Twentieth Anniversary Summer Session of SLS, Sunday 5 to Wednesday 15 August 2018, ‘Towards an Effective International Criminal Justice System in the Era of The Permanent International Criminal Court – Coordinating and Strengthening Enforcement on National, Regional, and International Levels’

Reflections on the Final Summer Session of the Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law & Ways How We Can Revitalise the International Justice Project

by Danya Chaikel

Hague-based Legal Consultant Danya Chaikel assisted with the 20th anniversary and final Salzburg Law School on International Criminal Law, Humanitarian Law and Human Rights Law (SLS) held from 5-15 August 2018. This final SLS session brought together students from around the world with a wonderfully diverse faculty (practitioners, judges, academics, diplomats, or NGO advocates) who shared their expertise with the students and each other. We’ve put together some reflections on the final SLS session and insights from the experts on several critical issues this field is facing. This year we also celebrate the Rome Statute’s 20th year, and many of us are stepping back to review its positive impact but also the serious challenges that remain in closing the impunity gap. In light of the copious negative and often cynical commentary about this field and the ICC in particular, we seized the opportunity to ask some of the expert SLS faculty – who still work tirelessly with the Rome spirit – to give their unique insights on the following question: How can we revitalise the international justice project in the next 20 years?

Portions of this text were previously published at Justice Hub: Part 1 Rome Statute Drafter: No One at The Time Thought we Would Have a Functioning ICC In Only 20 Years; Part 2 The Dialogue on International Justice Needs to Become More Global; Part 3 Mudukuti: Too Many Have Lost Sight of the Victims Behind Egregious Crimes.

What is SLS?

Dr Astrid Reisinger Coracini, has been closely involved in SLS since 2001, first as Research Assistant of SLS Founder Professor Otto Triffterer, as Executive Director of SLS from 2005 to 2013, and as Director since then. I asked her about the history of the course and what’s next for SLS?

Dr Reisinger Coracini: ‘The summer sessions of the SLS are a remarkable success story. From 1999 to 2018, more than 800 participants from around 120 states took part. SLS was the first summer course on international criminal law founded in the aftermath of the adoption of the Rome Statute. Introduced as a general course to educate and disseminate information about the Rome Statute, the course developed into a highly advanced, specialised programme, where young academics and practitioners in the field could intensify their knowledge and share expertise among peers. A focussed academic programme each year, outstanding lecturers, high-level discussions and the close interaction between lecturers as well as among participants contributed to SLS’s success and shaped the ‘Salzburg spirit’. But all good things must end. After 20 years, SLS will take a break from its summer sessions. This will not be the end of SLS but a period to reflect about future research and training projects in this field. However, before that, in order to duly celebrate 20 years of the Rome Statute and 20 years of summer sessions, SLS will convene a 'Twentieth Anniversary Symposium: The Sound of ICL’, from18-20 October.’

Ask the expert: According to Dr Reisinger Coracini, ‘The twentieth anniversary of the adoption of the Rome Statute is an opportunity to reflect about the Court and the challenges it faces. But it goes far beyond. The Rome Statute ended a hundred-year journey to codify international criminal law and to establish a permanent institution of international criminal justice. It is a vision of accountability materialised by way of treaty law. As we struggle on various fronts to effectively implement the Statute, we cannot lose sight of the underlying vision that should guide the interpretation of its terms. In the next 20 years, and as the activities of the Court increase, we need to defend the law as adopted in Rome against attacks of those that fall within its ambit. We have only started to get a taste of legal and policy campaigns against the Court by States and high state officials under scrutiny. This will not end. The success of the Court will depend on how the international community counters such attack, with vocal and effective practical cooperation. In this context, but also when it comes to further develop the substantive law of the Statute, we cannot allow discussions to be guided by the aim of shielding persons from individual criminal responsibility. We must take a stance for the values enshrined in the preamble of the Rome Statute and find back to a narrative as well as to a practice of a genuine fight against impunity.’

SLS 2018 overview

In its final year, SLS focussed on the enforcement of international criminal law – domestically through implementing legislation, establishing competent national organs, and the exercise of territorial as well as extraterritorial jurisdiction; and on an international level, as the ICC matures it continues to face limitations in terms of jurisdiction and resources. The 15-day session covered different generations of international courts and tribunals from the post-World War II military tribunals to the ad hoc and hybrid tribunals of the 1990s and the ICC, as well as the latest wave of hybrid institutions. With multiple actors within a global system of international criminal justice, coordination becomes paramount. Efforts to enhance effectiveness was another theme of the final SLS summer session, including domestic efforts, as well as initiatives to the strengthen international cooperation for crimes under international law, such as the draft Convention on Crimes Against Humanity and the initiative for a Mutual Legal Assistance Treaty for Core Crimes. SLS 2018 offered us many opportunities to debate current ICL developments and controversies, including the activation of the crime of aggression, the withdrawals of Burundi and the Philippines from the Rome Statute, the situation in Afghanistan, and the ICC Prosecutor’s successful request on whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

SLS 2018 opened with a bang with an inspiring keynote address from ICC Judge Kimberly Prost, a true ICL trailblazer. She energetically gave us a drafter's and a practitioner's view of the Rome Statute at 20.

