Thematic Debate “Role of International Criminal Justice in Reconciliation”
New York, 10 April 2013
On 10th April 2013, the President of the General Assembly H.E. Mr. Vuk Jeremic, convened the thematic debate entitled “The Role of International Criminal Justice in Reconciliation” at United Nations headquarters—two decades after the founding of the inaugural UN ad hoc tribunal, and eleven years following the entry into force of the Rome Statute establishing the ICC.
The decision to organize this event was premised on the fact that since international criminal justice is no longer in its infancy, the international community would be well served by an appraisal of the accumulated wealth of experience, ascertaining lessons learned and best practices that should be applied to improve its future effectiveness. It was determined that the General Assembly—the international community’s most inclusive, equitable, and representative body—would be the most appropriate institution in which this could take place.
The thematic debate was designed to consider not only practical questions about the administration of international criminal justice—such as prosecutorial discretion, the legal criteria by which judgments are rendered, the selection process of court officials and staff, jurisdictional primacy and how it has evolved over time, etc.—but also broader questions, such as how to reconcile the delivery of justice, the prevention of impunity and fostering general deterrence with respect for the rights of both victims and the accused. Each of these aspects of the work of international criminal justice institutions is critical to promoting reconciliation, as well as furthering peace and stability in post-conflict societies.
The thematic debate was convened, in short, to further the cause of international justice, premised on the notion that doing so in the best possible manner requires that it takes place in the context of advancing efforts at achieving reconciliation between former belligerents—thus supporting the first enumerated purpose of the United Nations: to maintain international peace and security.
The debate itself was comprised of a keynote segment and a high-level segment, as well as two interactive expert panels that addressed the issues of justice and reconciliation.
In the high-level segment, 47 speakers delivered statements on behalf of 82 Member States, one Observer Member, and one Non-member Observer State. The number of participants clearly indicated that the event was of significant interest to Member States. The expert panels each had one moderator and four distinguished panellists.
One of the main messages delivered by the participants in the debate was that greater engagement of the international criminal justice system in the further pursuit of the goal of reconciliation was needed. They also called for strengthening the relationship between international and national judicial systems, the continuation of decisive actions against impunity, and strengthening international efforts towards improving the current system of international criminal justice.
In delivering his introductory remarks, the President of the General Assembly, H.E. Mr. Vuk Jeremic, said that the issues to be discussed were of enormous significance for the international community, expressing his firm belief that there should be no forbidden topics in the General Assembly. The efforts to achieve justice and reconciliation should be mutually reinforcing, and be bound together in what they aim to accomplish—namely, bringing about an end to enmity, and breaking for good vicious cycles of hatred. Reconciliation will be achieved, he stated, when all parties to a conflict are ready to speak the truth to each other, adding that honouring all victims is at the heart of such an endeavour. That is why, he said, it is critically important to ensure that atrocities are neither denied nor celebrated as national triumphs. Moreover, President Jeremic stressed that the paramount question must be how international criminal justice can help reconcile former adversaries in post-conflict, transitioning societies. In the absence of all parties to a conflict accepting responsibility for reconciliation, international criminal justice could be perceived as an instrument of revendication, or portrayed as an attempt at assessing communal blame or collective guilt, which would serve no constructive purpose.
In his opening remarks, Secretary-General H.E. Mr Ban Ki-moon emphasized that the topic is one of tremendous importance. He argued that deepening the system of international criminal justice is the most positive development in international relations of the past generation. Furthermore, he said that the new institutions of international criminal justice have ushered in a new age of accountability. He further expressed his full support for the system of international criminal justice, and argued that it succeeded in giving voice to the victims and witnesses of crimes. Relating to the ICC, the Secretary-General stressed that it continues to contribute to our efforts to promote peace and security and respect for human rights. At the same time, he added, we must remember that it is a court of last resort, and that the primary responsibility for adjudicating such categories of crimes lies with Member States. A successful ICC will be one that sees its workload diminish, universal acceptance of its jurisdiction, and all of its State Parties fully engaged in efforts to end impunity and ensure accountability for such crimes. Furthermore, he stressed that one cannot expect to attain the goals of peace, development and respect for human rights without promoting and supporting a robust system of international criminal justice.
