II. Prosecutor’s Request for Authorization of an Investigation

On October 30, 2017, the ICC Prosecutor notified the Presidency of her decision to request judicial authorization to commence an investigation into the situation in the Islamic Republic of Afghanistan [This notification was made by the Prosecutor pursuant to regulation 45 of the Regulations of the Court, ICC-02/17-1-Anx1.]. Consequently, on November 3, 2017, the Presidency, in its decision, assigned “with immediate effect, the situation in the Islamic Republic of Afghanistan to Pre-Trial Chamber III” [The Presidency, Decision assigning the situation in the Islamic Republic of Afghanistan, November 3, 2017, ICC-02-17-1]. On November 20, 2017, the ICC Prosecutor formally submitted the request to the Pre-Trial Chamber for judicial authorization of an investigation pursuant to article 15 [Article 15(1) provides that: “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court”. Article 15(3) provides further that: “If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected…”]. The request was “to authorize the commencement of an investigation into the Situation in the Islamic Republic of Afghanistan in relation to alleged crimes committed on the territory of Afghanistan in the period since May 1, 2003, as well as other alleged crimes that have a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002.” [ICC-02/17-7-Conf-Exp. Public redacted version ICC-02/17-7-Red, ¶ 376.] The request by the Prosecutor considered the situation in Afghanistan as a non-international armed conflict (NIAC). On April 12, 2019, the Pre-Trial Chamber II declined the Prosecutor’s request. It rejected the request on the basis that an investigation into the situation in Afghanistan at that stage would not serve the interests of justice. [Decision by Pre-Trial Chamber Judges Antonie Kesia-Mbe Mindua (Presiding), Tomoko Akane and Rosario Salvatore Aitala, ICC-02/17-33.] The Prosecutor decided to appeal to the Appeals Chamber, against this rejection [The Prosecutor raised two grounds of appeal: (1) that the Pre-Trial Chamber erred in law in seeking to make a positive determination of the interests of justice; and, further or alternatively, (2) that the Pre-Trial Chamber abused its discretion in assessing the interests of justice].

In a landmark judgment, the Appeals Chamber of the ICC, on March 5, 2020, decided to amend the impugned decision of the Pre-Trial Chamber, and authorized the Prosecutor to commence an investigation “in relation to alleged crimes committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the territory of other States Parties in the period since 1 July 2002”. [The Appeals Chamber, Judgment on the appeal against the decision on authorization of an investigation into the situation in the Islamic Republic of Afghanistan, ICC-02/17-138.]

In its findings, the Appeals Chamber noted that “the Pre-Trial Chamber is not called under article 15(4) of the Rome Statute to review the Prosecutor’s analysis of the factors under article 53(1)(a) to (c) of the Statute” [Ibid.]. It further found that “the Pre-Trial Chamber’s authorization of an investigation should not be restricted to the incidents specifically mentioned in the Prosecutor’s request under article 15(3) of the Statute and incidents that are ‘closely linked’ to those incidents” [Ibid.]. It should be noted, however, that the Rome Statute mandates the Prosecutor to “extend the investigation to cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under the Statute” [Rome Statute, Art. 54(1)(a)]. It is further worth noting that the ICC has already opened an investigation into alleged atrocity crimes, including crimes against humanity and war crimes allegedly committed in Afghanistan by the Afghan National Security Forces, the Taliban, and the US military and CIA personnel. [Hilland A. & Gilfedder C., The International Criminal Court and Afghanistan, September 3, 2021, available online]. This scenario has, however, been changed, as will be discussed in the ensuing sections, when considering the request by the new Prosecutor Karim Khan for the authorization of the resumption of the investigation in Afghanistan.

III. Article 18(2) Deferral Request

Pursuant to the authorization by the Appeals Chamber for the Prosecutor to conduct an investigation into the situation in the Islamic Republic of Afghanistan, the Prosecutor issued a notification of the decision dated March 12, 2020 to the Government of Afghanistan, State parties and other concerned states, in terms of article 18(1) of the Rome Statute [Article 18(1) requires the Prosecutor to “notify all State Parties and those States which, taking into account the information available, would normally exercise jurisdiction over the crimes concerned. The Prosecutor may notify such States on a confidential basis and, where the Prosecutor believes it necessary to protect persons, prevent destruction of evidence or prevent the absconding of persons, may limit the scope of the information provided to States”].

Upon receiving the Prosecutor’s notification under article 18(1), the Government of Afghanistan, on April, 15, 2020, within the 30-day time limit, formally requested the Prosecutor to defer the investigation to Afghanistan national investigations and proceedings, under article 18(2) of the Rome Statute, to allow it time to furnish evidence in connection with the investigation to hold the alleged perpetrators to account [ICC-02/17-139-Anx1. The Government of the Islamic Republic of Afghanistan made a deferral request by way pf a letter addressed to dated March 26, 2020, the ICC Prosecutor, signed by its Ambassador to The Netherlands]. The Afghanistan Government requested a deferral of the Prosecutor’s investigation into cases that have been investigated or are being investigated by the national authorities in Afghanistan [Ibid.]. It would appear that, by making the deferral request, the Government of Afghanistan sought to assert that it was indeed conducting genuine investigations, contrary to assumptions by the ICC.

The article 18(2) deferral request found its legal foundation on the principle of complementarity. It signifies the operation of the principle which requires that the ICC should only intervene in cases where the national authorities are not willing or unable genuinely to investigate and prosecute core crimes [See article 17 of the Rome Statute.]. The principle seeks to ensure that the Court does not duplicate, or take precedence over, domestic investigations unless warranted by inaction on the art of the national criminal jurisdiction. It underscores the principle that the State must enjoy primacy over the ICC, in the investigation and prosecution of the Rome Statute crimes. It follows, therefore, that the national authorities of Afghanistan have and enjoy primacy, over the ICC, with regard to domestic investigations of the alleged war crimes and crimes against humanity. However, it has been argued that this is based on a complementarity criteria that differ slightly from when a defendant challenges complementarity in a specific case, where the Court determines the ability and willingness of the State to investigate and prosecute the individuals most responsible for the alleged crimes [See generally, Makaia C., Afghanistan’s request for deferral: A procedural dead end, Leidenlawblog, March 18, 2021, available online].

It is critical to note that this was the first (and the only) time a deferral request was made in the jurisprudential history of the ICC [See ICC-02/17-152 17-05-2021 1/12 EK. Response to Submissions on Behalf of Certain Victims Who Participated in the Litigation Under Article 15(4) (ICC-02/17-146-Anx and ICC-02/17-148-Anx). Pre-Trial Chamber II. Situation in the Islamic Republic of Afghanistan, at ¶ 3.]. Prior to the Afghanistan request, the Court had never been seized with a matter requiring to interpret article 18 so closely. Article 18(2) enables a requesting State to halt the Court’s exercise of its jurisdiction over potential cases preemptively, if the State in question can establish that it has or has had an ongoing genuine investigation on the relevant facts.

The Government of Afghanistan, in its formal letter requesting for deferral, asserts that it is investigating or has investigated both Afghan nationals, and others within its jurisdiction, for alleged war crimes and crimes against humanity [ICC-02/17-139-Anx1]. It states that those investigations and proceedings cover allegations of crimes committed by Afghan forces, the Taliban and the related groups, other terrorist groups and international forces” [Ibid.].

The deferral request stated further that the alleged crimes that have been or are being investigated by the authorities of Afghanistan cover both war crimes and crimes against humanity including aerial bombardments of civilians, attacks on civilians and civilian properties, the killing and injuring of civilians, detentions and torture, and destruction of civilian properties [Ibid.]. It was indicated that of the 151 cases listed, only 28 had been prosecuted or had resulted in convictions and the remaining were still under investigation and/or arrest warrants have been rendered to the Afghan National Police and National Directorate for Security. [See Makaia, C., supra. See deferral request by Afghanistan, tabulated under the section of letter (attachment) titled: “The Summary Outline of National Investigations and Proceedings”].

The Afghanistan deferral request disclosed a breakdown of the alleged cases as follows: that there were 26 cases of war crimes alleged against Afghan National Security Forces (ANSF) and the international forces; 33 cases of war crimes and 3 cases of crimes against humanity allegedly committed by the Taliban forces and affiliated groups; 4 cases of war crimes and 3 cases of torture committed in the Pul-e-Charkhi prison, Bagram detention centre, Kabul detention centre, and the detention centers operated by the National Directorate for Security (NDS) in Kabul and other provinces; 30 cases of war crimes and 5 cases of crimes against humanity that were being investigated where the identity of the perpetrators were unknown at the time of the submission of the deferral request [See also Gossman, P, ICC investigation vital for justice in Afghanistan, Human Rights Watch, June 11, 2020, available online].

The request mentioned the crimes allegedly committed by the Taliban and groups affiliated to it as including murder, torture, burning civilians, hostage-taking, suicide attacks, forced marriage of women and child rape. The cases against the ANSF included the commission of murder, injury, civilian killings (committed by the NDS) and destruction of civilian objects. The cases against the Afghan air force supported by international forces (“Resolute Support Mission forces”) included airstrikes on civilian houses and objects in provinces of Kapisa, Nangrahar and Badghis. Alleged crimes committed by the ISKP members included suicide attacks, killing civilians and shutting down schools by force [Ibid.].

However, the Government of Afghanistan had been unable to confirm, with cogent evidence, the status of its on-going or concluded investigation [Makaia, C., supra]. The request did not, however, disclose whether any of the suspected individuals subject of an arrest warrant had effectively been arrested [Ibid.].

IV. Prosecutor’s Notification of Status to the Pre-Trial Chamber

On April 16, 2020, the Prosecutor notified the Pre-Trial Chamber that the Government of Afghanistan had requested to defer her investigation into the situation in the Islamic Republic of Afghanistan [A year later on April 16, 2021, the Prosecutor made another Notification of status to the Pre-Trial Chamber. Notification on status of the Islamic Republic of Afghanistan’s article 18(2) deferral request, ICC-02/17-142.]. The Government requested for more time, before June 12, 2020, to be able to submit additional information and supporting materials covering the historical and on-going investigation. The ground for seeking additional time were that the Covid-19 pandemic hampered the process of gathering essential documents and materials to support the deferral request. In her notice to the Pre-Trial Chamber, dated April 15, 2020, the Prosecutor Bensouda intimated that she accepted the arguments by the Afghan government [See work by Qaane, E., A request to delay: Another Afghan government attempt to prevent an ICC war crimes investigation? Afghanistan Analyst, May 13, 2020, available online]. Owing to extraordinary circumstances concerning the Covid-19 pandemic the Prosecutor acceded to this request [ICC-02/17-138, ¶¶ 1–4].

It is critical to note that once this deferral request was made, the Prosecutor was obliged to consider the deferral of the investigation to Afghanistan, unless the Pre-Trial Chamber, on the application of the Prosecutor, decided to authorize the investigation. No such application was ever made to the Pre-Trial Chamber, and so the deferral request consideration remained in place, until the new Prosecutor Karim Khan applied for authorization for the resumption of the investigation [Request to authorize resumption of investigation under article 18(2) of the Statute, Pre-Trial Chamber II, September 27, 2021, ICC-02/17-161].

Under Article 18 of the Rome Statute, the Prosecutor verifies if the cases presented by the Afghan government are against the alleged perpetrators that her or his office would most likely zero in. The Prosecutor’s deferral to Afghanistan’s investigation is open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on Afghanistan’s unwillingness or inability genuinely to carry out the investigation [Article 18(3) of the Rome Statute.].

On June 12, 2020, Afghanistan provided to the Prosecutor voluminous material regarding cases it submits to have investigated or is in the process of investigating. This was to demonstrate that the government of Afghanistan was indeed seized with the domestic investigation and prosecution, in support of its deferral request, under the principle of complementarity.

In order to conduct a more comprehensive assessment of the extent of the the domestic investigation and prosecution, the Prosecutor requested for more as much information as possible from Afghanistan [Prosecutor’s notification of status on the situation in Islamic Republic of Afghanistan, op. cit.]. In light of the on-going conflict at the time, logistical constraints, and the Covid-19 pandemic limitations, the Prosecutor liberally allowed Afghanistan to provide the requested material within a 60 day time-limit, with a possibility for a further extension [Ibid.]. A number of meetings have been held between the Prosecutor and the Afghanistan Government, and the Prosecutor indicated they have been productive in reinforcing the efforts of the Prosecutor to review the deferral request.

After the review of the information and evidence, the new Prosecutor Karim Khan is now convinced, the ICC investigation into the relevant cases should not be deferred, but resumed. The Prosecutor could still investigate the cases that the request of the Afghanistan government does not encompass, for instance the alleged crimes committed by US nationals, but for now he has deprioritized most of those investigative aspects concerning the US nationals and Afghan national security personnel [See Request to authorize resumption of investigation under Article 18(2) of the Statute, Pre-Trial Chamber II, September 27, 2021, ICC-02/17-161].

V. Article 18(2) in the New Taliban Era

The previous Afghanistan regime encountered several impediments, which are likely to continue to bedevil the Taliban regime. Some of the challenges included, the maintenance of the National Reconciliation, General Amnesty and National Stability Law which have prevented the previous regime from effectively providing justice to the victims [See Makaia, C., supra].

It may be argued that the Prosecutor Karim’s deprioritizing of the investigation of US forces and CIA personnel may also have connection with the fact that none of the 151 cases submitted by the Afghan government are related to the alleged crimes attributed to the US forces and the CIA by the Prosecutor Bensouda in her original application to Pre-Trial Chamber for authorization to commence the investigation [Request for authorization of an investigation into the situation in the Islamic Republic of Afghanistan, pursuant to article 15, November 20, 2017].

The question to be posed now is whether the Taliban authority is willing and able genuinely to administer justice in relation to historical and on-going war crimes and crimes against humanity committed in Afghanistan. The evidence appear to suggest that atrocities have been committed in Kandahar, Panjshir, and other parts of the country.

Formidable impediments exist that tend to frustrate the efforts of the ICC to investigate and prosecute historical and ongoing heinous crimes allegedly committed by the Taliban, who are currently effectively in authority and control of national investigative and prosecutorial apparatus of the government of Afghanistan [Makaia, C., supra].

The ICC relies largely upon the cooperation of its member states to effectively access information and evidence vital for its own investigation, and also to effect arrest if necessary. It is highly debatable that the Taliban would offer the necessary cooperation in relation to ICC investigations targeting atrocities allegedly committed by its own fighters or leaders.

With respect to the non-nationals of Afghanistan, article 18(2) is still instructive, particularly, where it provides that “within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction…” (emphasis supplied) [See arguments by Elroa, in the Leidenlawblog and Makaia, C., op. cit.]. Arguably, positively read and construed, article 18(2) allows Afghanistan to investigate other nationals. It is critical to explore the scope of that provision citing “within its jurisdiction…”. Jurisdiction does not necessarily solely mean a territorial one [Ibid.].

