Abstract
This article examines the role that international criminal justice plays, firstly in creating history, and secondly in protecting history. With regards to the former function, history, in terms of historical truths and narratives are frequent casualties of war and so the first major thread of this discussion outlines the historiography of international criminal justice through the prism of the illustrative case of Al Mahdi before the International Criminal Court. In other words this paper aims to set out an overview of the approaches and strategies as well as the constraints within which international criminal justice develops historico-legal narratives when pursuing its primary goals of retribution and deterrence. With regards to the latter function, history, in terms of cultural heritage, may often be destroyed in order to annihilate the identity and even the existence of a people. Accordingly, the second major thread of this discussion is that when it comes to memorialising the significance of cultural property and the impact of its destruction for the benefit of our collective memory, Al Mahdi is an emblematic case. It represents a careful balance between legal pragmatism and legal principle in a context where the icc arguably has to manage greater budgetary and therefore strategic constraints than those faced by the ad hoc tribunals for the Former Yugoslavia and Rwanda, which have been criticised as being too expensive and too expansive in responding to atrocity crimes.
1 International Criminal Justice as a Commemorative Process
Post-conflict restoration of peace and security may be served by transitional justice initiatives such as international criminal trials. This paper argues that whilst international criminal trials have as their primary focus the functions of individual retribution and deterrence, increasingly they contribute to the emotional and economic recovery of victims through what may be described as a process of historical fact-finding resulting in judicial verdicts. From the point of view of victims, the latter function can provide closure by acknowledging and validating the impact that atrocities have had on the victims. 1 In this way the process of international criminal justice may be regarded as having a memorial function which serves to “mediate, represent and spark memories.” 2
As many historiographical analyses of transitional justice initiatives have been written by historians, sociologists, and political scientists and tend to have a regional or a phenomenological focus, this discussion critiques the ‘historiography’ of international criminal justice from a more normative and procedural perspective. 3 Within the context of international criminal trials, commemoration may be achieved through the process of gathering and testing evidence of competing narratives in a relatively rigorous and credible fashion, and then producing a detailed judicial account of the organisations behind the atrocities, the individuals behind the organisations and the motivations behind the individuals. Having such an authoritative and forensic account of causation and culpability for atrocity crimes may, according to D’ascoli, “preserve the historical memory of the international community”, 4 foster post-conflict reconciliation between victim and perpetrator groups, and prevent subsequent historical revisionism and distortions.
This paper suggests that a ramification of the pragmatism and procedural propriety associated with the criminal investigation and trial process may be that crime base evidence is not comprehensively established, and criminal acts may not be labelled to the satisfaction of all victims. Justice and the historical record may only see what is absolutely necessary to determine liability for specific criminal acts beyond reasonable doubt. Furthermore, where questions of command responsibility for indirect perpetrators are concerned, weight will necessarily be given to high-level insider witnesses who can attest to atrocities being committed through seemingly hidden structures of power. Direct eye-witness testimony of the acts committed by the direct perpetrators may not be entirely probative of the specific form of de facto or de jure control over subordinate organisations and individuals used to commit crimes. Restrictive rules combined with budgetary constraints may therefore severely hinder the ability of international criminal justice to commemorate comprehensively the wide-ranging voices of victims and each and every atrocity that they have suffered. 5 International criminal justice is financed either directly or indirectly by States, and this will often circumscribe the locations and scope of criminal inquiries. It incentivises a prosecutorial and judicial economy which tends to adopt a means-end rationality that has implications for the historiography of international criminal justice. 6
Whilst victim communities may justifiably perceive that genocide or crimes against humanity have been perpetrated against them, the evidentiary difficulties, and thus the risk of acquittal, associated with demonstrating genocidal intent or a widespread and systematic pattern and policy of persecution at trial may deincentivise the labelling of atrocities in such terms. 7 To increase the likelihood of a conviction prosecuting lawyers may therefore press charges for what may be perceived as less serious categories of war crimes or they may charge cumulatively in order that lesser war crimes charges stick should there be an acquittal for more serious offences relating to genocide or crimes against humanity, e.g. due to insufficient evidence. War crimes tend to focus more narrowly on relatively isolated criminal activities such as killing protected persons or destroying protected objects, without having necessarily to examine any broader social and historical contexts. From the standpoint of victims, such an approach may not reflect the perceived reality that they faced systematic annihilation or persecution on account of their particular group identity.
Where realpolitik allows, transitional justice initiatives serve to demonstrate the power of the law to create a record that comprehends and reintroduces order into spaces evacuated of legal and moral sense. This may help victims to move forward, promote reconciliation and have a deterrent effect, especially where justice is delivered expeditiously. In times like the present, information communications technology increasingly enables insidious forms of socially and politically destabilising information manipulation, for example, where falsehoods are presented as facts as part of disinformation operations, and where reliable information is denigrated as so-called ‘fake news’ as part of misinformation operations. Particularly where ‘information operations’ result in unlawful conduct that has serious reverberations at the national and international levels, legal inquiries such as criminal trials can and should be used to prevent distorted narratives by providing rigorous investigations and reasoned judicial verdicts. However, such a reasoned approach may only succeed if its achievements are disseminated through adequate and sustained outreach initiatives. 8
2 Memorialising the Significance of Cultural Heritage: A Careful Balance between Principle and Pragmatism
Despite the extensive efforts to define cultural property, no universal definition currently exists for this elusive concept. 9 Both Forbes and Blake suggest that the varied definitions of cultural heritage (or cultural property) risk contributing to the lack of uniformity in cultural property protection laws and over-extending the scope of the term without having a sound legal basis. 10
The approach of international criminal justice has generally been to regard crimes against protected persons as being more serious than crimes against protected property. 11 The judgment in Al Mahdi balances the implicit acknowledgement that the protection of cultural property is an important part of international criminal law with the explicit acknowledgement that “even if inherently grave, crimes against property are generally of lesser gravity than crimes against persons”. 12 This is consistent with Hersch Lauterpacht’s approach to the scope of legal protection. Namely, the law should focus on protecting the individual, irrespective of the group to which they belong. 13 This perspective is reflected in the 2014 film Monuments Men, where the character Lieutenant Frank Stokes (played by George Clooney) pleads that in war, “lives are lost and with them often times their greatest achievements.” 14
This contrasts with Raphael Lemkin’s holistic approach to protection. 15 Namely, the law should go further and encompass the legal protection of groups. According to this perspective, to provide adequate protection, legal approaches should understand and reflect the reality that for most individuals in most wars, individuals are not persecuted on account of their individual qualities, but because they belong to particular group with a distinct identity, culture and history. 16 This perspective is reflected in the argument of our Lieutenant Frank Stokes that “[y]ou can wipe out an entire generation, you can burn their homes to the ground and somehow they’ll still find their way back, but if you destroy their history, you destroy their achievements and it’s as if they never existed”. 17 Indeed, Lemkin argued that social groups may exist by virtue of their common culture, and so in addition to destroying a group physically by killing its members, the culture and way of life of a group may be destroyed to such an extent that it disintegrates, and its members “must either become absorbed into other cultures which is a wasteful and painful process or succumb to personal disorganization and, perhaps, physical destruction.” 18 For Lemkin, “derived needs”, i.e. the cultural life of a group, are “just as necessary to their existence as the basic physiological needs” and these needs “find expression in social institutions”, which frequently comprise both tangible and intangible cultural heritage. 19
physical destruction of a group is the most obvious method… one may also conceive of destroying a group through purposeful eradication of its culture and identity resulting in the eventual extinction of the group as an entity distinct from the remainder of the community.
Accordingly, the Trial Chamber in Kristić noted that the intent to physically destroy a group will often be evinced further through simultaneous attacks on a group’s cultural and religious property and symbols. 20
Echoing the significance of cultural heritage, unesco Director-General Irina Bokova stated that “the deliberate destruction of heritage is a war crime” and that “it has become a tactic of war to tear societies over the long term, in a strategy of cultural cleansing … [t]his is why defending cultural heritage is more than a cultural issue, it is a security imperative, inseparable from that of defending human lives.” 21 Furthermore, Security Council Resolution 2347 and the International Criminal Court’s (icc) Judgment and Sentence in Al Mahdi are important in showing recognition that international criminal law has an important role to play in protecting cultural property given its role in preserving the memory of people’s historical roots as well as cultural diversity.
When atrocities are committed against people as well as the cultural life of a group in the form of its social institutions, then both present and future generations have an interest in knowing about the criminal organisations that committed atrocities, the individuals who lie behind these organisations, and the motivations that lie behind these individuals. 22 This is one of the legacies of the Nuremberg trials, and arguably a schism which arose between Lauterpacht and Lemkin, as well as between the British, American and Russian delegations to Nuremberg during these trials which can still be felt today. This schism concerns the question of how we deal pragmatically with the legacy of mass atrocities caused by organisations and individuals with ideological and/or political motivations. One approach, rooted in the Nuremberg legacy, can be found in the mandate of the icc, which seeks to end impunity and deter those crimes that are regarded as the most serious crimes of concern to the international community through penal repression, namely, and in order of supposed gravity, genocide, crimes against humanity and war crimes. 23
To this end, two overarching icc objectives include ensuring individual trial proceedings are expeditious and that desired results are achieved with minimal resources. 24 Therefore, two pragmatic concerns that lawyers must face are, firstly, how wide and how deep the net is cast when it comes to investigating and presenting a case, and secondly, to what extent is it feasible, at a given point in time, to build-up a record of atrocity crimes in a way that satisfies multiple stake-holders given the range of constraints that are faced.
It is suggested that these considerations are evident in Al Mahdi. Indeed, at the time of writing, when one looks the litany of crimes reasonably believed to have been committed against protected persons by different sides to the series of non-international armed conflicts occurring in Mali since January 2012, Al Mahdi is a case involving just one individual conviction for just one charge of a war crime for attacking mausoleums and mosques in Timbuktu.
