The Geometry of Transitional Justice: Choices of Institutional Design

Leiden Journal of International Law

Volumn 18, Issue 3, 2005, Pages 425-466

  Stahn, Carsten ^a  

^a LEIDEN UNIVERSITY   (Netherlands)

Author keywords

ad hoc tribunals; hybrid courts; International Criminal Court; internationalized court chambers; Transitional justice; truth commissions

Indexed keywords

EID: 84966773349     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505002827     Document Type: Article

References (190)

1. See N. J. Kritz, ‘Progress and Humility: The Ongoing Search for Post-Conflict Justice’, in M. C. Bassiouni, Post-Conflict Justice (2002), 55, at 87.
2. See Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, 3 August 2004, UN Doc S/2004/616, para. 21.
3. See also Report of the Secretary-General., at para. 25.
4. In 1999, the Secretary-General appended a disclaimer to the blanket amnesty clause ('absolute and free pardon') containedintheLomé PeaceAgreement, stating that the amnesty'shallnot applytothe international crimes of genocide, crimes against humanity, war crimes and other serious violations of international humanitarian law’. See Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, 4 October 2000, UN Doc. S/2000/915, para. 23. In 2004, the UN Secretary-General even went a step further, by recommending a general non-recognition policy by the UN. See Report of the Secretary-General, also Report of the Secretary-General note 2, para. 64.
5. See in favour of a full-fledged ban of the permissibility of amnesties for core crimes, M. T.Kamminga, ‘Lessons Learned from the Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences’, (2001) 23 Human Rights Quarterly 940, at 956.
6. See also A. Cassese, International Criminal Law (2003), at 315.
7. Recent events related to the first two situations of the Court (the Democratic Republic of Congo andUganda) suggest that this is not yet fully the case. There is some uncertainty, as to whether the Court may be instrumental in bringing peace in a conflict environment and how it might interact with other actors in the process of transitional justice. See, in relation to Uganda, Refugee Law Project, Position Paper on the announcement of formal investigations of the Lord's Resistance Army, 28 July 2004, at www.refugeelawproject.org. See, in relation to the Democratic Republic of Congo, O. Kambala, Entre né gligence et complaisance : les risques de dé rapage de la Cour pé nale internationale en RDC, Le Phare (Kinshasha), 28 October 2004, at http://fr.allafrica.com/stories/200410290050.html.
8. For a discussion, see M. Benzing and M. Bergsmo, ‘Some Tentative Remarks on the Relationship Between Internationalized Criminal Jurisdictions and the International Criminal Court’, in C. P. R. Romano, A. Nollkaemper and J. Kleffner (eds.), Internationalized Criminal Courts and Tribunals (2004), 407.
9. See e.g., D. Kennedy, ‘TheMove to Institutions’, (1987) 8 Cardozo Law Review 841-988; J. Charney, ‘Is International Law Threatened by Multiple International Tribunals?’, (1998) 271 Recueil des cours 101; B. Kingsbury, ‘Is the Proliferation of International Courts and Tribunals a Systemic Problem?’, (1999) 31 N. Y. U. Journal of International Law and Politics 679.
10. For an in-depth development of this argument from the perspective of ‘liberal peace’ theory, see generally W.W. Burke-White, ‘ACommunity of Courts: Toward a System of International Criminal Law Enforcement’, (2002) 14 Michigan Journal of International Law 1.
11. See generally P. B.Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2001); P. B.Hayner,'Fifteen Truth Commissions-1974 to 1994: A Comparative Study’, (1994) 16 Human Rights Quarterly 600.
12. See generally on thework of the Commission, T. Buergenthal, ‘The United Nations Truth Commission for El Salvador’, (1994) 27 Vanderbilt Journal of Transnational Law 497.
13. See generally P. Seils, ‘The Limits of Truth Commissions in the Search of Justice: An Analysis of the Truth Commissions of El Salvador and Guatemala and their Effect in Achieving Post-Conflict Justice’, in M. C. Bassiouni, generally on thework of the Commission note 1, at 785.
14. See Art. VI of the Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone (Lomé Agreement), which provides for the establishment of a ‘Commission for the Consolidation of Peace’. The Commission was inaugurated on 5 July 2002. Themandate of the Commission is laid down in the Truth and Reconciliation Commission Act. See Part III of the Truth and Reconciliation Commission Act 2000, at http://www.sierra-leone.org/trcact2000.html.
15. See UNTAET Regulation No. 2001/10 on the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor of 13 July 2001. See generally C. Stahn, ‘Accommodating Individual Criminal Responsibility and National Reconciliation: The UN Truth Commission for East Timor’, (2001) 95 AJIL 952.
16. See E. B. Ludwin, ‘Trials and Truth Commissions in Argentina and El Salvador’, in E. Stromseth (ed.), Accountability for Atrocities: National and International Responses (2003), 273, at 307 and 317.
17. The effect on impunity has been ‘mixed’ in both cases. For an assessment of the South African case, see B. N. Schiff, ‘Do Truth Commissions Promote Accountability or Impunity?, The Case of the South African Truth and Reconciliation Commission’, in Bassiouni, ‘Trials and Truth Commissions in Argentina and El Salvador’ note 1, at 341-2. For the Argentinean case, see Ludwin, ‘Trials and Truth Commissions in Argentina and El Salvador’ note 16, at 296-8.
18. See Report of the Commission for Historical Clarification,Memory of Silence (1999), Conclusion and Recommendations. See also R.Mattarollo,'Truth Commissions’, in Bassiouni, The effect on impunity has been ‘mixed’ in both cases note 1, 295, at 309.
19. For a suggested application to the Colombian case, see Ludwin, Report of the Commission for Historical Clarification note 16, at 314-15 ('A hybrid approach to accountability that draws on international assistance would enable Colombia to begin a process of accountability and reconciliation while modifying the structure of the country. In addition, international, ‘objective’ assistance would lend legitimacy to the transition and to whatever means Colombia uses to hold people accountable for the human rights violations committed during its war').
20. It is quite telling that no fully international truth commission has been established since the experience in El Salvador. See also N. J. Kritz, ‘Dealing with Legacy of Past Abuses: An Overview of the Options and Their Relationship to the Promotion of Peace’, in M. Bleeker and J. Sisson (eds.), Dealing with the Past (2004), 15, at 24.