VI. The New Prosecutor Karim Khan and Article 18(2) Deferral Request

The new Prosecutor, Karim Khan, in his early official statement on August 17, 2021, concerning the situation in Afghanistan, did express deep concern about the escalating violence in the situation in Afghanistan [Statement of the new Prosecutor Karim Khan, available online]. He echoed “the views of the United Nations Security Council over reported incidents on the territory of Afghanistan that may amount to violations of international humanitarian law under the Rome Statute” [See generally, UN Security Council, “The situation in Afghanistan” August 16, 2021, UN Doc. S/PV 8834 (“United Nations Security Council Emergency Meeting”)]. The reports, he said, included allegations of extrajudicial executions in the form of revenge killings of detainees and individuals who surrendered, persecution of women and girls, crimes against children and other crimes affecting the civilian population at large [Ibid.]. The Prosecutor concluded by affirming that his “office will continue to monitor the Afghanistan situation, and will act, as necessary, in accordance with the responsibilities under the Rome Statute.”

The Prosecutor followed up on the preceding undertaking, by another statement indicating he had on September 27, 2021 filed an application, before the Pre-Trial Chamber, for an expedited order under article 18(2) seeking authorization to resume investigation into the situation in Afghanistan [Request to authorize resumption of investigation under article 18(2) of the Statute, ICC-02/17-161. Statement of the new Prosecutor Karim Khan, available online]. While applauding the Government of Afghanistan for its constructive engagement with his Office prior to August 15, 2021, he observed that recent developments in Afghanistan and the change in the national authorities, represent a significant change of material circumstances with import for his Office’s ongoing assessment of the deferral request [Article 18(3) of Rome Statue provides that: “The Prosecutor’s deferral to a State’s investigation shall be open to review by the Prosecutor six months after the date of deferral or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation.]. His conclusion was that there was no longer the prospect of genuine and effective domestic investigations into Article 5 crimes within Afghanistan [Ibid.]. The Prosecutor, however, expressed optimism for constructive engagement with new Afghanistan national authorities in accordance with the principle of complementarity.

It is instructive to point out that the Prosecutor, notes that, if authorized to resume his investigation, owing to limited resources, his focus would narrow down to crimes allegedly committed by the Taliban and the Islamic State-Khorasan Province, and seek to deprioritize other aspects of the investigation [Ibid.]. Presumably, this effectively leaves out of the investigation, the US forces and the CIA personnel, as well as the members of the former Afghan National Police and other Afghan security agents, such as those under the National Directorate for Security.

It is evident from the Prosecutor’s observations that the situation in Afghanistan, during and after the Taliban takeover of control, demonstrate a continued state of non-international armed conflict [See Rome Statute, Article 8(2)(d)]. Upon the authorization by the Pre-Trial chamber, it remains to be seen how the Prosecutor will overcome the formidable challenges of securing the cooperation of the Taliban authorities in conducting the investigation, let alone the preservation of evidence within the territorial control of the Taliban. There is also bound to be concern as to why the US Forces and the CIA agents have been left, by the Prosecutor, out of the scope of his intended resumed investigation. It will be interesting to see how the Prosecutor Karim Khan maneuvers his way around all the mentioned issues.

II. Non-Western Regional Justice in Law and Culture

A. Middle East: Jordan

1. Domestic Laws

Jordan’s legal system, including its Penal Code, reflects both the Islamic and British influence on the culture and governance of the state in 1960 when the Penal Code was drafted.12 Though it was amended in 2011, it remains a conglomeration of both legal traditions. Though the state retains some Shari’a law, this law only applies to personal and family matters.13 Like many other states with Western influence on their legal traditions, penalties for the most severe felonies—those most comparable to or the same as those within the jurisdiction of the ICC—are derived from the secular Penal Code.14 Articles 118 through 122 address crimes and penalties for violations of international law, seemingly in accordance with international norms.15 These felonies and others including murder are heard by Jordan’s Major Felonies Court and Courts of Cassation.16 Article 14 of the Penal Code grants these courts the discretion to sentence penalties for the most severe offenses including life imprisonment, life imprisonment with hard labor, and even death.17 Unlike other felonies, war crimes are prosecuted separately, and are heard by distinct military courts.18 This highlights the level of severity and gravity of these crimes, as well as the way they are taken as such by Jordanian legislators.

Though Jordan effectively implemented a moratorium on carrying out the death penalty in 2006, executions resumed in 2014 and were supported by a vast majority of the population.19 When surveyed in late 2014 by the Centre for Strategic Studies based in Amman, Jordan, 81% of people surveyed responded that they support capital punishment.20 Not only is it believed that capital punishment is a deterrent for similar offenses in Jordan, Abuqudairi suggests that it also prevents tha’r revenge killings by the family members of victims.21

Human rights activists have suggested that the reason for such substantial support for capital punishment was first, that there was insufficient understanding of human rights, and second, that courts lacked sufficient alternatives that satisfied victims.22 In Jordan, a life sentence is only twenty years, rather than the lifetime of a prisoner as it might suggest.23 Dissatisfaction with this remedy has resulted in rioting and anger among citizens, and suggests a norm or preference for more severe retributive justice in response to the most heinous crimes.24

2. Traditional Justice in Jordan

Jordan has a fairly Westernized formal legal system, but it operates alongside a traditional tribal system of punitive justice as well.25 In traditional culture, the family is the center of civil society, and as Jain describes, “an injury to one is an injury to all.”26 Thus, a system of collective responsibility and punishment is integral to tribal law.27 Tribal law is far more informal and varies regionally, but has several commonalities.28 The most important of these is the speed at which tribal law moves, more effectively preventing revenge killings of family members for the wrongs committed by another.29 Formal courts and prosecution do not align with this collective mentality: prosecution of one offender does not prevent these revenge offenses.30 When surveyed, only 12% of Jordanians believed that the formal court system alone should resolve conflicts involving the most egregious offenses, like murder.31 Instead, people prefer to rely on either only tribal law or a combination of the two.32 They are not only more accessible, but understandable to the community.33 Right now, the two systems operate alongside each other, rather than in congruence. It is critical, however, when looking at Jordan’s justice mechanisms to understand traditional approaches as well.

One of the primary approaches is a punitive practice called jalwa, which requires the perpetrator and family to leave the tribe or community.34 Traditional values include honor, respect for tribal leaders, and avoiding shame—making this expulsion particularly effective in its cultural context.35 This traditional approach lends itself to being labeled as retributive, but has also been reported to promote peace and reduce related killings. A traditional approach that aligns with the values of people affected by the crime such as this one tends to garner favor, supporting the idea that familiar remedies are more effective in giving victims the sense that justice has been served.

B. Northern Africa: Tunisia

1. Domestic Laws

Tunisia’s criminal justice system is based on the French model, which again can be attributed to its colonial influences prior to independence.36 Like Jordan, Shari’a law does not have an effect on the penal system, though it is culturally relevant and ingrained in the lives, families, and sense of justice of many Tunisians.37 The Tunisian Penal Code still assigns the strictest penalties to crimes including murder, rape, terrorism, and national security crimes.38 In fact, military courts in Tunisia preside over crimes that threaten national security, regardless of who is responsible for the commission of the crime.39 However, the judicial system is highly criticized as politicized, easily and substantially influenced by politics, and not independent.40

As of 2007, Tunisia was a supporter in the movement toward abolishing capital punishment until 2020, when a series of brutal rapes and murders led to a social media campaign calling for the reinstatement of the death penalty as punishment for the most brutal acts.41 However, with broad public support from Tunisians and the Tunisian Penal Code, Tunisian President Kais Saied endorsed, but has not yet enacted, a reinstatement of the death penalty.42 International human rights organizations have criticized the statement, but many Tunisians still believe the option to impose harsh retributive punishment for the most severe wrongs is appropriate.43

2. Restorative Justice in Tunisia

Following the 2011 Arab Spring revolution in Tunisia, a process of transitional justice began with adjudication in Tunisia’s Specialized Criminal Chambers.44 The goal of the process was that of most restorative justice mechanisms: accountability, apology, and reparations.45 First, a truth and dignity commission began accepting submissions on acts of aggression from victims in 2014, and by 2016 it had received more than 30,000 submissions.46 This speaks to the value for victims in both justice being served and truth being told to recover from conflict.47 Trials of the ten people indicted by the Specialized Criminal Chambers began in 2018, and those indicted were charged with violent suppression of the revolution and citizens involved or related to those involved.48 However, even now a single verdict has not been reached.49 This reflects the recurrent difficulty of Tunisian courts to render impartial decisions that serve the interests of justice.

Some scholars including Kazemi have looked at the potential value of incorporating more cultural traditions into transitional justice mechanisms in Tunisia, like traditions and values in Islam.50 The theory is that incorporating local norms, values, and discourse will make the process more viable and progress more lasting.51 There is perhaps value in culture and local communities being further incorporated into transitional justice, as the majority of people surveyed in Tunisia who were awarded reparations post-revolution were not satisfied.52 When asked what people want, 37% said they simply sought acknowledgment of the wrongs committed, 29% wanted more compensation, and 28% want an admission of wrongdoing.53 Community-based reparations and efforts at truth and reconciliation are likely to be impactful to Tunisian victims of crimes of aggression, even with a fairly high percentage of approval for retributive justice, and will especially be powerful if they are culturally-attuned to the people.

C. Sub-Saharan Africa: Uganda

1. Domestic Laws

The dichotomy between Uganda’s Penal Code and traditional justice mechanisms is perhaps the most complicated of any of the states being analyzed in this comment. Uganda’s Penal Code is a direct product of its colonization, a Western model has been implemented in the Ugandan government, and purports to punish crimes including treason, terrorism, rape, and murder.54 Because their Penal Code does not address war crimes, crimes against humanity, crimes of aggression, or genocide directly, this comment examines the crimes treated as most severe by the Penal Code. The most severe criminal offenses in Uganda are typically penalized with capital punishment or a life sentence.55 Though mandatory capital punishment was found to be unconstitutional in Susan Kigula v. Attorney General, many citizens found the twenty year life sentence to be inadequate.56 It was after Stephen Tigo v. Uganda redefined a life sentence to mean “the natural life term of a convict” that a reduction in the use of capital punishment began to occur.57 Regardless, surveys of the public suggest that 53% of the Ugandan population support capital punishment.58

Courts in Uganda do not tend to apply traditional justice mechanisms in their sentencing decisions, instead keeping systems of Western justice and traditional justice separate from one another.59 The Western-influenced court system in Uganda has been criticized as unfair and unjust, as police can make arrests prior to investigation, can be bribed for release, can torture for admissible admissions, and trials are typically remanded for up to a year.60 This seems to be the clearest example of strong dissonance between civil society and the domestic legal system among the states analyzed in this comment. Gabagambi quotes Ugandan scholar Simon Robins, who said that the continuation of inherited laws from the English legal system is irrational because they are irrational to the people.61

2. Restorative Justice in Uganda

Based on traditional values and justice mechanisms passed down through generations of small ethnic groups in Uganda, many communities prefer to restore than to punish.62 Rather than derive a sense of justice being served through imprisonment, there is a cultural emphasis on rebuilding communities and restoration following conflict.63 When people can participate effectively and engage in a process that reflects the traditional components of conflict resolution and justice including arbitration, social teaching, reconciliation, and compensation for wrongdoing, justice is more impactful.64 When a person is imprisoned, they cannot be part of the process of reconciliation—and as a result, victims from traditional communities may feel dissatisfied by justice regardless of whether time and effort has been spent. The fact of the matter is that a huge chasm exists between courts, prosecutions, and Western remedies, and traditional restorative justice ceremonies.

Gabagambi describes a series of these ceremonies, all of which take place among traditional ethnic groups in Uganda:

One of the Acholi’s traditional dispute mechanisms is reconciliation, which is done through a ceremony called mato oput. Oput is a kind of tree normally found in Acholi land with a bitter taste. Thus, when people are in conflict negotiations are done and when one is found guilty has to compensate the victim, formerly the compensation had to be livestock but currently even monetary compensation can be done. Conflicting parties do a mock trial of fighting; thereafter, they are separated. Each of the conflicting parties brings a goat and a sheep, the animals are cut into halves, and their blood is mixed with oput and local beer. The mixture is drunk by the conflicting parties as a sign that the bitterness that existed between them should not recur and the remaining meat is cooked and eaten. Thereafter, restoration of the broken relationships is done. […] The Ankore, for example, had the Kyoto dispute settlement process. The parties to the conflict and other members of the community gathered around the fireplace, usually in the evenings to resolve a dispute, hence the process’s name Kyoto, which means fire place. The gathering normally took place in the evening and could continue till midnight until the solution was found. […] Among the Baganda of central Uganda, there was a practice known as Kutawulula, meaning “unravelling.” A person who, for instance, witnessed others fighting in their community had a duty of first intervening and separating the fighting parties, then had another role of ensuring that those people were reconciled.65

These traditional justice mechanisms are reportedly far more common and accepted across Sub-Saharan African traditional societies than many Western-imposed remedies—even those which are intended to be restorative.66 This is one of the regions in which community and victim participation are most critical to the efficacy and perceived positive impact of remedies awarded by other foreign courts like the ICC, due to the cultural gap in remedies and punishments.

D. Southeast Asia: Cambodia

1. Domestic Laws

The Cambodian Penal Code is clearly Western-influenced in its structure as well as in its categorization and designation of crimes and penalties. Unlike the previous penal codes this comment analyzes, Book 2 of the Cambodian Penal Code specifically elucidates the definitions and associated penalties for crime against persons, which includes genocide, war crimes, and crimes against humanity.67 Article 183 pertains to genocide, its definition, and the associated penalty of life imprisonment.68 Article 188 addresses crimes against humanity, which is also penalized with life imprisonment.69 Article 193 rules on war crimes, and similar to Article 8 of the Rome Statute, sets forth a long list of acts that qualify as war crimes.70 The penalty, again, is life imprisonment.71 Even the participation in preparation or facilitation of these acts carries specific sentences of twenty to thirty years imprisonment.72 Cambodia’s Penal Code seems to recognize that these crimes are even more severe than acts like murder, and as such the penalties are more severe.

However, some criticism of the Cambodian justice system echoes those of the other States Parties in this analysis. The actual sentences handed down by courts to perpetrators of atrocities—like torture and murder—do not reflect the crimes committed.73 In the trial of Cambodian police who were ultimately convicted for torture and murder in detention, officers were only given four to seven year sentences.74 Victims did not have the opportunity to speak at trial, and the public opinion was that justice was not served.75

2. Restorative Justice in Cambodia

After Cambodia’s 1975–1979 genocide, several efforts at restorative justice were made, some more successful and meaningful than others. The first attempt at a transitional tribunal in 1979 ultimately failed, and was considered by the people to be an “illegitimate show trial”.76 After nearly twenty years, the government of Cambodia solicited help from the United Nations to establish a tribunal for retributive transitional justice on a domestic level.77 The Extraordinary Chambers in the Courts of Cambodia (ECCC) began addressing the complaints of “any person who has suffered from physical, psychological, or material harm as a direct consequence of the crimes” committed during the genocide.78 Though the ECCC does offer the opportunity for victims to seek truth and justice, ensure remembrance, and prevent future acts of genocide, it is not perfect either.79 Many of the victims, at this point, are no longer alive to benefit from reparations or truth telling and apology.80 Regardless, there has been substantial support for trials and accountability.81

Ultimately, after eleven years of proceedings in the ECCC, three senior leaders considered to be most responsible were convicted of genocide in addition to the conviction for crimes against humanity they had already received, adding validity and gravity to the atrocities committed.82 A question tends to arise: was it worth the $300 million that could have been applied to other forms of restorative justice? As Mydans states:

Survivors will remember the court by the convictions it achieved, but others will remember the court by the judgments it never rendered.83

Though people want to see former leaders who committed grave atrocities suffer, reconciliation and the healing of trauma is also ingrained in Cambodian traditional values.84

Dicklitch and Malik address more traditional concepts of justice, including yuttethor, which include the traditional moral practices of mutual understanding and agreement.85 Part of Khmer society in Cambodia includes this conception of justice, and the idea of dharma, that part of justice is rebalancing the wrong that has been done.86 Despite years of effort, people in Cambodia are somewhat unimpressed by the ECCC, and as Dicklitch and Malik quote, “justice must not only be done, it must be seen to be done.”87 Distant and opaque procedures followed by unfamiliar legal procedures do not always produce that result.