High-level Segment and informal debate
During the high-level segment, a majority of speakers reaffirmed that one of the main goals of the international criminal justice system was to promote and contribute to processes of reconciliation in post-conflict situations. The discussion revolved around the assessment of levels of such contributions and the prospects for improvement in the future. Member States took the floor in accordance with the level of their representation in the debate. Bosnia and Herzegovina as well as Serbia participated at a presidential level, while Namibia and Rwanda were represented by their distinguished Ministers of Justice. These four speakers set a critical tone, with assessments that pointed out various inadequacies with the work of the tribunals, especially with regards to their respective contributions (or lack thereof) to reconciliation efforts and the criteria by which prosecutorial discretion is applied.
The remaining participating Member States were: Croatia, Turkey, Suriname, Costa Rica (speaking on behalf of 14 Latin American and Caribbean State Parties or Signatories to the Rome Statute, namely Antigua and Barbuda, Belize, Colombia, Costa Rica, Dominican Republic, Guatemala, Honduras, Jamaica, Mexico, Panama, Paraguay, Peru, Trinidad and Tobago, and Uruguay), the Russian Federation, China, Argentina, Egypt, Switzerland, Chile, Pakistan, Brazil, Indonesia, Ghana, Sri Lanka, Tanzania, Australia, Trinidad and Tobago (attached itself to Costa Rica’s statement and delivered its own), South Africa, Uruguay (attached itself to Costa Rica’s statement and delivered its own), Republic of the Congo, Lesotho, Japan, Thailand, Cuba, Gabon, Jamaica (attached itself to Costa Rica’s statement and delivered its own), Tunisia, India, Liechtenstein, Albania, Cambodia, Botswana, Bolivia, Venezuela, New Zealand, Sudan, Ecuador, Kenya, Iran and Syria. In terms of the participation of observers to the UN, The European Union (speaking on behalf of its 27 members) and the Observer State of Palestine also provided contributions. In addition, a representative of the International Development Law Organization took the floor. Moreover, graduate students of the University of Geneva supervised by the former President of the Swiss Confederation, Ms. Micheline Calmy-Rey, presented a written brief, as did the Association of Defence Counsel Practising Before the International Criminal Tribunal for the Former Yugoslavia (ADC-ICTY).
Speakers noted that the ad hoc International Criminal Tribunals were created to deliver justice and contribute to prevention efforts. It was also said that tribunals were established with the aim of bringing a measure of satisfaction to the victims of atrocities, irrespective of their ethnicity, and thereby allowing for a feasible prospect of reconciliation between parties.
The vast majority of speakers in the debate expressed their views on the international criminal justice system’s current state of effectiveness. Evaluations were made in reference to lessons learned from the available experiences about the work of ad hoc tribunals, so that conclusions about their potential for improvement could serve as a blueprint for the work of other institutions of vital importance to the international criminal law system, namely the ICC. Overall, it was determined that justice and reconciliation are and must continue to be considered complementary elements of a modern system of international peace and security. The effective, fair and unbiased administration of justice in such an approach is an integral part of post-conflict reconstruction, but also an important part of efforts to prevent future threats to international peace and security.
Some speakers seized the opportunity to emphasize their contributions in cooperation with institutions of international criminal justice, while others underlined that the work and decisions of the various tribunals has hindered various reconciliation processes. Others took the floor to demonstrate support for the goals achieved since the creation of these institutions to the present day.
As some speakers argued, reconciliation cannot be achieved by the tribunals alone, therefore implying high hopes for a more active role for Member States in fostering reconciliation. In this sense, Member States were seen to carry the primary responsibility for investigating and prosecuting the crimes in question, based on the principle of complementarity, to be supplemented by the international community’s efforts. Furthermore, available experiences have demonstrated that lasting and sustainable peace without justice for all the victims is problematic. In that respect, a number of speakers commended the “historic” efforts of the ICTR and ICTY for their contributions to peace and justice. Although the establishment of such tribunals had, as claimed by those participants, changed the landscape of international criminal justice, their crucial role was in fact in establishing conditions the creation of the ICC through bringing about the beginning of a new, more advanced phase in international criminal justice. The message of the Rome Statute, which laid the foundation for the ICC, pertained to encouraging States to battle impunity.