Al Mahdi is the first case of its kind in that it contrasts with International Criminal Tribunal for the former Yugoslavia (icty) cases such as Blaškić, Naletilić & Martinović, and Kordić, as well as the second case to come out of Mali, namely Hassan currently at the pre-trial stage, where more serious crimes against humanity were charged and where persecution was manifest through a range of offences against both persons and property, not merely the destruction of cultural and religious heritage. This is despite the fact that the role Al Mahdi played in destroying cultural heritage was that of a mid-level leader/perpetrator within a network of organised armed groups who had a common criminal plan that had serious religious persecution at its core, and which could be linked to the commission of other more serious crimes. The Office of the Prosecutor’s 2013 Report entitled the ‘Situation in Mali’ found a reasonable basis to believe that, inter alia, the following crimes had been committed: murder, mutilation, cruel treatment and torture, rape, using, conscripting and enlisting children, and sentencing or execution without due process. 25 Nevertheless, in view of the icc’s mandate that “the most serious crimes of concern to the international community as a whole must not go unpunished”, and in view of the English saying “set a sprat [a small fish] to catch a mackerel [a big fish]”, 26 Al Mahdi’s conviction may form part of the process of building-up cases against the leaders of Al-Qaida in the Islamic Maghreb (‘aqim’) and Ansar Eddine/Dine in the future. Such cases could have historic value were they to adjudicate whether such acts constitute genocide or crimes against humanity, and were they to link the extreme forms of religious ideology to the commission of atrocity crimes.
Despite uncertainties in 2016–2017 about the extent to which the situation in Mali will be further uncovered due to constraints on the Court’s resources, demand for its intervention in other situations and the security situation in Mali, 27 the Mali authorities surrendered Al Hassan to the icc on March 31 2018. The case is currently at the pre-trial stage and involves charges of crimes against humanity and war crimes. This case is linked to Al Mahdi and will serve to help build up a bigger picture of the individuals and organisations through which atrocity crimes were committed in Mali. Furthermore, it may, in time, form part of the Court’s strategy of “gradually building-up” towards separate or joint cases against the aqim and Ansar Dine ‘big fish’ most responsible for atrocity crimes committed in Mali since 2012. 28
Nevertheless, for present purposes, despite its focus on the legal protection of cultural property by prosecuting one mid-level perpetrator, the Judgment and Sentence in Al Mahdi may be regarded as an emblematic case for an emblematic city, and in any case, this may have been exactly what the Government of Mali wanted when it referred the situation to the icc in July 2012, for instance, having the icc ‘on its side’ in an ongoing situation of violence, whereby the icc effectively functions as an instrument to condemn the acts of its enemies as beyond the pale of international law and international civil society. In itself Al Mahdi reveals some of the tensions and constraints that international criminal justice faces as it struggles to achieve its primary objectives of retribution and deterrence. 29 Broadly speaking, these constraints are substantive, procedural and institutional in nature and all revolve around this central and contested issue of legal pragmatism. At one end of the spectrum there is the pragmatic trial strategy perspective that international criminal trials are solely concerned with delivering justice through individual retribution, and, with an instrumental or means-end rationality, they should be as expeditious and as cost-effective as possible in order to achieve an ‘optimal result’ within the available time and resources. 30 At the other end of the spectrum there is the perspective that whilst being pragmatic in these regards, international criminal trials can and should contribute to transitional justice by establishing and documenting the truth for the historical record and collective memory. 31
International criminal trials are suited to this purpose as they produce trial records that provide in-depth analyses and weighing-up of competing versions of events, also described as ‘case theories’ or ‘case narratives’. Such narrative accounts aim to reconstruct events and may also place them in their surrounding context in order explore their meaning and significance. In this way judicial fact-finding and adjudication may be regarded as a unique and valuable form of history writing which is based on the independent and impartial scrutiny of materials such as witness statements and live witness testimony, exhibits, investigative reports, and written legal arguments. Such materials may, following a trial, also serve as valuable educational and historical resources that help to shape, validate and preserve collective memory of events so serious that they have reverberations at local, national, and international levels due to the existential threat that such crimes pose to individuals and groups. 32
This part of the discussion proceeds to outline the historiography of the process of international criminal justice through the prism of Al Mahdi. In other words, it generally discusses the methods and processes by which we develop historico-legal narratives. In its own right, Al Mahdi demonstrates that international criminal justice can offer a greater level of protection for cultural property than that offered under international and regional human rights law, particularly in non-international armed conflicts where cultural vandalism associated with communal violence is most likely to occur. 33 In contrast with multilateral human rights treaties, such as the 1954 Hague Convention, international criminal justice has expanded its jurisdiction, as well as its substantive and procedural law to intervene and hold individual state and non-state actors to account for the destruction of cultural and religious property. Individual prosecutions may serve as a stronger deterrent to the types of serious cultural vandalism that can escalate communal violence. Furthermore, as part of its adjudicatory, retributive and restorative functions, Al Mahdi indicates that it can reinforce and promote an appreciation of the significance of cultural property, particularly that with unesco World Heritage status. It demonstrates the power of the law to provide a nuanced and culturally sensitive understanding of the impact of its destruction at the individual, community, regional and international levels. 34
Al Mahdi is selected as the centre of gravity within this discursive contribution because it illustrates the role that international criminal justice can play in both protecting history and mediating narratives for the historical record and collective memory. In doing so, it represents a careful balance between legal pragmatism and legal principle in a post-icty/R strategic environment. In particular, it is suggested that the legal and practical constraints surrounding this case need not be considered detrimental to either the interests of justice or the process of constructing history.
The “methodological individualism” inherent in the criminal process need not merely present a low-level perpetrator as bounded by their own personal circumstances and motivations, but may also be used to illuminate the surrounding social, political and historical context of mass atrocities. Whilst treading carefully around the issue of the collective nature of mass atrocities, since Nuremberg, international criminal justice has gradually developed the conceptual and methodological tools for understanding and exposing “system criminality” that may involve complex and diffuse organisational networks that enable high-level offenders to appear at arm’s length from the direct perpetration of collective violence, and so maintain plausible deniability when it comes to their responsibility for any atrocities involved in its commission. 35 It is suggested that the narrative function of international criminal justice is strong given that the function of attributing responsibility to an individual is often contingent on contextualisation, or in other words situating their acts, or indeed their agency, within a particular cultural, historical or political background. 36 This approach is instrumental in marrying “intentionalist” approaches to interpretation, whereby mass atrocities are orchestrated in a top-down fashion by individuals playing leadership roles, with “functionalist” approaches to interpretation, whereby mass atrocities arise in a bottom-up fashion as a result of the confluence of any number of social, cultural, political, economic and historical factors operating within a state or community. 37
3 The Functions of International Criminal Justice: The Construction of Memory?
Some of the broad goals of international criminal justice, which can be identified from the practice of international criminal tribunals in the 20th and 21st Centuries include:
- (a) Re-establishing the rule of law and restoring peace and security by ending cycles of violence;
- (b) Ending impunity for violations of the laws and customs of war through individual penal repression and punishment for violations of the laws and customs of war, especially for senior political and military leaders;
- (c) Deterring the future commission of such crimes;
- (d) Providing fair and expeditious trials;
- (e) Enforcing, interpreting and developing the rules of international criminal law and procedure;
- (f) Providing a sense of justice and closure for victims; providing a safe forum for victims to tell their stories; ending cycles of violence;
- (g) Fact-finding: creating an accurate investigation and trial record which can contribute to the historical record of any given situation; a truthful record that may prevent later deniers and revisionists; exposing the motivations behind criminal enterprises that have historic consequences;
- (h) Didactic: providing public discourse with a detailed account of the key features of atrocity crimes, including the key individuals, organisations and events, as well as any patterns involved in their commission;
- (i) Providing a forum for restitution and reparations;
- (j) Reintegrating convicted persons into society. 38
Whilst this unranked typology of objectives gives recognition to the historical fact-finding and didactic aims of international criminal justice, the issue of whether they accord with the mandate of the icc is contentious.
A Aims of the icc: icc Statute
Aims outlined at (a) to (d) above are reflected in the Preamble to the icc Statute (iccs) which mandates the icc “to put an end to impunity for the perpetrators” 39 of “the most serious crimes of concern to the international community”, 40 the raison d’etre being “such grave crimes threaten the peace, security and well-being of the world.” 41 Therefore, these crimes “must not go unpunished” and so must be repressed through “effective prosecution” 42 with the aim of contributing “to the prevention of such crimes”. 43 Although goals (g) and (h) are not expressly mentioned in the Preamble per se, in many cases they are arguably a side-effect of aims outlined at (a) to (f) above, which are reflected in the iccs, its Rules of Procedure and Evidence (rpe) and as well as icc policy and strategy.
With regard to aims (a) to (d) above, the Preamble to the iccs indicates that the icc should be “[d]etermined to these ends” both in themselves “and for the sake of present and future generations”. 44 At this stage of the discussion, one may read into this that “present and future generations” should not only be deterred from the commission of such grave crimes on account of the retribution that can be meted out on behalf of the direct victims, but also that it enables the public, in the present and in the future, to be informed about situations of historical atrocity crimes, for example, in terms of what exactly happened, who was most responsible as well as when, where, and why atrocity crimes occurred. Accordingly, aims outlined at (g) and (h) above are considered as concomitant aims, or aims which may naturally accompany or follow the primary aims outlined at (a) to (f) above. This gives rise to a major theme of this discussion, which will now proceed to outline the fact-finding function of international criminal justice, and then generally assess the extent to which its outputs have concomitant value as didactic and historical sources for present and future generations.
B Methods for Achieving the Aims of International Criminal Justice
The historical fact-finding function is reflected in and bolstered by the various functions, powers and obligations conferred on the Prosecutor and the Trial Chambers by the iccs, its rpe and its internal policy. The rules and policies established in these documents set out the methods by which aims (a) to (f) above are achieved. Concomitantly, they demonstrate the rigor and authoritativeness that can be brought to functions (g) and (h). Accordingly, one of the major goals of this discussion is to give a general overview of the methods used to achieve these functions in order to critique the ‘historiography’ of international criminal justice. This is intended to serve as a useful point of comparison for students and scholars of history and social sciences.
