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. …