As far as justice for victims was concerned, some speakers claimed this had been one of the major recent achievements of international criminal justice. Additionally, international justice was thought to contribute to international security, as well as to the rule of law and reconciliation. Yet, challenges which the system had faced were far from easy to tackle. Expectations were high, in the sense that they included parallel processes of wound-healing and justice-deliverance. Still, as indicated by a few speakers, the examples of the actions taken by the ad hoc tribunals offered a “fitting response.” Therefore, according to them, even though the international community faced various challenges when it came to the application of international justice, the ICC and the ad hoc tribunals deserved strong and consistent support. According to some, the ICTY and ICTR ensured that principles of accountability replaced those of impunity. Still, accountability by itself, as an essential element of the international criminal justice system, could not only reflect a desire for justice, but was also needed to meet the important objective of reconciliation as an integral part of post-conflict peace-building. Justice and reconciliation were driven by each other, implying that without complementarity they could not be sustainable. This requires a more even-headed approach, and the unbiased prosecution of alleged perpetrators on all sides.
The ICC, in particular, enjoyed the support of some participants, who stated that its establishment represented a “qualitative leap” in international criminal justice. Hopes were expressed that the Court would be universally seen as competent to deal with issues that fell within its jurisdiction, underscoring the importance of all Member States signing on to its jurisdiction, including all the leading powers. A number of speakers were highly critical of Member States who despite being strong advocates of the ICC have not accepted its jurisdiction. Some commended the work of the Court and the tribunals for a framework that protected presumptions of innocence – one of the key principles of a fair trial. Moreover, many participants argued that international criminal justice needed to be supplemented by economic and social assistance, which could be achieved by providing more resources for the establishment of State structures and institutions to adequately support the aforementioned system. Although imperfect, international criminal justice was seen by a number of participants to have made significant advances. This had especially been attributed to the establishment and work of the International Criminal Court.
On the other hand, some States took a fairly critical approach to the system of international criminal justice and its individual courts. It was argued that justice could be brought to victims only if such processes were to be protected from partiality and political influences. When it came to the ICTY in particular, a number of participants stated that this tribunal could serve as a negative example with regard to the independence of international criminal tribunals from political pressures and influences. According to these views, the ICTY’s very existence was extended “for an absurd length of time,” which sometimes resulted in a number of the accused dying before they could be tried. Furthermore, its existence seemed to cultivate the notion of guilt on one side in a given conflict, thus proving the Court’s inability to truly promote peace, justice and reconciliation. Some claimed that national courts should enjoy primacy in prosecuting crimes, with the exception of cases in which countries were unable to prosecute internally.
With regard to the ICTY, certain Member States argued that this institution had not fulfilled its established goals, especially those pertaining to fostering reconciliation. In that sense, its overall record of rulings was described as biased, whilst prosecution remained selective and discriminatory. For instance, specific objections pertained to the cancellation of the previous unanimous verdict against Croatian generals Gotovina and Markac, which had been based on years of detailed investigation. The renewed verdict, as was claimed, neglected some of the most important elements of humanitarian law. Therefore, doubts were expressed that such verdicts were based on considerations of their legal merits. Dissatisfaction was expressed, inter alia, with regards to perceived selectivity in prosecutorial strategy and the length of sentences handed out by judges. For the States directly concerned with the work of the ICTY, the Tribunal’s proportional assignment of guilt to the sides involved in the conflicts was seen as unacceptable, while the Court’s overall contribution to reconciliation was deemed insufficient, or in some cases, non-existent. Additionally, some Member States said that they regretted their contribution to the legitimization of the ICTY, which was done in the hope that by applying the same benchmarks, justice would be served for all victims of the conflict. In their view this had not been the case. A belief was also expressed that all perpetrators of crimes should stand trial and receive proper punishment. That belief, they asserted, was not shared by the ICTY.
Some participants stressed that criminal justice played a significant role in reconciliation, and that it sought individual accountability for international crimes while recognizing victims’ rights, promoting trust and strengthening the rule of law. Still, the administration of international criminal justice was described as an expensive exercise, especially in Member States whose limited resources could not support such structures. When it came to the ICC, some States pointed out that the Rome Statute recognized the inextricable link between justice and reconciliation. However, it was emphasized that such global institutions should be protected from political influences. Speakers underscored the paramount importance of the ICC reporting to the General Assembly, asking why it should also report to the Security Council, as it currently does. Concern was also expressed about the selective application of international criminal justice in the Security Council’s referrals to the Court, which showed that “political interests were sometimes made a priority instead of the pursuit of justice.”