21. Broader mandates have been given to the truth commissions in El Salvador and Guatemala. The truth commission in El Salvador was charged with ‘investigating serious acts of violence which took place from 1980 onwards and whose impact on society urgently demands that the public should know the truth’. The Historical Clarification Commission in Guatemala was authorized to identify ‘acts of violence that have caused the Guatemalan population to suffer, connected to the armed conflict’.
22. Note, however, that Argentina later took additional steps to combat immunity. In its report of 10 December 2004, the Committee against Torture welcomed ‘with satisfaction the efforts made by the state party to combat impunity in respect of crimes against humanity committed under themilitary dictatorship, and in particular: (a) The promulgation of Act No. 25.779 in September 2003, declaring the “Due Obedience” and ‘Clean Slate’ Acts absolutely null and void; (b) The initiation of a significant number of cases in which such violations are being investigated; (c) The repeal in 2003 of executive decree No. 1581/01, which required the automatic rejection of requests for extradition in cases involving serious and flagrant violations of human rights under the military dictatorship’. See Conclusions and Recommendations of the Committee against Torture, Argentina, UN Doc. CAT/C/CR/33/1 (2004), 10 December 2004.
23. See also the criticism byMattarollo, Note, however, that Argentina later took additional steps to combat immunity note 18, at 313.
24. also the criticism byMattarollo., at 305.
25. The fact finding period of the Truth Commission in El Salvador was limited to three months. See Seils, also the criticism byMattarollo note 13, at 780.
26. A classical example is the Commission for the Elucidation of the Past in Guatemala. The Commission could not name perpetrators of violations, norwas it entitled to make binding recommendations for justice reform and reconciliation.
27. See generally, in favour of investigative commissions for purposes of efficiency, Principle 13 B of the Guiding Principles for Combating Impunity for International Crimes, in Bassiouni, A classical example is the Commission for the Elucidation of the Past in Guatemala note 1, at 255, 270 ('To be effective, an investigative commission requires, atminimum,thepowers: (1) to gather, by appropriatemeans, including by subpoena power, and consistent with international standards of due process, any information or evidence it considers relevant to its mandate; (2) to interview any individuals, groups, or members of organizations or institutions who may possess information relevant to its inquiry; (3) to hear testimony of victims, witnesses, and other relevant parties; and (4) to employ measures for the protection of victims and witnesses').
28. See Principle 13 E of the Guiding Principles for Combating Impunity for International Crimes, in Bassiouni, generally, in favour of investigative commissions for purposes of efficiency, Principle 13 B of the Guiding Principles for Combating Impunity for International Crimes, in Bassiouni, A classical example is the Commission for the Elucidation of the Past in Guatemala note 1, at 255, 270 note 1, at 271 ('Where appropriate, any individual who, in the opinion of the investigative commission, is likely to be adversely affected by the evidence given before the commission should receive an opportunity to be heard in person, by awritten submission, or through a representative, and to confront or rebut evidence offered against the individual').
29. See also J. S. Abrams and P. Hayner, ‘Documenting, Acknowledging and Publicizing the Truth’, in Bassiouni, Principle 13 E of the Guiding Principles for Combating Impunity for International Crimes note 1, at 288.
30. For a survey of protective measures in judicial proceedings, see Rules 87 and 88 of the Rules of Procedure and Evidence of the ICC.
31. The Commission also highlighted the general conflict between truth and justice in its Report. It noted: ‘[A] judicial debate in the current context, far from satisfying a legitimate desire for justice, could revive old frustrations, thereby impeding the achievement of that cardinal objective, reconciliation. That being the current situation, it is clear for now, the only judicial system which the Commission could trust to administer justice in a full and timely manner would be one which had been restructured in the light of the peace agreements.’ See Report of the Commission on the Truth for El Salvador, From Madness to Hope: the 12-year war in El Salvador, sub V. (Recommendations), F (Penalties), at http://www.usip.org/library/tc/doc/reports/el salvador/tc es 03151993 toc.html.
32. See generally J. Dugard,'Reconciliation and Justice: The SouthAfricanExperience’, (1998) 8 Transnational Law and Contemporary Problems 277; P. van Zyl, ‘Unfinished Business: The Truth and Reconciliation Commission's Contribution to Justice in Post-Apartheid South Africa’, in Bassiouni, The Commission also highlighted the general conflict between truth and justice in its Report note 1, at 745.
33. According to s. 21 of the Promotion of National Unity and Reconciliation Act of 1995, amnesty was allowed for acts with a political objective, but only upon a ‘full disclosure of all the relevant facts’ relating to their acts. The amnesty was validated by the South African Constitutional Court in Azanian Peoples Organization v. President of Republic of South Africa, 1996 (8) BCLR 1015 (CC), 1996 SACLR LEXIS 20. For a survey of the practice, see T. Puurunen, ‘The Committee on Amnesty of the South African Truth and Reconciliation Commission-A NewModel for Conflict Resolution?’, (1998) 9 Finnish Yearbook of International Law 297.
34. See also Abrams and Hayner, According to s. 21 of the Promotion of National Unity and Reconciliation Act of 1995 note 30, at 287.
35. See van Zyl, also Abrams and Hayner note 34, at 753.
36. See Truth and Reconciliation Commission of South Africa Report (1998), Vol. 2, at 309.
37. The truth commissions in Argentina and Chile provided a report and recommendations. See generally on the Chilean example, M. Ensalaco, ‘Truth Commissions for Chile and El Salvador: A Report and Assessment’, (1994) 16 Human Rights Quarterly 656.
38. See also Kritz, The truth commissions in Argentina and Chile provided a report and recommendations note 20, at 24.
39. For a survey, see Kritz, also Kritz note 1, at 77-9.
40. The Truth and Reconciliation Act does not envisage a formalized procedure of community-based reintegration. But the Truth Commission facilitated symbolic gestures of reconciliation in its practice. On several occasions, perpetrators asked their local communities for forgiveness in front of traditional leaders. See generally E. M. Evenson, ‘Truth and Justice in Sierra Leone: Coordination between Commission and Court’, (2004) 104 Columbia Law Review 730, at 763.