Ask the expert: looking forward, Judge Prost reminded us that the ICC is a court of last resort. In the face of atrocity crimes, too often the ICC is called upon to bring justice to the crimes. Even after excruciating negotiations on preserving national sovereignty through the principle of complementarity at Rome, nowadays when an atrocity crime is committed, too often the first call is for the ICC to try these crimes? Rather the very first question should be 'what is the territorial state or other extraterritorial jurisdictions doing about it?!’ Judge Prost also hopes that the newly activated crime of aggression is never used at the ICC, but rather that it acts as a deterrent to military leaders.

Another highlight was hearing from renowned Nuremberg Prosecutor Ben Ferencz in this personal video address to the SLS participants. In his impassioned speech he describes the details of his journey from poverty to investigating and prosecuting atrocity crimes.

He shared what he saw when investigating first-hand the horror of Nazi concentration camps as they were being liberated. Ferencz told us in tears, ‘there were dead bodies lying everywhere, couldn’t tell if they were dead or alive, their eyes speaking to you crying for help…I can’t avoid still being moved.’ He explained how these haunting early experiences shaped his thinking. ‘I have spent most of my life trying to convince people that it is not cowardice to compromise, and that you cannot kill an ideology with a gun. You have to have an understanding with those who have different opinions from you, and you need to find some peaceful way to settle your disputes. This is what the law is.’

Ask the expert: ‘I’ve come to the conclusion that it will be up to the young people to not rely on the politicians or the diplomats but to assert their human rights to live in peace and dignity regardless of their political opinion, or their race, or their creed. We have to change our way of thinking, we have to change our hearts and minds [and change] the current system of sending young people out to kill other young people they don’t even know… I am confident that if you never give up and you recognise that law is better than war, that you will have a more humane and peaceful world than I’ve seen.’

Michelle Jarvis, Deputy Head of the novel Syria Mechanism or the ‘IIIM’, provided us with her thoughtful insights on why the UN General Assembly’s created the IIIM in 2016. Neither a prosecutor's office nor a court, IIIM is mandated to collect and analyse evidence; and to build case files for national, regional and international courts that may gain jurisdiction over these crimes. Jarvis characterises the IIIM as ‘a response to ongoing blockages and limitations of the pre-existing international criminal justice framework’, such as its selectivity, the absence of universal ratification of the Rome statute and political impasses in the Security Council.

Ask the expert: Looking ahead, Jarvis says the unique nature of the IIIM is a ‘a response to lessons learned in the practice of international criminal justice over the past 25 years.’ It gives life to universal (or extra-territorial) jurisdiction. She says it demonstrates ‘the value of an integrated justice framework from the outset, and the role of an international body in facilitating the work of actors at the national level.’ For Jarvis, the IIIM is a strong and innovative model which offers a comprehensive central repository of evidentiary material on crimes in Syria, structural investigations, the ability to transfer IIIM-built case files and proactive strategies to address sexual and gender-based violence and crimes against children.

Julie de Hults, Deputy Head of the Belgian Central Authority for Cooperation with the ICC and other international criminal tribunals gave us an informative update on the Belgium et al initiative for a new treaty of mutual legal assistance for core crimes, which has gathered support of 60 states. De Hults explained how there is a legal gap in international criminal justice – while mutual legal assistance is essential for effective prosecutions, existing treaties are insufficient in number, incomplete and unsatisfactory since many have outdated content which have not been adapted to the times.

Ask the expert: ‘In the next 20 years, we should focus our efforts on promoting complementarity and enhancing national investigations and prosecutions by States themselves. In order to be truly effective, it is essential that States are able to cooperate practically, in providing judicial assistance and – if the need arises – extradition of the accused. An effective international legal framework for cooperation and judicial assistance between States is crucial in this regard, as suggested by States supporting the ‘MLA initiative’ for Opening Negotiations on a Multilateral Treaty for Mutual Legal Assistance and Extradition in Domestic Prosecution of Atrocity Crimes.’

