The Impact of International Criminal Proceedings on National Prosecutions in Mass Atrocity Cases
Schwendiman, David, Shany, Yuval, Swaak-Goldman, Olivia, Wierda, Marieke, Pocar, Fausto, Ingadottir, Thordis, Ngoga, Martin, Proceedings of the Annual Meeting-American Society of International Law
This panel was convened at 9:00 a.m., Friday, March 27, by its moderator, Thordis Ingadottir of the University of Reykjavik, who introduced the panelists: Andre Nollkaemper of the University of Amsterdam; Martin Ngoga of the Prosecutor's Office of the State of Rwanda; David Schwendiman of the Prosecutor's Office of Bosnia and Herzegovina; Yuval Shany of Hebrew University; Olivia Swaak-Goldman of the Office of the Prosecutor at the International Criminal Court; Marieke Wierda of the International Center of Transitional Justice; and Judge Fausto Pocar of the International Criminal Tribunal for the Former Yugoslavia. *
THE CONTRIBUTION OF INTERNATIONAL INSTITUTIONS TO DOMESTIC REPARATION FOR INTERNATIONAL CRIMES
I would like to start with two interconnected propositions. First, the prosecution of perpetrators of international crimes should be embedded in a comprehensive regime that includes both criminal justice proper and reparation for victims. Second, as part of such a regime, international institutions, including international courts, may have a role in supporting domestic reparation schemes. The contribution of international institutions to reparations at the domestic level raises questions that are quite distinct than those that arise in regard to prosecution.
1. THE LINK BETWEEN PROSECUTION AND REPARATION
The first proposition seems straightforward. The process that leads from mass atrocities to a stable, peaceful, and normalized situation involves both prosecution and reparation for victims. This is an essential element of all authoritative definitions of transitional justice, including the definition of former Secretary-General of the UN, Kofi Annan. (1) Prosecutions only offer a partial response to atrocities and, if not accompanied by reparation, may not achieve the goals of justice and transition to a stable post-conflict situation.
The quest for reparation need not always be linked expressly to determinations of individual (or collective) responsibility. Whereas prosecution by its very nature involves determination of wrongfulness and responsibility, that need not be the case for reparation. In many post-conflict situations, states and international institutions have provided financial or material support which was not contingent on a prior determination of legal responsibility. Whether or not such reparation (in the non-legal sense of the term) is adequate for contributing to the goals of transitional justice is an empirical question that depends in large part on the perspective of victims and that will differ from case to case. There is evidence that in some situations, it may not be adequate if not accompanied by a determination of legal responsibility. The aftermath of Srebrenica, at least as far as the possible responsibility of the UN and the Netherlands is concerned, is a case in point. (2)
The question of reparation for victims of international crimes was neglected in the ad hoc tribunals for the Former Yugoslavia and Rwanda. At the time of the drafting of the statutes, any concerns over reparation that may have existed were not substantial enough to find their way into the statutes. While financial and material support has been provided with respect to both situations, this was not linked in any legal way to responsibility of the perpetrators.
However, in state practice, the importance of a combination of prosecutions and reparation increasingly has been recognized. The Rwandese Organic Law on Genocide allows for claims for compensation by victims of genocide. (3) Colombia has adopted a law that allows for parallel criminal proceedings and administrative reparations in regard to the longstanding guerrilla violence. (4)
Also, third-party states have recognized that exercising universal jurisdiction may need to involve both prosecution and reparation to victims. In March 2009, the District Court of The Hague in the Netherlands, located a couple of kilometers from the Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR), provided for more than what the ICTR itself could have done. The ICTR had asked the Netherlands to try Joseph Mpambara for genocide. The Dutch Court found that it could not prosecute him for genocide because of a lack of jurisdiction and, perhaps somewhat controversially, that his acts could not be qualified as war crimes as there was not sufficient nexus with the armed conflict. The Court did could convict the defendant for torture, however, sentencing him to twenty years in prison. Significantly, the Court awarded, in the same proceedings, a claim for compensation to three surviving victims. These victims had claimed the small, but for them not meaningless, amount of 670 euro. In deciding on the claim, the Court took into account the fact that the organic law of Rwanda also envisaged compensation. (5)
It thus appears that there is increasing support to link, at the domestic level, prosecutions with reparations, whether in the form of civil claims attached to criminal proceedings, for instance in the Dutch case, or in the form of more administrative processes (as in Colombia).