41. See, generally, Romano, Nollkaemper and Kleffner, the Preamble of the Statute of the ICC note 8; D. A. Mundis, ‘New Mechanisms for the Enforcement of International Humanitarian Law’, (2001) 95 AJIL 934, at 936.
42. For a tentative characterization of different models, see L. Condorelli and T. Boutrouche, ‘Internationalized Criminal Courts and Tribunals: Are They Necessary?’, in Romano, Nollkaemper and Kleffner, Romano note 8, 428-30.
43. The regime of the ICC is addressed separately infra, in section 5.
44. See paras. 10-11 of Security Council Resolution 1244 (1999) of 10 June 1999.
45. See s. 1 of UNMIK Regulation No. 1/1999 of 25 July 1999.
46. For a survey, see H. Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor’, (2001) 95 AJIL 46.
47. For a recent criticism of the model of ad hoc tribunals, see R. Zacklin, ‘The Failings of Ad Hoc International Tribunals’ (2004) 2 Journal of International Criminal Justice 541-5. For a more balanced assessment, see C. Jorda, ‘TheMajor Hurdles and Accomplishments of the ICTY’, (2004) 2 Journal of International Criminal Justice 572.
48. Hybrid courts and internationalized domestic institutions are often conflated in legal doctrine. See e.g. L. A. Dickinson, ‘The Relationship Between Hybrid Courts and International Courts: The case of Kosovo’, (2003) 37 New England Law Review 1060. There are, however, a number of fundamental differences. First, hybrid courts, such as the Special Court for Sierra Leone, are not part of the domestic legal system. They operate formally outside the domestic judiciary. Secondly, they enjoy institutional independence which is reflected in the recognition of separate legal personality.
49. See Art. 1 of the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone and Art. 1 of the Statute of the Special Court. For a survey, see generally A. D. Haines, ‘Accountability in Sierra Leone: The Role of the Special Court’, in Stromseth, Hybrid courts and internationalized domestic institutions are often conflated in legal doctrine note 16, at 173; J. L. Poole, ‘Post-Conflict Justice in Sierra Leone’, in Bassiouni, Hybrid courts and internationalized domestic institutions are often conflated in legal doctrine note 1, at 563.
50. See J. Cerone and C. Balwin, ‘Explaining and Evaluating theUNMIK Court System’, in Romano,Nollkaemper and Kleffner, Art. 8 of the Statute of the Special Court for Sierra Leone note 8, at 41, 48.
51. The Court would have enjoyed jurisdiction over crimes under international law and serious offences under domestic law. ‘Explaining and Evaluating theUNMIK Court System’., at 49.
52. For a survey of the reasons, see Cerone and Balwin, The Court would have enjoyed jurisdiction over crimes under international law and serious offences under domestic law. ‘Explaining and Evaluating theUNMIK Court System’ note 58. For a discussion of UNMIK's ‘Regulation 64 panels’, which were created as an alternative, see text infra at 2.2.1.3.1.
53. UNMIK Regulation No. 2000/6 allowed the appointment of international judges and prosecutors to courts in the district ofMitrovica. UNMIK Regulation No. 2000/34 extended this regime to other courts, including the Supreme Court.
54. The role of international judges and prosecutors was regulated by UNMIK Regulation No. 2000/64, which provides as follows: ‘At any stage in the criminal proceedings, the Department of Judicial Affairs, on the basis of [a petition from the competent prosecutor, the accused or the defence counsel] or on its own motion, may submit a recommendation to the Special Representative of the Secretary-General for the assignment of international judges/prosecutors and/or a change of venue if it determines that this is necessary to ensure the independence and impartiality of the judiciary or the proper administration of justice’.
55. For full details, see Cerone and Baldwin, The role of international judges and prosecutors was regulated by UNMIK note 58, at 51-2. See also J. C. Cady and N. Booth, ‘Internationalized Courts in Kosovo: An UNMIK Perspective’, in Romano, Nollkaemper and Kleffner, The role of international judges and prosecutors was regulated by UNMIK note 8, 59, at 64-5.
56. See Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc. A/54/726, S/2000/59 (2000), at 153.
57. See Letter of 31 January 2000 from the Secretary-General to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission onHuman Rights, accompanying UN Doc. A/54/726, S/2000/59 (2000). See generally, on the prosecution of serious human rights violations by domestic courts, R.Wolfrum, ‘The decentralized prosecution of international offences through national courts’, in Y. Dinstein and M. Tabory (eds.),War crimes in international law (1996), 233 et seq.
58. See generally UNTAET Regulation No. 15/2000 of 6 June 2000 (On the Establishment of PanelsWith Exclusive Jurisdiction over Serious Criminal Offences). See also S. de Bertodano, ‘East Timor: Trials and Tribulations’, in Romano, Nollkaemper and Kleffner, Letter of 31 January 2000 from the Secretary-General to the President of the General Assembly note 8, at 87.
59. See s. 22.1 of UNTAET Regulation 2000/15.
60. See ss. 4-7 of UNTAET Regulation 2000/15.
61. See s. 10.2 of UNTEAT Regulation 2000/11 and s. 2.3 of UNTEAT Regulation 2000/15: ‘With regard to the serious criminal offences listed under s. 10.1 d) [murder] to e) [sexual offences] of UNTAET Regulation 2000/11. the panels established within the District Court of Dili shall have exclusive jurisdiction only insofar as the offence was committed in the period between 1 January, 1999 and 25 October 1999.’
62. 2003. For a discussion, see R. S. Taylor, ‘Better Later Than Never: Cambodia's Joint Tribunal’, in Stromseth, SeeAgreement between theUnitedNations and the RoyalGovernment of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea of 6 June note 16, at 237.
63. See generally C. Etchetson, ‘The Politics of Genocide Justice in Cambodia’, in Romano, Nollkaemper and Kleffner, For a discussion note 8, 181.
64. See the Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/125. See generally S. R. Ratner, ‘United Nations Group of Experts for Cambodia’, (1999) 93 AJIL 948.