Gilbert Bitti, Senior Legal Advisor, ICC Pre-Trial Division, discussed a revolutionary aspect of the Rome Statute: for the first time in history, States give an international criminal court the authority to choose a situation. Before the ICC was established, this was always decided by a political body. Now, under Article 53 of the Statute, the Prosecutor must, after evaluating the available information, initiate an investigation unless he or she determines that there is no reasonable basis to proceed. Bitti explained the novelty of Article 53 in the history of international criminal justice where the Prosecutor’s decisions, especially the negative ones, were usually not subject to any criteria or judicial scrutiny contrary to what is now provided for in Article 53. He explained that States during the negotiations of the Rome Statute were reluctant to give too much discretion to the Prosecutor and therefore created a regime very different from the one existing at the ad hoc tribunals. He also insisted on the fact that the Prosecutor was prolonging preliminary examinations contrary to the jurisprudence of Pre-Trial Chambers and the ordinary meaning of the Statute. There was a need for the Prosecutor to be able to start quickly investigations in order to avoid evidence being lost and to give access to justice to victims.

Eleni Chaitidou, Legal Officer, ICC Pre-Trial and Trial Divisions, gave a lecture on the principle of complementarity in the ICC practice and the ambulatory nature of admissibility throughout the proceedings, both at the situation and case level. She also presented an overview of how the quality of national investigations and prosecutions of States challenging the admissibility on the basis of complementarity has been assessed by the ICC hitherto. In the workshop on ICC jurisprudence, Chaitidou provided food for thought on the 2018 ICC Bemba appeals judgement in which he was acquitted. She addressed the issue of the applicable standard of review in appellate proceedings and the specificity of charges, in particular the possible implications for the Prosecutor's investigation and the Pre-Trial Chamber's filter function. Lastly, she discussed the requirement of necessary and reasonable measures to be taken by a commander in his or her power to prevent or repress the commission of core crimes and to what extent the physical remoteness of the commander may impact this assessment.

Ask the experts: For Bitti and Chaitidou, ‘Victims should be put at the centre of the ICL project and their rights must be made effective. ICC States Parties must step up their efforts as regards the arrest and surrender of suspects at large. Finally, in order to strengthen the capacity to prosecute international crimes domestically ICL should be made a compulsory course at universities and during the training of prosecutors and judges.’

Angela Mudukuti, International Criminal Justice Lawyer, Wayamo Foundation, told us about national capacity building projects that she is involved with and how empowering domestic investigators, prosecutors, judges and journalists is vital for the expansion of domestic prosecutions of core crimes under international law.

Ask the expert: ‘The next 20 years of the international criminal justice project will need sustained and robust engagement from all the relevant stakeholders, constructive and solution-oriented dialogue and most importantly a victim-centred approach. Too many of have lost sight of the victims behind egregious crimes – this can no longer be the case.’

Dr Philipp Ambach, Chief of the ICC Victims Participation and Reparations Section, explained to us how victim participation at the Court has shifted the justice focus from retributive to restorative justice. Traditionally, victims were ‘objects’ in criminal trials, but now at the ICC they have an active role participating in the justice process, so they are finally recognised as active ‘subjects’. Victims’ empowerment facilitates satisfaction, ownership and thus reconciliation, leading to: a more meaningful criminal process for the victims; stronger focus on impact of crimes; and potentially a more stable and durable peace. It also legitimises the criminal process

Dr Ambach also spoke of some of the challenges, such as deciphering what the actual objectives of victim participation in ICC proceedings are? How does it relate to the criminal proceedings? Should victims influence the OTP’s charging? An even more critical challenge is ensuring the system is meaningful to victims. Some concerns are: often hundreds to thousands are represented by one sole legal representative; individual concerns of victims are often not represented; the long distances between victims in the field and counsel in The Hague; and managing expectations of victims.

Dr David Donat Cattin, Secretary-General, Parliamentarians for Global Action, and dedicated member of the SLS Faculty for 20 years, made a passionate plea to take victim protection seriously and to explore all protective measures available under the Rome Statute. He proposed more frequent use of Article 56 of the Rome Statute which is an exception to the general rule that evidence must be presented at trial, and allows collection of evidence under the oversight of the Pre-Trial Chamber which is later made available at trial. He spoke about how many of the evidentiary challenges that the ICC faces are due to external, rather than internal, reasons such as non-cooperation from states and the chronic external interference with witnesses and evidence. Dr Donat Cattin pointed to internal problems within the Court itself as well, such as early weak investigations and an over reliance on witness testimony, which has limited the availability of reliable evidence.

