Acceptance of International Criminal Justice

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After Nuremberg. Exploring Multiple Dimensions of the Acceptance of International Criminal Justice

Edited by Susanne Buckley-Zistel, Friederike Mieth and Marjana Papa

Title

After Nuremberg. Exploring Multiple Dimensions of the Acceptance of International Criminal Justice: An Introduction

Following the Second World War, a number of Germans responsible for heinous crimes were brought to court in Nuremberg. In total, 22 people were tried by judges from the Allied powers who presided over the hearings: Great Britain, France, the United States and the Soviet Union. The Nuremberg trials were the first time that justice was rendered by actors from outside a country for crimes committed by officials from within that country. In other words, Nuremberg was the first case of the application of international criminal justice in a situation country; in fact, it led to the development of the very norms - the Nuremberg Principles - on which international criminal justice is based today. Even though this form of justice was initially appreciated or at least accepted by large parts of the population, sentiments changed over time as an increasing number of Germans were directly or indirectly affected by external transitional justice measures. Nuremberg thus presents an interesting case study of whether and, if so, how international criminal justice is accepted in a situation country.

Acceptance of International Criminal Justice: A Review

This review explores a range of aspects related to the study of the acceptance of international criminal justice, in order to provide an overview of the existing literature and encourage further research in this field. It elaborates on four aspects of the concept of acceptance of international criminal justice - who accepts, what is accepted, when acceptance occurs, and what acceptance entails - in order to explore the complexity of the subject. Furthermore, it reviews the main debates in transitional justice and international criminal justice discourses that touch on the issue of acceptance, focusing on four areas of debate. First, it looks at fundamental critiques of international criminal justice. Second, it investigates the range of reactions to the performance of international courts and tribunals. Third, it discusses the role of politics and politicization in mediating the acceptance of international criminal justice. Fourth, the meaningful communication, including outreach also relates to increased acceptance of international courts is discussed. 

Methodology

The acceptance assessment methodology provides basic guidance for scholars interested in researching the acceptance of international criminal justice in situation countries. It discusses possible approaches to operationalize the subject by exploring more in detail the relevant aspects of such a study (institutions, actors, context, and acceptance itself). The methodology document was developed by the core research team of the interdisciplinary research project in discussion with country experts, scholars in the field of international criminal justice and methodology. Earlier versions of the methodology served as a guidance to the exploratory projects conducted by junior scholars in their countries of origin and the feedback received in this process further refined the document.

Acceptance of International Criminal Justice in Situation Countries. 10 Key Findings

The following 10 key findings are distilled from a research project entitled Exploring Multiple Dimensions of the Acceptance of International Criminal Justice in the Post-Nuremberg Era at the International Nuremberg Principles Academy. Between 2015 and 2017, research fellows, from situation countries where international tribunals, hybrid courts or the International Criminal Court are active, conducted research on the acceptance of international criminal justice in their own countries.

 

 

Exploring legal, social and political dimensions of the acceptance of international criminal justice

Legal acceptance

Title

Acceptance of International Criminal Justice: Country Study on Colombia

This chapter discusses the acceptance of international criminal justice in Colombia. The country has experienced an over 50-year conflict, the latest phase of which is under preliminary examination by the International Criminal Court (ICC). In 2005 the ICC opened a preliminary investigation. The chapter investigates in how far the Colombian legal community accepts international criminal justice. While the legal professionals consulted in this study agree that international criminal justice is generally accepted in Colombia, the chapter reveals many different understandings of acceptance. Thus, it is necessary to refine what counts as acceptance and to whom. The respondents distinguished between instrumental and symbolic acceptance, between regulatory and political acceptance, and  it was further acknowledged that levels of acceptance differed between different actors in the country, as well as that it changed over time. However, overall the experts agreed that international criminal justice was accepted and credited this most to the interactive relationship between the ICC and the Colombian Government. 