In comparison with other disciplines, international criminal justice is constrained by relatively strict and rigorous substantive and procedural rules of law relating to the objects of inquiry as well as the relevance and admissibility of evidence. In this way, from the point of view of pursuing historical truth, they constitute a double-edged sword. On the one hand, they aim to ensure that criminal proceedings are conducted in a fair, impartial and expeditious manner. 45 To this end, they forensically examine testimony and exhibits in order to reconstruct events with a high degree of accuracy in order to establish those facts relevant to criminal charges contained in an indictment. Hence a core function of criminal proceedings is to construct, as far as possible, a comprehensive and accurate narrative of events from all of the evidence admitted onto the trial record. On the other hand, in the process of connecting specific laws to the specific facts that support them, the substantive and procedural rules applicable in criminal proceedings may have the unfortunate effect of sifting out historically relevant information on the basis that it is not relevant towards the elements of the specific charges contained within an indictment, or on the basis that it is inadmissible, for example, because it was obtained unlawfully, such as through torture or bribing witnesses. 46 Nevertheless, examples such as this show that the criminal process will seek to interrogate the sources of information and the methods by which it has been obtained in order to assess its truthfulness, its credibility and its weight.
In general terms, while the historiography of international criminal law incorporates standards that are advantageous, i.e. because they arguably require higher standards of rigour, fairness and impartiality than other historical disciplines, it may also be suggested that its hands are tied by those same standards, whereas other historical disciplines are not. 47 Potentially this gives those seeking “historical truth” rather than “courtroom truth” comparatively more academic freedom to pursue broader factual inquiries and achieve broader historical narratives. In particular, given that proponents of historical disciplines outside the legal process are not necessarily constrained by normative frameworks that serve to condition evidential requirements in the context of individual criminal proceedings, it may be suggested that there is greater interpretive licence necessary in order to create history by putting forward theories on matters such as motivation and causation that range from “intentionalist” perspectives to “functionalist” perspectives, as described above.
C The ‘Historiography’ of Criminal Investigations and Trials
This discussion seeks to complement Law and Memory, an edited collection of work which in part argues that “judicial history-writing” is manifest in the work of international courts. Furthermore, it suggests that they may have value in establishing narratives that possess “expressive weight”, defined as the opportunity for a version of events or claim to be heard and discussed adequately, as well as “substantive weight”, defined as the process of validating certain factual or normative claims. Law and Memory suggests that by providing “expressive” and “substantive” weight to certain historical accounts, international criminal justice can serve to shape “the collective consciousness of the global community”. 48 Arguably, the gap in Law and Memory that this contribution seeks to fill concerns, in general terms, an discussion of the methodologies and strategies with which “judicial history writing” is constructed and given its “expressive” and “substantive” weight. 49
As stated, international criminal justice does not grant its practitioners complete academic freedom to inquire into whatever situation they think matters. At the outset, what can be subject to an investigation is constrained. For there to be an investigation, and thus the possibility of historical fact-finding, the icc Prosecutor must first be satisfied that there is a reasonable factual and legal basis to proceed. The Prosecutor’s ‘academic freedom’ or discretion in this regard is constrained. Pursuant to article 53(1) (a) of the iccs, the Prosecutor has to be satisfied that there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been, or is being, committed. As part of this, there must be a reasonable basis to believe that the matters are within the temporal, subject-matter, and either personal or territorial jurisdiction of the court. The matter must then be admissible within the terms of the iccs, i.e. it is not being investigated and prosecuted by a State, it must be sufficiently serious, and it must be in the interests of justice to investigate. 50 To this end, Article 53(1) iccs provides the basis for a transparent and rigorous analysis of a range of events and information. Whilst not all of the issues may immediately go forward to trial, preliminary reviews and reports certainly provide a useful overview of events that have occurred within any given situation. As discussed, quite often the inability to proceed to trial is due any combination of jurisdictional, budgetary and evidentiary requirements. 51 For example, whilst the requirement of temporal jurisdiction is a major obstacle for the icc in adjudicating historic events for the historical record, it does not preclude the establishment of ad hoc criminal tribunals for historic abuses, provided that the principle of non-retroactivity of the criminal law is not being violated. 52 For example, the Extraordinary Chambers in the Courts of Cambodia were established to try the Khmer Rouge leadership for the most serious violations of international humanitarian law committed during the Cambodian genocide between 1975 and 1979.
Following an investigation, the Prosecutor has the discretion whether or not to commence a prosecution. At this stage, situation reports outline general factual information that may serve as useful starting points or frameworks for later historical inquiries and analyses. Preliminary reports, or aspects of them, may not proceed to further judicial examination at trial where the Prosecutor finds, inter alia, that there is an insufficient legal or factual basis to seek a warrant or summons, or the case is generally inadmissible, for instance because the case is being prosecuted at the national level, or it is of insufficient gravity to warrant an icc investigation. 53 The reason for noting this is that preliminary investigations and reports employ methods and strategies that give them a comparative advantage over other forms of transitional justice and disciplines involved in creating history.
Prosecutors are duty-bound to perform effective investigations and prosecutions and are bound to establish the truth. In this regard the Prosecutor is required by the iccs to ensure that investigations cover all facts and evidence relevant to an assessment of whether or not there is criminal responsibility. 54 To this end, the icc Investigations Division and Prosecution Division must investigate incriminating or inculpatory factors (which evince an accused’s guilt) and exonerating of exculpatory factors (which evince an accused’s innocence) equally. In doing so, they will collect and examine a range of evidence, call and question persons being investigated, victims and witnesses and seek the cooperation of any state or intergovernmental organisation. 55 This requirement to gather inculpatory factors as well as exculpatory factors tends to promote balanced accounts, rather than one-sided pictures. Rules of procedure and evidence set out strict rules on the collection of evidence to ensure that it is not obtained in an improper manner or otherwise interfered with or tainted. 56
4 Opportunities and Threats to Effective icc Investigations and Prosecutions
A Investigative Capabilities
Having the duty to establish the truth is predicated on having the capacity and capabilities to do so. In terms of capabilities to gather information on inculpatory and exculpatory factors, the icc Investigation Division, through the Investigations Analysis Section, seeks to employ innovative procedures, tools and methodologies in order to ensure that investigative activities conform to international standards of best practice. It helps the Prosecution Division meet its strategic goals by providing it with diverse forms of support, including a range of science and technology based evidence. The potential benefits of the exponential increase in the use of technology to monitor and then prove the commission of crimes at court, and have this on the historical record, may only be fully realised if the investigation and prosecution teams have the budget for sufficient training and capacity building in order to adequately process, analyse and present the large amounts of information to the requisite standards of proof. This is necessary in a global information environment where large amounts of information are disseminated through the “dynamic and volatile” medium of the internet. 57 The Investigation Division is run as an Integrated Team comprising investigative teams, which are made up of investigators, analysts and data management personnel. These teams focus their activities on collecting evidence on victimisation, crimes, suspects and the links between them by pursuing lines of inquiry into matters such as a suspect’s role within a structure or organisation as well as the knowledge and intent behind the crimes. 58 The Investigation Division also includes specialised sections such as the Forensic Science Section, which provides the Integrated Team with expertise and evidence in areas such as cyber investigation and crime scene investigations. 59 Prima facie, the Investigation and Prosecution Divisions have the mandate and the capabilities, but, as we shall see below, not necessarily the capacity to establish the truth for the historical record. They may be able to go directly to the sources of information, such as those being investigated, victims and witnesses. The latter may range from eye witnesses to expert witnesses and insider witnesses, who may have first-hand knowledge of key people and events involved in the commission of crimes. Investigators may also have direct access to a range of raw audio, visual and written evidence before it has been subjected to analysis and processing for the purpose of pre-trial and trial proceedings. Al Mahdi is an example of the advantages and disadvantages of the global information environment when it comes to prosecuting war crimes. On the one hand, there is a proliferation of often self-incriminating evidence, such as photographs and videos that are posted to social media platforms, often by the perpetrators themselves, that clearly identifies who is doing what and why they are doing it. This will often create public outrage together with demands and expectations that those responsible face justice. However, this type of evidence may often be insufficient for evidencing the criminal responsibility of senior leaders who can separate themselves from the commission of crimes by using complex and diffuse organisational structures that hide and blur lines of de facto control and authority over the direct perpetrators.
Overall, the availability of highly probative evidence is usually dependent on the cooperation of states, victims, witnesses and perpetrators. Nevertheless, where the political, diplomatic and sometimes legal challenge of securing cooperation is overcome, the historical record will be enriched by the materials gathered during investigations. 60
B Strategic Imperatives: The Art of the Possible
The icc’s overarching strategic objectives include ensuring quality of justice by conducting fair and expeditious public proceedings and to act as a model for public administration by excelling in and achieving desired results with minimal resources through streamlined structures and processes. 61 The icc’s overarching strategic objectives are reflected in Office of the Prosecutor (otp) strategic objectives, which include the provision of impartial, independent, high-quality, and efficient preliminary examinations, investigations and prosecutions. 62
The Prosecutor’s legal duty to establish the truth by covering all facts and evidence relevant to an assessment of individual culpability is thus conditioned by prosecution strategy. This currently requires investigations to be in-depth and open-ended whilst at the same time maintaining focus in order to ensure that they are conducted efficiently and are prevented from over-expanding. Pre-trial investigations and situation reports may, therefore, establish reasonably comprehensive accounts of atrocities in any given situation, as indicated by the otp’s ‘Situation in Mali Article 53(1) Report’. 63 Such reports are accessible to the public and provide chronological accounts of key events and crimes together with details of the organisations suspected to have been involved in their commission.