Regarding reconciliation in particular, some suggestions indicated that such processes could be enhanced by the domestication of the Rome Statute, thus allowing space for greater involvement of national courts in the prosecution of international crimes. National reconciliation as well as the restoration and maintenance of peace have been set as objectives by the Security Council to the ICTR. Certain States argued that such objectives had not been achieved. In a similar sense, it was indicated that the effectiveness of the Tribunal for Rwanda was in fact inversely proportionate to the funding it had received. Several concrete examples were provided as evidence of the aforementioned claims. For instance, Rwanda’s domestic Gacaca trials cost 50 USD per suspect and tried about 1.3 million people within period of 10 years, while the ICTR tried 75 Rwandans over 17 years at a cost of over 20 million USD per defendant.
A viewpoint presented in the high-level segment also suggested that the location of such Courts played a significant role in determining their effectiveness in promoting reconciliation. The fact that their location was far away from the places where the atrocities had been committed contributed to their portrayal as foreign and detached, thus indicating a reduced ability to foster genuine reconciliation processes that public opinion would support. For these reasons, they were seen as serving legal and academic interests more than peace-building and national reconciliation. In the case of the ICTR, the criticism predominantly focused on the fact that most of the alleged perpetrators and genocide planners had still not been brought to justice. Moreover, it was stressed that the ICTR turned out to be most beneficial to the “technocrats” in charge of running it instead of the victims.
A major goal was considered to be striking a balance between the need to end the culture of impunity, while at the same time establishing safeguards against the potential abuse of the principle of universal jurisdiction. International arrest warrants should enjoy a “blessing” by the International Criminal Police Organization (INTERPOL), in order to avoid partisan political manipulation.
Some States said that, far too often, international criminal justice suffered from political expediency as well as the selective application of the law. One participant asked “what the value of all the laws, covenants, treaties, conventions and resolutions legislated by the international community really is, if they are not applied equally, fairly and consistently.” As additional remarks by participants about the general functionality of international criminal justice suggested, the current system of international criminal justice did not embrace values from various cultural backgrounds, remaining centred on a Western historical and cultural mindset. On the other hand, some participants saw reasons for the current imperfections in the existing relations with the Security Council, a body that preserved the power to suspend investigations. The reluctance of some of the Security Council permanent members was identified by some as a reason for missed opportunities to develop a more functional and efficient legal system.
Regarding the ICC, some strongly objected to any politicization of the Court, mindful of the potential for the selective application of justice. It was also argued that the Office of the Prosecutor had not lived up to its mandate of strengthening national judicial systems. Some indicated that misunderstandings of legal principles and jurisdictions of the ICC had already taken place. A number of statements were also made referring to the inability of international criminal justice to replace national reconciliation. Others admitted that the ICC faced significant challenges, but that these were due to lack of cooperation from certain States. Many participants agreed that there remained room for improvement in the ICC’s work, given the inexplicability of the fact that the vast majority of cases that the ICC had dealt with pertain to the African continent. In this respect, the ICC was said to be insufficiently effective, which was inevitable given that this judicial body retained its strong link with a “political body” (i.e. the Security Council).
The first of two panel discussions that followed in the afternoon session of the thematic debate focused on the topic of “Justice.” Moderated by Matthew Parish, former Chief Legal Adviser to the International Supervisor of Brcko District in Bosnia, and Partner at Holman Fenwick Willan (a Swiss law firm), it included four additional panellists: Charles Jalloh, Professor at the University of Pittsburgh School of Law; Lewis MacKenzie, Major-General, Canada (retired), the first UN Commander of Sector Sarajevo; John Ciorciari, Professor at the University of Michigan; and Savo Strbac, of the Information and Documentation Centre “Veritas”, Belgrade, a long time cooperating NGO with the ICTY that has been applauded by the international community for its objectivity.
Among the questions Dr. Parish posed to his respective panellists were the following: What could be done to prevent crimes and what could contribute to reconciliation? Why had the area of international criminal law “grown so extensive in so little time,” when, in years prior, “it had been a small field?” What had triggered its growth and why did the international community feel it “could not live without it now”? Furthermore, he was specifically interested in the relationship between international and domestic criminal law, and questioned why the language of international law was often dressed in terms of intense moral outrage.