2. THE CONTRIBUTION OF INTERNATIONAL INSTITUTIONS
The second proposition is that this is an area where international institutions can help. The Colombian or Dutch examples will not be followed everywhere. Also, it seems that compensation is more in the books than in action. That appears to be the case in Rwanda. (6) Moreover, the tasks at the domestic level are quite momentous. The Dutch case was relatively easy with three victims asking for modest amounts. But in most post-conflict situations, the numbers are large and the means of perpetrators will be limited. If there is a significant role for international institutions in supporting domestic efforts in criminal prosecutions, this a fortiori will be so with regard to reparation.
For one thing, international institutions can develop creative incentives for domestic actors to provide for reparation schemes; for instance, by the prospect that absence of proper domestic reparation will lead to top-down obligations by human rights courts. International institutions also can provide critical knowledge to attorneys, who will have the prime responsibility to raise such issues before the courts and other actors. They also may help to provide financial and material means to actually deliver reparation.
The possible contribution of international institutions to domestic reparations programs raises quite distinct questions that hitherto have hardly been subjected to fundamental conceptual and empirical examination. I will subsequently make a few observations on, first, the International Criminal Court (ICC) and, second, non-criminal courts.
As to the ICC, the Statute of the International Criminal Court recognizes the link between prosecutions and reparation. Article 75(1) of the Statute provides that the Court "shall establish principles relating to reparations to victims." These principles should primarily guide the practice of the Court, which may provide for reparation for victims itself. (7) The question is whether these principles, or more generally the Court, can also play a role with regard to reparation at the domestic level.
A key question in this respect is whether the complementarity principle of Article 17 of the Statute applies to reparations. Article 17 provides that complementarity is a relevant criterion for determining the admissibility of a case. From its wording, it is quite clear that what the drafters had in mind was that the criminal prosecution can be precluded if the case is being prosecuted at the domestic level. There is no hint of the possibility that the unwillingness or inability to provide reparation at the domestic level is relevant for the admissibility of a case.
However, it may be argued that, in a more indirect way, perhaps by way of analogy, the criteria of unwillingness and inability should be relevant for the Court. First, they may be relevant to determining whether or not the Court will address questions of reparation at all, perhaps even as a matter of admissibility of claims for reparation. If full compensation has been provided domestically, should the Court allow claims for reparation at all? Second, even if the Court will allow such claims, domestic proceedings may be relevant in determining the level of reparation. In any case, with respect to material damage, the Court should not provide reparation to the extent that it has been provided domestically.
There are good arguments for applying the complementarity principle in this way. Like prosecution, reparation is primarily to be executed domestically, a proposition that finds ample support in the case-law of the European Court of Human Rights. (8) The arguments that support complementarity in regard to prosecution apply even more forcefully here. What is, and what is not, meaningful reparation can best be determined domestically.
Of course, it seems a rather unlikely scenario that a state is not able or willing to prosecute, but is able or willing to provide compensation. However, the possibility is not excluded altogether because, domestically, prosecution and reparation may be subject to different parts of law and different institutions.
An open question on which the Court will have to do considerable work is identifying the principles of reparation that it will apply in determining the reparation that it itself will provide and assessing the relevance of domestic reparation. The Charter is silent on this question, and the Court will have to identify general principles of law and, arguably, should also take into account the domestic law of the state in question.
Given the unlikelihood that the Court will find a case admissible, yet defer to prior domestic proceedings for questions of reparation, in practice the Court can play a more significant role through its policy of positive complementarity. (9) Given the fact that reparation is part of the Court's own mandate, if it seeks to strengthen the role of domestic courts to meet the objectives of the Statute it should also seek to support domestic reparation schemes that are linked to the prosecution of suspects. The Trust Fund already has become quite active in this area, identifying for situations under the jurisdiction of the Court the need and possibility of providing reparation. (10) These are technically not linked to responsibility of a perpetrator, however, and an empirical question on which research has yet to be done is whether, in the perception of victims, the link between reparation and responsibility is sufficiently strong.