65. See Aide-mémoire on the Report of the United Nations Group of Experts for Cambodia of 18 February 1999, issued by the Government of Cambodia, 12 March 1999 ('the culprit is a Cambodian national, the victims are Cambodians, the place of the commission of crimes is also in Cambodia; therefore the trial by a Cambodian Court is fully in conformity with the [norms of] legal process').
66. The Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the period ofDemocratic Kampuchea entered into force on 29 April 2005.
67. See Art. 1 of the Agreement of 6 June 2003.
68. See Art. 3 of the Agreement of 6 June 2003.
69. See Art. 3 of the Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia, Law NS/RKM/0801/12, adopted on 11 July 2001. The crimes under Cambodian law include homicide, torture and religious persecution.
70. See Arts. 17, 36 and 37 of the Law on the Establishment of Extraordinary Chambers. TheUNwanted to avoid this situation. It had a strong preference for a majority of international judges acting under a simplemajority regime. See Report of the Secretary-General of 31March 2003, UN Doc. A/57/769, at 11 ('in view of the clear finding of the General Assembly in its resolution 57/225 that there are continued problems related to the rule of law and the functioning of the judiciary in Cambodia resulting from interference by the executive with the independence of the judiciary, I would have much preferred that the draft agreement provide for both of the Extraordinary Chambers to be composed of a majority of international judges’. For a discussion, see E. E.Meijer, ‘The Extraordinary Chambers in Courts of Cambodia for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organization, and Procedure of an Internationalized National Tribunal’, in Romano, Nollkaemper and Kleffner, Art note 8, at 218-19.
71. The Steering Board of the Peace Implementation Council endorsed the proposal in June 2003. The proposal was presented to the Security Council. See Security Council Briefed on Establishment of War Crimes Chamber Within State Court of Bosnia and Herzegovina, Press Release, SC/7888 of 8 October 2003. See generally, Amnesty International, Bosnia-Herzegovina: Shelving Justice-War Crimes Prosecution in Paralysis (Nov. 2003), AI Index: EUR 63/018/2003.
72. The proposedWar Crimes Chamber is supposed to have jurisdiction over three types of case: cases deferred to it by the ICTY under Rule 11 bis of the Rules of the Procedure and Evidence, cases deferred by the ICTY Prosecutor (for which indictments have not yet been issued) and cases pending before cantonal and district courts, which should be tried at the State Court level given their sensitivity. See Joint Conclusions of the Working Group of the ICTY and the OHR regarding domestic prosecution of war crimes in Bosnia and Herzegovina, 21 February 2003.
73. For a criticism, see Amnesty International, The proposedWar Crimes Chamber is supposed to have jurisdiction over three types of case: cases deferred to it by the ICTY under Rule 11 bis of the Rules of the Procedure and Evidence, cases deferred by the ICTY Prosecutor (for which indictments have not yet been issued) and cases pending before cantonal and district courts, which should be tried at the State Court level given their sensitivity note 80, at 2 ('[T]he current proposal appears to be based on short-term planning aiming to effect the cheapest possible withdrawal of the international community and the acceleration of the exit strategy of the Tribunal. [T]heWar Crimes Chamber may only have the resources and time available to prosecute a small number of the thousands of suspects, selected on the basis of vague and contradictory criteria').
74. Note that the Security Council stressed the importance of local ownership in para. 4 of the Preamble of SC Resolution 1483 (2003) of 22May 2003.
75. See s. 1 of CPAOrderNo. 48 of 9 December 2003 ('TheGoverning Council is hereby authorized to establish an Iraqi Special Tribunal to try Iraqi nationals or residents of Iraq accused of genocide, crimes against humanity, war crimes or violations of certain Iraqi laws, by promulgating a statute, the proposed provisions of which have been discussed extensively between the Governing Council and the CPA. ‘).
76. See Art. 6(4) of the Statute of the Iraqi Special Tribunal.
77. See also Condorelli and Boutrouche, Art note 48, at 431.
78. For a full discussion, see L. A. Dickinson, ‘The Promise of Hybrid Courts’, (2003) 97 AJIL 295, at 307-8.
79. See Report of the Group of Experts for Cambodia Pursuant to General Assembly Resolution 52/125. The UN General Assembly highlighted this point later in its Resolution 57/225, in which the Assembly noted ‘with concern the continued problems related to the rule of law and the functioning of the judiciary [in Cambodia] resulting from, inter alia, corruption and interference by the executivewith the independence of the judiciary’. See UN GA Res. 57/225 of 26 February 2003.
80. See Fourteenth Report of the Secretary-General on the UNMission in Sierra Leone, UN Doc. S/2002/679 of 19 June 2002, at 24.
81. See Thirteenth Report of the Secretary-General on theUNMission in Sierra Leone, UNDoc. S/2002/267 of 14March 2002, at 17.
82. SeeH. Strohmeyer, ‘CollapseandReconstruction of a Judicial System:TheUnitedNations MissionsonKosovo and East Timor’, (2001) 95 AJIL 46, at 62-3.
83. See Panel on UN Peace Operations, Report to the UN Secretary-General, 21 August 2000, UN Doc. A/55/305-S/2000/809, at 55.
84. See Panel on UN Peace Operations note 2, para. 17 ('The most important role we can play is to facilitate the processes through which various stakeholders debate and outline the elements of their country's plan to address the injustices of the past and to secure sustainable justice for the future, in accordance with international standards, domestic legal traditions and national aspirations. In doing so, we must learn better how to respect and support local ownership, local leadership and a local constituency for reform, while at the same time remaining faithful to United Nations norms and standards').
85. Panel on UN Peace Operations note 2., para. 17.
86. Panel on UN Peace Operations note 2., Summary.
87. For a discussion of the dichotomy between the choice of an international and a domestic solution in Iraq, see M. P. Scharf, ‘Is it international enough?-A Critique of the Iraqi Special Tribunal in the Light of the Goals of International Justice’, (2004) 2 Journal of International Criminal Justice 855.
88. For a general discussion, see G. Sluiter, ‘Legal Assistance to Internationalized Criminal Courts and Tribunals’, in Romano, Nollkaemper and Kleffner, The Security Council reaffirmed on several occasions the need to preserve local ownership in Iraq note 8, at 379.
