Globalizing Criminal Justice: Challenges for the International Criminal Court

Abstract

The decade-long experience of International Criminal Tribunal for Former Yugoslavia (ICTY) suggests that newly operational International Criminal Court (ICC) will inevitably face challenges to its credibility and effectiveness. In addition to well-publicized political objections to court, there are two other problem areas. First, some impatient proponents of new institution will be disappointed with deliberate pace of investigations and prosecutions inherent in proper administration of justice. The ICC judges and prosecutors should be prepared to face criticism from media and pressure from various groups for not indicting immediately those undoubtedly responsible for alleged atrocities. Second, accused, victims, and witnesses will find themselves in a foreign court with foreign judges and prosecutors. Quite often those involved in court's proceedings will have to adapt to dealing with procedural rules foreign to their own previous domestic legal experiences. And some victims and witnesses will certainly bring with mental divide of us versus them from battlefields to poison ICC's chamber. Public Expectations and Pacing The common expectations about speed of indictments and scope of investigations are bound to cause disappointments. The prosecutor and judges of ICC should be prepared to sustain pressure from states, media, nongovernmental organizations (NGOs), and other groups who will expect immediate indictments and arrests for alleged crimes. The first ICTY prosecutor, Richard J. Goldstone, wrote: Soon after I arrived in The Hague, I was besieged by thousands of letters and petitions signed by people, mostly women, from many countries, urging me to give adequate attention to gender-related war crimes. They pointed to many reports of systematic mass rape in Bosnia. (1) In an interview, former ICTY judge Elizabeth Odio Benito described how she, upon reading some media reports, had urged prosecutor to amend an indictment: In charges raised against suspects, she could not find anything concerning rape, though she was sure she had read [statements about rape] in reports. Not enough evidence, said prosecution. When this happened a second time, she reminded prosecution that there were reports and that prosecution should act upon them. This was even important enough for CNN to show. For prosecution it was important to know that judges really cared in this matter. (2) The procedural independence of prosecutors is reinforced by their hard-earned professional experience and alerts to inappropriate pressure based on extrajudicial information and considerations. In her Partial Dissenting Opinion in Appeals Chamber's judgment in Jelisic case, Judge Patricia M. Wald emphasized that the Statute provides for an independent Prosecutor as one of three co-ordinate branches of Tribunal.... To recognise a parallel power in judges to accept or reject cases on extra-legal grounds invites challenges to their impartiality as exclusively definers and interpreters of law. (3) Indeed, indictments should be result of a complete investigation and a thorough internal review of evidence. The ICTY experience has demonstrated that reports from media as well as independent commissions and groups do not always reflect a full and completely accurate depiction of events. Judges' and prosecutors' extensive experience in practicing criminal law will ensure that they, not outside critics, make impartial assessments of evidence presented by opposing parties through sometimes subjective witnesses and victims. This was emphasized by head of United Kingdom's delegation at Rome conference where ICC Statute was discussed and adopted in June 1998: All shades of opinion at this Conference . …