Here we begin to see a slight tension between an “upstream” policy of in-depth and open-ended investigations and “maintaining focus” for prosecutions “downstream”. This strategy is undoubtedly conditioned by budgetary constraints which seek to make prosecutions efficient and cost-effective by front-loading resources at the investigations stage. 64 In terms of efficiency, judges want prosecution cases to be trial ready by the time of confirmation of charges hearings so that proceedings can move forward expeditiously. If they are not trial ready, then more court time may be needed to resolve complex legal and factual issues during the trial stage, and the process is nowhere near as cost-effective as it could otherwise be if contested issues are identified and resolved at the pre-trial stage.
To promote the efficiency and cost-effectiveness of trial proceedings, current otp strategy, firstly, is to expand and diversify the collection of evidence during investigations so that prosecution cases are backed-up by a stronger range of evidence, and secondly, to apply multiple case theories or narratives, both incriminating and exonerating, throughout investigations. 65 Additionally, the otp has a policy of “gradually building upwards”. 66 In many situations, this may mean that despite the policy of in-depth and open ended investigations, initial investigations and prosecutions may be focused on a limited number of low to mid-level perpetrators in order to develop cases against high-level offenders.
This strategy is aimed at overcoming the challenges associated with proving the criminal responsibility of senior leadership figures to the required evidentiary standard, particularly at the early stages of an investigation. Indeed, the otp has noted that understanding the roles and functions within the types of complex, decentralised and diffuse organisational structures used by non-state actors is a challenge, especially where specialised investigative techniques associated with monitoring organised crime networks such as infiltration, informants and voice and communications intercepts cannot be used because of the security environment and resource limitations, or because there is an absence of cooperation from States in supplying these types of evidence. 67 Even though prosecuting low to mid-level offenders does not accord with the overarching policy of prosecuting those most responsible for crimes, i.e. senior political and military leaders, focusing on low to mid-level perpetrators is a strategy intended to enable a realistic prospect convicting those most responsible for serious crimes at a later stage. 68 Arguably, in the process of pursuing this form of transitional justice, it is “cost-effective” to have successful prosecutions against low to mid-level perpetrators at an early stage, rather than having charges dismissed or acquittals in ‘big cases’ involving those most responsible for the crimes. In the early stages there may not be a surfeit of relevant and admissible evidence which can be used against leadership figures at trial. 69 Yet, aside from such pragmatism, the willingness to prosecute at this lower level still sends the messages that it is the gravity of the crime that drives such decisions and that justice is being delivered swiftly and expeditiously for the victims – an outcome that may not be feasible in complex leadership cases involving charges for serious crimes such as genocide.
1 Strategic Imperatives at Play in Al Mahdi
Such prosecution strategies are manifest in Al Mahdi, e.g. “maintaining focus” and “gradually building upwards” in order to ensure effective and cost-efficient investigations and prosecutions.
Firstly, with regard to “maintaining focus”, the Prosecutor’s choice of law was indeed focused, as in narrow, and arguably so for valid strategic reasons. Any given set of facts may give rise to war crimes, crimes against humanity or genocide, either as freestanding charges or cumulative charges. An important consideration therefore is whether it matters to the historical record what legal framework is applied to a given set of circumstances. For instance, would charging Al Mahdi for a crime against humanity rather than a war crime have resulted in a more nuanced and comprehensive trial record? Has applying war crimes perspective rather than a crime against humanity perspective impaired or devalued the historical account of what happened in Timbuktu? 70
In Al Mahdi, the prosecutor proceeded with an investigation for war crimes rather than crimes against humanity, because as at the time of making this decision the available information did not provide a reasonable basis to conclude that crimes against humanity had been committed. 71 Indeed, putting the issue of crimes against humanity to one side, Schabas has gone as far as to query whether a war crime per se was committed. He questions whether the destruction of cultural heritage with basic tools constitutes an “attack” and thus a war crime if it was not part of military or combat operations against an adversary at the time. 72 Seen in this light, a mere conviction for a war crime together with the detailed trial record that it produces is a major achievement. However, Schabas’s argument that “[i]n ordinary usage, the term ‘attack’ is not the word that would be used to describe the demolition or destruction of structures, using implements that are not weapons or military in nature, and where armed adversaries are not to be found within hundreds of kilometres” may not bear scrutiny from those who have directly experienced internecine communal violence that has a nexus to a surrounding armed conflict. 73
By strategically opting for a war crimes prosecution, the Prosecutor opted for a legal framework of war crimes under iccs Article 8 (2) (e) (iv), which in terms of the legal and factual issues that have to be established for a conviction, is comparatively narrower and arguably less complex and contentious than crimes against humanity, genocide proceedings or even the war crime of attacking specially protected civilian objects as suggested by Schabas. For the latter, all the Prosecutor had to establish was that Al Mahdi intended to direct an attack at buildings dedicated to religion or historic monuments, that it took place within the context of a non-international armed conflict, and that the accused was aware of the factual circumstances of this context. 74 Without wishing to split hairs on this point, the iccs as well as laws and customs of humanitarian law are quite clear that attacks must not be directed at civilian objects, and specifically, buildings dedicated to religion or historic monuments, unless they are military objectives, as they are quite simply outside the conduct of hostilities. This is prohibited per se. To introduce the issue of whether the conduct constitutes an attack that is part of a military operation against an adversary is extraneous. It serves to conflate ‘Hague rules’ on permissible means and methods involved in the conduct of hostilities and ‘Geneva rules’ on safeguarding protected persons and objects which are outside the conduct of hostilities and have fallen into enemy hands. Such a conflated approach risks undermining protection under the laws and customs of war. 75 It is suggested that no “judicial creativity” is needed to determine that destroying specially protected civilian objects with basic hand tools specifically designed for digging and demolition, particularly where there is evidence of a plan to eradicate the cultural heritage of a minority group, and evidence of a nexus to a surrounding non-international armed conflict, constitutes an attack. The laws and customs of war may construe an attack in this context quite simply as an act of violence, destruction, or wilful damage directed at civilian objects outside the conduct of hostilities, and which has a nexus to a surrounding armed conflict. 76
To secure a conviction for the crime against humanity of persecution, the Prosecutor would have needed to have established, inter alia, that widespread and systematic attacks had been committed against the civilian population by an organisation as part of an overall organisational plan or policy, and that Al Mahdi knew that the conduct was part of, or intended the conduct to be part of such a widespread or systematic attack. Additionally, the Prosecutor would have needed to have demonstrated that such conduct was committed in connection with any other crime against humanity or any other crime within the jurisdiction of the court. 77 To have gone as far as securing a conviction for genocide, then the Prosecutor would have needed to have demonstrated that Al Mahdi had the specific intent to destroy a group in whole or in part. As it currently stands within international criminal law, this would have been impossible if the destruction merely involved cultural property, unless this was, for instance, deliberately calculated by Al Mahdi to inflict conditions to bring about the physical destruction of an identifiable religious group. Whilst either of these two serious crimes may have been true for what occurred in Timbuktu, actually proving that they are true within the context of international criminal proceedings is a remarkably different matter.
Sebastían Martínez took issue with the Prosecutor for using her discretion to discard crimes against humanity in favour of pursuing war crimes allegations on the basis that the protection of cultural property may be better advanced by the former. 78 Martínez went as far as to argue that the prosecutor at the time should have acted “as a diligent organ of justice” and used the discretion and resources available to her in order to investigate crimes against humanity and submit cumulative charges for both war crimes and crimes against humanity. 79 However, apart from stating that crimes against humanity can “be applied to sanction the destruction of cultural property and, unlike war crimes, is applicable to peacetime”, Martínez does not set out any further arguments as to why we should favour proceedings for crimes against humanity over war crimes given some of the constraints presently under discussion. 80
Perhaps Martínez’s preference for crimes against humanity stems from the approach of the icty relating to the protection of cultural property which has confirmed that the intentional destruction of such religious property may amount to “an attack on the identity of people and as such, it manifests a nearly pure expression of the notion of ‘crimes against humanity,’ for all of humanity is indeed injured by the destruction of a unique religion’s culture and its concomitant cultural objects.” 81 Wierczyńska and Jakubowski pick up on this theme and come to the conclusion that it will only be a question of time before the icc will deem the destruction of cultural property not solely as a war crime but as a crime against humanity or even genocide given the limited scope of war crimes. 82 However, any advantages associated with using, for example, the legal framework of crimes against humanity to gather and interpret testimony and evidence have to be weighed against the risks and uncertainties associated with pursuing such a trial strategy. 83 Indeed as alluded to above there were legal 84 as well as strategic complications 85 associated with investigating and prosecuting crimes against humanity in Al Mahdi.
In terms of “gradually building up”, the Prosecutor established Al Mahdi to be a mid-level perpetrator responsible for both planning and executing the crimes in question. The court found that Al Mahdi was co-perpetrator in the destruction of cultural heritage in Timbuktu. In other words, he was not the sole person responsible, but he made an essential contribution to the destruction of mausoleums and mosques within the framework of a common plan devised by more senior figures. 86 The court found that during the conflict and occupation of Northern Mali, the armed Islamist groups Ansar Dine and Al-Qaeda in the Islamic Maghreb (‘aqim’) seized control of Timbuktu and imposed their religious and political edicts, and then committed war crimes, through intermediary organisations such as Hesbah, a religious “morality brigade”. 87 The so-called “Governor” of Timbuktu under these armed groups was Abou Zeid who asked Al Mahdi to be the leader of Hesbah. Abou Zeid tasked Al Mahdi with the role of regulating the morality of people in Timbuktu, in part by preventing, suppressing and repressing anything the leadership of these groups perceived to be a vice according to their interpretation of Islamic teachings, such as using mausoleums as places of prayer and pilgrimage. 88 The plan went from repression of this religious practice to the destruction of its institutions when the leader of Ansar Dine, Iyad Ag Ghaly, together with aqim leader Yahia Abou Al Hammam, and aqim religious scholar Abdallah Al Chinguetti made the decision to destroy ten of the most important and well known religious sites Timbuktu. 89 The destruction came about by Ag Ghaly instructing Abou Zeid to proceed with the plan, who in turn instructed Al Mahdi to operationalise and execute the plan which Al Mahdi proceeded to do through Hesbah. 90
Following Al Mahdi, Hassan provides the opportunity to continue gradually building-up cases against these and other senior figures. Whereas Al Mahdi indicates how this leadership committed crimes through Hesbah, Hassan has the potential to elicit further how this leadership committed crimes through de facto organs of local government, such as the Islamic police and court. 91
