7 See, eg, Keren Michaeli, ‘The Impact of the International Criminal Tribunal for Yugoslavia on War Crimes Investigations and Prosecutions in Serbia’, DOMAC, November 2011, DOMAC/13, 41–43, http://www.domac.is/media/domac-skjol/Domac-13-KM-Serbia.pdf.

8 Koh, Harold Hongju, ‘Transnational Legal Process’ (1997) 75 Nebraska Law Review 181Google Scholar; Koh, Harold Hongju, ‘Why Do Nations Obey International Law?’ (1997) 106 Yale Law Journal 2599, 2645–58CrossRefGoogle Scholar. Koh suggests ‘a more complete approach towards understanding why nations obey, one that combines the managerial [the approach by A and AH Chayes, see below] and fairness [Thomas Franks’ approach, see below] with deeper analysis of how transnational legal process promotes the interaction, interpretation, and internalization of international legal norms': ibid 2602. See also: Brunnée, Jetta and Toope, Stephen J, Legitimacy and Legality in International Law: An Interactional Account (Cambridge University Press 2010) 56–87CrossRefGoogle Scholar; Chayes, Abram and Chayes, Antonia Handler, The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press 1998)Google Scholar; Franck, Thomas M, Fairness in International Law and Institutions (Oxford University Press 1998)CrossRefGoogle Scholar. See, more generally, de Guzman, Margaret M, ‘Gravity and the Legitimacy of the International Criminal Court’ (2008) 32 Fordham International Law Journal 1400Google Scholar; David Luban, ‘Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law’ (2008) Georgetown Public Law Research Paper No 1154117, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1154177; Greenawalt, Alexander KA, ‘Justice Without Politics? Prosecutorial Discretion and the International Criminal Court’ (2008) 39 New York University Journal of International Law and Politics 583, 650–52Google Scholar.

9 Cryer, Robert, ‘International Criminal Law vs State Sovereignty: Another Round?’ (2005) 16 The European Journal of International Law 979, 986CrossRefGoogle Scholar; Sands, Philippe, ‘After Pinochet: The Role of Domestic Courts’ in Sands, Philippe (ed), From Nuremberg to the Hague: The Future of International Criminal Justice (Cambridge University Press 2003) 75CrossRefGoogle Scholar; Benzing, Markus, ‘The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity’ (2003) 7 Max Planck United Nations Yearbook of International Law 591, 595Google Scholar.

10 But see Wippman (n 3).

11 Bergsmo, Morten (ed), Complementarity and the Exercise of Universal Jurisdiction for Core International Crimes (Torkel Opsahl Academic ePublisher 2010) 99Google Scholar. According to Bergsmo, ‘[t]he proximity of the courts to the events, moreover, may enable a better appreciation of the socio-political, historical, cultural context of the case, and may more readily contribute to restorative justice and to domestic legitimacy and acceptance. It may also better contribute to public debate and deliberation, and heighten pedagogical initiatives to deter the future recurrence of violence and to inculcate a culture of accountability’.

12 ICC Statute (n 1). United Nations General Assembly, Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, 6 September 1995, UN Doc A/50/22, para 31: ‘A number of delegations stressed that the principle of complementarity should create a strong presumption in favour of national jurisdiction. Such a presumption, they said, was justified by the advantages of national judicial systems, which could be summarized as follows: (a) all those involved would be working within the context of an established legal system, including existing bilateral and multilateral arrangements; (b) the applicable law would be more certain and more developed; (c) the prosecution would be less complicated, because it would be based on familiar precedents and rules; (d) both prosecution and defence were likely to be less expensive; (e) evidence and witnesses would normally be more readily available; (f) language problems would be minimized; (g) local courts would apply established means for obtaining evidence and testimony, including application of rules relating to perjury; and (h) penalties would be clearly defined and readily enforceable. It was also noted that States had a vital interest in remaining responsible and accountable for prosecuting violations of their laws – which also served the interest of the international community, inasmuch as national systems would be expected to maintain and enforce adherence to international standards of behaviour within their own jurisdiction’.

13 UNSC Res 1503(2003), 28 August 2003, UN Doc S/RES/1503 (2003); Statement by the President of the Security Council, 23 July 2002, UN Doc S/PRST/2002/21.