Acceptance of International Criminal Justice through Fragmented Domestication: The Case of Kosovo

The chapter explores different dimensions of acceptance of international criminal law in Kosovo. While Kosovo cannot ratify the Rome Statute, as it is not a fully recognized State, it has however included substantial international criminal justice provisions into its domestic law. This chapter seeks to understand whether this legal acceptance was the actual intention of the various actors involved in the process, i.e. whether they were fully aware of the scope of their actions. Based on interviews with local politicians and legal professionals directly involved in the domestication process, the chapter argues that the actors involved do not consciously accept international criminal justice, even though they contributed to the domestication process. The chapter describes that, as the process of domestication was fragmented, there was no ‘main’ decision to accept international justice. Rather, various actors contributed to the process based on different intentions. The chapter further discusses how (the lack of) knowledge on international criminal justice could influence the acceptance of the actors involved. 

Acceptance of International Criminal Justice in Nigeria: Legal Compliance, Myth or Reality?

This chapter explores the acceptance of international criminal justice in Nigeria. Against the backdrop of the ongoing preliminary examinations of the ICC that focus on Boko Haram insurgents and national security forces, this study looks at the domestication of international criminal law in Nigeria. This would be a necessary development for Nigeria in order to be able to process such cases at domestic level. The main focus of the research is on whether the Nigerian Government accepts international criminal justice, as so far the actions of the Government have been inconclusive. On the one hand, the country has ratified several provisions aimed at protecting human rights. On the other hand, Nigeria has allowed ICC-indicted Sudanese President Al-Bashir to enter Nigerian territory without arresting him, as it would be its legal obligation under the Rome Statute. Based on the analysis of legal documents, key informant interviews and focus groups, the study finds that a main challenge lies in the ratification process of the ICC, where responsibilities are not entirely clear. While an ICC bill has been drafted and presented to the National Assembly, not much has happened since and administrative steps have not been completed by the previous Government. 

 

 

Social and political acceptance

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Assessing the Political Acceptance of Hybrid Courts in Fractured States: The Case of the Special Tribunal for Lebanon

The chapter addresses the acceptance of the Special Tribunal for Lebanon (STL) among different groups of society in Lebanon. In 2007, the STL was established following a UN Resolution with the mandate to try those most responsible for specific crimes committed between 2004 and 2005. The crimes in question were attempted and actual assassinations, the most prominent of which was the murder of Prime Minister Hariri in 2005. The chapter argues that, while Lebanon had asked the UN for help in prosecuting these crimes and while there was a genuine desire to bring peace and justice in the aftermath of the crimes, the court since its establishment has been a polarizing factor in Lebanese society. The chapter distinguishes between institutional acceptance, encompassing legal and policy spheres and discursive acceptance, which refer to the elite, grassroots and regional levels. 

Understanding Acceptance of International Justice through Duch's Sentence at the Extraordinary Chambers in the Courts of Cambodia

The chapter discusses several aspects of the acceptance of the Extraordinary Chambers in the Courts of Cambodia (ECCC) by legal professionals, political elites, as well as victims and the general public. It focuses on the verdict of the first trial, which was later overruled in a decision by the Appeals Chamber. In 2010, Kaing Guek Eav alias ’Duch’, was initially sentenced to 35 years in prison, which were later reduced to 19 years. However, the Appeals Chamber overruled the initial verdict and imposed life imprisonment, which proved to be a critical step in relation to the acceptance amongst different groups. Legal practitioners saw the Appeal Chamber’s decision rather critical. Some judges issued dissenting opinions in which they criticized the Chamber’s reasoning, based on a possible breach of international standards regarding the fairness of the trial. Politically, the acceptance of the ECCC seemed to be influenced by the international approval of the first verdict, as the ECCC did gain legitimacy in the eyes of many political leaders. The Appeals Chamber verdict was widely welcomed by victims; most of whom argued from a moral perspective and found the earlier Trial Chamber verdict too lenient. 

'Changing Faces' on Acceptance of International Criminal Intervention in Kenya

The chapter examines the acceptance of the ICC in Kenya and discusses a range of recent events in which the ICC trials were politicized by the national political elite, with some of its members seeking to frame it as a neocolonial intervention. The chapter distinguishes between formal compliance and the actual behavior of political actors. Acceptance is thus defined as an action that goes beyond formal compliance. The chapter describes several main actors in the country setting: Government, civil society and the international community (including the ICC). In Kenya, the nature of the acceptance of international criminal justice is contingent: it depends on the different actions and reactions by national actors. It therefore needs to be observed over time. The chapter argues that justice was hijacked by political actors for their own interests, which ultimately influenced the acceptance by the broader population. At the same time, Kenyan civil society seems powerless to change such interpretations. However, by showing its willingness to prosecute, the chapter argues that the ICC did perhaps contribute to more peaceful elections in 2013 which could indicate a certain acceptance of international standards.

