Globalizing Criminal Justice: Challenges for the International Criminal Court

By Tochilovsky, Vladimir | Global Governance, July-September 2003 | Go to article overview

Globalizing Criminal Justice: Challenges for the International Criminal Court


Tochilovsky, Vladimir, Global Governance


The decade-long experience of the International Criminal Tribunal for the Former Yugoslavia (ICTY) suggests that the newly operational International Criminal Court (ICC) will inevitably face challenges to its credibility and effectiveness. In addition to the well-publicized political objections to the court, there are two other problem areas. First, some impatient proponents of the new institution will undoubtedly be disappointed with the deliberate pace of investigations and prosecutions inherent in the proper administration of justice. The ICC judges and prosecutors should be prepared to face criticism from the media and pressure from various groups for not indicting immediately those "undoubtedly" responsible for alleged atrocities. Second, the accused, victims, and witnesses will find themselves in a foreign court with foreign judges and prosecutors. Quite often those involved in the court's proceedings will have to adapt to dealing with procedural rules foreign to their own previous domestic legal experiences. And some victims and witnesses will certainly bring with them the mental divide of "us versus them" from the battlefields to poison the ICC's chamber.

Public Expectations and Pacing

The common expectations about the speed of indictments and the scope of investigations are bound to cause disappointments. The prosecutor and the judges of the ICC should be prepared to sustain pressure from states, the media, nongovernmental organizations (NGOs), and other groups who will expect immediate indictments and arrests for alleged crimes. The first ICTY prosecutor, Richard J. Goldstone, wrote: "Soon after I arrived in The Hague, I was besieged by thousands of letters and petitions signed by people, mostly women, from many countries, urging me to give adequate attention to gender-related war crimes. They pointed to the many reports of systematic mass rape in Bosnia." (1) In an interview, former ICTY judge Elizabeth Odio Benito described how she, upon reading some media reports, had "urged" the prosecutor to amend an indictment:

   In the charges raised against the suspects, she could not find
   anything concerning rape, though she was sure she had read
   [statements about rape] in the reports. "Not enough evidence,"
   said the prosecution. When this happened a second time, she
   reminded the prosecution that there were reports and that the
   prosecution should act upon them. This was even important enough
   for CNN to show. For the prosecution it was important to know that
   the judges really cared in this matter. (2)

The procedural independence of the prosecutors is reinforced by their hard-earned professional experience and alerts them to inappropriate pressure based on extrajudicial information and considerations. In her Partial Dissenting Opinion in the Appeals Chamber's judgment in the Jelisic case, Judge Patricia M. Wald emphasized that "the Statute provides for an independent Prosecutor as one of three co-ordinate branches of the Tribunal.... To recognise a parallel power in judges to accept or reject cases on extra-legal grounds invites challenges to their impartiality as exclusively definers and interpreters of the law." (3)

Indeed, indictments should be the result of a complete investigation and a thorough internal review of evidence. The ICTY experience has demonstrated that reports from the media as well as independent commissions and groups do not always reflect a full and completely accurate depiction of events. Judges' and prosecutors' extensive experience in practicing criminal law will ensure that they, not outside critics, make impartial assessments of evidence presented by opposing parties through sometimes subjective witnesses and victims. This was emphasized by the head of the United Kingdom's delegation at the Rome conference where the ICC Statute was discussed and adopted in June 1998:

   All shades of opinion at this Conference . … 

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