14 ‘Positive complementarity’ was debated actively during the ICC Review Conference in Kampala (Uganda) in May–June 2010: see ICC Press Release, ‘Review Conference: ICC President and Prosecutor Participate in Panels on Complementarity and Co-operation’, 3 June 2010, http://www.icc-cpi.int/en_menus/asp/reviewconference/pressreleaserc/Pages/review%20conference_%20icc%20president%20and%20prosecutor%20participate%20in%20panels%20on%20complem.aspx. See also Luis Moreno-Ocampo, Prosecutor of the ICC, Statement of the Prosecutor to the Diplomatic Corps, 12 February 2004, http://www.iccnow.org/documents/OTPStatementDiploBriefing12Feb04.pdf; Burke-White, William W, ‘Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice’ (2008) 49 Harvard International Law Journal 53Google Scholar; Stahn, Carsten, ‘Complementarity: A Tale of Two Notions’ (2008) 19 Criminal Law Forum 87, 100–02CrossRefGoogle Scholar.

15 Assembly of States Parties to the Rome Statute of the International Criminal Court, Kampala Review Conference, Resolution RC/Res 1 (adopted at the 9th plenary meeting, 8 June 2010).

16 See generally http://www.domac.is.

17 The research conducted by the DOMAC researchers involved, principally, a review of academic literature, official state documents, reports by international organisations and non-governmental organisations (NGOs), and onsite visits in which interviews were conducted with international and national court officials, state officials, officers in international organisations, local academics and lawyers, and NGO workers. Among countries visited by the DOMAC researchers were the Netherlands, United States, Rwanda, Tanzania, Sierra Leone, Uganda, Democratic Republic of Congo (DRC), East Timor; Serbia, Croatia, Bosnia and Herzegovina and Colombia. All DOMAC reports were sent to international and local experts for comments; some of the reports were also presented in regional conferences that took place in Belgrade and Kampala and in the final Project on International Courts and Tribunals (PICT) Conference in Amsterdam.

18 See, eg, Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia (entered into force 14 March 1994) UN Doc IT/32/Rev 49, 22 May 2013, http://www.icty.org/x/file/Legal%20Library/Rules_procedure_evidence/IT032Rev49_en.pdf: according to r 11 bis (D)(iii), upon the referral of the indictment to another court, ‘the Prosecutor shall provide to the authorities of the State concerned all of the information relating to the case which the Prosecutor considers appropriate and, in particular, the material supporting the indictment’. In addition, r 75 allows direct petitioning by other judicial authorities for access to protected material in the possession of the international tribunal. The ICTY has transferred accused individuals to the authorities of Bosnia and Herzegovina (BiH), Croatia and Serbia to be tried before domestic courts in these countries. In cases where the ICTY had not yet issued indictments, the tribunal has transferred investigative materials collected by the OTP for review and further investigation by prosecutorial authorities in the region. See Pocar, Fausto, ‘Completion or Continuation Strategy?’ (2008) 6 Journal of International Criminal Justice 655CrossRefGoogle Scholar.

19 Louis Moreno-Ocampo, Chief Prosecutor, ICC, ‘Statement at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court’, 16 June 2003, 2 (‘As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efficiency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success’), http://www.iccnow.org/documents/MorenoOcampo16June03.pdf. Similarly, an expert paper published by the OTP notes: ‘The complementarity regime serves as a mechanism to encourage and facilitate the compliance of states with their primary responsibility to investigate and prosecute core crimes’: ICC, Office of the Prosecutor, ‘Informal Expert Paper: The Principle of Complementarity in Practice’, 2003, 3, http://www.iclklamberg.com/Caselaw/OTP/Informal%20Expert%20paper%20The%20principle%20of%20complementarity%20in%20practice.pdf. See also Slaughter, Anne-Marie and Burke-White, William W, ‘The Future of International Law Is Domestic’ (2006) 47 Harvard International Law Journal 327, 339–43Google Scholar (referring to judicial reforms in DRC and Sudan resulting from the initiation of investigations by the ICC Prosecutor); Stromseth, Jane E, ‘The International Criminal Court and Justice on the Ground’ (2011) 43 Arizona State Law Journal 427Google Scholar (referring to reforms of Ugandan law to enable domestic prosecutions for international crimes as an alternative to the ICC).

20 Burke-White, William W, ‘Implementing a Policy of Positive Complementarity in the Rome System of Justice’ (2008) 19 Criminal Law Forum 59, 70CrossRefGoogle Scholar. See also Sands, Philippe, ‘International Law Transformed? From Pinochet to Congo …?’ (2003) 16 Leiden Journal of International Law 37, 40CrossRefGoogle Scholar.