E. Latin and South America: Colombia

1. Domestic Laws

The Colombian Penal Code is the most formalistic of the documents reviewed in this analysis, and includes a distinct chapter for provisions on each type of offense with details including relevant definitions, elements of offenses, and ranges for sentencing. Unlike the previous states analyzed, the terms for imprisonment of severe crimes like insurrection, rape, or homicide are relatively brief.88 Colombia only recently imposed life sentences in a constitutional reform that extended the definition of “life” from sixty years to natural life, and only for those found guilty of rape or child murder.89 Though the Colombian government considered the death penalty as well in these same reforms, it has not yet been enacted, as Article II of the 1991 Constitution provides for the right to life.90 The courts in Colombia have been criticized as well: though crimes seem to be heavily penalized, those who are charged rarely serve the sentences stipulated by law.91

Colombia has a special court, the Special Jurisdiction for Peace (JEP), which has the power to charge Colombians with offenses including war crimes, that are beyond the purview of the ordinary courts.92 In the wake of the 2016 agreement that concluded more than fifty years of conflict between the Colombian government and a rebel group, the FARC, the JEP was established to charge individuals on both sides of the conflict for war crimes, in alignment with international standards.93 The action taken in this respect reflects both commitment to genuine retributive justice and these peace accords, and demonstrates the role penalties and imprisonment plays in Colombia’s own restorative justice process.

2. Restorative Justice in Colombia

As referenced above, the JEP, peace agreement, and other related efforts extend further than simply charging those most responsible with war crimes. Efforts to demobilize, award amnesty or lighter sentences to former participants willing to tell the truth and for those who did not violate human rights, reintegration programs, and restitution to victims and communities have accompanied the process of restoring and transitioning to a state of peace.94 Many Colombians and experts believe that the combination of reparations, retribution, and restoration of the rights of victims will be the key to transitioning past a conflict that has lasted a lifetime for most Colombians.95 Though some Colombians are doubtful of restorative justice mechanisms, arguing that former members of the FARC will never tell the truth, a more restorative approach to justice is tailored to those who do admit to wrongdoing.96 In some ways, this suggests that part of the progress made by these restorative justice efforts will be the creation of a common history and narrative about the crimes and atrocities that occurred within the country over decades of conflict. These justice mechanisms are still fairly new, but have been successful enough for the ICC’s Office of the Prosecutor to conclude its seventeen-year preliminary investigation into the conflict in Colombia.97

III. Non-Western Legal and Cultural Distinctions and Similarities to the ICC

A. Concurrence With Western Legal Culture and the ICC

All of the States Parties analyzed in this comment have experienced colonial Western influence that permanently, or at least for the time being, impacted the development of their legal system domestically. They place the same emphasis on the most severe crimes, including murder, rape, and terrorism, and several have special laws and courts to address the types of offenses that are elucidated in Articles 6, 7, 8, and 9 of the Rome Statute.98 It is relevant to note that these States Parties, at least in law, recognize the gravity of these crimes in a manner that reflects the mandate of the ICC. Several States Parties, including Uganda, Jordan, and Cambodia, have engaged the ICC or other international arbiters of human rights and justice to facilitate the process of transitional justice within their own state, or the state of their neighbors.99

Tunisia serves as a supportive voice for the mission of the ICC in Northern Africa, and was the first in the region to sign the Rome Statute.100 Uganda, though sometimes a voice of doubt regarding the ICC and the manner in which it seems to focus on Africa, has also called upon the Court to prosecute members of the Lord’s Resistance Army (LRA). 36% of Ugandans who are aware of the ICC and its role believe they had a positive impact in Uganda, and contributed to the remission of the LRA101 Though different in traditional values, these States Parties have sufficient similarity to the ICC to see the value in the Court’s prosecutorial capacity when used appropriately.

Though in Cambodia several officials had been charged with crimes against humanity in 2014, the ECCC’s trials and genocide verdict affirmed that the crimes within the Rome Statute are among the most heinous, and should be met with severe punishment including imprisonment.102 In fact, this 2018 verdict was the first time a tribunal had given a guilty verdict on genocide charges after the Cambodian Genocide.103 Colombia is somewhat unique in its transitional justice process in that it was the subject to a seventeen-year long preliminary investigation by the Office of the Prosecutor.104 However, the JEP satisfied complementarity to such an extent that the ICC closed the preliminary investigation, simply emphasizing further the shared values between the Colombian peace process and the mandate of the Court.105

All of these States Parties believe, at least to an extent, in the value of retributive justice. This is demonstrable in their Penal Codes, the reception to justice and justice being served among citizens, traditional forms of retribution, and the manner in which the States Parties attempt to provide justice in the form of both retribution and restitution. Similar to the remedies afforded by the Rome Statute in Articles 75, 77, and 79, which give the ICC the power to award both prison sentences up to a life term as well as a number of forms of restitution for victims.106

Many of these States Parties have also grappled with a question that commonly arises before the ICC: how to award restitution that best serves victims when there are hundreds of thousands, or even millions, of victims. Some of the approaches including community building, provision of health care for people who have been disabled, and new memorials, history, and textbooks for students reflect the efforts made by the ICC’s Trust Fund.107 Very apparently, there is substantial positive overlap between the ICC’s definition of justice and that of the Non-Western States Parties.

B. Critical Differences

There are also some important distinctions between non-Western legal systems and traditions and the approach taken by the ICC when sentencing war criminals and awarding reparations. Even domestically there is a gap between traditional justice still used today within communities and formal judicial systems.108 First and foremost, many States Parties do still use capital punishment as a penalty for the most severe offenses.109 Under Article 21(3) of the Rome Statute, the Court does not have the discretion to award any penalty that conflicts with human rights, including the right to life.110 Thus, this is a difference that the Court cannot overcome. However, even these States Parties have been discouraged and urged not to use or resume use of the death penalty.111 The other differences between traditional justice mechanisms and the ICC speak more to culture and tradition.

States Parties including Uganda, Cambodia, and Jordan have cultural traditions and values ingrained in their history and in their communities, some of which provide a more salient sense of justice than that of prison sentences dealt by unfamiliar and distant courts.112 People often need or want to participate in obtaining their own justice, and to rebuild a sense of community and wholeness with the wrongdoer. This has been integrated into many of the approaches being taken in the Colombian peace process now as well.113 Reintegration is part of rebuilding traditional communities, and often this is precluded by imprisonment. However, the ICC has obligations under Rome Statute Article 77 regarding the sentencing of perpetrators, and they lack the discretion to leave a decision regarding punishment to a single affected community, especially when many different and distinctive ethnic groups have been affected, all with their own process of serving justice.114

There are some gaps and differences between the ICC and traditional justice mechanisms that are precluded by the Rome Statute as of now, and without reform to the Court’s mandate itself, cannot be bridged. However, the Prosecutor has more flexibility than it sometimes seems, especially with regard to who is prosecuted, when, how victims are involved in the process, and how communities and individuals are awarded restitution.115 This is where potential lies for the ICC to take additional steps to incorporate non-Western legal values and traditions. As Ferstein points out, Article 75(1) is not an exhaustive list, and the traditions of other legal cultures can be incorporated into the types of remedies awarded.116

IV. Implications of Similarities and Differences for the ICC and the Office of the Prosecutor

A. When the ICC Prosecutes and Who

The case of Cambodia’s transitional justice process presented an interesting consideration for international and domestic court systems prosecuting grave offenses: timing. Cambodia’s first attempt at a process of transitional justice took place immediately after the genocide ended, and was largely regarded as a failure.117 However, the next did not begin to take effect until nearly thirty years later, and has also been criticized for coming too late.118 The ICC has been criticized for their timing and sensitivity to how an indictment will impact an ongoing conflict as well. The Rules of Procedure and Evidence allow the Court to consult with and involve experts in its processes, and herein lies an opportunity for the ICC to better incorporate the cultural considerations and traditions into their existing institutional structure.119 Demonstrating the involvement and applying the knowledge of experts in both local affairs and culture has the potential not only to bolster the impact of the justice served, but to be more effective and minimize negative externalities related to the action taken.120 Incorporating valuable cultural insight into the timing of a prosecution can have the demonstrative effect of greater regard for other cultural opinions and legal procedures.

In domestic transitional justice mechanisms of the States Parties analyzed, courts often prosecute those considered most responsible to maximize the utility of the tribunals and demonstrate justice being done. The ICC attempts to do the same, but sometimes falls short and prosecutes individuals still high ranking and guilty of atrocities, though not necessarily the individuals who would be most responsible. It is true that in some cases, like that of Dominic Ongwen, a child soldier turned LRA commander in Uganda, the ICC prosecutes at the request of the local government itself.121 However, with regard to the Prosecutor’s decisions regarding who to prosecute, some criticism has arisen. Some international observers and scholars are skeptical that the Court is prosecuting who they should be—and this is another point at which the Court should turn to non-Western legal values to inform their decision, and should do so on a case-by-case basis. The ICC has the ability to work with victims and community leaders to identify those actors whose indictment would best reflect justice being served in the respective culture, and make the time and energy spent more valuable to those who have actually been affected by the conflict at issue.

B. Remedies Available Under the Rome Statute

An important takeaway from the previous analysis of States Parties is that different remedies have different value depending on the culture. As Starr states, the prevailing attitude is the more remedies, the better.122 However, Quinn makes the important point that finding a precise combination of culturally-tailored approaches for a particular case is far more effective.123 The ICC can learn from this with regard to the manner in which they use Article 75 and Article 79 to award restitution to victims.

Rule 97(2) of the Rules of Procedure and Evidence for the ICC also gives the Court the opportunity to engage experts in developing appropriate remedies for victims and affected communities through the Trust Fund.124 The War Crimes Research Office suggests that the Court should use this as a means to reach out to both victims and scholars from the affected communities, giving a more active and potentially less traumatizing voice in the restorative justice process to affected people.125 With the insight of victims, reparations can be tailored in a way that meets the needs of affected communities more efficiently, and incorporates traditional values and non-Western legal modalities that also align with the Rome Statute. The ICC cannot prosecute every bad actor, but they can play a role in facilitating traditional restorative justice mechanisms like those detailed in Section II as part of the reparation process, and even facilitate reconciliation with lower-ranking bad actors as well.

Affected communities are the best resource for the ICC: victims in all States Parties analyzed express that they want a voice, and the feeling that their dignity has been restored.126 Engaging with these actors will increase the value of remedies awarded by distributing them in a way that makes sense to people meant to benefit from it. The ICC will struggle less with the issue of limited resources and drawing a line with regard to who is a victim by working with the relevant communities to maximize the utility of the remedies awarded in a culturally-aware manner. Finally, the ICC can become a truly international institution by incorporating restorative justice approaches from cultures beyond the West.

V. Conclusion

The ICC has the opportunity to take a multi-faceted approach to incorporating non-Western legal traditions into its work. First, taking the time to consider cultural and political considerations with regard to the timing of indictments will reflect better incorporation of non-Western concerns and values, as well as reflect a deference for traditional mechanisms on a local level. Better informing the decision of who to prosecute by working with victims and state governments may also work to satisfy States Parties that their voice and opinion is relevant, and increase the utility of a single indictment. Victims also benefit from a carefully calculated combination of approaches to justice that best matches their traditional values, even if not an exact parallel. Some of these remedies include giving victims a voice and a role in bringing about justice, establishing a common truth about atrocities that occurred, rebuilding communities, reintegrating former bad actors into traditional societies, therapy, medical care, education, traditional ceremonies, and even, in many cases, retribution and punishment. Articles 75 and 79 of the Rome Statute are especially important in bringing about this change.127 Though it specifies a list of remedies available to the Court, the available remedies are not limited to that list alone. The Court has grappled time and time again with awarding appropriate remedies, using resources as effectively as possible, and satisfying victims with a sense that justice has been served. Bringing in victims and local leaders as experts gives the Court the opportunity to satisfy more than one of these aims, and serves as a form of justice in and of itself. With culturally sensitive and tailored approaches to the implementation of various remedies to victims and communities, the ICC can start incorporating non-Western legal traditions into a victim-centered approach now.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   How the Court Works, ICC, available online (last visited Jul. 2, 2022). ↩

2. 2.

   Mark Van Hoecke & Werner Krawietz, Western and Non-Western Legal Cultures, in Rechttheorie 197, 203 (Werner Krawietz ed., 2002), paywall. ↩

3. 3.

   Shahrzad Fouladvand, Complementarity and Cultural Sensitivity: Decision-Making by the International Criminal Court Prosecutor in the Darfur Situation, 14 Int’l Crim. L. Rev. 1028, 1045 (Oct. 2014), paywall, doi, earlier version available online. ↩

4. 4.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 77, available online. ↩

5. 5.

   Id. Art. 75. ↩

6. 6.

   Id. Art. 79. ↩

7. 7.

   Fouladvand, supra note 3, at 1049. ↩

8. 8.

   Siraj Khan, Arab and Islamic States’ Practice: The Sharí’ah Clause and Its Effects on the Implementation of the Rome Statute of the International Criminal Court, in Islam and International Criminal Law and Justice, 2 Nuremberg Acad. S. 145 (Tallyn Gray ed., Nov. 16, 2018), available online, archived. ↩

9. 9.

   Id. at 152. ↩

10. 10.

    Van Hoecke, supra note 2, at 201. ↩

11. 11.

    Id. at 216. ↩

12. 12.

    Jordanian Legal System, U.S. Embassy in Jordan, available online (last visited Jul. 2, 2022). ↩

13. 13.

    Id. ↩

14. 14.

    Hashemite Kingdom of Jordan, The Penal Code for the Year 1960 (English Translation, Nov. 24, 2011) [hereinafter Jordanian Penal Code], available online.

    (The Jordanian Penal Code was amended in 2011 in a manner that does not change this analysis). ↩

15. 15.

    Id. ↩

16. 16.

    Jordanian Legal System, supra note 12. ↩

17. 17.

    Jordanian Penal Code, supra note 14, at Art. 14. ↩

18. 18.

    Jordanian Legal System, supra note 12. ↩

19. 19.

    Areej Abuqudairi, Why Did Jordan Resume the Death Penalty?, Al Jazeera, Dec. 28, 2014, available online. ↩

20. 20.

    Id. ↩

21. 21.