Between Interests and Values: Ukraine's Contingent Acceptance of International Criminal Justice

The chapter discusses the acceptance of international criminal justice in Ukraine with a specific focus on the acceptance by the Government. Ukraine is currently under ICC preliminary examination, which began after the country granted the ICC jurisdiction over certain crimes committed since 2014. As Ukraine has not ratified the Rome Statute but granted selected jurisdiction, the ICC depends even more on cooperation by the Government than in other situation countries. The chapter addresses two main questions; (1) to what extent the Ukrainian Government accepts international criminal justice provisions and institutions and (2) which factors influence the decisions of the Government. Based on literature and media analysis, as well as interviews with Ukrainian politicians, the chapter finds that while the Government seems to accept international criminal justice and shows commitment by formally complying with the ICC procedures, it nevertheless demonstrates a lack of political will in translating this commitment into action. The chapter then discusses how the ongoing peace process and regional politics affect the acceptance of international criminal justice. It finds that the decision not to ratify the Rome Statute is due to both the Government’s fears of upsetting regional political antagonists, as well as some misconceptions of international criminal justice. 

Assessing the Acceptance of International Criminal Justice in Kenya

This chapter assesses the acceptance of international criminal justice (ICJ) in Kenya among victims, civil society activists, political elites and directly affected communities. In Kenya, ICJ entails the International Criminal Court, owing to its intervention in the country’s 2007/8 post elections violence (PEV). The PEV ensued after the disputed December 2007 presidential elections results involving two antagonistic groups: the then ruling Party of National Unity and its main opposition, the Orange Democratic Movement. 

Prosecution that Never Began: An Exploration of Acceptance of International Criminal Justice in Nigeria

Since the release of the preliminary investigation of war crimes and crimes against humanity by the International Criminal Court (ICC) in Nigeria in 2012 there have been different reactions from affected communities, political parties, experts, and civil society organisations which expected that it would result in the prosecution of criminals. However, so far, no prosecution has begun. Central to this study is the argument that these delays in prosecution affect the acceptance of international criminal justice (ICJ) in Nigeria. It is based on qualitative research carried out among community members, political party members, experts, civil society organisations, and government staff in Abuja, Edo, Lagos, Ibadan and Nasarawa. It reveals that many national actors initially accepted ICJ because they believed that the preliminary investigation by the ICC would lead to prosecution of war criminals in Nigeria. It also found that many interviewees preferred the principle of complementarity when it comes to the prosecution of war criminals in Nigeria. The study equally recorded dissenting voices against ICJ because of what interviewees called the erosion of national and regional sovereignty, the cost vs. benefit of trials, and the waste of time identified with the delay in prosecution of war crimes and crimes against humanity in Nigeria. However, the study concludes that delays in the prosecution of war criminals by the International Criminal Court are the most important aspect that affected – rather reduced – the acceptance of ICJ in Nigeria.

Unfinished Business: Acceptance of International Criminal Justice in Ukraine

Since Russia’s seizure of Crimea and the beginning of the armed conflict in eastern Ukraine, many in Kyiv have taken to the idea of enlisting the help of the International Criminal Court (ICC) in The Hague to punish those responsible and discourage further belligerence. Political leaders in Ukraine, including President Poroshenko, like to publicly invoke ‘The Hague’ as a judicial instance of last resort when describing the future of President Putin, senior Russian officials, the militants in parts of the Donbas region, and those responsible for the killings during the Euromaidan protests. At the same time, the widespread use of such a vague term as ‘The Hague’ or ‘The Hague tribunal’ to mean the International Criminal Court indicates that many Ukrainians – including senior officials – do not understand what the ICC stands for and how it works. At the same time, due to the lack of experience of Ukrainian national courts in prosecuting international crimes, the unprecedented scale of crimes committed, and the general lack of confidence in the judiciary, the ICC may be an important transitional justice mechanism for Ukraine. 