Another question that at this stage only allows for speculation is what, if any, are the incentives for domestic reparation that the Court may trigger. There is some evidence (and among some actors and observers at least an expectation and hope) that the prospect of prosecution by the Court would induce domestic prosecution. In view of the great uncertainty as to what, if any, action the Court will take on compensation, it seems doubtful that the power of the Court to order compensation would induce domestic action in the same way as the Court's ability to induce action on prosecution. This may change if the Court gets into the business of awarding reparation.
In addition to the ICC, non-criminal institutions can be relevant for reparation in mass atrocity cases. This holds particularly true for human rights courts, notably the Inter-American Court of Human Rights and the European Court of Human Rights. As to the latter, the Dogan case is illustrative. (11) In 2001, Kurdish plaintiffs brought a case against Turkey before the Court in relation to counter-terrorism activities of the Turkish armed forces. In 2004, the Court ruled in favor of the victims and, in 2006, it ordered compensation. (12) Afterward, Turkey adopted a new Compensation Law, inspired by the guiding principles laid down by the Court in the Dogan judgment, to enable the Turkish authorities to provide a remedy at the domestic level. In the Icyer case, the Court concluded that Turkey could be deemed to have fulfilled its duty to review the systemic situation at issue and to introduce an effective remedy and so it dismissed comparable cases. (13) It also noted that the new compensation mechanism existed not only on paper but actually was applied in practice. While this particular case did not involve a combination of criminal prosecution and compensation, in other cases the Court may address both aspects. Human rights courts may establish a link between (domestic) prosecution and reparation; and their international decisions may have a significant impact on reparation at the domestic level.
Apart from human rights courts, a wide variety of mass claims procedures have been established by commissions and the like. (14) While in some respects these efforts are typically confined to the international level, in that they replace rather than strengthen domestic procedures, in many cases (for instance the Commission for Real Property Claims of Displaced Persons and Refugees in Bosnia and Herzegovina) such commissions are neither fully national nor fully international. However, in contrast to human rights courts, such procedures, by definition, are decoupled from criminal prosecutions.
Nonetheless, they can be construed as one element in a series of (fragmented) attempts to provide prosecution and reparation after mass atrocities. The point here is that we should overcome institutional fragmentation. The need to provide for prosecution and reparation at the domestic level after mass atrocities requires a comprehensive approach* This may involve not only criminal courts, but also human rights courts, mass claims procedures, and a wide variety of rule-of-law programs relating to transitional justice. The latter may, indeed, be better positioned than criminal courts to achieve the structural adjustments that are required at the domestic level. This does not necessarily make the task of justice following mass atrocities easier, but perhaps it does bring it slightly more within reach.
* Thordis Ingadottir and Martin Ngoga did not submit remarks for the Proceedings.
(1) Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, at 4, UN Doc. S/2004/625 (Aug. 3, 2004).
(2) See Andre Nollkaemper, Multilevel Accountability in International Law: A Case Study of the Aftermath of Srebrenica, in THE SHIFTING ALLOCATION OF AUTHORITY IN INTERNATIONAL LAW: CONSIDERING SOVEREIGNITY, SUPREMACY, AND SUBSIDIARITY 345-367 (Shany, Y. & Broude, T. eds., 2008).
(3) Survivors and Post-Genocide Justice in Rwanda, Their Experiences, Perspectives and Hopes, AFRICAN RIGHTS AND REDRESS, Nov. 2008, at
(4) Julian Guerrero Orozco and Mariana Goetz, Reparations for Victims in Colombia: Colombia's Law on Justice and Peace, IN REPARATIONS FOR VICTIMS OF GENOCIDE, WAR CRIMES AND CRIMES AGAINST HUMANITY ch. 17 (Carla Ferstman & Mariana Goetz & Alan Stephens, eds., 2009).
(5) RECHTBANK'S-GRAVENHAGE, LJN BI2444 (Mar. 23, 2009), available at
(6) AFRICAN RIGHTS AND REDRESS Report, supra note 3, 100-101.
