Painting “Sun God” by Chen Ping.

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Reflections on the International Criminal Trial Experience

11.07.2022

While the war in Ukraine is raging and many war crimes have been committed, the International Criminal Court (ICC), which is celebrating its 20th anniversary, is presented as one of the possible answers to fight against these crimes or, in other words, to repress them – since they cannot be deterred. Without being fooled, it is essential to note that these calls (from States, authors or the ICC itself) are guided by political issues and a need for legitimisation that international criminal tribunals have been desperately seeking for 30 years. Indeed, this same court is now being called upon to act, even though it has, in 20 years, only tried a few individuals at great sacrifice and outrageous cost. Moreover, it is important to highlight that it was the Prosecutor of the very same court who, a few months ago, ‘deprioritised’ the investigations into the crimes committed by the Americans in Afghanistan. The double standard seems to be still in place in international criminal law; since Nuremberg, international justice has finally evolved little.

Despite these political issues, the opportunity to participate in this symposium on ‘The Past and Future of the International Criminal Court’ – I am very grateful to the directors of this symposium for inviting me – allows me to return to another critical aspect of international criminal justice: the experience of the accused. Our empirical approach is based on semi-structured interviews with more than sixty individuals tried by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). These interviews allow us to better understand the functioning of international criminal justice and its impact on its primary target: the perpetrators of crimes. Indeed, the experience of the judicial system by individuals ‘does not only inform on the trajectory, the representations, the ruptures or the practices of those subject to trial; it informs just as much on the functioning of the penal system, its fixation points and its blind spots’ (see Kaminski/Kokoreff).

The experience of international criminal justice highlights a violent and inequitable procedure (A) and a law imposed by others (B). These do not allow convicted persons to recognise the crimes attributed to them. In fine, it seems that the war in which the crimes were committed persists through the international criminal trial (C).

The Violence of the Procedure

Those judged by the international tribunals acknowledge that they once believed in international criminal justice. Nevertheless, after they have experienced it, they consider the procedure violent, both physically and symbolically. All of them, convicted and acquitted, reject the legitimacy and the validity of the international criminal tribunals they experienced. Many perceive their trial as unfair, as exemplified by the following quote : ‘I have to accept this as something that fell from hell.’

In addition, those tried by the ICTY question various elements of the international criminal procedure that demonstrate the violence of the criminal process: the length of the proceedings, the heavy symbolism of the legal categories (‘war crimes’ or ‘genocide’), the severity of the sentences or the treatment they receive from judges, prosecutors or sometimes their own lawyers. They often feel that they have experienced the international criminal trial from the outside while they were at the centre of the proceedings. Furthermore, they have experienced International Criminal Justice (ICJ) with the feeling that they were listening to someone else’s story.

Justice Imposed by Others

The violence of the procedure will also appear in the feeling that international justice is above all a justice of others, or ‘out of the ground’, to quote Pierre Hazan. This distance, which places the judges outside the group to which the accused belong, is found at every moment of the criminal procedure: at the moment of arrest (they have not been arrested by members of their group – and often in a foreign country), at the moment of judgment, and at the moment of the execution of the sentence, which is carried out in States that have agreed to receive the international convicts. Referring to the ICTR, one of the participants expressed: ‘One creates the tribunal, one brings in foreigners. Foreigners who are not motivated by the spirit of justice […] Foreigners who knew nothing, nothing about the psychology of the Rwandans. It is here the outgroup justice that is highlighted and its illegitimacy.’ In addition, this impression of being judged by a justice system that is not their own appears in the forms of responsibility (such as joint criminal enterprise or superior responsibility) that they see as legal categories imposed by the West.

Non-Recognition of Crimes and Warfare Nature of International Criminal Justice

These experiences lead to two crucial elements in the analysis of international criminal justice. First, there is little or even no one who recognises the crimes attributed to them. While this is due to various psychological elements, the criminal procedure is not unrelated to this. And it is here one of the most significant failures of ICJ that must be highlighted: its impossibility to make the perpetrators recognise the crimes. The entire system is undermined, and the expectations of both victims and populations are not met.

Second, in addition to denouncing what they consider to be justice imposed by certain States, the individuals interviewed believe that the international criminal tribunals are politicised, influenced and even directed by their former enemies. For example, the persons tried by the ICTR point out that no Rwandan Patriotic Front leader has been brought before court. Thus, the war continues within the walls of the international tribunal. This analysis of international criminal law is in line with that found in the literature and among practitioners. Criticism of international criminal law appeared very early on: as early as Nuremberg and Tokyo (where only the defeated were judged), voices were raised to condemn a justice applied by the victors to the vanquished, by defence lawyers but also very quickly by observers and certain judges, such as Judge Pal in the Tokyo Trial. Similar criticism re-emerged with the ICTR, where, once again, only the defeated were judged. Finally, it reappears regularly with regard to trials held before the ICC: Only the defeated are judged The former enemy in the armed conflict becomes the enemy of all humanity with the law. Hence, international criminal law ‘does not simply try to punish offenders, but also to fight against its enemies’. In short, ‘we seek to put an end to these enemies through the law’ (see Munoz Condé).

As one can see, the will to answer international crimes with international justice is just another way to continue the war and its political issues. And it is not the decisions issued by the ICC Prosecutor mentioned in the introduction that will contradict this conclusion.

Author
Damien Scalia

Damien Scalia is a professor at the Université libre de Bruxelles. His research studies focus on legality and penalties in international criminal law. He is currently conducting a multi-year project analysing perpetrators’ perceptions and experience of international criminal justice. Previously, he was a researcher at the Geneva Academy of International Humanitarian Law and Human Rights, the Columbia Law School (New York), and the Irish Center for Human Rights.

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