Mr. Jalloh focused the majority of his remarks on the African Union’s proposal to establish a criminal justice chamber within the African Court of Justice and Human Rights. Although the idea was widely seen as the latest manifestation of the African Union’s rejection of the International Criminal Court, in fact, Jalloh argued that the project would complement the work of the Court if States could address some of its fundamental problems. According to Jollah, “the view that the African Union is not entitled to look for other possibilities” in the search for criminal justice was not only incorrect, but perhaps even racist, as the Court was never intended to be the sole body for international criminal justice.
Offering arguments in favour of the proposal, he urged all Member States to engage in the debate over the creation of the criminal justice chamber within the African Court of Justice and Human Rights, even though “we are all in favour of the ICC.” States had a responsibility to investigate crimes that took place on their territory, which suggested that one must at least have an open mind to consider the African Union proposal.
Retired Canadian General Lewis Mackenzie said that during his tenure leading the Sarajevo Sector of the United Nations Protection Force in the former Yugoslavia, he had frequently pointed out the inadequacies of the United Nations’ engagement. He had long dealt with United Nations “naïveté” and could, to a certain extent, understand the United States’ reluctance to sign up with the ICC due to concerns regarding false and/or frivolous charges which could be made against their senior personnel. In terms of the ICTY, he underscored the “valid perception” that it represented a form of victor’s justice. Fairness and objectivity are important, he stressed, adding that if proceedings did not appear to be fair and objective, justice was counterproductive to reconciliation. To support his point, he gave the following example of “impropriety:” a judge presiding in a case involving a defendant from a country which was at odds with the judge’s country over the specific issues and events the defendant is charged with. In such an instance, he said, the judge should recuse himself, as is done in most national juridical proceedings when there appears to be even the perception of a conflict of interest.
General Mackenzie also referred to the case against senior Croatian military officials for war crimes committed during Operation Storm in 1995, resulting in the expulsion of hundreds of thousands of Serbs from Krajina (Croatia). During this offensive, Croatian forces “overran with their armour and artillery” lightly armed Canadian peacekeeping positions. When the Canadian troops accepted to shelter Serbian civilians who had fled the Croatian assault, the Croatian army responded with artillery shelling. Canadian generals gave compelling evidence to that effect during the trials, and public opinion in Canada reacted very negatively when the defendants accused of ordering these strikes were found not guilty on appeal.
Professor Ciorciari, an expert on the subject of justice and reconciliation in Cambodia, said that working towards better models of international criminal justice was an important process. He described some of the work of the Extraordinary Chambers in the Courts of Cambodia — a hybrid court that played a role in prosecuting alleged crimes against humanity in Cambodia between 1975 and 1979. The Extraordinary Chambers had been charged with prosecuting individuals from a regime responsible for some 1.7 million deaths. In many respects, the institutional structure of the Extraordinary Chambers had been experimental, and showed that hybrid courts had some “special hazards.” Spotlighting some lessons that had been learned from the Court, he underscored that the United Nations should be wary of attaching its name and committing resources to a court over which it did not have leadership.
Among other lessons learned in the context of the Extraordinary Chambers, Ciorciari said that the Court’s experience had shown that justice and efficiency were fundamentally intertwined in international criminal justice systems. Moreover, the Extraordinary Chambers’ complex system of appeals — instituted as a result of Cambodian sovereignty concerns — meant that issues could be litigated up to four times. There were several perils of divided leadership and management, with national and international staff working figuratively, and sometimes literally, on opposite sides of the hall. Those issues had challenged the Court to speak with a single voice in cases where there might be differences of opinion between national and international players.
Mr. Strbac, shared some of the staggering numbers of casualties of war in the region. Not counting the victims of the 1999 NATO bombing that was not authorised by the Security Council, there had been 130,000 victims in total. He also shared some of the statistics of the trial and appeals chambers of the ICTY. In the period of 20 years from its founding to the day of the thematic debate, a total of 161 persons had been indicted, and 82 of the accused were convicted. Of the accused, 110 people (68% of the total) were Serbs, 34 were Croats, 9 were Bosniaks, 7 were ethnic-Albanians and one was Macedonian. Of all the convictions pronounced, 80 per cent were against Serbs, as well as all five life sentences pronounced by the ICTY. In precise terms, 82 indictees were convicted to a total of 1215 years in prison, out of which 62 Serbs were convicted to a total of 974.5 years. In comparison, 12 Croats were convicted to a total of 166 years in prison, 5 Bosniaks to 43.5 years, 2 ethnic-Albanians to 19, while the lone Macedonian was convicted to a 12 year sentence. Twelve indictees (six Serbs and six Croats) are still waiting for their verdicts. Strbac argued that the ICTY’s partiality was seen in the fact that only four indictees were convicted for crimes against the Serb population in Bosnia (three of whom were Bosniaks, along with one Croat), whilst there were no convictions for crimes against Serbs in either Croatia or Kosovo. This, he added, did not correspond to the historical facts, and would serve as an undue burden for those seeking reconciliation for many years to come.