89. UNTAET panels could not rely on Chapter VII powers to seek co-operation from third states. Para. 7 of SC Resolution 1272 (1999) merely stressed the importance of co-operation between Indonesia, Portugal and UNTAET for purposes of the implementation of the resolution. Co-operation was regulated by a MemorandumofUnderstanding betweenUNTAET and Indonesia, which is based on the principle of reciprocity. See Memorandum ofUnderstanding between the Republic of Indonesia and UNTAET Regarding Cooperation in Legal, Judicial and Human Rights RelatedMatters, Jakarta (5 April 2000).
90. Art. 17 of the Agreement between the UN and Sierra Leone regulates only the relationship between the Court and Sierra Leone. There is no express duty of third states to co-operatewith the Court. But the Security Council called ‘on all States, in particular the Government of Liberia to cooperate fully with the Court’. See the Preamble of SC Resolution 1478 (2003).
91. The Extraordinary Chambers cannot oblige other states than Cambodia to co-operate on the basis of the UN agreement. One might, however, raise the question whether the Extraordinary Chambers could force the Cambodian government to request assistance from third states on the basis of its own legal assistance agreements with other states. See Sluiter, Art note 98, at 403-4.
92. The Extraordinary Chambers cannot oblige other states than Cambodia to co-operate on the basis of the UN agreement., at 405-6.
93. This possibility is expressly excluded by the legal framework governing the UNMIK courts in Kosovo and the Serious Crimes Panels in East Timor. See UNMIK Regulation No. 2001/1 (On the Prohibition of Trials in Absentia for Serious Violations of International Humanitarian Law) and s. 5 of UNTAET Regulation No. 2000/30 (On the Transitional Rules of Criminal Procedure).
94. See Art. 29 of the ICTY Statute, which obliges states to co-operate with the tribunal. The duty to co-operate derives from Art. 24 of the UN Charter.
95. See generally J. R.W. D. Jones and S. Powles, International Criminal Practice (2003), at 836-7.
96. See S. de Bertodano, ‘Current Developments in Internationalized Courts: East Timor-JusticeDenied’, (2004) 2 Journal of International Criminal Justice 910, at 911.
97. SeeN.Koumijian,Accomplishments and limitations of one hybrid tribunal: Experience at East Timor,Guest Lecture Series of the Office of the Prosecutor of the ICC, 14 October 2004.
98. Art. 17 of the Agreement Between the United Nations and the Government of Sierra Leone limits the obligation to comply with requests for assistance to the government of Sierra Leone. The same approach is reflected in Art. 25 of the Agreement between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea.
99. See Special Court for Sierra Leone,AppealsChamber, Prosecutor v. M.Kallon,Decision of 13March 2004, paras. 71-2.
100. The Special Court for Sierra Leone used this argument in order to establish that the immunity of heads of state under customary law does not apply vis-a’-vis the Special Court in the light of the exception made by the International Court of Justice in para. 58 of the Yerodia case, according to which ‘an incumbent or former Minister of Foreign Affairs may be subject to criminal proceedings before certain international courts’. See Special Court for Sierra Leone, Appeals Chamber, Prosecutor v. Charles G. Taylor, Decision of 31 May 2004, paras. 42, 53. The Court came ‘to the conclusion that the Special Court is an international criminal court’ due to the fact that it isnot part of the judiciary of Sierra Leone and not a national court.The result is convincing in the light of the rationale of state immunity.Classically, state immunity derives from the concept of sovereign equality of states, and it is designed to protect high state officials from undue political interference by third states. Such a fear is unfounded in relation to impartial international tribunalswhich are independent from any national jurisdiction and protected against interference by the host state in judicial proceedings through immunities.
101. It is symptomatic that by December 2004 all of the accused tried by the Special Court for Sierra Leone were captured on the territory of Sierra Leone.Moreover, byDecember 2004, the Special Court for Sierra Leonehad not yet managed to get custody over at least two major suspects, namely former Liberian President Charles Taylor and former AFRC leader Johnny Paul Koroma. See http://www.sc-sl.org/cases-other.html.
102. This has occurred on several occasions in the case of Sierra Leone. The Security Council urged ‘all states to cooperate fully with the Court’ in Resolution 1470 (2003). See also the Preamble of SC Resolution 1478 (2003).
103. See Sluiter, This has occurred on several occasions in the case of Sierra Leone note 98, at 403-4.
104. SeeW. A. Schabas, ‘Internationalized Courts and their Relationship with Alternative Accountability Mechanisms: The Case of Sierra Leone’, in Romano, Nollkaemper and Kleffner, Sluiter note 8, at 161.
105. Art. 9 of the Lomé Agreement granted combatants fromvarious sides full amnesty and pardon in respect of crimes committed betweenMarch 1991 and the signing of the Lomé Agreement.
106. See also Condorelli and Boutrouche, Art note 48, at 430-432.
107. Note that the Security Council bestowed the CPA with a quasi-mandate to administer Iraq. See paras. 4 and 8 of SC Res. 1483 (2003) of 22May 2003.
108. See A. Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’, in Romano, Nollkaemper and Kleffner, Note that the Security Council bestowed the CPA with a quasi-mandate to administer Iraq note 8, at 10 ('[J]udges fear to take proceedings against terrorists or people suspected of appalling crimes because of security problems-they fear for their own lives. They would be happy, I think if trials against people accused of atrocities or serious crimes could be heard by some sort of international or internationalized courts. There is therefore an area where such courts might play a role'). See also A. Pellet, ‘Internationalized Courts: Better Than Nothing’, in Romano, Nollkaemper and Kleffner, Note that the Security Council bestowed the CPA with a quasi-mandate to administer Iraq note 8, 437, at 442.
109. See Cassese, ‘The Role of Internationalized Courts and Tribunals in the Fight Against International Criminality’ note 121, at 10 ('Crimes which have been committed in Afghanistan. could be tried by local judges, of course, on condition that such courts are strengthened by an international component').
110. Cassese., at 11 ('[I]t would perhaps be appropriate for the National Authority for Palestine to set up courts and tribunals in the occupied territories with an international component, to bring to trial those people who have been arrested and accused of terrorist acts against Israeli territory or Israeli nationals').