21 Schabas, William A, An Introduction to the International Criminal Court (Cambridge University Press 2007) 150CrossRefGoogle Scholar. See also Cecile Aptel, ‘Domestic Justice Systems and the Impact of the Rome Statute’, Consultative Conference on International Criminal Justice', 9–11 September 2009, United Nations Headquarters, New York, 7. Aptel refers to the Congolese government's argument that it has no intention to investigate or prosecute Katanga but wishes that he be prosecuted internationally, and claims that by accepting this argument the ICC risks blurring the distinction between unwillingness and inability and undermines the fact that states themselves remain responsible for investigating and prosecuting international crimes.

22 Wexler, Leila Sadat, ‘Committee Report on Jurisdiction, Definition of Crimes, and Complementarity’ (1997) 25 Denver Journal of International Law and Policy 221, 223Google Scholar; Rastan, Rod, ‘The Responsibility to Enforce – Connecting Justice with Unity’ in Stahn, Carsten and Sluiter, Göran (eds), The Emerging Practice of the International Criminal Court (Martinus Nijhoff 2009) 163, 171–72Google Scholar.

23 Yaël Ronen, ‘Bosnia and Herzegovina: The Interaction between the ICTY and Domestic Courts in Adjudicating International Crimes’, DOMAC, September 2011, DOMAC/8, 62, http://www.domac.is/media/veldu-flokk/Domac8-2011-YR.pdf.

24 Rome Agreement of 18 February 1996 (Rules of the Road), para 5 of which provides: ‘As part of their obligation to cooperate fully in the investigation and prosecution of war crimes and other violations of international humanitarian law, as provided in Article IX of the General Framework Agreement, the Parties will provide unrestricted access to places, including mass grave sites, relevant to such crimes and to persons with relevant information. IFOR will work to provide a secure environment for the completion of these tasks. Persons, other than those already indicted by the International Tribunal, may be arrested and detained for serious violations of international humanitarian law only pursuant to a previously issued order, warrant, or indictment that has been reviewed and deemed consistent with international legal standards by the International Tribunal. Procedures will be developed for expeditious decision by the Tribunal and will be effective immediately upon such action’, http://www.ohr.int/ohr-dept/hr-rol/thedept/war-crime-tr/default.asp?content_id=6093.

25 ICTY Rules of Procedure and Evidence (n 18) r 11 bis (A) reads:

After an indictment has been confirmed and prior to the commencement of trial, irrespective of whether or not the accused is in the custody of the Tribunal, the President may appoint a bench of three Permanent Judges selected from the Trial Chambers … which solely and exclusively shall determine whether the case should be referred to the authorities of a State:

  1. (i)

    (i) in whose territory the crime was committed; or

  2. (ii)

    (ii) in which the accused was arrested; or

  3. (iii)

    (iii) having jurisdiction and being willing and adequately prepared to accept such a case, so that those authorities should forthwith refer the case to the appropriate court for trial within that State.

In addition, a domestic law was enacted to allow the War Crimes chamber to receive such referrals: see Law on the Transfer of Cases from the ICTY to the Prosecutor's Office of BiH and the Use of Evidence Collected by the ICTY in Proceedings before the Courts in BiH, Official Gazette of Bosnia and Herzegovina, No 61/04.

26 Ronen (n 23) 28–30, 58–73.

27 Michaeli (n 7) 48–52, 56–59, 66–71; Keren Michaeli, ‘The Impact of the International Criminal Tribunal for Yugoslavia on War Crimes Investigations and Prosecutions in Croatia’, DOMAC, December 2011, DOMAC/10 42–47, 49–51, 77–78, http://www.domac.is/media/domac-skjol/Domac-10-KM-Croatia.pdf.

28 Ronen (n 23) 51; Michaeli (n 7) 67–68.

29 Alejandro Chehtman, ‘The ICC and its Normative Impact on Colombia's Legal System’, DOMAC, October 2011, DOMAC/16, 15–36, http://www.domac.is/media/domac-skjol/Domac-16-AC-Colombia.pdf.