2 The Political Economics of Truth and Historical Fact-Finding: Outstripping Existing Budgetary Assumptions?
The icc’s Proposed Programme Budget for 2017 indicates that the icc continues to struggle to fulfil its mandate in view of the budgetary constraints that it faces. In particular, the otp continues to struggle to perform high quality preliminary examinations, investigations and prosecutions without a substantial increase in resources. 92 To cope with foreseen as well as unforeseen demands, the otp at present intends to continue to pursue quality over quantity of work whilst working with a “basic size model”. Arguably, this is the bare minimum of staff needed to respond adequately to the demands placed upon the court and to provide financial predictability to states. However, this approach may not be sufficient to meet both present and future demands, and so will require continued use of general temporary assistance contracts, where possible, in order to cover and eventually top-up or supplement the established size or basic structure of the otp in situations where input exceeds processing and output capacity. 93 Indeed, in 2011 the Parliament of the European Union reported that the icc’s budget was insufficient to carry out its mandate. 94 Key areas of the icc’s work, namely the Registry, the Investigations Division and the Prosecution division are all under-resourced and understaffed, meaning that they are just about managing to cope with existing levels of work and ensuring that trials receive the support that they need. In areas such as the Registry and the Investigations Division, because they operate below the necessary capacity to provide the requisite investigative and judicial support, this is severely affecting their ability to work adequately and is putting existing staff under a lot of pressure and is creating operational gaps in some areas. 95
3 Budgetary Constraints at Play in the Situation in Mali – Responding to the Challenges of a “Fully Demand-Driven Approach” in a Demanding World: An “Estimated-Demand-Based Approach”
The Al Mahdi proceedings as a whole can be seen as an exercise in efficiency and cost-effectiveness in a way that need not act as an impediment to the aims (a) to (f) as well as (g) and (h) above. The Investigations Division carried out investigations into a wider range of war crimes in Mali in order to gather evidence which could demonstrate links with other perpetrators in the common plan of which Al Mahdi was a part. Furthermore, the otp maintains a limited field presence in Mali, which includes operational support for the victims and witnesses section. In 2016, the Investigations Division appeared to have completed ongoing investigations into the situation in Mali, and shifted its focus “in the light of the existing demand for the otp’s intervention in other situations”. Furthermore the otp stated that the resource limitations that it is facing mean that there is “a gap between needs and means”, and that this has damaged its ability to respond to the evolving situation in Mali. 96 The otp looked set to reprioritise its recourses in order to respond to the demands for intervention in other urgent situations. In view of the aforementioned budgetary constraints combined with the dire security situation in Mali, which makes it “the deadliest active operation”, the icc in 2017 foresaw very limited further activities, as well as no further judicial proceedings in the year following the conviction of Al Mahdi. The situation looked set to go into hibernation. However this changed when the Mali authorities surrendered Al Hassan to the Court in March 2018. In accordance with its demand driven approach, the otp will have to adjust its resource planning in order to respond to the fresh demands presented by this case, as well as any high-level cases which may foreseeably arise out of it. On the one hand, such resource allocation will help the Court build-up a bigger picture of the conflict in Mali from 2012 for the historical record, but on the other hand, the process of making current and future Mali investigations and cases trial ready may risk exceeding budgetary assumptions and draw resources away from other current situations, resulting in a reorganisation of the pace of work below the level that they demand or even the “hibernation” of cases. 97 The impact of this model needs continued and rigorous scrutiny by the Assembly of States Parties to the iccs in order to adjust adequately to the budgetary assumptions associated with fulfilling the court’s mandate on an annual basis, and for the otp, every three years when a new strategic plan is issued. 98
5 The ‘Historiography’ of Trial Proceedings at the icc: A Theatre of Memory
A Proving the Truth Beyond Reasonable Doubt: An All or Nothing Approach to Historical Fact-Finding?
The discussion above outlined some of the pre-trial rules and policies that may serve to promote, but also limit inquiries into the truth. To get to the trial stage, pre-trial jurisdictional and admissibility hoops must be overcome. There must be a reasonable evidential basis for the case to proceed and it must be trial ready within a reasonable time. The risk of an acquittal dictates that proceeding without a reasonable evidential basis will not be an efficient and cost-effective use of its limited resources. Arrest warrants must be served, executed and the accused extradited to The Hague – no easy task given that the icc does not have its own police force. 99
Whilst the Investigation and Prosecution Divisions can be a lot more liberal in their inquiry into the truth at the pre-trial stages, i.e. in-depth and open-ended inquiries into both inculpating and exonerating factors, if the case manages to get to trial, then prosecution and defence become constrained in terms of the narratives and supporting evidence that can be presented during trial proceedings. Regarding the Prosecutor, their function at trial is to prove to the Trial Chamber that the accused is guilty beyond reasonable doubt. Therefore the Trial Chamber can only convict if it is sufficiently certain about the truth of the narrative and supporting evidence presented by the prosecution. 100 This is a high evidential threshold to meet, and if the Trial Chamber is not sufficiently certain about the truth of the prosecution’s narrative, then it must acquit the accused. If this is the case then we are left with a trial record and a judgment combined with pre-trial materials that may nevertheless have value as a historical resource. 101 The prosecution’s burden of proof represents a high evidential threshold which can limit what is presented and taken into account within trial proceedings and the final verdict. To paraphrase former icty Chief Prosecutor Louise Arbour, what must be proved beyond reasonable doubt in the context of legal proceedings is not “general knowledge” or “what everybody ostensibly knows” but rather “an indictment for crimes listed in the Statute that will withstand the test before the court.” 102 In other words, the approach to constructing narratives outside a court room context may be comparatively laissez-faire. This is by no means meant to denigrate other historical disciplines, but merely to suggest that criminal trials are subject to greater constraints on the types of conduct that are acceptable and the types of evidence that are admissible and relevant given that the liberty of the accused is at stake, not just the narrative(s) that will be added to the public discourse. The record produced by the criminal process is strengthened because evidence is forensically tested by lawyers for its reliability, relevance and weight before it can be accepted by the judges to support a verdict in support of a particular narrative or set of narratives. Furthermore, lawyers will benefit from back office support and/or witnesses with expertise in relevant historical, political, military, criminological, intelligence issues etc.
However, obtaining the types of evidence necessary to support judicial narratives will frequently be a challenge in complex post-conflict political and security environments, in part, because it is usually dependent on securing co-operation of individuals and states who may have a vested interest in non-cooperation, or worse, suppressing, delaying, controlling, or even manipulating the production of information and documentation. Examples of such state-sponsored skulduggery abound. For instance, in relation to the Bosnian genocide, Serbia suppressed, and then heavily redacted Supreme Defence Council transcripts which indicated de facto Serbian control over Bosnian Serb forces, whilst the usa suppressed intercepts of radio communications between Serb leaders - actions which we now know undermined the outcomes of legal processes before the icty and the International Court of Justice. Arguably, it is therefore reasonable to infer that even in instances where states purportedly co-operate with transitional justice mechanisms, there is a constant risk that their self-interest in obscuring responsibility for the commission of atrocity crimes, or at least concealing their awareness of grave situations, may frequently override the interests of justice, for the victims and the historical record. Therefore vigilance remains key, as is the awareness that our legal understanding of any given situation may be provisional, thus requiring formal review or follow-up procedures, even in the most seemingly ideal of circumstances. This may serve to corrupt the historical record of events making it easier to develop favourable counter-narratives in the future, e.g. denial of crimes and claimed victimhood etc. Indeed, undermining a process that could otherwise link a particular ideology and/or geopolitical objectives to past atrocity crimes on an authoritative historical record may serve to maintain their very influence in the public mind as well as state or organisational policy, and lead to conduct involving atrocity crimes in the future. 103 Being able to defeat an ideology or geopolitical goal by forensically linking it to the commission of atrocity crimes is arguably the pièce de résistance of the contribution that international criminal justice can make to the historical record. If this is a worthy ideal, then for historical accountability and accounting to occur for the benefit of past, present and future situations, we continue to need those diligent and courageous politicians, lawyers and civil society activists who can identify and challenge forms of irregular political interference in the administration of justice, as well as to make the case for greater transparency in internal and international affairs. Whether this constitutes naive optimism or naive pragmatism remains to be seen in view of the strategic and economic changes emerging within international relations in the 21st Century.
B Adversarial Proceedings: A Theatre for Remembering and Adjudicating Competing Narratives
Arguably, due to the strong influence of the American Bar Association international criminal proceedings are primarily based on the adversarial model. The classic adversarial model is generally regarded a contest between two central parties, namely prosecution and defence, who select the evidence that they wish to put forward in support of their own ‘case theory’ or version of events and have it accepted by a ‘tribunal of fact’ which determines culpability. The adversarial model is generally regarded as a process which promotes procedural fairness or due process by having a ‘tribunal of law’ (i.e. judge(s)) that decides which evidence is relevant and admissible, and so can control which evidence can and cannot be presented to the ‘tribunal of fact’, e.g. a lay jury. It may be regarded as a method of interrogating the proof, rather than necessarily getting at the truth. Furthermore, trial lawyers will use a range of trial techniques to influence the verdict of the tribunal of fact, e.g. by rigorously scrutinising viva voce (oral) testimony through cross-examination, whereby lawyers can put their version of events to opposing witnesses by asking leading questions in order to elicit favourable testimony, and/or undermine their credibility. Generally, lawyers need only present the minimum amount of evidence that supports their case.