Professor Susan Lamb, Visiting Professor, Faculdade Direito, Universidade NOVA de Lisboa, Lisbon, developed the topic of prosecutions of atrocities committed in Syria (and Iraq). She spoke about the challenges for accountability, and how national, territorial as well as extraterritorial, jurisdictions are helping narrow the impunity gap. Novel evidence collection techniques are being introduced in the field and crimes are being adjudicated through extraterritorial and universal jurisdiction trials. But, what are their limitations? And how may non-governmental players contribute in the collection of evidence? In a second intervention Professor Lamb offered a critical assessment of the proposed UN International Law Commission draft Convention on Crimes against Humanity.

Ask the expert: ‘There are at least two major challenges ahead of us if we wish to reinvigorate the international criminal justice project. By far the biggest is the outmoded fetish of national sovereignty. The ICC is fundamentally only as powerful as its member states permit it to be, and all too often, it is constrained by power politics and unwillingness to engage with the court. Until the realisation that international justice is necessary and necessary for all, and until this realisation is reflected in actual law and policy on the ground, the project will never be a genuinely universal undertaking. And on this score, I see more hope among grassroots organisations than within governments, in the main. That said, none of this should absolve us of our responsibility to be better and to improve the calibre of leadership and governance among international criminal justice institutions - whether public institutions or the new rash of so-called 'privatised' initiatives in this area.’

Professor Suzannah Linton, Distinguished Professor, International Law Department, Zhejiang Gongshang University, China, gave an eye-opening presentation on the little-known 2,300 national proceedings against 5,700 persons in the Asia-Pacific region after World War II, and how these cases are striking evidence that ICL is not an innovation of the 'West' imposed upon the 'East'. Rather, accountability for crimes under international law is intrinsically linked to legal traditions in Asia.

Ask the expert: ‘The dialogue on international justice needs to become more diverse and global. There are some areas of the world that genuinely resent what they see as the ‘West’ claiming the moral high ground, when they themselves have fallen short. They ask about the absences from the court’s scrutiny. Some also have a perception of Hague justice as being ‘Western’, and see elements of neo-colonialism. We need to address that; and we do not do that by pretending that all is well at the ICC and making all kinds of extravagant claims about its achievements let alone those of the ad hoc tribunals. And, dismissing this as mere ‘cultural relativism’ will just confirm the suspicions and alienate those critics even further. One way to connect is to recognise that efforts have been and are made in other parts of the world to address atrocities, outside of the framework of the International Criminal Court. This is not something externally imposed. We can build on this. Education in a context that facilitates open and respectful dialogue and reflection with experts, such as that provided by the SLS for 20 years, is vital in that effort.’

Franziska Eckelmans, Legal Counsel, Kosovo Specialist Chambers, walked participants through the elements of a hybrid court, such as how they are established and financed, their application of international and national substantial and procedural law and mixed levels of local and international staffing. Eckelmans gave an overview of the ‘new kid on the block’, the Kosovo Specialist Chambers, including its origin, character and how it functions. In another lecture, she told us about the trial against Hissène Habré before the Extraordinary African Chambers in Senegal, and how this historic trial is a catalyst for international criminal justice in the region.

SLS 2018 paid special tribute to the Crime of Aggression which was listed as a crime within ICC jurisdiction in 1998 with the adoption of the Rome Statute, and on 17 July 2018 this jurisdiction was finally activated!

Ask the expert: Looking ahead, Professor Hafner pointed out the relevance of a continuous discussion of the law of the Statute, as it is still a relatively new achievement of international law and the efficiency of the ICC depends on a wide dissemination of knowledge and the building of expertise. He underlined the important role SLS has played in this area over the past 20 years and strongly advised its continuation.

Dr Reisinger Coracini gave SLS participants a thought-provoking overview of the various arguments on head of state immunities before the ICC appeals chamber. This issue is currently at the heart of an appeal by Jordan against an ICC decision finding the country to be non-compliant with the Court’s request to arrest and surrender Sundanese President Omar Al-Bashir. Dr Reisinger Coracini suggests that while it would be a bold move for the ICC Appeals Chamber to go down the ‘customary law avenue’, the argument may best represent the Rome Statute's underlying principles.

Angela Mudukuti also shared her fascinating insights on national proceedings in South Africa that were initiated by the South African Litigation Center, after SA failed to arrest and surrender President Al-Bashir during his visit to an African Union Head of States summit in 2015. In her view, at the time of the summit, it was clear that under SA’s domestic law, President Al Bashir did not enjoy immunities. The SA ICC implementing act, which domesticated the core crimes and introduced universal jurisdiction, was modelled after the Rome Statute’s Article 27, which says the Statute shall apply equally to all persons without any distinction based on official capacity. SA had also domesticated the 2009 ICC arrest warrant against Al Bashir.

A final highlight of SLS 2018 was the strong representation of women in the faculty, a brilliant and welcome change from the often male dominated events!

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