30 Sigall Horovitz, ‘Uganda: Interaction between International and National Responses to the Mass Atrocities’, DOMAC, January 2013, DOMAC/18, 15, 27–29, http://www.domac.is/media/domac-skjol/DOMAC-18-Uganda.pdf; Sigall Horovitz, ‘Sudan: Interaction between International and National Judicial Responses to the Mass Atrocities in Darfur’ DOMAC, April 2013, DOMAC/19, 35–41 http://www.domac.is/media/domac/DOMAC-19--Sudan--SH.pdf; Sigall Horovitz, ‘Rwanda: International and National Responses to the Mass Atrocities and their Interaction’, DOMAC, September 2010, DOMAC/6, 43, http://www.domac.is/media/veldu-flokk/DOMAC6-Rwanda.pdf (referring to the Rwanda Patriotic Front trials in which the accused were brought to trial only after the ICTR had prepared a case against them); Human Rights Watch, ‘World Report 2009: Rwanda, Events of 2008’, http://www.hrw.org/en/node/79182?. See also Human Rights Watch, ‘Course Correction: Recommendations to the ICC Prosecutor for a More Effective Approach to “Situations under Analysis”’, 7–10 June 2011, referring to the OTP's decisions, aimed at catalysing national proceedings, to make public the fact that a situation is under analysis, to publicise events relating to such preliminary examination and to make preventive statements noting that crimes possibly falling within the jurisdiction of the court are being committed.

31 Sigall Horovitz, ‘DR Congo: Interaction between International and National Judicial Responses to the Mass Atrocities’, DOMAC, February 2012, DOMAC/14, 37–38, http://www.domac.is/media/domac/DRC-DOMAC-14-SH.pdf.

32 Sigall Horovitz, ‘Sierra Leone: Interaction between International and National Responses to the Mass Atrocities’, DOMAC, December 2009, DOMAC/3, 20, http://www.domac.is/media/domac/DOMAC3-SH-corr..pdf.

33 ibid 23, 26.

34 Natalie Rosen, ‘Timor-Leste: Interaction between International and National Responses to the Mass Atrocities’, DOMAC, December 2011, DOMAC/15, 65–68, http://www.domac.is/media/domac/Domac-15-Rosen.pdf.

35 See, eg, ATLAS Project, ‘Transitional Justice in Cambodia: Analytical Report’, 2010, 50, http://projetatlas.univ-paris1.fr/IMG/pdf/ATLAS_Cambodia_Report_FINAL_EDITS_Feb2011.pdf.

36 Horovitz, ‘Sudan’ (n 30) 35–41.

37 Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment [2005] ICJ Rep 168.

38 Horovitz, ‘Uganda’ (n 30) 19.

39 See, eg, Statute of the Special Court for Sierra Leone (entered into force 12 April 2002) 2178 UNTS 139, art 1. See also, in relation to the ICC, International Criminal Court, Office of the Prosecutor, ‘Paper on Some Policy Issues before the Office of the Prosecutor’, September 2003, 7, http://www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25-60AA962ED8B6/143594/030905_Policy_Paper.pdf, and UNSC Res 1503 (n 13) (adopting the ICTY's ‘Completion Strategy’).

40 See Statute of the International Criminal Tribunal for the former Yugoslavia, UNSC Res 827(1993), 25 May 1993, UN Doc S/RES/827 (1993), art 24(1) (‘In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia’); Statute of the International Criminal Court for Rwanda, UNSC Res 955(1994), 8 November 1994, UN Doc S/RES/955 (1994), art 23(1) (‘In determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of Rwanda’).

41 Ronen (n 23) 57; Horovitz (n 32) 57; Horovitz, ‘Rwanda’ (n 30) 70–74.

42 Ronen ibid 57–58. See also, eg, ICTY, Prosecutor v Krstić, Judgment, IT-98-33-T, Trial Chamber, 2 August 2001, [700], and IT-98-33-A, Appeals Chamber, 10 April 2004, [36]–[37], [275] (indicating that genocide is more serious than crimes against humanity and war crimes); ICTY, Prosecutor v Tadić, Sentencing Judgment, IT-94-1-T, Trial Chamber, 14 July 1997, [73], and ICTY, Prosecutor v Erdemovic, IT-96-22-A, Appeals Chamber, 7 October 1997, Joint Separate Opinion, [20]–[26] (indicating that crimes against humanity are more serious and carry a higher penalty than war crimes).

43 Yaël Ronen, ‘Prosecutions and Sentencing in Western Balkans’, DOMAC, February 2010, DOMAC/4, 100, http://www.domac.is/media/domac/DOMAC-4-2010.pdf. Note, however, that the number of convicted Serbs far exceeds the number of convicted persons of other ethnicities.