(7) ICC STATUTE Art. 75(2).
(8) Kudla v. Poland [GC], App. No. 30210/96, Judgment, [paragraph] 152 (Oct. 26, 2000).
(9) Wiliam Burke-White, Implementing a Policy of Positive Complementarity in the Rome System of Justice, 19 1 Criminal Law Forum 59-85 (2008).
(11) Dogan and others v. Turkey, App. Nos. 2203-8811/02, 8813102 and 8815-8819/02, Judgment (June 29, 2004).
(12) Dogan and others v. Turkey, App. Nos. 2203-8811/02, 8813/02 and 8815-8819/02, Judgment (Just Satisfaction) (July 13, 2006).
(13) Icyer v. Turkey, App. No. 18888/02, Admissibility Decision, [paragraph] 85 (Jan. 12, 2006).
(14) INTERNATIONAL MASS CLAIMS PROCESSES: LEGAL AND PRACTICAL PERSPECTIVES 504 (H.M. Holtzmann & E. Kristjansdottir eds., 2007).
By Andre Nollkaemper, Professor of Public International Law, Amsterdam Center for International Law, University of Amsterdam; participant in the DOMAC research project (Impact of International Courts on Domestic Criminal Procedures in Mass Atrocity Cases) funded under the 7th Framework Programme of the European Union.
PRIMACY AND THE ACCOUNTABILITY GAP: A VIEW FROM BOSNIA AND HERZEGOVINA
The work of the International Criminal Tribunal for the Former Yugoslavia (ICTY) will come to an end, for the most part, sometime around the close of 2010. The likelihood of an "accountability gap"--that is, the chance that those who should be held responsible for their conduct during the war will not be held to answer in a criminal court--is a real possibility. The manner in which the ICTY has conducted business from the start will in many ways dictate whether Bosnia and Herzegovina will enjoy any sustained success dealing with that possibility in its own courts.
The ICTY's primacy over domestic investigation and prosecution of war crimes committed during the 1992 to 1995 conflict is a source of many of the challenges facing Bosnia and Herzegovina. Primacy was both a legal consequence and a necessity of the creation of the ICTY. Without international forensic intervention, little, if anything, would have been preserved for use in identifying and holding people responsible for crimes committed in the conflict. The location, recovery, and identification of mortal remains, for example, would not likely have happened in a manner that preserved as much of their forensic and humanitarian value as would be needed in the future. Further, following the fighting, domestic institutions in Bosnia and Herzegovina were simply not capable of assuming the burden of dealing with a task that was, and is, as daunting as the one associated with the war crimes predicament in which Bosnia and Herzegovina found itself.
There are, however, certain consequences and challenges that follow from the notion of primacy in the case of the ICTY as it relates to the domestic management of the investigation and prosecution of war crimes that the ICTY did not, was never going to, and will now never reach. Despite the best intentions and good will of the Tribunal, these consequences have and will continue to affect how prosecutors' offices and courts in Bosnia and Herzegovina deal with this task in the next ten to twenty years it may take to achieve measurable success with respect to the nation's war crimes predicament. Many of the consequences were known and unavoidable. Some were not fully understood, but were predictable. Many were ignored--some for good reason. Others simply were not foreseen. The panel addressed several of these challenges.
First, evidence gathered from witnesses was not taken by ICTY investigators with a conscious view to preserving it for use not only in the ICTY, but also in later domestic prosecutions. No attention was paid to existing local law. The quality of statements varies dramatically. Redundant interviews created confusion and conflict in statements that were taken in connection with multiple ICTY investigations and prosecutions. Statements taken early on now often have minimal value in domestic investigations and prosecutions.
Second, managing witnesses who have testified numerous times in the ICTY and must then be called upon once again to testify in domestic proceedings poses a major challenge for domestic prosecutions. With each subsequent appearance, witnesses become more and more reluctant to participate. Moreover, expectations that were created at the ICTY regarding witnesses, including witness protection, cannot truly be met or matched at the local level, not because of lack of will or structure or funding (although what it takes to do this will exhaust the state over time), but because of the dynamics of local investigation and prosecution. This often discourages witnesses from willingly participating in a domestic trial.