Strbac said that the Serbs had been fiercely opposed to the establishment of the ICTY, fearing that the Tribunal would see Serbs as criminals and oppressors. He noted that he had wished to cooperate with the Tribunal from the onset, thus meeting with the delegation of the prosecution for the first time in 1994. However, in the 20 years of judgments brought, he admitted with great bitterness that the vast majority of his countrymen from Serbia had been “quite right” in their assertion that the Tribunal would be guided by selective, politicized justice. The ICTY evidently failed to hold any parties accountable for the expulsion of almost a quarter of million Serbs from Croatia during “Operation Storm” in August 1995 (i.e. the evidence indisputably indicates that a terrible crime was committed with malice and forethought, yet through the actions of the Court, no individual has been convicted of having ordered or even participated in its commission). Thus, according to Strbac, the Tribunal had not fulfilled any of the goals for which it was founded, in particular reconciliation. “Do not allow for a similar tribunal as the International Criminal Tribunal for the Former Yugoslavia to happen anywhere else,” he concluded.
The second panel revolved around issues related to reconciliation. The panel consisted of moderator John Schindler, Professor of National Security Affairs at the United States Naval War College, and Senior Fellow at Boston University, and four panellists: William Schabas, Professor at Middlesex University School of Law, London; Cedomir Antic of the Institute for Balkan Studies, Belgrade; Janine Clark of the University of Sheffield School of Politics; and John Laughland, Director of Studies at the Institute of Democracy and Cooperation, Paris.
Professor Schabas offered his perspectives on the links between international criminal justice and reconciliation. He stressed that none of the resolutions which initiated the establishment of the ICTY had mentioned reconciliation, which was a stark omission. Still, he expressed a belief that the achievement of goals in the area of international criminal justice should fit into the following postulates: sustainable peace, deterrence, justice for victims and reconciliation. When it came to justice for victims, he argued that a measure of justice had been delivered although not entirely to satisfaction of all sides, which in his view is “the reality we all live in”. He added that reconciliation is most difficult to measure and in that sense said that it is too soon to know the answer of whether international criminal justice had promoted reconciliation effectively or not. He underlined the fact that the Tokyo and Nuremberg trials had been the symbols of one- sidedness but had still managed to make critical contributions to an accurate historical portrayal of events, although what happened in the Balkans was entirely different in scope and scale. In terms of the political dimensions of international criminal justice, he reminded participants that the decision to prosecute is ultimately a political one.
Dr. Antic said that we stand before a task that is ultimately an easy one, but also a sad one. Even though the founding resolution on ICTY did not contain the word reconciliation, this was continuously being declared as one of the Tribunal’s goals in its statute, programme and the public appearances of its officials. He claimed that the ICTY’s contribution to reconciliation could be best measured through levels of trust expressed within the populations concerned with the affairs of the Court. In that sense, he underlined the fact that very high percentages of both Albanians and Serbs have negative sentiments towards this institution. He reiterated the claim that the Tribunal had already demonstrated one-sidedness by deciding not to indict any NATO officials for crimes during the bombing campaign against Serbia in 1999. Antic also described the difficulties that the ICTY brought to the development of democratic society in Serbia. According to Antic, the constant pressure and high expectations that this institution had been using in its interactions with the Serbian government had already once resulted in halting the country’s EU accession process. Similarly, Antic claimed that the ICTY contributed to worsening relations between Balkan nations, and fostering divisions within them.