111. See specifically, in relation to Colombia, Pellet, Cassese note 121, at 442 ('Colombian drug traffickers also commit other serious violations of international law in parallelwith their traffic and it is clear that national judges rightly fear for their lives when they judge these criminals. It would therefore be appropriate to create an international tribunal having competence to deal with drug trafficking and related crimes. However, it could be valuable to appoint one or two judges from the relevant country to the Bench. ‘).
112. See Agreement Between the United Nations and the Government of Guatemala for the Establishment of a Commission for the Investigation of Illegal Groups and Clandestine Security Organizations in Guatemala of 7 January 2004. The Commission shall be composed of a UN-appointed Commissioner and international and domestic staff. See Art. 5 of the Agreement. It is designed ‘. to assist the State of Guatemala. to investigate the structure and activities of illegal groups and clandestine security organizations and their association with the State and organized criminal activities, as well as prosecute those persons responsible for the formation and operation of these entities’. See Art. 1 of the Agreement.
113. See paras. 3 and 4 of the Preamble of the Agreement, which emphasize that the Commission was created for two reasons: to strengthen domestic capacity and to accelerate investigations.
114. In August 2004, the Guatemalan Constitutional Court pronounced an opinion on the unconstitutionality of the framework agreement signed between the United Nations and the Guatemalan Government to establish the CICIAS. See Amnesty International Press Release, Guatemala: President Berger's political will to end impunity on the line, 7 August 2004, at http://web.amnesty.org/library/Index/ ENGAMR340152004?open&of=ENG-2M2.
115. See Report of the Secretary-General, the Guatemalan Constitutional Court pronounced an opinion on the unconstitutionality of the framework agreement signed between the United Nations and the Guatemalan Government to establish the CICIAS note 2, para. 41.
116. See also Kritz, Report of the Secretary-General note 1, at 58.
117. See Report of the Secretary-General, also Kritz note 2, para. 47.
118. The ICTY is taking steps to transfer cases to the specialWar Crimes Chamber of the State Court of Bosnia and Herzegovina as part of its completion strategy. See International Center for Transitional Justice, Bosnia and Herzegovina: Selected Developments in Transitional Justice (2004), at 4.
119. Alternatively, the Security Councilmay refer a situation to the Court under Art. 13 b. of the Rome Statute, as done in the case of Darfur. See Security Council Resolution 1593 (2005) of 31March 2005.
120. See generally Dickinson, Alternatively, the Security Councilmay refer a situation to the Court under Art note 87, at 306.
121. See Haines, generally Dickinson note 55, at 234.
122. They may validly complement purely international and purely domestic tribunals in processes of postconflict justice. See also Dickinson, Haines note 87, at 310.
123. It is anticipated that the Special Court for Sierra Leonewould try between 20 and 30 perpetrators. SeeMundis, They may validly complement purely international and purely domestic tribunals in processes of postconflict justice note 47, at 936. It is expected that the Extraordinary Chambers in Cambodia will try between six and ten perpetrators.
124. This is one of the lessons learned by UNMIK, which encountered such conflicts in civil litigation. See Cady and Booth, It is anticipated that the Special Court for Sierra Leonewould try between 20 and 30 perpetrators note 64, at 77.
125. Before the introduction of mixed national-international panels, a number of Serbs were convicted for genocide, despite the strict requirements of genocidal intent under international law. These judgments were later reviewed by panels with international judges and overruled. See Dickinson, This is one of the lessons learned by UNMIK, which encountered such conflicts in civil litigation note 87, at 305.
126. See Koumijian, Before the introduction of mixed national-international panels, a number of Serbs were convicted for genocide, despite the strict requirements of genocidal intent under international law note 107, at 4.
127. Non-extension may, in particular, be a means of holding judges accountable for specific conduct undertaken within the term of their offices, which is manifestly incompatible with the independence of the judiciary. See OSCE Report, Review of the Criminal Justice System, September 2001-February 2002, at 25; Review of the Criminal Justice System,March 2002-April 2003, at 28.
128. See Court of Appeal, Prosecutor v. Armando Dos Santos, Case No. 16/2001, 15 July 2003, at http://www. jsmp.minihub.org.
129. For an in-depth analysis, see Court of Appeal note 106 at 916-922.
130. See Report of the Secretary-General, For an in-depth analysis note 2, paras. 23-6.
131. SeealsoPrinciple12of theGuiding Principles forCombatingImpunityfor International Crimes,inBassiouni, Report of the Secretary-General note 1, at 269 ('Investigative commissions should be employed as precursors or adjuncts to criminal prosecutions, not as substitutes for them').
132. The SouthAfricanTruthCommission played a comparatively successful role in the peace process by offering individuals amnesty in exchange for truth-telling, and by supporting the process of institutional reform in South Africa. But it could only make a partial contribution. Only a relatively small number of perpetrators successfully applied for amnesties. This left many cases open for potential prosecution. Few of these cases have been effectively prosecuted inthe end. The reluctance of the SouthAfrican government to follow up the truth-telling process with effective prosecutions shed a cloud of doubt about post-conflict justice, because some of those who ignored the amnesty procedure did not have to pay a price for their incomplete action or inaction. See van Zyl, SeealsoPrinciple12of theGuiding Principles forCombatingImpunityfor International Crimes note 34, at 754-5, 760 ('The government's failure to prosecute highlights the limits of any truth commission's contribution to achieving justice').
133. See Report of the Secretary-General, The SouthAfricanTruthCommission played a comparatively successful role in the peace process by offering individuals amnesty in exchange for truth-telling, and by supporting the process of institutional reform in South Africa note 2, at para. 46.
134. The proposal was backed by former members of the Yugoslav war crimes commissions and President Alija Izetbegovic. See Kritz, Report of the Secretary-General note 1, at 64.
135. See ICTY Press Release, The ICTY and the Truth and Reconciliation Commission in Bosnia andHerzegovina, 17May 2001, at http://www.un.org/icty/pressreal/p591-e.htm.
136. A draft law was prepared which re-designed the model of the truth commission in Bosnia and Herzegovina. SeeCenter forTransitional justice, Bosnia andHerzegovina: SelectedDevelopments in Transitional Justice (October 2004), at 8. But the commission has not yet been established in practice, due to obstacles at the domestic level, such as the lack of a national debate on the feasibility of a truth commission and uncertainties about the design.