    Id. ↩

22. 22.

    Jordanian Legal System, supra note 12, at 3; id. ↩

23. 23.

    Abuqudairi, supra note 19. ↩

24. 24.

    Id. ↩

25. 25.

    Riya Jain, The Opportunity for Legal Pluralism in Jordan, YRIS (Jan. 2021), available online. ↩

26. 26.

    Id. ↩

27. 27.

    Id. ↩

28. 28.

    Id. ↩

29. 29.

    Id. ↩

30. 30.

    Id. ↩

31. 31.

    Id. ↩

32. 32.

    Id. ↩

33. 33.

    Id. ↩

34. 34.

    Id. ↩

35. 35.

    Id. ↩

36. 36.

    Human Rights Watch, The Administration of Justice in Tunisia: Torture, Trumped-Up Charges, and a Tainted Trial (Mar. 1, 2000) [hereinafter HRW Legacy Report], available online, archived. ↩

37. 37.

    See Mohamed Elewa Badar, Islamic Law (Shari’a) and the Jurisdiction of the International Criminal Court, 24 Leiden J. Int’l L. 411 (Jun. 2011), available online, archived, doi. ↩

38. 38.

    See United States Department of State, 2007 Country Reports on Human Rights Practices: Tunisia (Mar. 11, 2008) [hereinafter Tunisia Human Rights Report], available online; HRW Legacy Report, supra note 36. ↩

39. 39.

    Tunisia Human Rights Report, supra note 38. ↩

40. 40.

    Id. at 4; HRW Legacy Report, supra note 36. ↩

41. 41.

    Simon Speakman Cordall, Tunisia President Calls for Return of Death Penalty Following Brutal Killing, The Guardian, Oct. 1, 2020, available online. ↩

42. 42.

    Id.; Heinous Crime in Tunis Triggers Hot Debate Over the Death Penalty, The Arab Weekly, Sep. 29, 2020, available online. ↩

43. 43.

    Id. ↩

44. 44.

    Amnesty International, Tunisia: Struggle for Justice and Reparation Continues for Victims 10 Years After the Revolution (Jan. 14, 2021) [hereinafter Tunisia: Struggle for Justice], available online. ↩

45. 45.

    Elham Kazemi, Transitional Justice in Tunisia: Any Role for Islam?, E-Int’l Rel. (Oct. 19, 2018), available online, archived. ↩

46. 46.

    Tunisia, ICTJ, available online (last visited Jul. 2, 2022). ↩

47. 47.

    Id. ↩

48. 48.

    Tunisia: Struggle for Justice, supra note 44. ↩

49. 49.

    Id. ↩

50. 50.

    See e.g. Kazemi, supra note 45. ↩

51. 51.

    Id. at 2. ↩

52. 52.

    Id. at 3. ↩

53. 53.

    Id. ↩

54. 54.

    See e.g. Uganda, Penal Code Act 1950 [hereinafter Ugandan Penal Code], available online (last visited Jul. 2, 2022). ↩

55. 55.

    Parliamentarians for Global Action, Situation of the Death Penalty in Uganda: Impact of the Death Penalty, Relevant National and International Legal Frameworks 3 (Oct. 7, 2015) [hereinafter Death Penalty in Uganda], available online. ↩

56. 56.

    Id. at 4. ↩

57. 57.

    Id. at 5. ↩

58. 58.

    Id. at 6. ↩

59. 59.

    Human Rights Watch, The June 29 Agreement on Accountability and Reconciliation and the Need for Adequate Penalties for the Most Serious Crimes § IV (Jul. 2007), available online. ↩

60. 60.

    Brooke J. Oppenheimer, From Arrest to Release: The Inside Story of Uganda’s Penal System, 16 Ind. Int’l & Comp. L. Rev. 117, 122 (2005), available online. ↩

61. 61.

    Julena Jumbe Gabagambi, Update: Comparative Analysis of Restorative Justice Practices in Africa, Hauser Global L. Sch Prog. § 1 (Sep. 2020), available online. ↩

62. 62.

    Id. at § 3.4. ↩

63. 63.

    Id. ↩

64. 64.

    Joanna R. Quinn, Social Reconstruction in Uganda: The Role of Customary Mechanisms in Transitional Justice, 8 Hum. Rts. Rev. 389, 398 (Jul. 2007), available online. ↩

65. 65.

    Gabagambi, supra note 61, § 3.4. ↩

66. 66.

    Samuel O. Manteaw, John Mensah Sarbah and African Value Systems in Legal Education, 27 UG L.J. 58 (2014), paywall. ↩

67. 67.

    Kingdom of Cambodia, General Provisions for the Implementation of Criminal Law (translated Jun. 29, 2011) [hereinafter Cambodian Criminal Law], available online. ↩

68. 68.

    Id. ↩

69. 69.

    Id. at 38. ↩

70. 70.

    Id. at 40; Rome Statute, supra note 4, at Art. 8. ↩

71. 71.

    Id. at 41. ↩

72. 72.

    Id. at 36–41. ↩

73. 73.

    Victims Demand Tougher Punishment for Cambodian Police Convicted of Torture, Murder in Detention, RFA, Jan. 21, 2021, available online. ↩

74. 74.

    Id. ↩

75. 75.

    Id. ↩

76. 76.

    Emily Gleeson, Transitional Justice in Cambodia—Too Little Too Late?, E-Int’l Rel. 2 (Mar. 22, 2016), available online, archived. ↩

77. 77.

    Id. at 3. ↩

78. 78.

    Victims Participation, ECCC, available online (last visited Jul. 2, 2022). ↩

79. 79.

    Sun Narin, No Justice Without Remembering, D+C (Mar. 4, 2017), available online. ↩

80. 80.

    Renee Jeffery, Taking Transitional Justice to Cambodia’s Youth, The Interpreter (Mar. 26, 2019), available online. ↩

81. 81.

    Id. ↩

82. 82.

    Seth Mydans, 11 Years, $300 Million, and 3 Convictions. Was the Khmer Tribunal Worth It?, N.Y. Times, Apr. 10, 2017, available online; Khmer Rouge Leaders Found Guilty of Cambodia Genocide, BBC News, Nov. 16, 2018 [hereinafter Khmer Rouge Guilty], available online. ↩

83. 83.

    Seth Mydans, Khmer Rouge Leader Appears in Court to Appeal Genocide Conviction, N.Y. Times, Aug. 17, 2021, available online. ↩

84. 84.

    Virorth Doung & Sophal Ear, Transitional Justice Dilemma: The Case of Cambodia, 7 Peace and Conflict R. 1, 9 (2010), available online. ↩

85. 85.

    Susan Dicklitch & Aditi Malik, Justice, Human Rights, and Reconciliation in Post-Conflict Cambodia, 11 Hum. Rts. Rev. 515, 519 (Jan. 9, 2010), paywall, doi. ↩

86. 86.

    Id. ↩

87. 87.

    Id. at 522. ↩

88. 88.

    See Republic of Colombia, Poder Público—Rama Legislativa, Ley 599 de 2000 por la cual se expide el Código Penal (Jul. 24, 2000) (Colom.) [hereinafter Criminal Code of Colombia], available online. ↩

89. 89.

    Colombia Imposes Life Sentence for Rape, Child Murder, AFP, Jul. 23, 2020, available online. ↩

90. 90.

    Graciela Rodriguez-Ferrand, Colombia: Constitutional Reforms Proposed to Increase Punishment for Violent and Sexual Crimes Against Minors, Global Legal Monitor (Nov. 12, 2019), available online. ↩

91. 91.

    Arlen Guarín, Carlos Medina & Jorge Andres Tamayo, The Effects of Punishment of Crime in Colombia on Deterrence, Incapacitation, and Human Capital Formation, IADB (Jul. 2013) (Working Paper Series 7), available online. ↩

92. 92.

    Julie Turkewitz, Colombia Seeks Justice for War Atrocities Via New Court, N.Y. Times, Mar. 6, 2021, available online. ↩

93. 93.

    Id. ↩

94. 94.

    Paula Torres, Yaneth Gina & Sergio Jaramillo, Transitional Justice and DDR: The Case of Colombia, ICTJ 2 (Jun. 2009), available online. ↩

95. 95.

    Fabio Andrés Díaz Pabón, Transitional Justice and the “Colombian Peace Process”, in Truth, Justice and Reconciliation in Colombia 5 (Fabio Andrés Díaz Pabón ed., May 11, 2018), available online. ↩

96. 96.

    Turkewitz, supra note 92. ↩

97. 97.

    Genevieve Bates & Kelebogile Zvobgo, The ICC Doesn’t Look So Interventionist After All, Foreign Pol., Dec. 8, 2021, available online. ↩

98. 98.

    See generally Jordanian Penal Code, supra note 14; Jordanian Legal System supra note 12; Tunisia Human Rights Report, supra note 38; Ugandan Penal Code, supra note 54; Cambodian Criminal Law, supra note 67; Criminal Code of Colombia, supra note 88; Rome Statute, supra note 4, at Arts. 6, 7, 8, 9. ↩

99. 99.

    Mark Kersten, Between Disdain and Dependency—Uganda’s Controversial Place in the ICC–Africa Relationship, Just. in Conflict (Mar. 29, 2017), available online; Craig Etcheson, The Challenges of Transitional Justice in Cambodia, MEI (Jan. 3, 2014), available online. ↩

100. 100.

     Tunisia and the Rome Statute, PGA, available online (last visited Jul. 2, 2022). ↩

101. 101.

     Uganda: Knowledge and Perception of the ICC, Harv. Humanitarian Init., available online (last visited Feb. 26, 2022). ↩

102. 102.

     Khmer Rouge Guilty, supra note 82. ↩

103. 103.

     Id. ↩

104. 104.

     Luis Jaime Acosta, ICC Closes Preliminary War Crimes Examination into Colombia After 17 Years, Reuters, Oct. 28, 2021, available online. ↩

105. 105.

     Bates & Zvobgo, supra note 97. ↩

106. 106.

     Rome Statute, supra note 4, at Arts. 75, 77, 79. ↩

107. 107.

     See, e.g., Etcheson, supra note 99; Quinn, supra note 64; Díaz Pabón, supra note 95. ↩

108. 108.

     Jain, supra note 25. ↩

109. 109.

     See generally Jordanian Penal Code, supra note 14; Jordanian Legal System, supra note 12; Ugandan Penal Code, supra note 54; Cambodian Criminal Law, supra note 67. ↩

110. 110.

     Rome Statute, supra note 4, at Art. 21(3). ↩

111. 111.

     Amnesty International, Tunisia—Reform of Repressive Laws and Practices Lagging 5 (May 2017), available online; Khetam Malkani, Majority of Jordanians Support Capital Punishment—Poll, The Jordan Times, Dec. 23, 2014, available online; Death Penalty in Uganda, supra note 55, at 1. ↩

112. 112.

     Gabagambi, supra note 61, at 3.4; Dicklitch & Malik, supra note 85, at 522; Jain, supra note 25. ↩

113. 113.

     Turkewitz, supra note 92. ↩

114. 114.

     Rome Statute, supra note 4, at Art. 77. ↩

115. 115.

     Carla Ferstman, Reparations Should Be About Promoting Victims’ Dignity and Agency: The ICC Should Avoid Paternalistic or Bureaucratic Approaches to Determining Victims’ Needs and Wants, ICC Forum (Feb. 6, 2012), available online. ↩

116. 116.

     Fouladvand, supra note 3, at 1043; Manteaw, supra note 66, at 66; Ferstman, supra note 115. ↩

117. 117.

     Gleeson, supra note 76, at 2. ↩

118. 118.

     Doung & Ear, supra note 84. ↩

119. 119.

     International Criminal Court, Rules of Procedure and Evidence, ICC-ASP /1/3, R. 97(2) (2013) [hereinafter 2013 RPE], available online, archived. ↩

120. 120.

     Susana SáCouto & Katherine A. Cleary, WCRO, The Case-Based Reparations Scheme at the ICC (Jun. 2010), available online. ↩

121. 121.

     Kersten, supra note 99. ↩

122. 122.

     Sonja B. Starr, Rethinking “Effective Remedies”: Remedial Deterrence in International Courts, 83 N.Y.U. L. Rev. 693, 707 (May 21, 2008), available online. ↩

123. 123.

     Quinn, supra note 64, at 394. ↩

124. 124.

     2013 RPE, supra note 119. ↩

125. 125.

     SáCouto & Cleary, supra note 120, at 20. ↩

126. 126.

     Thomas M. Antkowiak, An Emerging Mandate for International Courts: Victim-Centered Remedies and Restorative Justice, 47 Stan. J. Int’l L. 279, 282 (Aug. 20, 2011), available online. ↩

127. 127.

     Rome Statute, supra note 4, at Arts. 75, 79. ↩

II. Background

The subsequent section addresses the differences and similarities between the ICC and the International Court in terms of its role, approaches, and goals in order to identify potential for collaboration and complementarity.

A. Prosecutorial Differences Between the Inter-American Court and the International Court

Although the Inter-American Court of Human Rights is not a criminal court, it arguably functions as a “quasi-criminal court.”3 Another difference between the Inter-American Court of Human Rights and the ICC is that the former holds individuals responsible, while the latter holds states accountable for their crimes. However, through two “interpretive twists,”4 the Inter-American Court has used the remedies of its sentences to order states to investigate, prosecute, and punish human rights violators, as well as monitoring the state’s compliance of its recommendations to determine whether progress has been made in the state’s domestic criminal processes.5 As a result:

[S]tates have launched new criminal investigations, exhumed mass graves, moved cases from military to civil jurisdiction, overturned amnesties, bypassed statutes of limitations, and created new institutions and working methods to facilitate prosecution of such crimes.6

Unlike the ICC, the Inter-American Court does not prosecute the crimes itself, but rather leaves such work to the domestic systems of its state parties at the state’s own financial cost.7 However, in its sentence, the Inter-American Court may review whether national criminal procedures comport with inter-American system standards of human rights,8 as well as provide specific suggestions to enhance domestic procedures. As such, it “is taking on a quasi-criminal jurisdiction.”9

Furthermore, human rights courts have been known to “engage earlier and in an ongoing way; they approach problems armed with a broader range of tools.”10 Accordingly, the Inter-American Court stays involved throughout the process by monitoring the states’ performance, as well as by engaging with the parties, including the Inter-American Commission on Human Rights, the State, and the victims and their representatives to gather information, through request for information or hearings for the compliance reports.11 On the other hand:

[W]hen an international criminal court opens a case, it acts more like a deus ex machina12 the court is an outside actor, stepping in as if from above to fix a problem that local officials have been unable to address.13

Furthermore, another important aspect of the Inter-American Court’s approach is that it:

[F]oster local processes of justice, memory, and judicial reform. They are able to pair restorative justice and victim-centered remedies with retributive justice.14

As such, the Inter-American Court has the potential of being an efficient complementary forum for the resolution of international crimes as will be illustrated below.