Dr. Clark said that the normative value of the Courts is beyond any doubt. In her view, it is their practical implications that could be deemed problematic. One of the reasons why it remained fairly difficult to measure reconciliation was the fact that very few people had conducted serious empirical work on the issue. Therefore, evaluation of contributions to reconciliation cannot be made with absolute certainty. She was of the opinion that the ICTY had not contributed to reconciliation in the Balkans, although it was not its job or mandate to aid reconciliation. The major issue, she claimed, remained the length of the sentences pronounced by the Court. Plea agreements made between the accused and the prosecutors represented a problem to the victims. She added that in light of the number of atrocities committed, in which thousands of persons were killed or missing, courts have no option but to be selective in the prosecution of the perpetrators. These decisions, she argued, are difficult to explain to the populations affected by war. She added that there are cases in which courts are willing to prosecute crimes but are not able to do so to a full extent, due to the lack of cooperation by States. In order for courts to make a greater contribution to reconciliation processes, Dr. Clark argued that States have to demonstrate greater eagerness for cooperation.
Professor Laughland expressed his firm belief that the project of international criminal justice is destined for a major failure. He said that none of the arguments in favour of international criminal justice are able to deal with the legal right of statehood to punish and convict criminals. He pointed to the lack of a social contract between institutions of international justice with the population, which is contrary to the situation that exists within States and their judicial systems. Even so, he said, what is arguably an implicit social contract is being systemically broken by international Tribunals. In terms of partiality of the Tribunals, he pointed to one specific example. NATO’s attack on the Federal Republic of Yugoslavia in 1999 was illegal, thus implying the necessity for the ICTY to prosecute NATO senior officials. The decision not to prosecute them, according to Laughland, proved the Tribunal’s partiality.
Laughland emphasised that acts of warfare still represent a state act. In that sense, it was noted that many have forgotten that peace treaties made in the past 500 years contained amnesty clauses, and were produced and signed by States. He concluded with the remark that instead of continuous attempts to fix the system of international criminal justice, we should redirect the efforts towards rediscovering the role of the State and the lost art of peace making.
Note: The thematic debate took place against the backdrop of various endeavours to divert attention from the substance of the day’s proceedings. In a concentrated period of time several weeks before the day of the event, a number of panellists who had confirmed their participation in writing suddenly informed the organizers that they would be unable to attend (during the same period, a negative media campaign against the event was launched). Moreover, there was an unsuccessful attempt to organize a boycott of Member States to participate in the debate (in the end, only 2 Member States announced their decision not to participate). As the event was taking place, an NGO representative chose to break the rules against demonstrating on UN premises.
The thematic debate provided an unprecedented opportunity for Member States, international judicial institutions and representatives of academia and civil society to voice their views in the General Assembly on this topic of vital importance for international relations.
The debate was widely recognised as having achieved its goal of reviewing lessons learned and best practices stemming from two decades of work of the institutions of international criminal justice. The contribution of a record number of participants for an event of this sort demonstrated the deep international interest in this topic.
Some participants unequivocally supported the two decade-old record of work by the ad hoc tribunals, the ICC, or both, strongly endorsing the continuation of their activities, although in some cases allowing for the possibility that there was some room for improvement. Other participants expressed the view that numerous mistakes have been made in the way ad hoc tribunals have conducted their work—mistakes that have made the process of reconciliation between former adversaries more difficult to bring to a successful conclusion. Several reasons were given, including the perception of bias in the exercise of prosecutorial discretion; the shifting legal criteria by which judgments are rendered; the non-transparent process of selecting court officials and staff; the evolution of the doctrine of jurisdictional primacy and the inability in many cases to properly reconcile the delivery of justice; the prevention of impunity and fostering general deterrence, with respect for both the rights of victims and the accused.
The thematic debate represented a first, successful step by the General Assembly to review the record of international criminal justice. Some participants extended support for, while others gave constructive criticism of, past and current efforts—thus providing useful guidance to the International Criminal Court and other institutions.
It is hoped that the discussions will help ensure the delivery of international criminal justice in a more inclusive, unbiased and impartial manner, divorced from political influence, thus enabling the aforementioned institutions to achieve their goals in a sustainable way.
It is now up to the Member States to choose how to follow-up, and decide whether further action is warranted to enhance the transparency and accountability of international criminal justice, as it enters its third decade of existence within the UN system.
