The Impact of International Criminal Proceedings on National Prosecutions in Mass Atrocity Cases

By Schwendiman, David; Shany, Yuval et al. | Proceedings of the Annual Meeting-American Society of International Law, Annual 2009 | Go to article overview

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 rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Impact of International Criminal Proceedings on National Prosecutions in Mass Atrocity Cases
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.