Passage of time and advancing age, of course, make many witnesses more resigned to what happened to them and less inclined to relive it all again in a local courtroom, particularly when it means nothing more than a renewal of their emotional pain each time they are asked to tell their story. (1)
In addition, domestic proceedings happen close to home and not thousands of kilometers away. Despite best efforts to protect witnesses, they are much more likely to be found out in a domestic case than at The Hague. Pressure from family and relations and neighbors of the same ethnicity, often people who were victims themselves, is more immediate and often has a great effect on a witness's willingness to testify or participate in domestic proceedings. Subtle, and not-so-subtle, pressure from organizations and associations is stronger at home and often makes it more difficult for witnesses who are dependent on those associations for reparations or compensation to testify in domestic trials.
Efforts to use "established facts" rather than live testimony in domestic proceedings, to save witnesses from having to testify over and over again regarding the chapeau elements of crimes against humanity or war crimes, have not been fully successful in Bosnia and Herzegovina, although ICTY practice provides encouraging support for the approach.
Third, local proceedings move much more quickly than matters at the ICTY. This makes working with protected witnesses a difficult challenge despite improved practice under Rule 75H. Even with a streamlined process like the one in place now, and despite the strong working relationship Bosnia and Herzegovina has developed with the Tribunal, it takes time to have protected witnesses identified, obtain the approvals and permissions necessary to contact them, and arrange contacts through the ICTY--time that does not exist on the domestic side given the pressure domestic institutions in Bosnia and Herzegovina experience. An understandably impatient public, and criminal procedure rules and practices that were written for the ordinary case as opposed to the protracted, complex kind of case every war crimes case turns out to be, further aggravate the challenge that primacy poses for domestic prosecutions in Bosnia and Herzegovina. This challenge will become acute when the ICTY reduces its operations after 2010.
Fourth, management of remains and the records of excavation, exhumation, autopsy, and identification of human remains conducted by the ICTY and the Commission that preceded the establishment of the Tribunal, some of which was done heroically in the midst of the fighting, was not done with a view to their use beyond what was needed for the purposes of the ICTY. Assumptions were made regarding who would possess and maintain the records and the physical evidence that was recovered along with the remains. As a consequence, difficulty locating and using such records and evidence (aside from many associated with the events in Srebrenica in 1995) is common. The forensic value of such records and evidence is somewhat compromised for the domestic investigation and prosecution of the crimes that resulted in the deaths of those whose histories now exist only in the documentation. Their value in helping to prevent the exploitation of the dead for political purposes is also reduced.
Bosnia and Herzegovina has had nearly three years of experience with these and other challenges. The panel drew lessons from this experience that can instruct present and future efforts to entrust responsibility for dealing with mass atrocity to domestic criminal justice regimes.
First, careful and coordinated planning must take place before any intervention occurs. Such planning must include study of the legal and cultural environment in which any intervention will have to function and careful assessment of any existing criminal justice regime that will likely have to deal with follow-on investigations and prosecutions once the international intervention runs its course.
Second, international intervention must adjust to and accommodate local law and practice when doing so does not interfere unreasonably or compromise fundamental international standards. What comes after the international intervention is especially important in locations and situations and under circumstances that are not stable or do not have criminal justice regimes that meet international standards or expectations. International support for strengthening or changing domestic institutions that will inherit the work or that will be expected to do the work in tandem with international institutions must be immediate and long term. International involvement in this regard must start before, or at least at the same time as, the international forensic intervention.
Third, standard approaches to evidence collection, preservation, and management must be developed. These must not only take into account the immediate needs of any international tribunal, but also accommodate to the extent possible the present and future requirements of the domestic criminal justice regime that will be expected to do the bulk of the work later.
The development and use of common data and information management systems that allow for the timely, accurate, useful, and useable management of what is collected both by those who are responsible for the international intervention and the domestic actors must be considered; for example: witness statements, documents, physical evidence, expert reports, and so forth. These must be systems, preferably web-based and secure, that can be used simultaneously, with appropriate personal data protections and security features that prevent the compromise of information and evidence or the security of any person, by both the domestic