List of Member States that delivered statements in the high-level segment of the thematic debate:
- Bosnia and Herzegovina (Chairman of the Presidency H.E. Mr. Nebojsa Radmanovic)
- Serbia (President H.E. Mr. Tomislav Nikolic)
- Namibia (Minister of Justice H.E. Mr. Utoni Nujoma)
- Rwanda (Minister of Justice/ Attorney General H.E. Mr. Tharcisse Karugama)
- Croatia (Permanent Representative H.E. Mr. Ranko Vilovic)
- Turkey (Deputy Permanent Representative Mr. Levent Eler)
- Suriname (Permanent Representative H.E. Mr. Henry Mac-Donald)
- Costa Rica (Permanent Representative H.E. Mr. Eduardo Ulibarri), on behalf of 14 Latin American and Caribbean countries which are State Parties or Signatories to the Roma Statute
- Russian Federation (Permanent Representative H.E. Mr. Vitaly Churkin)
- China (Permanent Representative H.E. Mr. Li Baodong)
- Argentina (Permanent Representative H.E. Mrs. Maria Cristina Perceval)
- Egypt (Deputy Permanent Representative Mr. Osama Abdelkhalek Mahmoud)
- Switzerland (Permanent Representative H.E. Mr. Paul Seger)
- Chile (Permanent Representative H.E. Mr. Octavio Errazuriz)
- Pakistan (Permanent Representative H.E. Mr. Masood Khan)
- Brazil (Permanent Representative H.E. Ms. Maria Luza Ribeiro Viotti)
- Indonesia (Permanent Representative H.E. Mr. Desra Percaya)
- Ghana (Permanent Representative H.E. Mr. Ken Kanda)
- Sri Lanka (Permanent Representative H.E. Mr. Palitha Kohona)
- United Republic of Tanzania (Permanent Representative H.E. Mr. Tuvako Manongi)
- Australia (First Secretary Ms. Julia O’Brien)
- Trinidad and Tobago (Permanent Representative H.E. Mr. Rodney Charles)
- South Africa (Counsellor Mr. Thembile Joyini)
- Uruguay (Permanent Representative H.E. Mr. Jose Luis Cancela)
- Congo (Permanent Representative H.E. Mr. Raymond Serge Bale)
- Japan (Ambassador H.E. Mr. Jun Yamazaki)
- Thailand (Deputy Permanent Representative H.E. Mr. Chayapan Bamrungphong)
- Cuba (Third Secretary Mr. Tanieris Dieguez Lao)
- Jamaica (Deputy Permanent Representative Miss Shorna-Kay Richards)
- Tunisia (Counsellor Riadh Ben Sliman)
- India (Deputy Permanent Representative H.E. Mr. Manjeev Singh Puri)
- Liechtenstein (Permanent Representative H.E. Mr. Christian Wenaweser)
- Cambodia (Permanent Representative H.E. Mr. Kosal Sea)
- Botswana (Permanent Representative H.E. Mr. Charles Ntwaagae)
- Bolivia (Deputy Permanent Representative Mr. Claudio Guillermo Rossell Arce)
- Venezuela (First Secretary Alfredo Fernando Toro-Carnevali)
- New Zealand (Second Secretary Ms. Alexandra Lennox-Marwick)
- Sudan (Permanent Representative H.E. Mr. Daffa Alla Elhag Ali Osman)
- Ecuador (Counsellor Mr. Patricio Troya)
- Kenya (Deputy Permanent Representative H.E. Ms. Koki Muli Grignon)
- Iran (Deputy Permanent Representative H.E. Mr. Gholamhossein Dehghani)
- Syria (First Secretary Mr. Koussay Aldahhak)
- Albania (Permanent Representative H.E. Mr. Ferit Hoxha)
Other provided statements pertaining to the morning session:
- State of Palestine (Permanent Observer H.E. Mr. Riyad Mansour)
- European Union (Deputy Head of Delegation H.E. Mr. Ioannis Vrailas), on behalf of its 27 members
- International Development Law Organization (Mr. Patricio Civili)
Panellists who provided the Office of the President of the General Assembly with their presentations:
- Dr. Matthew Parish, Partner, Holman Fenwick Willan, Geneva
- Prof. Charles Chernor Jalloh, School of Law, University of Pittsburgh
- Major-General Lewis MacKenzie (ret.), 1st Commander of Sector Sarajevo
- Prof. John D. Ciorciari, University of Michigan
- Mr. Savo Strbac, Information and Documentation Centre - "Veritas", Belgrade
- Prof. John Schindler, National Security Affairs, US Naval War College and Senior Fellow, Boston University
- Prof. William Schabas, School of Law, Middlersex University, London
- Dr. Cedomir Antic, Institute for Balkan Studies, Belgrade
- Dr. Janine Clark, School of Politics, University of Sheffield