44 ibid 20 and 54. In the same vein perhaps, statistics for DRC trials suggest that rebel militia members typically receive harsher sentences that members in government forces: Yaël Ronen, ‘Prosecutions and Sentencing in the DRC’ (on file with the author). However, since no ICC cases that implicate government forces have been initiated, it cannot be ruled out that such sentencing gaps are simply reflective of the greater tendency by militias in the DRC to engage in atrocious practices.

45 See, eg, Michaeli (n 27) 58.

46 ibid 57–58, 67–68.

47 See Silvia Borrelli, ‘The Impact of the European Convention on Human Rights in the Context of War Crime Trials in Bosnia and Herzegovina’, DOMAC, November 2009, DOMAC/5, http://www.domac.is/media/domac/DOMAC5-Impact-of-the-ECHR-on-war-crimes-prosecutions-in-Bosnia.pdf.

48 ICTY Rules of Procedure and Evidence (n 18) r 11 bis; ICTR Rules of Procedure and Evidence of the International Tribunal (entered into force 29 June 1995), r 11 bis. See, eg, Horovitz, ‘Rwanda’ (n 30) 64–66; Michaeli (n 27) 77; Ronen (n 23) 29, 36–38.

49 Chehtman (n 29) 17–21.

50 Horovitz, ‘Sudan’ (n 30) 35–41.

51 See, eg, Human Rights Watch, ‘Sudan: End Sham Trials by Anti-Terror Courts’, Human Rights Watch News, 6 August 2008.

52 Horovitz, ‘Rwanda’ (n 30) 70–72. It is possible that the reluctance of some Congolese military tribunals to impose the death penalty derives from an (incorrect) perception that the ICC Statute prohibits national courts from imposing such a penalty: Horovitz (n 31) 42–43.

53 Michaeli (n 7) 66–67; Ronen (n 23) 35–36.

54 Michaeli (n 27) 73.

55 Michaeli (n 7) 71–72, 74–78 (describing the limited jurisprudential impact of the ICTY on domestic proceedings in Serbia); Ronen (n 23) 36–50 (alluding to the 2003 Criminal Code and to the jurisprudential impact of the ICTY in courts in Bosnia and Herzegovina); Michaeli (n 27) 58–64 (addressing changes in the treatment of command responsibility by local courts).

56 See, eg, Horovitz (n 32) 52; Michaeli, (n 7) 72.

57 See, eg, Michaeli (n 27) 78–80; Horovitz (n 31) 15–16.

58 Michaeli (n 27) 49, 78; Ronen (n 23) 69–71; Horovitz, ‘Uganda’ (n 30) 44–45.

59 Ronen (n 23) 59–60, 66–69; Horovitz, ‘Uganda’ (n 30) 44; Michaeli (n 27) 51, 77–78; Michaeli (n 7) 56–58.

60 Horovitz (n 31) 32; Horovitz (n 32) 58.

61 See Alejandro Chehtman, ‘Developing Local Capacity for War Crimes Trials: Insights from BiH, Sierra Leone, and Colombia’, DOMAC, June 2011, DOMAC/9, 15, http://www.domac.is/media/domac/Domac-9-AC-Final-Paper.pdf.

62 Horovitz (n 32) 46.

63 Ronen (n 23) 59–60, 66–69. See also ibid at 81–82 regarding the limited spillover effect of positive developments at the federal state level upon the entity level.

64 Henkin, Louis, How Nations Behave: Law and Foreign Policy (2nd edn, Columbia University Press 1979) 47Google Scholar (‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time').

65 Michaeli (n 27) 24, 26–27; Horovitz, ‘Rwanda’ (n 30) 22.

66 Michaeli (n 27) 65–66; Michaeli (n 7) 41–48; Horovitz, ‘Rwanda’ (n 30) 20.

67 Michaeli (n 7) 40–41, 85; Michaeli (n 27) 36, 40–41; Ronen (n 23) 30–33, 57; Horovitz, ‘Rwanda’ (n 30) 75.

68 Michaeli (n 27) 72.

69 ibid 72; Michaeli (n 7) 41.

70 See n 13 and accompanying text.

71 Michaeli (n 7) ss 6.2, 6.3 and 7.3; Michaeli (n 27) 49 and s 7.3; Ronen (n 23) s 5.5; Horovitz, ‘Rwanda’ (n 30) 60–62 and s 8.4.