B. Goals of Regional Human Rights Institutions and International Courts

International courts can accomplish a range of goals, including:

[A]ssembling a historical record of unimaginable crimes, developing international criminal law, helping victims heal, achieving justice, building the rule of law, promoting reconciliation in polarized societies, making peace between warring factions, and preventing atrocities.15

In its Preamble, the ICC particularly noted that it has the goal “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”16

In contrast, regional human rights institutions, such as the Inter-American Commission, have explicitly stated that they seek to promote and protect human rights in region.17 Similarly to the ICC, the Inter-American Court has made prosecution of serious crimes a part of its agenda.18 Overall, the two most important shared goals by both the regional human right institutions and the ICC are accountability and prevention.19

III. Analysis

This section compares the procedural phases of the Inter-American Court of Human Rights and the ICC to illustrate that the Inter-American Court is a fair and effective alternative forum to address international crimes. Prior to delving into such analysis, it is important to note that the Inter-American Commission on Human Rights is the first instance forum in the Inter-American System. Human rights cases in the Inter-American System are first brought to the Commission. If the parties are unable to reach a friendly statement and the state party in question has accepted the jurisdiction of the Inter-American Court of Human Rights, then the case could be heard by the Tribunal. As such, the Inter-American Commission and Inter-American Court will be compared and contrasted to the ICC together.

A. The Decision of which Forum to Bring a Case

When evaluating where to bring a case, victims of human rights violations and their representatives have several options, including the United Nations Special Mechanisms, the ICC, and the Regional Courts, such as the Inter-American Commission and Inter-American Court of Human Rights, the European Court of Human Rights, and the African Court on Human and Peoples’ Rights. The availability of the above-stated routes will depend on the individual case, procedural rules, and membership of the victim’s state. For the purposes of this comment, the focus is on a general summary of two routes: The Inter-American System and the ICC one.

In the Inter-American System, it is important to note that the case begins at the Inter-American Commission of Human Rights level. Accordingly, “[a]ny person or group of persons or nongovernmental entity legally recognized in one or more of the Member States of the OAS” can bring a petition before the Inter-American Commission alleging a violation of a protected right by one of the Inter-American human rights instruments.20 After several procedural steps, the case goes to the admissibility stage, then to the merits stage.21

Prior to its decision on the merits, the Commission will set a time for the parties to express whether they wish to engage in a friendly settlement and it puts itself at the disposal of the parties.22 The Commission might stop the friendly settlement interventions between the alleged victim and the state member in dispute if it determines that the case will not be resolved through this process or one of the parties:

Does not consent to its application, decides not to continue it, or does not display the willingness to reach a friendly settlement based on respect for human rights.23

If a friendly settlement is reached, then the Commission will adopt and publish a report.24 On the other hand, if such settlement is not reached, the Commission will continue to process the case and reach the merits stage.25

Furthermore, the parties will have the opportunity to submit observations on the merits to lay out their legal arguments and present evidence. Then, in case it finds a violation of human rights, the Commission will consider all the arguments and draft a preliminary report with recommendations to the state.26 The state will have to report on the actions it has taken to comply with such recommendations and the petitioner will have to inform the Commission whether it would like the case to be sent to the Inter-American Court and present information to support such position.27

However, it is important to note that not every state has accepted the jurisdiction of the Inter-American Court pursuant to Article 62 of the American Convention.28 If the member state has accepted the jurisdiction and the state has not complied with the recommendations of the Commission, then the Commission will submit the case to the Inter-American Court where the case will later be adjudicated.29 For the states that have not accepted the contentious jurisdiction of the Court, the process will not move forward to the Court and the Commission will issue a final report with its conclusions and recommendations if the matter has not been resolved within a timeframe of three months.30 Furthermore, the Commission will take into account the status of compliance when deciding whether to publish the report and where.31

In contrast, in the ICC, the case can be referred by a state party, by the United Nations Security Council, or the Prosecutor may consider a case proprio motu.32 Such considerations take place during the preliminary examination stage in which the Prosecutor will determine whether jurisdiction and admissibly grounds, discussed below, have been met.33 Moreover, investigators will “travel to the country to interview victims, witnesses, and sometimes suspects. They may visit crime sites and gather physical evidence.”34 After such preliminary evaluation, which can last many years, the Prosecutor can decide whether to end the case or move it to the next stage—the investigation—and eventually indict suspects.35 Moreover, it is important to note that according to Article 16 of the Rome Statute, the Security Council may request the Court to defer an investigation or prosecution for twelve months.36 Such request can be renewed.37

As indicated above, both routes are very long and time consuming, but the Inter-American System is particularly victim-centered. It provides an opportunity for victims to be heard and participate, as well as providing channels of communications for all parties involved throughout all the procedural stages. Whether the case can be heard by either institution will depend on the jurisdiction and admissibility rules, discussed below.

B. Jurisdiction

According to Article 1 of the Rome Statute, the ICC can exercise jurisdiction over “the most serious crimes of international concern.”38 Article 5 of the same instrument states the crimes that fall under the jurisdiction of the Court such as genocide, crimes against humanity, war crimes, and the crime of aggression.39 Furthermore, there are preconditions for the exercise of jurisdiction, such as the crimes must have been committed in the territory of state party to the Rome Statute, by a national of a state party of the same instrument,40 or the case must have been referred by the United Nations Security Council.41

On the other hand, according to the Rules of Procedure of the Inter-American Commission on Human Rights, the Inter-American Commission can consider “alleged violations of the human rights enshrined in the American Convention on Human Rights and other applicable instruments, with respect to the Member States of the OAS.”42 Although the human rights violations addressed by regional institutions, such as those of the Inter-American system, are not named genocide, crimes against humanity, war crimes, and the crime of aggression as in the Rome Statute, they still involve crimes that fall within the subject matter jurisdiction of the ICC, including “killings of civilians, widespread torture, mutilation, forced disappearances, and arbitrary detention against large numbers of people.”43 Such crimes involve the right to life and right to human treatment, for instance.

C. Admissibility

Article 17(1) of the Rome Statute sets forth, in part, the following rules of inadmissibility:

1. The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

2. The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; […]

4. The case is not of sufficient gravity to justify further action by the Court.44

In contrast, the Inter-American Commission admissibility rules are set in Articles 31 and 33 of its Rules of Procedure. Pursuant to Article 31, the Commission can hear cases when domestic remedies have been exhausted, but provides the following exceptions:

1. the domestic legislation of the State concerned does not afford due process of law for protection of the right or rights that have allegedly been violated;

2. the party alleging violation of his or her rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or

3. there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.45

Although the rules of inadmissibility of both courts are slightly different, they both position themselves as courts of second instances and attempt to provide a forum where victims can adjudicate their cases when justice has failed them domestically.

Furthermore, in terms of the subject matter of the cases, Article 33(a) of Rules of Procedure of the Inter-American Commission on Human Rights further limits the type of cases that the Commission may consider by excluding those which are:

[P]ending settlement pursuant to another procedure before an international governmental organization of which the State concerned is a member; or, essentially duplicates a petition pending or already examined and settled by the Commission or by another international governmental organization of which the State concerned is a member.46

However, Article 33 clarifies that the Commission can hear the above-stated cases in two circumstances:

1. [T]he procedure followed before the other organization is limited to a general examination of the human rights situation in the State in question and there has been no decision on the specific facts that are the subject of the petition before the Commission, or it will not lead to an effective settlement; or,

2. the petitioner before the Commission or a family member is the alleged victim of the violation denounced and the petitioner before the other organization is a third party or a nongovernmental entity having no mandate from the former.47

These specific subject matter limitations of the Inter-American system are not present in the Rome Statute. This comment argues that such standard could be a useful tool for the ICC to incorporate in its practice when considering issues of complementarity under Article 17 of the Rome Statute.

D. Criticism of the ICC and Opportunities Ahead

The ICC has received several criticisms, including for its Africa biases and its poor prosecution record for its inability to secure convictions or even prosecute individuals from powerful nations.48 In terms of prosecutions, in the nineteen years since the Court began to sit, the ICC prosecutors have convicted eight defendants and acquitted four defendants.49 Moreover, some cases before the ICC also involved witness intimidation and indictees evasion of capture which essentially dissolved the case.50 Furthermore, the ICC has received criticism for bringing his case to trial without sufficient evidence to prosecute, such was the case of Côte d’Ivoire relating to the former President Laurent Gbagbo.51

When comparing regional human rights institutions with the ICC, it is notable that:

[S]o far, regional institutions have been more effective than international criminal tribunals in combatting mass atrocities and securing criminal accountability for them.52

In particular, the sentences of the Inter-American Court have had an impact “nearly as significant as that of the ICC, ICTY and ICTR combined, despite its relatively modest budget.”53

Such results are particularly impressive when considering that the ICC’s budget is far higher than the other regional institutions.54 In the time period ranging from 2011–2018:

[T]he ICC cost about fifteen times as much as the Inter-American Commission and the African Court, twenty-four times as much as the African Commission, and thirty-three times as much as the Inter-American Court.55

As a result of the arguably inefficiency of the ICC, James L. Cavallaro and Jamie O’Connell recently have made the persuasive argument that the ICC should consider changing its strategy and adopt an approach more like that of regional human rights institutions and courts.56 Some of these aspects may include:

[B]ehind-the-scenes pressure on States and parties to conflict, to highly visible country visits and reports, and from the creation of special investigative bodies to international litigation and broad reparations measures.57

More specifically, the ICC should:

[D]evote less attention and fewer resources to directly investigating and prosecuting cases and more to catalyzing and supporting actions within States—by investigators, prosecutors, judges, executive-branch actors, and civil society—that yield criminal accountability for perpetrators and reduce the chances that mass atrocity will occur.58

They argue that evidence “suggests these local processes tend to have more profound and durable effects, provoke less resistance, and cost less than purely international legal processes.”59

Additionally, it is important to acknowledge the important and relevant knowledge of international criminal law that the Inter-American system has acquired due to its regional political and socio-economic circumstances. The system is no stranger to mass atrocities perpetuated by military regimes and/or civil conflicts, which occurred in several countries across the region, such as Argentina, Peru, Colombia Guatemala, and El Salvador.60 Such experience is demonstrated by the strong and comprehensive Inter-American system jurisprudence relating to atrocity and accountability.61 In particular, it has developed human rights standards relating to “law on forced disappearance amnesties, the victim’s right to the truth, and the right to judicial process.”62 Additionally, the system has also made overall contributions to state’s processes and reforms of accountability.63 Some of these measures include:

[H]igh-profile criminal prosecutions, including in Argentina, Chile, and El Salvador [; …] state-sponsored truth commissions; constitutional and statutory reforms; and legislative initiatives including reparations to victims of mass atrocities in numerous countries.64

As demonstrated, the Inter-American system’s work is very relevant and overlaps with the ICC’s work which makes it worthwhile to explore ways for the systems to support and exchange relevant information with one another.

In addition to learning and partnering with the ICC, the issue could explore the opportunity to consider finding complementarity with the Regional Human Rights systems in certain circumstances. An argument for complementarity between the ICC and Inter-American system is developed below.

E. The Case for Complementarity

The ICC should consider incorporating the duplication of procedures rules, which can be found in Article 33 of Inter-American Commission Rules of Procedure, into its interpretation of Article 17(1)(c) which states that the Court finds that cases are not admissible when “[t]he person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under Article 20, paragraph 3.”65 As previously mentioned, Article 33 of the Inter-American Commission rules of procedures considers that a case is inadmissible when it is either pending settlement before another international governmental organization in which the state to the dispute is a member or it duplicates a petition already examined by the Commission or another international governmental organization unless the procedure in question involves merely a general examination of the human rights situation rather than specific facts.66 The other exception is when “the petitioner before the Commission or a family member is the alleged victim of the violation denounced and the petitioner before the other organization is a third party or a nongovernmental entity having no mandate from the former.”67

Accordingly, this comment suggests that the ICC should not move forward with cases involving the same facts and parties to the dispute, including victims and the State members, that are before the Inter-American system, the Commission or the Court, when they have already decided that human rights violations have occurred, have issued recommendations to State parties and are currently monitoring the state’s compliance. As previously mentioned, the Inter-American Commission and Court spend a lot of time monitoring the situation, engaging with the parties and several relevant stakeholders, and asking states for updates on compliance of their recommendations. Due to all this ground work that can take many years, it is important to give the Inter-American system the opportunity to see the case through at that stage of the case. In such a scenario, this comment suggests that the ICC should take an indirect approach and collaborate with the Inter-American system rather than moving to the investigation and prosecution stages.

There are several reasons to support the argument in favor of complementarity.

1. First, the Inter-American system procedural process provides due process guarantees, plenty of opportunity for parties to engage, and for the evidence to be reviewed. Although bringing up a case before Inter-American system is a long process, it is a process that has proven to be effective, in terms of both results and costs.68

2. Second, albeit indirectly, the regional human rights systems have been more effective in securing accountability for atrocities than the ICC.69

3. Third, similar to the ICC, the Inter-American system has also made a commitment to combat crimes.70

4. Fourth, the Inter-American System shares several of the ICC’s goals such as prevention and accountability for atrocity.71

5. Fifth, this approach can bring several benefits to the ICC. It will clear some of the Court’s docket which will enable it to take the indirect approach, suggested by James L. Cavallaro and Jamie O’Connell, which could potentially permit that staff time and financial resources to be invested into building rapport in the region, including through:

   [M]eetings with national politicians, contributions to training programs for local prosecutors on how to build mass atrocity cases, strategy sessions with local and international NGOs, and TV and radio interviews to explain to journalists and the public how atrocities begin and how they may be averted.72

One of the concerns which can be anticipated in this complementarity system relates to due process. Some might challenge the idea and claim that an indirect prosecution of the defendant by the Inter-American Court, which would essentially entail the Court ordering the State to conduct such proceedings domestically, would be sufficient to fulfill the Article 20 part of Article 17(1)(c) of the Rome Statute because that person was not directly prosecuted by the Court. Additionally, some might argue that the defendant could not be afforded due process guarantees by such indirect prosecution since the defendant did get “standing […] even as its decisions directly affect their rights and freedom.”73 However, it is important to note that even though the Inter-American Court or Commission is not directly prosecuting the defendant, it is monitoring such prosecution and exerting pressure on the state to prosecute the defendant in domestic courts directly. This is arguably what states are expected to do anyways as a forum of first instance. Only if they are “unwilling or unable genuinely to carry out the investigation or prosecution”74 or the state decides not to prosecute, among other requirements, can the case potentially be open for review by the ICC.75 Thus, the Inter-American system essentially provides further due process protections, because of its monitoring and follow-up, than would be available to the defendant in his domestic system.

In terms of the Inter-American Court’s “quasi-criminal review,” Huneeus, an international law expert, highlighted that it was perceived by many as “an illegitimate expansion of the Inter-American Court’s mandate.”76 However, she stated that “after some initial resistance, states have accepted the evolution of the Court’s supervision of compliance with its rulings.”77

In the alternative to interpreting Article 17(1)(c) to enable complementarity with a regional human rights system, this comment suggests that the ICC should hold off on opening an investigation and give the Inter-American system a chance to complete the case before their bodies. Although prosecuting an individual is a very important goal, it is also important to effectuate changes and reforms within the national processes to prevent the same crime. Both the past history of the ICC in terms of their preliminary examination of Colombia, as well as Article 16 of the Rome Statute78 indicate that the drafters of the Rome Statute believed and acknowledged that there are circumstances in which it is important to let local developments play out without direct intervention from the ICC. Although an action before the Inter-American system would also constitute international intervention in a sense, it would be a regional one that specifically works with local actors to ensure legal accountability.