‘Two-Faced’ Acceptance of International Criminal Justice Accountability Mechanisms by Actors in the Northern Uganda Armed Conflict

Since Uganda gained independence from the British on 9 October 1962, Uganda has been plagued by troubles, violence and conflict, with millions experiencing grave injustices and serious human rights violations. Conflict in Uganda, as in many African states, has its roots in ethnic differences, marginalisation and colonial legacies. At the end of each conflict, the country has had to grapple with how to confront the injustices and violence or, even more importantly, how to address gross human rights violations committed during periods of anarchy amidst the competing needs of establishing a reconciled, unified, democratic and peaceful society. This study sets out to examine the views of different actors (victims, government and civil society) on the application of ICJ mechanisms in ensuring accountability for crimes committed during the conflict in northern Uganda. This research serves to close the gap in our understanding of whether and why people that have experienced what can be categorised as international crimes accept the application of ICJ frameworks and justice mechanisms.

Prosecuting the Khmer Rouge: Views from the Inside

Out of Cambodia’s total population of approximately 7 to 8 million, it is estimated that 1.5 to 2 million died of starvation, disease, and execution during the reign of the Democratic Kampuchea regime, which lasted from 17 April 1975 to 6 January 1979. Following the fall of the DK (also known as the Khmer Rouge Regime), ‘a truth commission, lustration policies, amnesty programmes, and domestic or international trials were all considered or attempted’ to provide justice and peace for Cambodians. Out of these responses, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid court established jointly by Cambodia and the United Nations (UN) is the only internationally recognised judicial mechanism established to address Khmer Rouge crimes. The ECCC is, however, the product of a political compromise, resulting from protracted negotiations between the Cambodian government and the UN, whose relationship was characterised by ‘bitter mutual distrust and an ensuing battle for control’. This compromise resulted in the limited temporal and personal jurisdiction of the Court and its features, most particularly its majority voting system. Despite these limitations, positive outcomes of the negotiations included the agreement to locate the Court in close proximity to Khmer Rouge victims and the significant extent to which victims can participate in the proceedings. The available literature on the ECCC often adopts an overly legalistic approach to assessing its effect, focusing on international fair trial standards, and considers only the appropriate role of victim participation. However, there is a general lack of literature on how stakeholders view the Court and why they hold such views.

Acceptance of the International Criminal Court in Côte d’Ivoire: Between the Hope for Justice and the Concern of ‘Victor’s Justice’

The arrest of Laurent Gbagbo in April 2011 marked the end of a decade of political instability in Côte d’Ivoire. In October 2000, Gbagbo was elected President of said country but was defeated in a presidential election in 2010 by the former Prime Minister Alassane Ouattara. Gbagbo rejected the results, and both he and Ouattara, took the presidential oath, sparking violence that claimed the lives of 3,000 people and displaced a further 5,000. After the violence, demands grew for the prosecution of human rights violations committed during the period of armed confrontation from 19 September 2002 until after the election in April 2011. Due to a lack of trust in the efficiency and impartiality of existing justice institutions, calls for the involvement of the International Criminal Court (ICC) increased. In October 2011, the ICC Prosecutor opened proprio motu investigations and issued an arrest warrant for Gbagbo. The post-election crisis officially ended with Gbagbo’s arrest in 2011, although the political situation in Côte d'Ivoire was still not entirely settled.

Acceptance of International Criminal Justice and the Path to the International Criminal Court in Palestine