72 Moreno-Ocampo, Luis, ‘A Positive Approach to Complementarity: The Impact of the Office of the Prosecutor’ in Stahn, Carsten and Zeidy, Mohamed M El (eds), The International Criminal Court and Complementarity: From Theory to Practice (Cambridge University Press 2011) Ch 1Google Scholar.

73 Alejandro Chehtman, ‘The Impact of the ICC on Colombia: Positive Complementarity on Trial’, DOMAC, October 2011, DOMAC/17, http://www.domac.is/media/domac-skjol/Domac-17-AC.pdf.

74 Horovitz (n 31) 32–34; Horovitz, ‘Uganda’ (n 30) 33–37.

75 Horovitz, ‘Sudan’ (n 30) 28–34.

76 Kleffner, Jann K and Nollkaemper, André, ‘The Relationship between Internationalized Courts and National Courts’ in Romano, Cesare PR, Nollkaemper, André and Kleffner, Jann K (eds), Internationalized Criminal Courts and Tribunals (Oxford University Press 2004) 359, 378Google Scholar (claiming that the driving force behind the development of hybrid courts is capacity-building rationale); Dickinson, Laura A, ‘The Promise of Hybrid Courts’ (2003) 97 American Journal of International Law 295CrossRefGoogle Scholar; Mégret, Frédéric, ‘In Defense of Hybridity: Towards a Representational Theory of International Criminal Justice’ (2005) 38 Cornell International Law Journal 725Google Scholar.

77 Ronen (n 23) 35.

78 Horovitz (n 32) 9, 38–39.

79 ibid s 8; Rosen (n 34) 69–72.

80 Rosen (n 34) 54–58.

81 Horovitz (n 32) 26.

82 Ronen (n 23) 75–76; Horovitz, (n 32) 61–62.

83 Horovitz (n 32) 54.

84 SCSL, Prosecutor v Taylor, Decision on Immunity from Jurisdiction, SCSL-2003-01-I, Appeals Chamber, 31 May 2004, [42].

85 Horovitz (n 31) 48; Horovitz, ‘Rwanda’ (n 30) 54–55.

86 Michaeli (n 7) 40–41, 85; Michaeli (n 27) 36, 40–42; Ronen (n 23) 30–33, 57.

87 Horovitz (n 32) 63; Rosen (n 34) 30–36, 42; Ronen (n 23) 76–77, 84 (referring to the Entity courts).

88 See, eg, Horovitz (n 31) 41.

89 Horovitz, ‘Rwanda’ (n 30) 62.

90 ibid 75–76; Michaeli (n 7) 85; Michaeli (n 27) 49.

91 Chehtman (n 61) 17.

92 See, eg, Horovitz (n 31) 41–42.

93 For example, witnesses testifying in international courts may be reluctant to testify also before national courts. cf Human Rights Watch, ‘Narrowing the Impunity Gap: Trials before Bosnia's War Crimes Chamber’, 2007, 37, http://www.hrw.org/sites/default/files/reports/ij0207webwcover.pdf.

94 Michaeli (n 27) 67–68.

95 cf Wilde, Ralph, International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away (Oxford University Press 2008) 216–17CrossRefGoogle Scholar.

96 Rosen (n 34) 69–72.

97 cf Franck (n 8) 188.

98 Horovitz, ‘Rwanda’ (n 30) 55–57; Michaeli (n 7) 43, 48; Michaeli (n 27) 65; Horovitz (n 32) 45–47.

99 Michaeli (n 7) 41–47; Michaeli (n 27) 53–56, 61–62, 64–66.

100 Horovitz (n 32) 46.

101 Horovitz, ‘Uganda’ (n 30) 25–26 (because of the ICC's failure to address crimes committed by the Uganda People's Defence Force); Horovitz, ‘Sudan’ (n 30) 30–34 (based on the claim that the ICC lacks jurisdiction over the cases and is a political instrument of the West).

102 Horovitz, ‘Rwanda’ (n 30) 48–49, 75.

103 Michaeli (n 7) 41; Michaeli (n 27) 72.

104 Horovitz, ‘Rwanda’ (n 30) 23 (referring to the fragile security situation in Rwanda and the assassination of a few judges following their appointment).

105 See, eg, SCSL, ‘Legacy Overview’, http://www.sc-sl.org/LEGACY/tabid/224/Default.aspx; ICTY, ‘The Mechanism for International Criminal Tribunals’, http://www.icty.org/sid/10874.