Although this comment argues that in certain cases the ICC should not pursue certain cases that are being handled by the Inter-American system, it does not mean that the ICC should not stay involved if it determines that this is a case of high interest. Despite the international community’s criticisms of the ICC, a threat of prosecution by the ICC still remains a powerful tool to exert pressure on states. The ICC could leave a case in preliminary examination for many years, as it did in Colombia, to influence change from within without having to prosecute the case itself.79 Additionally, the ICC could also issue public statements voicing concerns about a particular situation,80 which would help raise awareness of the situation and put pressure on states. This would make the ICC an incredibly ally to the Inter-American Court, as well as further build a strong rapport with regional human rights institutions.81

As Huneeus pointed out, a partnership with the Inter-American system can be highly beneficial to the ICC in terms of regional legitimacy, exit strategy, and restorative justice, and.82 In terms of regional legitimacy, the Inter-American System has a deeper knowledge of the customs, laws, and legal systems of the region.83 In regards to exit strategy, Huneeus argues that the ICC would likely only prosecute high level officials, but the Inter-American system “could monitor the state, pressure it to take on the remainder of cases, and continue its involvement even after the ICC closed its case, making it easier for the ICC to exit.”84

The ICC can also learn about the concept of restorative justice from the Inter-American system as it has developed, through the years, unique, victim and reconciliation focused remedies from which the ICC can draw.85 Some of these unique remedies includes “ordering states to conduct rituals of remembrance, such as to construct shrines and memorials, and to hold public ceremonies in which states officially apologize to the victims.”86 Additionally, the Inter-American Court “orders remedies that seek rehabilitation of the victims and, more generally, both the construction of a historical record and societal acknowledgement of the crimes.”87 As such, “it has ordered states to enhance victim participation in the criminal proceedings, to continue the search for victims of forced disappearance, to apologize officially to victims and their relatives, and to construct memorials, among other remedies.”88

Lastly, the Inter-American Court has established the concept of transformative reparations, which was announced in the landmark Cotton Field case. The court recognized a context of structural discrimination against women and stated that “the reparations must be designed to change this situation, so that their effect is not only of restitution, but also of rectification.”89

IV. Conclusion

As demonstrated in this comment, the possibilities of collaboration between the Inter-American system are endless. The ICC could benefit from closely evaluating the Inter-American system approach as a second instance forum. It is important for the ICC to consider that courts cannot end impunity, ensure accountability, and prevent mass atrocities from recurring or happening at all on their own. In order to be successful, the Court will need the collaboration of several actors, such as civil society, the state, and the support of the international community. The Inter-American system’s experience has shown how investing in relationships and building capacity on the ground can lead to strong and cost-effective results.

Interpreting the complementarity rules to incorporate regional human rights institutions in certain circumstances could be a new way of collaborating. As such, this comment argued that where the Inter-American system has already adjudicated a case, with the same facts and parties to the dispute, and such case is currently in the monitoring stages, the ICC should find that case inadmissible because complementarity has been satisfied under Article 17(1)(c). Alternatively, in such cases, the ICC should defer a decision on preliminary examinations to give the Inter-American system more time to pressure the state in securing a domestic conviction.

Such approach can be highly beneficial to the Inter-American Court, the victims, and the ICC. The Inter-American Court will benefit since “its orders and supervision would, at times, be backed by the threat of direct prosecution by the ICC.”90 Moreover, the victims would benefit by having the case continue in the system since the Inter-American system process is very victim-centered and the Inter-American Court is known for providing innovative reparations, including transformative reparations, to victims. Lastly, such approach can also be beneficial to the ICC because by deferring some cases to the regional human rights systems, it would free resources that would otherwise be allocated to individual cases or trial costs. Such resources can potentially be invested in building rapport with state members and capacitating domestic institutions.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   See Alexandra V. Huneeus, International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Courts, 107 Am. J. Int’l L. 1 (Jan. 2013), available online, archived, doi; James L. Cavallaro & Jamie O’Connell, When Prosecution is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions, 45 Yale J. Int’l L. 1 (2020), available online, archived. ↩

2. 2.

   Huneeus, supra note 1; Cavallaro & O’Connell, supra note 1. ↩

3. 3.

   See Huneeus, supra note 1. ↩

4. 4.

   Id. at 1. ↩

5. 5.

   Id. ↩

6. 6.

   Id. at 2. ↩

7. 7.

   Id. ↩

8. 8.

   Id. ↩

9. 9.

   Id. ↩

10. 10.

    Alexandra V. Huneeus, The Shared Goals but Distinct Roles of Criminal and Human Rights Court, 111 ASIL Proceedings 108, 108–09 (2017), available online, doi. ↩

11. 11.

    See Huneeus, supra note 1, at 2. ↩

12. 12.

    See Merriam Webster, Deus ex Machina, available online (last visited Jul. 2, 2022)

    (defining the term as a character or thing that suddenly enters the story in a novel, play, movie, etc., and solves a problem that had previously seemed impossible to solve). ↩

13. 13.

    Huneeus, supra note 10, at 109. ↩

14. 14.

    Id. ↩

15. 15.

    Cavallaro & O’Connell, supra note 1, at 8. ↩

16. 16.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online. ↩

17. 17.

    What is the IACHR?, OAS, available online (last visited Jul. 2, 2022). ↩

18. 18.

    See Huneeus, supra note 1, at 1. ↩

19. 19.

    Cavallaro & O’Connell, supra note 1, at 9–10. ↩

20. 20.

    Rules of Procedure of the Inter-American Commission on Human Rights, OAS, Article 23 (Dec. 2000, as amended Oct. 2002) [hereinafter IACHR Rules of Procedure], available online. ↩

21. 21.

    Id. Art. 37. ↩

22. 22.

    Id. Art. 38(2). ↩

23. 23.

    Id. Art. 41(4). ↩

24. 24.

    Id. Art. 41(5). ↩

25. 25.

    Id. Art. 41(6). ↩

26. 26.

    Id. Art. 43. ↩

27. 27.

    Id. ↩

28. 28.

    Id. Art. 44. ↩

29. 29.

    Id. ↩

30. 30.

    Id. Art. 45. ↩

31. 31.

    Id. ↩

32. 32.

    Rome Statute, supra note 16, at Arts. 12, 13, 14. ↩

33. 33.

    Cavallaro & O’Connell, supra note 1, at 11. ↩

34. 34.

    Id. at 12. ↩

35. 35.

    Id. ↩

36. 36.

    Rome Statute, supra note 16, at Art. 16. ↩

37. 37.

    Id. ↩

38. 38.

    Id. Art. 1. ↩

39. 39.

    Id. Art. 5. ↩

40. 40.

    Id. Art. 12. ↩

41. 41.

    Id. Art. 13. ↩

42. 42.

    IACHR Rules of Procedure, supra note 20, at Art. 27. ↩

43. 43.

    Cavallaro & O’Connell, supra note 1, at 9. ↩

44. 44.

    Rome Statute, supra note 16, Art. 17. ↩

45. 45.

    IACHR Rules of Procedure, supra note 20, at Art. 31. ↩

46. 46.

    Id. Art. 33(1). ↩

47. 47.

    Id. Art. 33(2). ↩

48. 48.

    Cavallaro & O’Connell, supra note 1, at 3–4. ↩

49. 49.

    See State of Defendants, ICC, available online (last visited Jul. 2, 2022).

    (Under “State of Defendant”, check either “Convicted” or “Acquitted” and wait for page to refresh). ↩

50. 50.

    Cavallaro & O’Connell, supra note 1, at 58. ↩

51. 51.

    Id. at 61. ↩

52. 52.

    Id. at 7. ↩

53. 53.

    Id. at 46. ↩

54. 54.

    Id. at 59. ↩

55. 55.

    Id. ↩

56. 56.

    Id. at 6. ↩

57. 57.

    Id. at 4. ↩

58. 58.

    Id. at 7. ↩

59. 59.

    Id. at 6. ↩

60. 60.

    Id. at 44–45. ↩

61. 61.

    Id. at 45. ↩

62. 62.

    Huneeus, supra note 1, at 7. ↩

63. 63.

    Cavallaro & O’Connell, supra note 1, at 45. ↩

64. 64.

    Id. ↩

65. 65.

    Rome Statute, supra note 16, at Art. 17(1)(c). ↩

66. 66.

    IACHR Rules of Procedure, supra note 20, at Art. 33. ↩

67. 67.

    Id. Art. 33(2). ↩

68. 68.

    Cavallaro & O’Connell, supra note 1, at 6. ↩

69. 69.

    Id. at 7. ↩

70. 70.

    Huneeus, supra note 1, at 1. ↩

71. 71.

    Cavallaro & O’Connell, supra note 1, at 9–10. ↩

72. 72.

    See Id. at 64. ↩

73. 73.

    Huneeus, supra note 1, at 14. ↩

74. 74.

    Rome Statute, supra note 16, at Art. 17. ↩

75. 75.

    Id. ↩

76. 76.

    Huneeus, supra note 1, at 12. ↩

77. 77.

    Id. ↩

78. 78.

    See Rome Statute, supra note 16, at Art. 16. ↩

79. 79.

    See Cavallaro & O’Connell, supra note 1, at 12. ↩

80. 80.

    Id. at 24. ↩

81. 81.

    IACHR Rules of Procedure, supra note 20, at Art. 33. ↩

82. 82.

    Huneeus, supra note 1, at 43. ↩

83. 83.

    Id. at 42. ↩

84. 84.

    Id. at 43. ↩

85. 85.

    Id. ↩

86. 86.

    Id. at 23. ↩

87. 87.

    Id. ↩

88. 88.

    Id. ↩

89. 89.

    See González et. al. v. Mexico (“Cotton Field”), Judgment: Preliminary Objection, Merits, Reparations, and Costs ¶ 450 (IACHR, Nov. 16, 2009), available online. ↩

90. 90.

    Huneeus, supra note 1, at 23. ↩

II. Background and Goals

A. Background and Goals of the ICC

The ICC has jurisdiction over four primary crimes—genocide, war crimes, crimes against humanity, and the crime of aggression. The ICC works to find a way to hold individual people responsible for the most heinous, systematic, and grave crimes, and therefore regularly sees before it perpetrators of the gravest acts of violence and depravity on earth. If this task sounds challenging, that is because it is. In its almost two decades of work, the ICC has heard thirty cases and issued ten convictions.1 These numbers are modest by the standards of most courts; however, they are indicative of the work the Court has put in, despite staggering obstacles, namely: lack of support from the most powerful states in the world, sovereignty claims, admissibility and practicality issues stemming from trying to hold powerful people accountable, and any number of internal struggles due to funding and resource availability. Despite these struggles, the ICC has done what it can to pursue its vision of justice.

If one looks at the ICC website, the world’s first permanent international criminal court puts itself out as “participating in a global fight to end impunity” by seeking individual criminal justice.2 The ICC seeks “justice” which it defines as a prerequisite to a “future free of violence” sought through “long-term peace, stability, and equitable development in post-conflict societies.”3 Accordingly, the ICC sees justice as one in the same as peace and stability. Basically, the ICC is seeking world peace. While a laudable tagline for a beauty pageant contestant, the ICC has the daunting task of actually trying to create a peaceful world. This task would stop, and does in fact stop, any number of people from accepting the task as a reasonable pursuit. This is however not the stance taken by the many international lawyers who have devoted their life to holding criminals of the worst kind accountable through various international tribunals, and ultimately the ICC.

As a criminal court, the ICC’s pursuit of justice is done through individual criminal accountability and punishment, as well deterrence mechanisms. The focus on this particular definition of justice, fixating on the responsibility of the perpetrators of crimes, makes sense. Individual criminal responsibility is the primary premise of most criminal courts, whether domestic, regional, or international in character. That does not mean it is the only viable avenue through which to pursue this goal of peace and stability.

B. Background and Goals of the Regional Human Rights Systems

The Regional Human Rights System is a term which I use to describe the three institutionalized embodiments of human rights on the regional level. There are three regions that have individually taken on this process of institutionalization—Europe, the Americas, and Africa. The European system is the oldest and has two institutions—the European Court of Human Rights and the Council of Europe—both of which work with and apply the European Convention on Human Rights.4 The Inter-American Regional Human Rights System (Inter-American System) also possess two linked institutions—the Inter-American Commission and the Inter-American Court which apply the American Convention on Human Rights (American Convention)5 as well as the Declaration on the Rights and Duties of Man.6 Finally, the African Regional Human Rights System (African System) is the newest of the three systems. It is composed of the African Commission on Human and People’s Rights (African Commission) and the African Court on Human and Peoples Rights (African Court),7 which apply the African Charter on Human and People’s Rights (African Charter).8

While each of these three regional systems vary and are complex in their own right, for the sake of this comment, I will not discuss much more on the European system as it comes out of largely the same history as the creation of the ICC—World War II and the Nuremberg Trials—and therefore the remedies available to the European Court of Human Rights, such as compensation and investigation, are fairly well reflected in the Rome Statute.9

At the broad level, the goals of the regional human rights systems, while each separate and very different, are collectively focused on the relationship between individuals and states. The overlap, I would point out, between this conception of rights and the pursuits of criminal systems, is that a state only exists as far as individuals create it and give it meaning. Although the human rights system is focused on reform and changes to state institutions to stop ongoing and future atrocities, in order to do this, the responsibility of the leadership of the country—whether entire organizations or individuals—is a key point of reference for this process. Thus, again, the ICC and the regional human rights systems are, ultimately, not so very different.

The regional human rights systems share a common history of having been implemented with the goal of promoting rights that are considered fundamental within the respective regions, not just what the U.N. and the world community as a whole could agree on as the fundamental rights of humanity. Thus, the regional systems allow for a more particularized, as well as a more culturally and historically relevant vision, of rights of individuals. The systems were established largely before the ICC came into existence, during the period during and directly following the Cold War, when, due to the politics of the East-West divide, the work to stop mass atrocities could not be localized into one body.10 Rather, each of these regional systems took on the responsibility to protect individuals in their regions from atrocities perpetrated by states and did so with their particular regional histories and legal and cultural norms in mind. Accordingly, the regional systems have created a wide variety of tools to establish and protect human rights, stop abuses, and successfully pressure and deter future abuses through accountability of violators.11

1. The Inter-American Regional Human Rights System

The Inter-American System was established by the Organization of American States (OAS)—a coalition of the nations of North, Central, and South America created to “strengthen the peace and security of the continent” and settle “disputes that may arise among the member states.”12 As of today, all thirty-five independent states of the America’s are members of the OAS,13 and twenty-four states are parties to the American Convention.14

Historically, every part of the America’s was, at one time, a colony of European nations and, while this common history has resulted in different outcomes amongst the states, this history of colonization and the subsequent de-colonization process during the second half of the twentieth century, is a defining feature of the Inter-American System as it exists today.15 During the 1960s through the 1990s, many of the most influential nations in South America—importantly Argentina, Chile, and Brazil—experienced significant periods of authoritarian military rule which committed gross violations of human rights such as summarily executing, forcibly disappearing, and torturing thousands of their citizens.16 This history has influenced the substantive rights that the American Convention and the Declaration on the Rights and Duties of Man codify.17 Both documents have a strong focus on the rights that were threatened by colonization, decolonization, and the military government regimes unique to many Inter-American states. Even more than the substantive rights though, the remedies and efforts of the system to rectify wrongs done reflect this history and thus creative solutions to uniquely Inter-American issues have been created, as will be discussed in Part III.