137. See generally,W.A. Schabas, ‘The Rwanda Case: Sometimes It's Impossible’, in Bassiouni, A draft law was prepared which re-designed the model of the truth commission in Bosnia and Herzegovina note 1, at 499.
138. SeeRwandaOrganicLawonGacaca,OrganicLawNo. 40/2000 (2001). Generally, see E. Daly, ‘BetweenPunitive and Restructive Justice: The Gacaca Courts in Rwanda’, (2002) 34 N.Y.U. Journal of International Law and Policy 355.
139. See OfficialWebsite of the Rwandan Government, Genocide, at http://www.rwanda1.com/gov.
140. When genocide trials begin in Rwanda's semi-traditional Gacaca courts, there will be about 10,000 trial courts operating in Rwanda simultaneously.
141. See Kritz, When genocide trials begin in Rwanda's semi-traditional Gacaca courts note 1, at 78.
142. See J. Strain and E. Keyes, ‘Accountability in the Aftermath of Rwanda's Genocide’, in Stromseth, Kritz note 16, at 126.
143. ‘Accountability in the Aftermath of Rwanda's Genocide’., at 127.
144. Like the Special Court itself, the Truth Commission is a mixed body composed of four domestic commissioners and three international members appointed by the UN High Commissioner for Human Rights. See Truth and Reconciliation Commission Act 2000, Part II.
145. See Truth and Reconciliation Commission Act 2000, Part III.
146. See Truth and Reconciliation Commission Act., Part III, sub. 6 (2).
147. See A. Tejan-Cole, ‘The Complementary and Conflicting Relationship between the Special Court for Sierra Leone and theTruth andReconciliation Commission’, (2003) 6YaleHumanRights and Development LawJournal 139; E. M. Evenson, ‘Truth and Justice in Sierra Leone: Coordination between Commission and Court’, (2003) 104 Columbia Law Review 730.
148. See Truth And Reconciliation Commission Report, Vol. 2, ch. 2-Findings, para. 568.
149. See Special Court for Sierra Leone, Prosecutor v. Norman, Case No. SCSL-2003-08-PT, Decision on Appeal by the Truth and Reconciliation Commission of Sierra Leone. See generally Evenson, Truth And Reconciliation Commission Report note 165, at 758.
150. TheCommission noted that itwas ‘effectively blocked by the Special Court fromholding any public hearings or confidential interviews with the detainees’. See Truth And Reconciliation Commission Report, Vol. 2, ch. 2-Findings, para. 573.
151. See TheCommission noted that itwas ‘effectively blocked by the Special Court fromholding any public hearings or confidential interviews with the detainees’., Vol. 2. ch. 2-Findings, para. 565.
152. The Truth and Reconciliation Commission added: ‘The Commission finds that the United Nations and the Government of Sierra Leone, who were responsible for the Special Court initiative and the authors of its founding instruments, might have given more consideration to the laying down of guidelines for the simultaneous operation of the two organizations.’ See Truth And Reconciliation Commission Report, Vol. 2. ch. 2-Findings, paras. 563-4.
153. See s. 1.3 of UNTAET Regulation No. 15/2000 of 6 June 2000.
154. See s. 23.3 of UNTAET Regulation No. 10/2001 of 13 July 2001.
155. See s. 27.6 of UNTAET Regulation No. 10/2001 of 13 July 2001.
156. See ICC Press Release, Prosecutor receives referral of the situation in the Democratic Republic of Congo, The Hague, 19 April 2004, at http://www.icc-cpi.int/press/pressreleases/19.html. See generally,WilliamW. Burke-White, ‘Complementarity in Practice: The International Criminal Court as Part of a System of Multi-level Global Governance in the Democratic Republic of Congo’, (2005) 18 LJIL 557.
157. See Africa News Update, DRC: The long road to reconciliation, 23 September 2004, at http://www.afrika. no/Detailed/6088.html.
158. This point was made clear by the Inter-American Commission on Human Rights (IACHR) in 1999 in the context of El Salvador's obligations under the American Convention on Human Rights. The Commission noted: ‘The value of truth commissions is that they are created, not with the presumption that there will be no trials, but to constitute a step towards knowing the truth and, ultimately, making justice prevail.’ See Inter-American Commission on Human Rights, Ellacuria Case, Report No. 136/1999 (El Salvador), paras. 229-30.
159. This functional parallelismmakes sense not only from a strict accountability perspective, but also from the angle of efficiency. A combined justice and reconciliation model may produce the best results in practice. The threat of prosecution may encourage perpetrators to lay down their arms and to engage in a peace process, based on the option of conditional immunity based on truth-telling and individual confession. The application of alternative forms of justice, on the other hand, may relieve the conventional justice system from burdens which it cannot shoulder in practice due to the mass of crimes committed in the conflict.
160. In the Ellacuria case, the IACHR stated that: ‘the institution of a Truth Commission [cannot] be accepted as a substitute for the State's obligation, which cannot be delegated, to investigate violations committed within its jurisdiction, and to identify those responsible, punish them, and ensure adequate compensation for the victim.’
161. See Report of the Secretary-General, the Ellacuria case, the IACHR stated that note 2, para. 64.
162. The jurisdiction of international criminal institutions is frequently limited to themost serious violations or crimes (see Art. 1 of the Rome Statute, Art. 1 of the ICTR Statute and Arts. 1 and 7(1) of the ICTY Statute). This reference may be regarded as an acknowledgment that prosecution should focus on leaders. This principle was ultimately accepted by the ICTY. See Security Council Resolution 1329 of 30 November 2000 in which the Council takes note ‘of the position expressed by the International Tribunals that civilian, military and paramilitary leaders should be tried before them in preference to minor actors’. The focus on leadership figures was expressly stipulated in Art. 1 of the Statute of the Special Court for Sierra Leone which extends the competence of the Court to ‘persons who bear the greatest responsibility for serious violations’. See also J. R. W. D. Jones and S. Powles, International Criminal Practice (2003), at 134-5; D. Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’, (2003) 14 EJIL 481.