On 1 April 2015, Palestine became the 123rd state party to the Rome Statute of the International Criminal Court (ICC) of 17 July 1998. According to the statute’s principles, Palestine, like any ICC member-state, must ‘exercise its criminal jurisdiction over those responsible for international crimes’. However, Palestine is a special case in ICC history for several reasons. First, the question of Palestine’s state- or non-statehood characterises and continues to dominate discussions on Palestine and the ICC. Palestine’s membership of the ICC goes beyond the case of Palestine itself, having political and legal consequences for the ICC and international criminal justice more broadly. Second, the Palestinian-Israeli Interim Agreement on the West Bank and the Gaza Strip from 1995, better known as the Oslo II Accords, limits the jurisdiction of the Palestinian Authority, including its criminal jurisdiction. Third, membership in the ICC is strongly opposed by Israel and parts of the international community, as it is feared that this (rather strategically political step) sets an end to peace negotiation efforts. By contrast, within Palestinian society hopes seem to be high that ICC membership will be a useful tool in peace aspirations with Israel, as became clear from the interviews conducted for this paper. Two major goals are connected with the assignment to the Rome Statute: progress in the Palestinian ambition for statehood and justice for alleged atrocities on Palestinian territories by both sides. While the latter would suggest that trust in and acceptance of the ICC are high in Palestine, it is worth taking a closer look at ‘who implements these [ICC] processes, what needs they respond to, and how particular [judicial] interventions are ultimately understood by affected populations’. Or, put more simply, who in particular accepts the ICC and international criminal justice and how, and what opinions are held by different actors in Palestine on the ICC.

Frames of Acceptance of International Criminal Justice in Serbia

The dissolution of the Socialist Federal Republic of Yugoslavia, which culminated in a four-year armed conflict from 1991 to 1995, triggered the establishment of the first ad hoc International Criminal Tribunal since the Nuremberg trials. The ICTY was set up by United Nations Security Council Resolution 827, which was passed on 25 May 1993 in response to the serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, and as a response to the threat to international peace and security posed by those violations. Today, more than twenty years after the ICTY began its mission, the question of the legacy and acceptance of international criminal justice by domestic actors is attracting significant attention. The main subject of this study is the acceptance of international criminal justice in Serbia by the most prominent actors at the political and societal levels. It will discuss the main forms, dynamics and drivers of acceptance. Hence, the context in which the acceptance occurs is defined by the following questions: Who accepts? What is accepted? Why is something accepted? When is something accepted? The empirical research underlying this study approaches these main questions, albeit indirectly, with the help of questions not directly articulating the concept of acceptance, drawing on interviews with selected informants representing the main categories of actors in society.

Layered Justice: Assessing the Acceptance of the Multiple International Criminal Justice Mechanisms in Post-War Kosovo

The violent conflict in Kosovo from 1998-1999 was marked by severe human rights abuses. According to the Kosovo Memory Book (2014), 13,517 people were killed or went missing, both civilians and members of armed forces. This includes 10,415 Albanians, 2,197 Serbs, and 528 Roma, Bosniaks and other non-Albanians. UNCHR accounts in 1999 refer to 700,000 refugees and 70,000 homes that had been damaged or destroyed. Since the end of the Kosovo conflict in June 1999 the international community has been actively involved in seeking justice and has introduced several transitional justice mechanisms. Such extensive involvement by international actors in domestic jurisdiction has attracted the attention of many academics, most of whom have focused on exploring the functioning of international criminal justice mechanisms, their legitimacy, and providing extensive analysis of the concepts and doctrines produced by these mechanisms. However, the mere reception of international criminal justice by the recipient groups, such as the passive and active acknowledgement of its processes remains mostly ignored by previous research. 

Changing Patterns of Acceptance. International Criminal Justice after the Rwandan Genocide

On 7 April 1994, after an attack on an aircraft carrying the then President of Rwanda Juvénal Habyarimana, a killing machine moved into action in an attempt to extinguish all Tutsi in the Central African country, Rwanda. In just 100 days, about 800,000 Tutsi, as well as a number of Hutu political opponents, were murdered by Hutu militias, government troops and Hutu community members. In many ways, the Rwandan genocide remains an unprecedented example of violence and terror at the end of the 20th century.

Although tragic, the Rwandan genocide did not happen in a vacuum, but in the midst of a democratisation process following a four-year insurgency by the Tutsi-led Rwanda Patriotic Front/Army (RPF/A) of General Paul Kagame, now President of Rwanda. Sparked by the insurgency and the subsequent pressure of the international community to share power and to allow democratic multi-party elections, Habyarimana’s people incited nation-wide violence and hate through spreading fear of a Tutsi victory and the ensuing suppression of all Hutu. Given the history of the country in which violence against the Tutsi had occurred before, these hate discourses fell on fertile ground, leading even family members to turn against each other.