This model is seen to contrast with the classic inquisitorial model wherein judges play a central role in investigating and adjudicating culpability with the assistance of prosecution and defence lawyers. 104 Under this classic inquisitorial model, rather than have one side selecting and presenting inculpatory evidence and the other side selecting presenting exculpatory evidence, investigative judges collect both at the pre-trial stage and build up a written dossier which is examined and confirmed through judicial scrutiny at trial with the assistance of lawyers and witnesses. This classic model is generally seen to be an expedient way of building up a comprehensive and truthful account of events, even if it sometimes includes information which may not be strictly relevant to the criminal charges in question. 105 Arguably therefore, whilst the adversarial model is ideally suited to domestic criminal trials which feature lay tribunals of fact, it may be regarded as being less suitable for international criminal trials where issues of fact and law are determined exclusively by professional judges who have the knowledge, skills and support to process and analyse voluminous crime base evidence for admissibility, relevance and weight.
The two classic models also generally differ on the issue of the effects of a guilty plea. Under the adversarial model, where there is an admission of guilt, then there is thus nothing to contest between the parties, and so the proceedings may go straight to sentencing without first having to establish the facts. Only where there is no admission of guilt is it necessary for the prosecution to have to demonstrate guilt beyond reasonable doubt, and in turn, for the defence to create doubt so as to demonstrate that this burden of proof has not been satisfied. Prosecution and defence lawyers will perform these respective functions through opening and closing speeches, examining witnesses who support their narrative and cross-examining witnesses who do not, in order to adduce favourable testimony and exhibits. Where evidence is not favourable, lawyers will try to discredit it, e.g. by demonstrating bias, dishonesty, inconsistent statements, faulty perception or memory, or they may introduce legal arguments that certain evidence is inadmissible, e.g. it was obtained improperly or is not relevant. Under the inquisitorial model, regardless of whether or not there has been a guilty plea, there still has to be a judicial assessment of a comprehensive written dossier of evidence gathered during the investigation in order to establish the facts in open court, similar to a public inquiry. Accordingly, the inquisitorial model maybe considered to be more suited for trials involving mass atrocities as voluminous evidence relating to different narratives can be gathered and examined at a pre-trial stage, and then reviewed at the trial stage in a way which reduces the need for viva voce testimony for every single witness on every single issue. 106 Although modelled on adversarial proceedings, which, as seen, have features that can impede the construction of a comprehensive picture of events, the icc benefits from what may be regarded as many ‘inquisitorial’ features which not only promote fair and expeditious trials, but also enable the construction of a more complete picture of events. 107
C Methods of Truth-Seeking in Criminal Proceedings
Although some of the following aspects of icc proceedings may not have been directly applicable in Al Mahdi because his admission of guilt meant that the case went to judgment and sentencing after a relatively short three day trial, it is worth briefly noting some of the duties imposed on judges during the course of trial proceedings as they serve to promote a truthful and accurate trial record, which in turn increases its value as a historical source.
Firstly, judges are obliged to ensure that they produce a complete trial record which accurately reflects the proceedings, and that this trial record is maintained and preserved by the icc. 108 To this end, and to counteract any deficiencies in the presentation of competing narratives by prosecution and defence lawyers, judges may, inter alia, order the disclosure of documents or information, they may order the attendance and testimony of witnesses and other evidence, and they may make decisions on whether or not evidence is admissible or relevant. 109 Secondly, witnesses have to declare that they will speak ‘the truth, the whole truth and nothing but the truth’ before giving viva voce testimony. 110 If a sworn witness is suspected of giving false testimony or presenting evidence that they know to be false or forged, then they themselves may face separate criminal proceedings for an offence against the administration of justice. 111 The power to impose criminal sanctions for perjury is a strong incentive to testify to the truth so that trial proceedings bear witness to the truth. Thirdly, judges must ensure that there is a fair public hearing which is conducted impartially, according to fair trial guarantees and in full equality. 112
D Adversarial Proceedings Tempered by Inquisitorial Methods for Pursuing ‘The Truth’
1 Article 65 iccs & Rule 101 icty rpe: Impediments to Establishing the Facts for the Historical Record?
The case law of the icty and the ictr indicate that international criminal tribunals play an important role in developing the historical record, and more specifically, that guilty pleas as well as plea bargains need not be fatal to ascertaining the truth, or a reasonably comprehensive historical record. 113 For example, in Erdemović, despite a voluntary guilty plea for his individual actions, the Trial Chamber used this prosecution of a low-level perpetrator to elicit and corroborate important contextual information about the individuals, units, and leadership behind the events which led to the fall of Srebrenica as well as identifying the atrocities that subsequently took place there. 114 However, the icty Appeals Chamber found that despite a voluntary guilty plea, it was neither informed nor equivocal, and so remitted the case to the Trial Chamber where Erdemović agreed to enter a guilty plea to a charge of a violation of the laws or customs of war. His sentence was reduced through mitigation as part of a plea bargain agreement whereby the Prosecutor agreed not to proceed with the alternative count of a crime against humanity. 115 Despite these procedural short-cuts, arguably the individual prosecution of Erdemović at trial and then retrial not only provided direct crime base evidence of the massacres and their locations, but also constituted a vehicle for developing a broader and comprehensive account of the context in which the Srebrenica massacre occurred, as well as the way that the Bosnian Serb political and military leadership used this context to pursue strategic goals which involved the commission of atrocity crimes.
Furthermore, Erdemović’s trials had major transformative value in that the accounts and information that he gave were publicly attested during the Rule 61 hearings, wherein the icty Prosecutor set out the cases against Bosnian Serb leaders Karadić and Mladić in open court and thus put out into the public domain. This was instrumental in creating the public pressure and political will that eventually led to their extradition, prosecution and conviction for genocide and crimes against humanity committed in pursuit of their geostrategic aims and ideology.
Accordingly, rather than undermining the process of ascertaining the truth, charge bargaining, agreed sentence recommendations, and treating guilty pleas as mitigating factors may, when combined with fair trial guarantees, serve to facilitate expeditious and therefore cost-effective investigations and trials. 116 Rather than thwarting the pursuit of truth, they may instead incentivise voluntary surrender, cooperation and truthfulness on the part of the accused, as well as encourage other suspects or unknown perpetrators to come forward and build a bigger and more complete picture of atrocity crimes for the historical record. 117 In turn, guilty pleas and plea bargains may facilitate a strategy of building-up whereby prosecutions of low to mid-level perpetrators entertain charge bargaining or agreed sentence recommendations as a way of obtaining testimony and evidence to indict and convict those mid to high-level perpetrators most responsible for the commission of atrocity crimes. 118 In these ways, whilst charge bargaining and agreed sentence recommendations associated with plea bargains and guilty pleas are a challenge to the development of a comprehensive historical record in any given situation, they do not necessarily undermine it. Particularly with low-level perpetrators, just because the facts are characterised as a war crime rather than a crime against humanity or genocide, this does not necessarily result in an “editing-out” of the full facts or distorting the historical record as is suggested by Scharf. 119 Whilst a complete and accurate account and recognition of each and every crime may be regarded as essential for all victims and victim groups, unless the political and budgetary limitations in which international criminal justice operates drastically improve in the near future, then it may be suggested that strategic approaches such as incrementally building-up cases of system criminality, albeit on the initial basis of prosecuting low to mid-level perpetrators on less serious charges, and on a narrower range of counts, may be considered preferable to increasing the risk of acquittals on more serious charges, and a greater range of counts that may not be securely substantiated, especially in the early stages of intervening in any given situation where reliable evidence is likely to be at a premium, despite the seeming plethora of information on open internet sources.
Although Al Mahdi does not offer any new or detailed commentary on charge bargaining or agreed sentence recommendations, like Erdemović, it does indicate that guilty pleas need not necessarily undermine the development of a detailed and comprehensive historical record within any given situation, and that taking a guilty plea into mitigation may promote cooperation in building-up cases that are capable of convicting those most responsible for a broader range of graver crimes. Arguably, Article 65 iccs is just one example of how the iccs incorporates aspects of the inquisitorial model into proceedings that are otherwise adversarial in nature. Under Article 65 the Trial Chamber is required to ensure that any admission of guilt is supported by established facts that are brought by the Prosecutor and admitted by the accused, as well as any materials that supplement the charges or any other evidence such as witness testimony. Therefore, the admission of guilt did not preclude the gathering and assessment of facts of the case, as this is necessary pursuant to Article 65 per se, as well as for the purposes of sentencing in order to ensure that the punishment is proportionate to the crime and the culpability of the convict pursuant to Articles 78 and 145 of the icc rpe.
In this way, Al Mahdi is important in providing various stakeholders, ranging from the direct victims of the crimes to the people of Mali as well as the wider international community, with the following: (a) a narrative that acknowledges that serious crimes have been committed and that acknowledges the emotional, moral and economic harm suffered through the destruction of specially protected cultural property, (b) a forensic account of the unlawful activities that led to the destruction of the cultural property, and (c) to a certain extent, general background information pertaining to other actors, organisations and alleged criminal activity linked to the commission of the present unlawful activities. Whilst the Article 65 analysis established the facts at a local level, i.e. the individuals behind the organisations that ordered Al Mahdi to destroy mausoleums and mosques in Timbuktu, which mausoleums and mosques he destroyed and the details of how his organisation Hesbah destroyed them, the Trial Chamber’s Article 68 iccs and Rule 145 rpe analyses mentioned below were able to extend out into the regional and international levels of analysis as far as they could. In lieu of any leadership cases to come out of Mali, Al Mahdi sets out the basic framework of system criminality together with its ideological and strategic context. icty experience indicates that the admission into one case of facts adjudicated in a previous case enables the construction of a complex picture of events in a more expeditious fashion. 120
2 Article 68 iccs: Getting the Voices of Victims on the Record
Under Article 68 iccs and Rules 89 to 93 rpe, victims can apply to the icc to participate in all stages of the proceedings in order to have their views and concerns included on the trial record. Victims may choose legal representatives for this purpose, or, where there are a number of victims or particular groups of victims, the Trial Chamber may facilitate this by appointing a common legal representative or representatives. Forms of participation may include making opening and closing statements, questioning witnesses, experts or the accused as well as leading or challenging evidence, and are crucial in order to have a transformative value in understanding and validating the voices of victims on the historical record. 121 In Al Mahdi, the Trial Chamber appointed a Legal Representative of Victims and eight victims participated in the trial proceedings and this helped to establish for the record matters such as the impact that the crimes had on the psychological and emotional well-being of individuals, as well as their impact upon the community. 122
3 Articles 77–78 iccs and Rule 145 rpe: Assessing the Gravity and the Impact of the Crime
In terms of retribution, Al Mahdi indicates that judgment and proportionate sentencing for indicted crimes is not a means of exacting revenge, but rather an “expression of the international community’s condemnation of the crimes”, which “acknowledges the harm to the victims,” and “promotes the restoration of peace and reconciliation.” 123 Therefore, in addition to the Trial Chamber having to establish the facts pursuant to Article 65 iccs, the Trial Chamber had to set out the agreed facts and their sources in order assess the gravity of crime through reference to “the extent of damage caused, the nature of the unlawful behaviour and, to a certain extent, the circumstances of the time, place and manner,” in addition to aggravating and mitigating circumstances going towards Al Mahdi’s culpable conduct and individual circumstances. 124 These are useful standards for establishing local-level narratives that have reverberations at the regional and international levels.