163. See the Preamble and Art. 1 of the Rome Statute.
164. See Art. 11(1) of the Rome Statute.
165. See para. 4 of the Preamble of the Statute: ‘affirming that the most serious crimes of concern to the internationalcommunityas awholemustnot gounpunishedandthat their effectiveprosecutionmustbe ensured by taking measures at the national level and by enhancing international cooperation’. This commitment cannot be simply revoked by a state for reasons of political opportunity. This is, inter alia, reflected inArt. 127, para. 2 of the Statute,which states that even awithdrawal of the Statute ‘shallnot affect any co-operation with theCourt in connectionwith criminal investigations and prosecutions in relation to which the withdrawing state had a duty to co-operate and whichwere commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the day on which the withdrawal became effective’.
166. See para. 6 of the preamble of the Statute: ‘Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. See also Art. 17(1)(a) of the Statute ('The case is being investigated or prosecuted by a State').
167. See Art. 17(1)-(3) of the Statute.
168. These prerequisites apply in an objective fashion, irrespective of the current political preferences of a specific regime or leadership in the country in question. This objectivity is guaranteed by the fact that states may only refer a whole situation to the Court, but not specific crimes or acts committed by a specific group of people. See Art. 14 of the Rome Statute.
169. See Art. 15 of the Rome Statute. Note that the Prosecutor has contacted the government of Colombia in 2005, in order to obtain information on details of crimes committed in Colombia. See BBC News, ICC probes Colombia in war crimes, 1 April 2005.
170. See Art. 19, first and second sentence. This implies that a state party to the Statute cannot unilaterally limit or curtail the competences attributed to the Court.
171. The Appeals Chamber of the Special Court for Sierra Leone adopted this principle expressly in its decision in the case of Prosecutor v. Morris Kallon, Brima Bazzy Kamara, Case No. SCSL-2004-15-PT, Case No. SCSL-2004-16-PT, Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, Decision of 13 March 2004. The Chamber noted that: ‘[e]ven if the opinion is held that Sierra Leone may not have breached customary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnestywhich is contrary to the direction in which customary international law is developing and which is contrary to the obligations in certain treaties and conventions the purpose of which is to protect humanity.’ See para. 84 of the decision.
172. This approach is fully in linewith case lawof theInter-AmericanCommissiononHumanRightswhich stated that governmental recognition of responsibility and even investigations carried out by truth commissions are not a substitute for a state's obligation under the American Convention onHuman Rights to investigate, prosecute and sanction those responsible for serious violations of Human Rights. See Inter-American Commission on Human Rights, Garay Hermosilla et al., Case No. 10.843, 1996 Annual Report IACHR (1997), para. 57; Ellacuria case, Report No. 136/99, paras. 119-230.
173. This follows from the wording and structure of Art. 17. Art. 17 must be interpreted narrowly, since it is drafted in negative fashion. It regulates exceptions to the principle of admissibility ('the Court shall determine that a case is inadmissiblewhere'), and exceptions to the exception ('unwillingness and inability to investigate or prosecute'). This structure implies that a case is generally admissible before the Court, unless the conditions of a ground of inadmissibility are fulfilled. The basic principle underlying Art. 17 is that amnesties must, at least, be accompanied by some forums of enquiry into the crimes, in order to be able to bar proceedings by the Court. The only escape clause for a perpetrator is the de minimiis clause in Art. 17(1)(d), which allows deference by the Court where ‘the case is not of sufficient gravity to justify further action by the Court.’
174. See This follows from the wording and structure of Art note 187.
175. See Art. 68 (1) of the Rome Statute and Rule 86 of the Rules of Procedure and Evidence.
176. For a survey of the practice of the ICTY, see C. Jorda and J. de Hemptienne, ‘Status and Role of the Victim’, in A. Cassese, P. Gaeta, and J. R.W. D. Jones (eds.), The Rome Statute of the International Criminal Court (2002) Vol. II, 1387, at 1389.
177. See Art. 68(3) of the Rome Statute and Rules 89-91 of the Rules of Procedure and Evidence.
178. See Art. 68(3) of the Rome Statute and Rule 90 of the Rules of Procedure and Evidence.
179. See Art. 17(2) of the Rome Statute.
180. Art. 17(1)(a)merely requires investigations by a state which has jurisdiction over it, in order to bar ICC proceedings. This requirement may bemet by quasi-judicial proceedings, which examine the crimes committed in a public procedure.
181. See also Robinson, Art note 180, at 500.
182. See J. Dugard, ‘Possible Conflicts of Jurisdiction with Truth Commissions’, in Cassese, Gaeta and Jones, Such a narrow understanding of the scope of application of the provision contrasts, however, with the use of the notion of ‘proceedings’ at the beginning of the sentence, which appears to incorporate a broader range of proceedings than pure criminal trials note 196, Vol. I at 702.
183. Originally, complementarity was essentially conceived as a state-centred concept, regulating the division of competences between the Court and states. The admissibility test and the concepts of inability and unwillingness used in Art. 17 are visibly defined in relation to the state as the classical holders of domestic jurisdiction. This is reflected in the wording of Arts. 17(1)(a) ('the case is being investigated or prosecuted by a State'), 17(1)(b) ('The case has been investigated by a State'), 17(2)(a) ('the national decision was made for the purpose of shielding'), and 17(3) ('due to a total or substantial collapse or unavailability of its national judicial system, the State is unable'). But the complementarity principle may also be applied in relation to international(ized) courts, which will most likely increase in importance in the years to come.
184. Concurring, Benzing and Bergsmo, Originally, complementarity was essentially conceived as a state-centred concept, regulating the division of competences between the Court and states note 8, at 412.
185. Concurring, Benzing and Bergsmo, Concurring note 8, at 412 ('themere involvement of the state in the operation, rather than its setting-up, may be sufficient for deeming it a national court for the purpose of article 17').
186. This argument is overlooked by Benzing and Bergsmo, Concurring note 8, at 412-13.
187. The ICC is entitled to examine whether ‘the proceedings in the other court: (a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice’.
188. See Art. 11(1) of the Statute.
189. See Art. 11(2) of the Statute.
190. For an ICC-related analysis, see M. Delmas-Marty, ‘The ICC and the Interaction of International andNational Legal Systems’, in Cassese, Gaeta and Jones, Art note 196, Vol. II (2002), 1915.