2. The African Regional Human Rights System

The African System was created, similar to the Inter-American system, by a coalition of African states. This coalition, originally called the Organization of African Unity (OAU), was created in 1963 as a body primarily dedicated to eradicating colonialism.18 In 2001, the OAU was replaced by the African Union (AU) which today includes all fifty-five African states as members.19 In 1981, the OAU adopted the African Charter which then entered into force in 1986.

The African system, as it looks today, is the newest of the three regional systems, with the court’s establishment in 2006 and the first issuance of a decision on the merits in 2013.20 This novelty is certainly one reason that the African System has seen relatively little action or substantive success, despite the fact that the continent as a whole has seen plenty of mass atrocities and human rights violations that could have resulted in more substantive decisions. It is beyond the scope of this comment to discuss the reasons for Africa’s status as one of the more impoverished and violence-ridden regions of the world. However, a cursory review of history brings most people to the conclusion that the results of mass colonization, complete resource decimation by those colonizers, and the resulting de-colonization process, contributed heavily to the problems much of Africa, as a continent, currently faces.21

Even more then in the Inter-American system, the African system places a substantial degree of importance on sovereignty. To the African system, sovereignty seems to mean not only individual state sovereignty, but also African sovereignty for the continent as a whole. Coming out of a common history of colonization, the African Charter places massive importance on states sovereignty, territorial integrity, and independence.22 While this focus on individual state sovereignty is central to much of the reason for the existence of first the OAU and now the AU, there is simultaneously an underlying refrain of unity and solidarity among African states and importance placed on the non-interference in the internal affairs of member states by non-member states.23 African sovereignty as a whole, and non-interference from other parts of the world, are key features in the system, as it focuses on promotion and education of individuals on their rights as a way to protect people from atrocities and deter future violence. However, this idea of Africa as a collective, leaves open the possibility unseen in other systems, for AU members to work together and interfere in other African states affairs in a manner that would not be considered viable in other regions.24

C. Comparing the ICC to the Regional Systems

The regional human rights systems and the ICC do have some fundamental differences that must be addressed. First, the regional human rights systems typically place more focus on justice for victims, and society as a whole, which is reflected in their remedies. These systems were created with a different pursuit in mind than the ICC. Their focus is on furthering human rights in their regions. By this, I mean promoting, educating, and protecting those rights that through generally accepted principals, norm creation, and international conventions and treaties, are universally 25 accepted as fundamental rights owed to each individual, simply for being human. This focus is inherently positive—assuring rights are received and protected. It therefore places the well-being of individuals and victims at the center of the analysis. Whereas the ICC, as a criminal court, has an inherently negative function—holding individuals liable for crimes, which could also be phrased as invading the human rights of others.

Second, the regional human rights systems are largely focused on the responsibility of states in adhering, or not adhering, to the human rights guaranteed to individuals within the state. The ICC, on the other hand, focuses on the liability of individual perpetrators. This is the primary distinction that protects the ICC from claims of sovereignty invasions. If the ICC were to try to hold an entire country or region responsible for crimes of mass atrocities done within their borders, it might be more reflective of the actual political structure and occurrences in that conflict. But it would also likely lead to the destruction of the ICC as a whole. No country would sign onto a system that could hold the state, as a whole, liable, especially not if there were repercussions for that liability.

Ultimately, the ICC is not trying to hold whole states responsible for the harms done to individuals, while regional human rights systems are doing exactly that, with the goal of protection and promotion, not just retribution. However, both systems work with states directly to repair damage done, compensate victims, implement broad peace and stability, and educate and inform people of their rights and protections. All of this is done with the goal of minimizing mass atrocities and invasions of individuals rights in the future. In this way, while the ICC and the regional systems go about affecting change differently, ultimately, they are not so different. The goal of peace, stability, and creating a better world for future generations with less risk of violence and pain, is shared across systems.

III. Available Remedies

A. International Criminal Court

The ICC is a rigid system with a fairly unimaginative take on remedies. The Rome Statute articulates the remedies recognized by the ICC in only a few articles, found in Parts Six and Seven of the Statute—Articles 75, 77, and 79.26 Article 75 allows for reparations to victims stating that:

The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.27

Further, Article 75 allows the ICC to, “determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.”28 Article 77 lays out the applicable penalties for a guilty verdict. The Court may impose a penalty of imprisonment either:

[F]or a specified number of years, which may not exceed a maximum of thirty years; [or for] a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.29

The Court is, in addition to imprisonment, permitted to order a fine under certain circumstances, or “a forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties”30 Finally, Article 79 allows for the creation of a trust to be established:

[B]y decision of the Assembly of States Parties for the benefit of victims of crimes within the jurisdiction of the Court, and of the families of such victims.31

The Court “may order money and other property collected through fines or forfeiture to be transferred, by order of the Court, to the Trust Fund.”32

Based on the Rome Statute, the ICC would seem to only allow for the least creative of remedies—punitive imprisonment and monetary compensation. The Rome Statute is an encompassing document that is the end all and be all of ICC control. Thus, in order for remedies to be implemented, they must somehow find a way to fit into either one of these provisions articulating available remedies, or somewhere else that there is room for the prosecutor to maneuver new methods into, as are discussed in Part IV.

B. Regional Human Rights Systems

The regional systems, partially by their nature focusing on human rights and partially due to their histories of development, are much more focused on holding states accountable, rather than individual liability. However, the remedies used by these systems are transferable in nature in that they could be implemented by a criminal court just as easily as in the regional human rights courts. This is demonstrated, in part, by the fact that movement in the opposite direction already occurs. The regional bodies implement remedies that are traditionally accepted within the realm of human rights mechanisms, but also implement remedial measures that are commonly associated with criminal justice systems. The ability of human rights systems to extend their purview blends the lines between the norms of human rights and criminal jurisprudence in a way that supports the assertion that they are not necessarily so very different or non-transferable.

The regional human rights systems utilize remedies that are indicative of several broad goals being pursued: compensation, deterrence, reconciliatory and restorative reparations, as well as condemnation and retribution.33 Some of the more specific and interesting remedial options that have been utilized and discussed in these systems include: monetary damages, reform or repeal of problematic laws, investigations, requirements for domestic enforcement, and promulgation of rulings to countries. This means that not only must the states where mass atrocities have taken place hold the individuals perpetrating those acts responsible, but they must also disseminate information on the rights that were violated, and the court decisions to the public.

Further, the Inter-American Court can require states to locate and return the bodies of disappeared persons; require medical treatment be provided to those who have been abused; and require states to take responsibility for violative actions in such ways as formally apologizing, claiming responsibility, admitting to violations, and constructing memorials in remembrance of victims and events.34 Meanwhile, the African Court places a special degree of importance on education and dissemination of information, including within the text of the African Charter Article 4535 that the commission is tasked not only with promoting human rights across the continent, but also with disseminating information to the people of the region in order to educate and inform.36

Based on a review of these remedial options, the regional systems focus much more on reparative justice and information spreading about court decisions and rights that people possess. The goal of this seems to be not only to make sure that individuals themselves know that they have rights, and which ones; but also, a form of internal compliance and enforcement—the more people know that they have rights, and the more often that they see those rights being protected by courts and institutions, the more likely they are to demand the upkeep of those rights by utilizing those courts and institutions. It is theoretically, a self-perpetuating cycle.

Monetary compensation, future deterrence, condemnation of conduct, and retribution for perpetrators are the primary processes and goals pursued by the ICC. In this way, the ICC remains conduct and perpetrator focused. Meanwhile, the other options—reconciliation and restorative justice—come in many different forms and provide the option for courts to ask what they can do for victims, not as victims. These options turn the table from the court acting as a conduit of the victim, as though it was itself harmed by the conduct being such a grave violation of global justice; but rather as a form of reconciliation, to facilitate societies moving on by asking victims what they need, what they want to say, and how they want to move forward. These steps are:

[C]losely related to the psychological and sociological impact of violations and are concerned not only with direct victims of human rights violations but also with the society which they form part of.37

Restorative and reconciliatory remedies are examples of courts attempting to help heal the relationships in societies that have been torn to pieces by the atrocious acts, often not just of one person, but of several or even many.38

Restorative justice and reconciliation also deals with the practical problem of what to do in situations of mass atrocities, when there is no one responsible individual (as there so often is not), but rather an institutionalized culture of violence and violations passed from one person down a chain, until it is no longer possible to decipher perpetrators from planners and vice versa. So commonly this is an issue that the ICC sees and is a critical failing of the system as it currently exists. The ICC focuses its attention completely on finding a few discreet individuals that played critical roles in the atrocities, to hold them and them alone accountable. Once it does, the Court tries (and often fails) to find ways to hold these individuals responsible for every harm done. Many of these people are criminally liable for their actions. However, the Court stretches and bends to make things fit actions of others to these people that simply do not fit, and in doing so, deadlocks itself into inaction as seen by the low number of cases heard, and even lower number of convictions.39

If the ICC broadened its views of justice and remedial measures to include some of the remedies that are culturally accepted in these regional systems, then remedies such as reconciliation, truth commissions, and restorative justice could, very viably, help fill some of these gaps and, while controversial, critically assist in reintegrating perpetrators into the harmed communities, especially when it is unrealistic or impossible to hold a large number of perpetrators accountable for every step of the planning and physical conduct of the violations. Thus, reintegration may be less of an option, and more of a distasteful requirement of moving forward. These perpetrators will continue to be there since the ICC cannot always hold all of them accountable. So, the societies that they remain in need a way to move forward, nonetheless. If the ICC focused less on the “blameworthiness of the conduct”40 and focused more on the consequences, it would allow the ICC to compensate victims more properly—meaning in a way that will allow healing and moving forward, according to the desires of those victims—and also more thoroughly pursue the goal of global peace and stability.

As some at the ICC would argue, the trial of a perpetrator itself is the key component of healing for victims who feel deeply the anger and outrage of the injustices done to them and their communities. This may certainly be true. However, just as the regional systems incorporate a degree of criminal conduct into their systems through compensatory monetary awards and, indirectly, in their judgements against states and those involved in the conduct, the ICC can and should incorporate remedial concepts beyond just imprisonment and monetary compensation to effectively pursue the goals it claims to be after.

The problem I see, however, is that the ICC seems to think it must pursue justice—world peace—all on its own. As a court of last resort, the ICC seems to have accepted the idea that it must do things one way, and only that way. It must treat every case the same, every criminal equally, and every victim as interchangeable with another. This is where I believe the ICC’s fault lies. Within the Rome Statute, as it exists right now with no amendment, there are places where the ICC could incorporate the legal mechanisms of other courts and systems. The ICC does not have to stand alone. It could incorporate other ideas, broaden its definition of justice, and support its goals with the ideas and creativity of other systems’ ideas that are already being experimented with and have been proven to work. The ICC would, I believe, be better for it.

IV. Integration

There is no reason that the remedies that are unique to the regional human rights systems must remain only within those regional systems. Any effect that they result in at the regional level, could be transferred to the international system. Further the success of these remedies in the regional systems stem from regional pressure, non-governmental organizations involvement, and both internal and external naming and shaming that could be just as effective on the world scale.41

The most important reforms that I think the ICC must make, are in incorporating systems of reconciliation and restoration. These are broad categories that encompass many possible outcomes but are completely unrepresented in the current ICC system. Examples of what I mean by reconciliatory and restorative remedies mentioned previously are: investigations, reform or repeal of problematic laws, requirements for domestic enforcement, and promulgation of rulings to countries; as well as: truth commissions, locating and returning the bodies of disappeared persons, requiring—and assisting in—providing medical treatment to those who have been abused, and requiring states to take responsibility for violative actions in such ways as constructing memorials, claiming responsibility, admitting to violations, and formally apologizing, whether on behalf of the state, or as individual perpetrators.

The ICC is a fairly rigid system with boxes to check and minimal wiggle room at every step of the process. It is also a system that is trying to work for the world as a whole.42 Because of this, amendment to the Rome Statute—while possible—is infinitely more cumbersome and prohibitive than working within the confines of the Statute’s current remedial options. That being said, there are places within the Rome Statute, as it exists today, where the ICC could feasibly integrate all or some of the remedies found in the regional human rights systems discussed in Part III.B., in order to create a system of justice that is more indicative of the reparations important to victims in various regions and cultures. The places within the Statute where I think integration of these tactics could be implemented are as follows.

A. Sentencing

The first part of the ICC where I see room to integrate these alternative remedial measures is during the sentencing procedures as described in Articles 76 and 78. Article 76 of the Rome Statute is the general permission to the Court to sentence those people it finds guilty and states:

1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence. […]

2. […] the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, […]

4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.43

The drafters seem to have left room for the Court, in sentencing a guilty party, to take into account both mitigating and exacerbating factors such as the degree of involvement and the role played. Article 76(4) also already resembles several of the remedial measures discussed above such as requiring promulgation of rulings and admitting to and claiming responsibility for violations. Bolstering this, Article 78(1), discusses the determination of sentences giving the Court some leeway to “take into account such factors as the gravity of the crime and the individual circumstances of the convicted person.”44 While this Article does go on to discuss primarily the imposition of sentences of imprisonment and the calculations therein, Article 78(1) at no point specifies that imprisonment need be the sole outcome after balancing and weighing the gravity of the crime, and the context of the situation as a whole.

Not everyone who comes before the ICC is necessarily the “biggest fish.” The ICC would like them to be, but sometimes the people it can get—whether jurisdictionally or physically—within its custody are simply the ones that got thrown to the wolves, the ones that got scared or felt guilty and admitted what happened. Thus, the ability of the Court to mitigate not only the time in prison to which it will sentence these people, but also whether there are alternative forms of retribution that could justify the ICC’s going after these smaller players in the eyes of defendants and defense counselors who see the placement of blame for others’ actions on individuals, to be a grave misplacement of justice. This ties into the next place where different forms of justice could come into play through different remedies, punishments, and reparative measures.

B. Remedies and Penalties

The most obvious place for the Court to extend its definition of remedies from solely imprisonment and monetary compensation is in the remedies and penalties that are listed. Article 75 of the Statute handles reparations to victims. Article 75(1) states:

The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.45

Article 75(1) relates to reparations, or reparative damage. By its definition, reparative means repairing, fixing something broken, making something whole. The phrasing following that, of “relating to reparations […] including restitution” indicates that while restitution, compensation and rehabilitation are options which the Court can choose to implement in order to make the broken situation, person, or society whole again, they are not the only options. This “including” language is repeated again in Article 75(2), adding force to the argument that these are options that are not exhaustive.46

Article 75(3) states that:

Before making an order under this article, the Court may invite and shall take account of representations from or on behalf of the convicted person, victims, other interested persons or interested States. 47

Here, the Court is already allowing those in harmed societies with information either as to the perpetrator or the victims to come forward and give their accounts. Some at the ICC may argue that this is, in and of itself, enough to allow victims the opportunity to tell their stories and for the Court to take that into account in prison sentencing or monetary compensation (as are the only remedies really utilized by the Court presently). However, there is room within this article to take these accounts and not just use them as mitigating or exacerbating factors to a prison sentence, but rather to ask those victims, members of society, and defense witnesses, not only what happened, but where they would like to go from here, and what they need or want to occur in order to become whole again.