In this way the reasoning in both the Judgment and Sentence was able to take into account a range of testimony and exhibits that detailed exactly what was destroyed and acknowledged the significance of its destruction from a range of perspectives. 125 Using expert witnesses on cultural property from unesco and Mali, as well as residents of Timbuktu itself, the Trial Chamber was able to establish that the cultural heritage that was destroyed was previously at the heart of cultural life in Mali and Timbuktu, and that it had great symbolic and emotional value for the inhabitants of Timbuktu. 126 In this regard, witnesses testified that the buildings not only contributed to the psychological and emotional well-being of individuals at local and national levels, but were of importance to the international community by virtue of their unesco World Heritage status. For the Trial Chamber, the World Heritage status of all but one of the buildings, combined with a policy of executing “a war activity aimed at breaking the soul of the people of Timbuktu” indicated the significant gravity of the offence in question. 127 Indeed the Trial Chamber effectively found that this destruction amounted to persecution as it had religious motivations. Indeed, Ansar Dine and aqim went from seeking to impose their religious edicts on the population of Timbuktu, to seeking to eradicate other forms of religious belief and practice by destroying the religious buildings and sites at their heart. In so doing, the Trial Chamber helped to expose a policy designed to impose a militant Salafist version of Islam on the people northern Mali which necessarily resulted in serious crimes. 128 It remains to be seen whether the Prosecutor has the opportunity to go further, and more fully connect the circumstances of Al Mahdi to the bigger picture of system criminality involved in the series of conflicts in Mali since 2012. Nevertheless, the Al Mahdi process as a whole is commendable in the way it presents observers, both present and future, with a broad narrative of the crimes committed by Ansar Dine and aqim in pursuit of their ideological and geostrategic aims.
It is suggested that outside establishing the facts for the purposes of Article 65 iccs, a liberal reading of the sentencing decision in Al Mahdi pursuant to Rule 145 rpe, combined with the appointment of a Legal Representative of Victims, and the participation of victims in the trial proceedings all helped to establish for the record the impact that the crimes had on the psychological and emotional well-being of individuals as well as the community. This enabled the Trial Chamber to recognise in a nuanced and culturally sensitive fashion the nature of the violence in Mali, in part, by exploring the motivations behind it. The Judgment and Sentence as well as the Reparations order in Al Mahdi give voice to the inhabitants of Timbuktu, who expressed the impact that the criminal activity had on them in terms tantamount to cultural genocide. 129 It is argued that the Trial Chamber in Al Mahdi implicitly incorporated the language and logic of both crimes against humanity and cultural genocide within the substantive constraints of a narrow war crimes prosecution and conviction, and thus implicitly recognised the reality of cultural genocide for the inhabitants of Timbuktu, constrained as it was by rules of substantive law that do not currently recognise such a crime per se. Nevertheless implicitly raising the gravity of this phenomenon means that this type of evidence can in future continue to be used as evidence, inter alia, going towards charges of genocide, as seen in icty cases such as Kristić and Blagojević where it was in part recognised that a group is not only “comprised of its individuals, but also its history, traditions, the relationship between its members…the relationship with the land.” 130
The Trial Chamber’s culturally sensitive assessment serves to acknowledge, validate and label more fairly what happened to the direct victims as well as the psychological and economic harm that it caused them, albeit as sufficiently and adequately as it could within the constraints that it operated. 131 This was further validated by the Trial Chamber’s Reparations Order which, in determining the issue of appropriate reparations, closely examined the importance of cultural heritage, such as “playing a central role in the way communities define themselves and bond together, and how they identify with their past and contemplate their future,” and “enabling cultural identification and development processes of individuals and groups, which they…wish to transmit to future generations.” 132
Coming back to the earlier discussion of Lauterpacht and Lemkin, it is suggested that this embodies the schism between principle and pragmatism within international criminal justice, and indicates how the Trial Chamber in Al Mahdi carefully sought to balance and reconcile the two: on the one hand there was an expeditious conviction on a narrow war crimes charge, which nevertheless produced a trial record that details the individual behind the organisations involved in the destruction of cultural heritage, together with an account of the ideology behind the individual, and an acknowledgement of the impact this ideology had on individual victims; on the other hand, Al Mahdi establishes for the historical record and collective memory an account that is rich in historical and anthropological detail, and so illustrates the significance of cultural heritage as well as the impact that its obliteration had on the cultural life and identity of a group.
6 Conclusions: “No Peace Without Justice [and] No Justice Without Truth” 133
Arguably, the Judgment and Sentence in Al Mahdi together with its associated extra-trial materials have value in pursuing aims (a) to (f) as well as (g) and (h) above. It is suggested that, all things considered, Al Mahdi indicates that there need not be a fundamental incompatibility between these two sets of goals, but rather they may complement each other. 134 However, this is premised on the understanding that they have been carefully balanced in view of surrounding constraints which, all things considered, makes the limitations of Al Mahdi justifiable. 135 In short, it is suggested that although the icc appears to prioritise investigative, prosecutorial and judicial economy in terms of increasing cost-effectiveness, productivity, quality and efficiency, Al Mahdi indicates that, within the resource constraints affecting the Trial Chamber, a balance can be struck between having a focused and expeditious process on the one hand, and on the other, establishing a reasonably full account of the facts for the trial record.
In Al Mahdi, we see that different aspects of the criminal process can accommodate, and then in various ways communicate to audiences at the regional, national and international levels the importance of cultural heritage in providing stories, memories and institutions that keep the cultural life of a community, a nation and a plural international society alive and flourishing. Al Mahdi memorialises the cultural heritage of Timbuktu. Namely, we have a trial record that, despite its limitations and surrounding constraints, attests to Timbuktu’s historical role in the expansion of Islam, as expressed through its cultural heritage, followed by the rise of Salafist-jihadist religious-political ideology and militancy, and then the crimes committed in its wake during the occupation of northern Mali in the 21st century – crimes committed against inhabitants of an occupied territory who were perceived as being non-Muslim and crimes which attempted to change the social, religious and political fabric of northern Mali, first through repression, and then through attacks that sought to eradicate symbols and practices of cultural life in Mali. Expert witnesses on Mali’s history and culture from unesco and Mali were able to testify to the significance of the cultural property that was destroyed and its role in the day to day cultural life in Mali. In addition to their testimony being put on the trial record, the Prosecution made use of an interactive digital platform consisting of photographs, videos, historic and contemporaneous satellite imagery, geospatial information, open source videos, and details of manuscripts and other site documentation to organise, analyse and present evidence that demonstrated the destruction of sites of cultural heritage, who was responsible for its destruction, and the impact that it had on victims. 136
Al Mahdi, due to its local-level focus on the war crime of destroying specially protected buildings helps us understand just one of the litany of crimes committed in Mali since 2012 in the name of a particular ideology that does not tolerate religious freedom and pluralism. Al-Mahdi demonstrates that international criminal justice not only recognises in a sensitive and nuanced fashion that sacred and historical sites are significant “identity icons” for religious communities, but that they have value, and deserve protection within a plural international society. The destruction of cultural heritage risks perpetuating inter-communal tension and violence that can quickly escalate into atrocity crimes. Al Mahdi shows that the expeditious punishment of those who attack and defile cultural heritage can promote reconciliation, and may serve to deter further acts of cultural vandalism. 137
Despite the constraints of a case against a mid-level perpetrator on a single charge and narrow crime base evidence, the Al Mahdi Judgment and Sentence together with the extra trial materials, such as the otp Article 53(1) Report on the Situation in Mali, do well to offer a broad and general account of the existence of a common plan leading to widespread crimes in the region. Indeed, the Trial Chamber noted that “the justifications stated during [the attacks against cultural heritage in Timbuktu] were the same as those advanced by the armed groups for taking over […] Northern Mali more generally,” thus exposing how ideological schisms lead to widespread atrocities. 138 In terms of developing this broader social, political, religious and ultimately historical analysis, we will have to wait for those senior figures most responsible for these crimes to be indicted and extradited. The case of Hassan is an important step in this direction.
