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Trends in international criminal justice – Hybrid tribunals, national prosecutions and positive complementarity

Christian Ranheim,

r.c.ranheim@nchr.uio.no

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Characteristics of international crimes

• Contextual elements• Individual responsibility• International responsibility• Political aspect• New dicipline of law

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Stages of development in ICJ

1: Institution building and codification of ICL

2: Institutional experiments: hybrid tribunals

3. The ICC and an evolving ICL profession

4: Shifting point of gravity: from the international to the national level

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1: Institution building and codification of ICL

IMT, IMFE, ICTY and ICTR

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• Ensures fair trial standards• History telling – mass attrocities • Victims participations - witnesses• Investigations • Use of local competence – language, historical skills

etc.• Transfer of competence and resources to the

national judicial system

• Cheaper

2: Institutional experiments: hybrid tribunals

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3. The ICC and an evolving ICL profession

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4: Shifting point of gravity: from the international to the national level

• Unrealistic expectations of the ICC?– Incapacitate – Deter– Rehabilitate (Historic records, victims participation, peace

processes, reconciliation, etc.)

• Limitations of the ICC– Budget set by ASP– Limited political support?– Limited number of investigations and trials– Problems of arrest and surrender

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• Shift from international to national level:– ICC can focus resources– Realign expectations and capacity– Sharing of costs – Narrow the impunity gap –use of complementary

models

• National level and immigration politics

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Complementarity

• Complementarity: Issue of admissibility:• “the Court shall determine that a case is inadmissible

where: The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution”

• General principle: Primary responsibility of states • Situation level: Being prosecuted or investigated?

• Case level: Have genuinely investigated/prosecuted for same factual

events?

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”Positive” complementarity

• Encourage and assist national prosecutions• Increase capacity

We will take “a positive approach to cooperation and the principle of complementarity. This means encouraging genuine national proceedings where possible, relying on national and international networks, and participating in a system of international cooperation.”

• Mandate?– Complementarity (art 17)– Initiation of prosecutions (art 53)– State cooperation (art 86-93)

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Positive complementarity - tactics

• Willing and able states– Specialised assistance, use for lobbying unable/unwilling states

• Unwilling states– Encouraging state to act or undertake investigation

• Lobbying

• Deterrence

• Monitoring

• Alerting of crimes

• Willing but unable states– Strenghten ability to investigate and prosecute

• Sharing legal resources, analysis, information

• Exhange of expertise and skills

• Publication of clear standards

• Technical advice, assistance and training?