I would argue that imprisonment of a single perpetrator, while possibly gratifying for those who have lost friends, family, and parts of themselves, will not alone lead to justice for the victims or help the harmed societies move forward with any positive change. Rather, listening to the needs of victims, not just lashing out against the accused, will allow for movement forward and for these people to feel heard on the international level. This will not only increase actual justice done for the individual—providing them with what they truly need and want—but will also decrease the occurrence of small players taking the entirety of blame not suitable for them. This will increase the protections of due process for defendants who do not deserve all of the blame, while still allowing these trials of smaller players to result in remedies for victims, even if the instigators and planners of the atrocities are not able to be brought to punitive justice. All of this will increase the legitimacy of the ICC in the eyes of victims, defendants, and the world at large.

Next, Article 75(4) states:

In exercising its power under this article, the Court may, after a person is convicted of a crime within the jurisdiction of the Court, determine whether, in order to give effect to an order which it may make under this Article, it is necessary to seek measures under Article 93, paragraph 1. 48

Article 93 lays out the ways that State Parties are required to cooperate with requests of the Court, such as decisions on remedies under Article 75. Some of these forms of cooperation and assistance are:

(a) The identification and whereabouts of persons or the location of items; and […] (g) The examination of places or sites, including the exhumation and examination of grave sites; [amongst other testimonial, evidentiary, and procedural assistance.]49

Through the combination of Articles 75 and 93, the ICC already allows for cooperation between states and the ICC in determining what has occurred, but also has created an opening in deciding how available remedies will be implemented on a practical level by the Court, and within the States Parties. The Court has thus already laid the groundwork for the work being done in the regional human rights systems to be pulled into the criminal system. The atrocities being looked at in both the human rights and the criminal systems often are, if not the same, at the very least overlapping. Accordingly, having cooperation between the systems, and being able to pull in not only evidentiary and procedural information in investigations and prosecutions, but also cooperation in deciding what victims and societies actually need from the various courts would be vastly beneficial in increasing the efficacy and relevancy of the ICC to local victims for whom a criminal prosecution at a far away court may otherwise mean essentially nothing.

A final place within the remedies and penalties, as they are currently written in the Rome Statute where the ICC could try to extend the remedies available to them and implement more relevant and helpful outcomes for victims, is in the existing penalty articles—Articles 77 and 79. These two articles have to be mentioned for the sake of completeness even though they do not appear to leave much of the wiggle room seen in other areas of the Statute. It is true that Article 77—Applicable Penalties—provides for imprisonment, fines, or forfeiture of property,50 and Article 79 provides for the creation of a trust fund to be established for the benefit of victims and their families.51 These two articles are fairly singularly minded and, I would argue, the epitome of the limitations of the ICC. Article 77 is pecuniary. Article 79 is compensatory. Perpetrators are punished, victims are paid. However, that being said, just because these are the processes most clearly laid out, I do not think they exclude the possibility of other articles providing non-punitive, reparative, and reconciliatory remedies. They are simply the only remedies that could be broadly agreed to by the entire community of the world states. This is where the impacts of the individualized systems and the remedies they offer becomes culturally and regionally relevant.

Yes, Articles 77 and 79 are the universally agreed to available and codified remedies. However, that does not mean that they are exhaustive of the remedies that different regions feel are appropriate. Indeed, that is the whole point of the comparison to the Regional Human Rights systems. These alternative systems demonstrate the mechanisms and efficacy of those mechanisms that are viewed as viable and critical to the communities in the various regions. They represent the cultural and legal norms of the region and pursue forms of justice that are more representative of the needs of the specific victims of that locality. Accordingly, just because the ICC narrowly codifies only a very few remedial options, the ability to bring other remedies into the language of the Statute, can and should be done when the ICC handles cases that fall into one of these regional systems—as that will allow it to reflect the needs, desires, and norms of the various cultures.

C. Plea Bargaining

A final part of the Statute where remedial measures of the regional systems that are otherwise unseen in the ICC system, could be brought in is under Article 64(8)(a) and Article 65, which lay out what, in the United States, we might call a plea-bargaining process. Article 64(8)(a) states:

At the commencement of the trial, the Trial Chamber shall have read to the accused the charges previously confirmed by the Pre-Trial Chamber. The Trial Chamber shall satisfy itself that the accused understands the nature of the charges. It shall afford him or her the opportunity to make an admission of guilt in accordance with Article 65 or to plead not guilty.52

Article 65 then specifies that upon an admission of guilt, the Trial chamber will determine whether:

1. Where the accused makes an admission of guilt pursuant to article 64, paragraph 8(a), the Trial Chamber shall determine whether:

   1. The accused understands the nature and consequences of the admission of guilt;

   2. The admission is voluntarily made by the accused after sufficient consultation with defence counsel; and

   3. The admission of guilt is supported by the facts of the case that are contained in:

      1. The charges brought by the Prosecutor and admitted by the accused;

      2. Any materials presented by the Prosecutor which supplement the charges and which the accused accepts; and

      3. Any other evidence, such as the testimony of witnesses, presented by the Prosecutor or the accused.

2. Where the Trial Chamber is satisfied that the matters referred to in paragraph 1 are established, it shall consider the admission of guilt, together with any additional evidence presented, as establishing all the essential facts that are required to prove the crime to which the admission of guilt relates, and may convict the accused of that crime. […]

5. Any discussions between the Prosecutor and the defence regarding modification of the charges, the admission of guilt or the penalty to be imposed shall not be binding on the Court.53

Although maybe not the most obvious place to think about implementing these alternative mechanisms, I think that it may be one of the most promising. This is a special procedure laid out for those circumstances when an accused makes an admission guilt. Article 65(5) expressly stipulates that this admission of guilt might come after discussions between the prosecutor and the defense. Thus, in this way, this article seems to have in mind a procedural process similar to a plea bargain. In this case, a guilty or allegedly guilty party discusses their options with the opposing counsel and comes to a solution that is marginally better for everyone involved—the victims get an admission of guilt, and the accused hopefully avoids the worst of the sentencing options. To me, this sounds (and always has sounded) a bit coercive and unsatisfying for absolutely everybody involved.

However, here, the article gives the Court at this point the power to convict, though not the requirement —the Court “may” convict.54 This is the case even if the Trial Chamber is satisfied that the accused made their admission voluntarily, in accordance with the facts and evidence as known, and with an understanding of their actions and the consequences (a likely guilty verdict). The Court is left with a great deal of leeway in deciding what to do with that guilty admission as nothing beyond the ability to convict is listed. Further Article 65(5) expressly states that these discussion between the prosecutor and the defense counsel—the outcome of the bargaining—will not be binding on the Court itself.

All of this put together, I believe, allows the Court to use their power in a plea-bargaining situation, to implement remedies that have the potential to create a much more satisfying outcome for everyone involved. At this point, the Court has an individual who has stood up and proclaimed their guilt. This proclamation could be the start, or the entirety, of an admission of responsibility, a formal apology, the start of reform in a country, or the beginning of a process of winding back ongoing institutional mechanisms of harm. The admission of guilt could start, essentially, a truth commission process for finding not only what happened with this individual, but more broadly what occurred. And all of this could be done with less punitive measures and more interest in keeping an eye on the needs, desires, and customs of the victims to find a more satisfying remedy to the atrocities they faced.

V. Conclusion

Ultimately, there are certainly other locations within the Statute in which bringing in additional remedies and more effective reparative measures could be implemented. But I believe that the articles brought up and discussed here are the most indicative of changes that could be implemented without really having to change the Statute at all.

The success of the Regional Human Rights systems to protect individuals, create change, and hold accountable individuals and entire state parties, stems largely from state-to-state social pressures, non-governmental organization influences, and material incentives and repercussions between states to hold each other accountable regionally.55 These are, in large part, the cause of the success of the regional system and are reflected in the remedies available and the implementation of those remedies within the systems. Although the regional human rights system and the ICC come about their goals in different ways—one from positive implementation of rights and the other from negative pursuit of punishment—I believe that the ICC could implement many of the remedies and pressure-processes available in these other systems and see an increase in the effectiveness of the system.

The notable problem with the definition of justice pursued by the ICC, as I see it, is the complete lack of attention given to victims of those “gravest crimes of concern to the international community.”56 The Court’s definition of justice is narrowly construed to a particular view of justice focused on punishment of criminals and individual accountability as a means of achieving its goal of peace and stability. However, there are other possible justice mechanisms that are not dictated solely by the ideas of punishment and peace but are rather focused on the definition of justice as defined by the needs, desires, culture, and legal norms of the individual victims and harmed societies. This multi-faceted definition of justice as simultaneously perpetrator, victim, and societally focused, is being employed and explored effectively in the Regional Human Rights systems and could extend to the ICC’s system of individual liability as it currently exists. Societal and victim-based justice, such as the systems of reparations, reconciliation, and reform, seen in the Regional Human Rights Systems could be used in conjunction with the existing perpetrator-based punishment and deterrence systems of justice pursued by the ICC. This would, I believe, enhance the ICC’s effectiveness in both reaching and adhering to its goals of justice, peace, and stability for the world.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   About the Court, ICC, available online (last visited Feb. 26, 2022). ↩

2. 2.

   Id. ↩

3. 3.

   Id. ↩

4. 4.

   Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms (Nov. 4, 1950, entered into force Sep. 3, 1953, as amended), available online. ↩

5. 5.

   Organization of American States, American Convention on Human Rights (Nov. 22, 1969, entered into force Jul. 18, 1978) [hereinafter American Convention], available online. ↩

6. 6.

   Organization of American States, American Declaration of the Rights and Duties of Man (May 2, 1948), available online. ↩

7. 7.

   Organization of African Unity, Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights (Jun. 10, 1998, entered into force Jan. 25, 2004), available online

   (establishing the African Court on Human and Peoples’ Rights). ↩

8. 8.

   Organization of African Unity, African (Banjul) Charter on Human and People’s Rights, 21 Int’l L. Materials 58 (Jun. 27, 1981, entered into force Oct. 21, 1986) [hereinafter Banjul Charter], available online. ↩

9. 9.

   European Court of Human Rights, Guide on Article 13 of the European Convention on Human Rights: Right to an Effective Remedy ¶ 34 (Aug. 31, 2021), available online. ↩

10. 10.

    James L. Cavallaro & Jamie O’Connell, When Prosecution is Not Enough: How the International Criminal Court Can Prevent Atrocity and Advance Accountability by Emulating Regional Human Rights Institutions, 45 Yale J. Int’l L. 1 (2020), available online, archived. ↩

11. 11.

    Id. ↩

12. 12.

    Philip Alston & Ryan Goodman, International Human Rights: The Successor to International Human Rights in Context: Law, Politics, Morals 979 (Sep. 20, 2012), paywall. ↩

13. 13.

    Member States, OAS, available online (last visited Feb. 26, 2022). ↩

14. 14.

    Inter-American Human Rights System, IJRC, available online (last visited Feb. 26, 2022). ↩

15. 15.

    (Although the United States and Canada are members of OAS, it must be said that their activity within the Inter-American commission and court have been minimal). ↩

16. 16.

    Cavallaro & O’Connell, supra note 10, at 57. ↩

17. 17.

    American Convention, supra note 5; Declaration on Rights & Duties of Man, supra note 6. ↩

18. 18.

    Alston & Goodman, supra note 12, at 1025. ↩

19. 19.

    Member States, AU, available online (last visited Feb. 26, 2022). ↩

20. 20.

    Cavallaro & O’Connell, supra note 10, at 55. ↩

21. 21.

    (This is a massive generalization and simplification of the situation in Africa. However as whole papers could be, and have been, written about this topic, I am making the academic decision to leave this assertion at its most simplified form). ↩

22. 22.

    Alston & Goodman, supra note 12, at 1026. ↩

23. 23.

    Id. ↩

24. 24.

    Id. ↩

25. 25.

    (The question of the universality of the rights that are accepted as human rights by the international community of states is a massive one that parallels the question on the universality of the ICC principals that we at the forum have been tasked with responding to. Both human rights and the ICC crimes and procedures, on their face, reflect somewhat western and global north centric visions. This can obviously be debated, and the influence of the global south and transitional states should not be understated in the influence they have had on norm evolution, treaty drafting, and the creation of these international systems as wholes. However, the purpose of this comment deals with remedies as a way to broaden the cultural and legal representation seen in this “universal” system. This is a question that arises only after decisions have been decided on the guilt of a criminal at the ICC and as a parallel, the guilt or liability of a human rights’ abuser in the regional human rights courts. As such, I will leave the question of the universality of the rights embodied in the realm of international human rights, and the crimes and procedures pursued under the Rome Statute, untouched. For the sake of this comment, I will assume that those rights, crimes, and procedures pursued are, at the very least, universally accepted if not universally reflective). ↩

26. 26.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Arts. 75, 77, 79, available online. ↩

27. 27.

    Id. at Art. 75. ↩

28. 28.

    Id. ↩

29. 29.

    Id. at Art. 77. ↩

30. 30.

    Id. ↩

31. 31.

    Id. at Art. 79. ↩

32. 32.

    Id. ↩

33. 33.

    Leiry Cornejo Chavez, New Remedial Responses in the Practice of Regional Human Rights Courts: Purposes Beyond Compensation, 15 ICON 372, 373–78 (Apr. 2017), available online, doi. ↩

34. 34.

    Alston & Goodman, supra note 12, ↩

35. 35.

    Banjul Charter, supra note 8, at Art. 45. ↩

36. 36.

    Alston & Goodman, supra note 12, at 1027. ↩

37. 37.

    Chavez, supra note 33, at 375. ↩

38. 38.

    Id. ↩

39. 39.

    About the Court, supra note 3. ↩

40. 40.

    Chavez, supra note 33, at 376. ↩

41. 41.

    Alston & Goodman, supra note 12, at 979–1044. ↩

42. 42.

    (To whatever degree that might be effectively occurring, this is the goal). ↩

43. 43.

    Rome Statute, supra note 26, at Art. 76. ↩

44. 44.

    Id. at Art. 78. ↩

45. 45.

    Id. at Art. 75 (emphasis added). ↩

46. 46.

    Id. (emphasis added). ↩

47. 47.

    Id. (emphasis added). ↩

48. 48.

    Id. (emphasis added). ↩

49. 49.

    Id. ↩

50. 50.

    Id. at Art. 77. ↩

51. 51.

    Id. at Art. 79. ↩

52. 52.

    Id. at Art. 64(8)(a) (emphasis added). ↩

53. 53.

    Id. at Art. 65 (emphasis added). ↩

54. 54.

    Id. at Art. 65(2) (emphasis added). ↩

55. 55.

    Alston & Goodman, supra note 12. ↩

56. 56.

    About the Court, supra note 1. ↩