A Broader Reflections on the Historiography of International Criminal Justice: The Light Side
There are differences between the aims of domestic criminal proceedings, which are arguably focused on retribution, deterrence and reintegrating convicts into society, and which relate to comparatively smaller-scale, albeit serious criminal offences, and international criminal justice, which is designed to deal with mass atrocities, and therefore the most serious crimes of concern to the international community: war crimes, crimes against humanity and genocide. Domestic criminal proceedings usually become sources of history only in exceptional circumstances, such as in times of transition where there is a rupture with the past which necessitates a process that either reconnects the present with the past, or distances the present from the past. 139 Criminal justice at the international level arguably has a broader mandate than criminal justice at the domestic level which, if feasible and fully realised, may legitimately enable it to pursue the broader goals of historical fact-finding and public education, albeit within the budgetary and political constraints in which it operates. 140
In a context where there are many stakeholders, who may have interests and perspectives that are diametrically opposed, a court with an international mandate can at least purport to act in the interests of the international community and provide narratives that may be perceived as being more authoritative and credible than those from bodies and individuals without such a mandate. To do so may require that various stakeholder narratives and interests are accommodated in the context of trial proceedings. Additionally, in order to increase awareness and understanding of judicial proceedings, and to foster realistic expectations about what the icc has the mandate and capacity to achieve, there needs to be capacity building for appropriate and sustained outreach activities with a range of stakeholders such as non-governmental organisations, victims and their legal representatives, external experts, educational projects and the global media. 141 Borrowing Heinze’s analysis, firstly, the dynamic and rigorous process of criminal law may foster “satisfactory discursive processes,” which give judicial history-making “strong substantive weight”, and secondly, outreach processes used by the icc and icty/r for example may foster the satisfactory dissemination of findings giving them “strong expressive weight” within public discourse and collective memory in relation to alternative narratives that are constructed less rigorous or partial ways. 142
“[W]e owe our knowledge of the violent crimes committed by the Nazis mainly to the work of the Zentrale Stelle and the expert witnesses who were involved in the investigations and the various Nazi proceedings. It is certainly appropriate to note that the science of history alone would have hardly examined this darkest chapter of the German history – or of modern history anywhere – with the rigour that is necessarily innate to our public criminal proceedings and jurisprudence. The prosecutors, expert witnesses and judges in those Nazi trials had to reconstruct the crimes, establish historical facts and thereby set the preconditions for justiciable ‘truth-finding’. Numerous reports, document folders, case records and investigation reports epitomise for all intents and purposes an achievement of historical science that is possibly without comparison, but certainly one of a kind.” 146
Steinbach’s assessment suggests that even though investigators, prosecution and defence lawyers and judges are not trained historians or journalists, this does not necessarily matter. Investigators, analysts, researchers, prosecution lawyers, defence lawyers and judges usually have decades’ worth of practical experience within domestic and/or international criminal justice, law enforcement systems, military, and intelligence communities. They will also usually benefit from the input of expert witnesses, historians for example. At the preliminary examination and pre-trial investigation stages of criminal proceedings, training and experience in this field enable criminal justice practitioners to apply standardised investigative, analytical and legal skills, capabilities and powers to gather, forensically examine and test exhibits and testimony that go towards understanding the personnel, organisations, activities and motivations that lie behind alleged criminal offences. 147 As investigations are not subject to the same evidentiary standards as trial proceedings, the evidence gathered and the reports compiled may not necessarily be used or admissible at trial. However, there is still a requirement to carry out in-depth and open-ended investigations which will gather potential incriminatory and exculpatory evidence in order to assess whether there is a reasonable factual basis to proceed further. 148 Pre-trial investigations may also produce a surfeit of evidence beyond the minimum amount needed to reach a conviction, and so for that reason a large body of evidence may be unused at trial. The results of such pre-trial fact-finding, both used and unused at trial, and where available to the public, are of immense importance for both present and future generations in that they may provide raw audio, visual and written documentation together with investigative and analytical reports that may be reasonably accurate and reliable, but which may often require further scrutiny and corroboration. 149 Even if a case does not go to trial, or if certain evidence is unused at trial, then where it is available to the public, such ‘extra-trial’ material can help to shape collective memory and opinion in a reasonably balanced and measured fashion. 150
At the trial stage of proceedings, trial lawyers have the training and experience to evaluate and synthesise a broad range of sources in order to support and present their competing case theories or narratives as coherently and as plausibly as possible in order to be accepted by a tribunal of fact, i.e. highly qualified and experienced judges, whose job it then is to test the probative value of the evidence presented to them by these parties, and weigh this against any prejudicial effect that it may cause, such as creating unfounded assumptions or bias. 151 Rules of procedure and evidence applicable in criminal trials demand rigorous and standardised methods to scrutinise and verify information as well as ensure fairness. 152 This can result in findings which, although not constituting a definitive account due to exclusionary rules, nevertheless strive for a high degree of accuracy, relevance and completeness. 153 Judges then compile the ‘established facts’ in a judgment on culpability. According to Wilson the need to reach a judgment often “propels a collective historical inquiry”, which as a side-effect, may result in a comprehensive historical record that sets out and interprets events involving serious crimes. 154 The findings on the trial record are likely to benefit from evidence that is direct from the source, rather than having to make inferences from indirect or circumstantial evidence, frequently many years after the fact Trial lawyers and judges may be more likely than historians to have access to documents from a wide range of sources (including government archives). Documents that the Prosecutor obtains are subject to rules on disclosure where both incriminatory and exculpatory evidence must be given to the Defence. This allows the accused to receive a fair trial as a full picture can be developed, e.g. by allowing defence lawyers to make adequate preparations to test a witness’s credibility under cross-examination, such as their ability to observe the events they describe or bring out any evidence of bias or bad character. However, given the recency of many alleged atrocity crimes, general duties to disclose inculpatory and exculpatory evidence are, in exceptional circumstances, subject to a careful judicial assessment of whether witness protection measures ought to apply under Rules 81(2) and 81(4) of the icc rpe, e.g. redacting their names so that they are not subject to reprisals. 155 Prosecutors and judges are likely, from the outset or during the course or trial proceedings, to obtain access to documents from state archives – materials which may otherwise be inaccessible to researchers and the public; they may not have to rely on hearsay, but can compel and examine viva voce testimony from eyewitnesses, insider witnesses and expert witnesses, including journalists and historians themselves. 156
If we are open to the possibility of international criminal proceedings transcending their direct aims of justice through retribution, and playing a role in historical justice through fact-finding and documentation, this allows present and future generations to know, understand and remember past crimes involving large-scale destruction, persecution, and even forms of annihilation. Trial records can serve to acknowledge and preserve such memory for the benefit of present and future generations at local, national and international levels. They may serve to guard against any subsequent distortions or denials over what happened as well as intercommunal or sectarian tensions arising out of what would otherwise be controversial and contested historical events. 157 With this knowledge and understanding, present and future generations are better equipped to identify the typical dynamics behind atrocity crimes, and so have a better chance of forestalling future atrocities that can arise out of political violence. This process has been termed “didactic legality” whereby international criminal justice shows “the world the facts of an astonishing crime,” and demonstrates “the power of the law to reintroduce order into the space evacuated of legal and moral sense.” To this end, an urgent and idealist task is to continue developing the international legal and political mechanisms for the expeditious access to information from states. 158
B Broader Reflections on the Historiography of International Criminal Justice: The Dark Side
International criminal justice, as we have seen, is by no means a perfect mechanism for arriving at the truth, and in any case, it may be regarded as just one of a number different processes and mechanisms associated with transitional justice, a concept defined by the un Security Council as “society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation.” 159 Such mechanisms may include truth and reconciliation commissions, public inquiries, and litigation before human rights courts.
Like all of these mechanisms, international criminal justice does not operate by default, and may only come into operation where the political, jurisdictional and admissibility ‘prerequisites’ are favourable and are satisfied. Indeed, if we were to rely solely on international criminal justice for our history, then there would have been a black-spot of half a century between Nuremberg and the establishment of the ad hoc Yugoslavia and Rwanda tribunals and the icc. If history only sees what justice seizes, then we will have many blind spots. Furthermore, as stated above, historians can play a vital role as expert witnesses within international criminal trials.
As international criminal proceedings are primarily aimed at determining questions of individual criminal responsibility rather than delivering historical truth, the issue of whether records and exhibits created during investigation and trial stages of criminal proceedings should be regarded as historical sources of information, or whether they should be in any way directed towards this end, is contentious. Indeed, criminal lawyers and academics dealing with international crimes may, in all likelihood, balk at the notion of international criminal proceedings transcending the direct aims of justice through retribution and overtly using them to explore and document historical fact in order to compile it into a record, or grand narrative, that can be used as a historical source – this is in spite of the fact that many victims get to have their accounts aired and tested within these fora. 160 However, this discussion takes issue with contentions, such as that expressed by Wilson, which suggests that when compared with other historiographies, the ambit of the legal process is too narrow to reveal broader social, political and historical considerations. As discussed, icty/r and icc investigative and trial procedures can and do use a range of methods and information to contextualise the conduct of accused in order to attribute responsibility for collective violence on an individual basis. 161 The normative process of attributing criminal responsibility does not necessarily mean that the historical record is distorted, or that important issues are omitted. 162 Even where a judgment is based on a narrow range of charges and counts that can be evidenced beyond reasonable doubt at trial, the investigative and trial record as a whole will often contain a range of perspectives and documentation that are rigorously explored and tested. Additionally, criminal cases must not be seen in isolation – the ‘whole story’ can be built-up through a series of criminal trials, often beginning with low-level offenders in order to build a more complex ‘historical’ case against high-level offenders involved in military and political leadership roles. 163
However, pursuing history in the courtroom does risk creating a palpable tension between this extra-legal aim, and the primary legal aim of individual criminal responsibility. 164 Tromp suggests, with reference to the Milošević case, that pursuing historical background information in the courtroom may not only be desirable, but even essential for the purpose of demonstrating how ideology and motivations behind plans leading to the commission of crimes are rooted in a broader historical framework involving historical political events as well as preventing defendants from reframing this historical background information in support of their own narrative. 165 However, broad or open-ended historical inquiries, whilst serving to provide useful background or explanatory information, may often be regarded as being tangential, beyond the scope, or simply not relevant to the charges being pressed in the indictment against the accused. Allowing arguments and materials relating to broader historical issues from both prosecution and defence risks opening the door to political and historical grandstanding which can serve to exacerbate existing intercommunal or sectarian tensions. This may not only detract from the direct facts in issue before the court, but may also undermine the perceived legitimacy of the process amongst particular stakeholders and related to this, its ability to promote peace and reconciliation between them. Within adversarial proceedings, there is the risk that diametrically opposed historical narratives are created that turn one group into victims and another into aggressors. This is potentially divisive and risks undermining the impartiality of criminal proceedings if the Prosecutor or Trial Chamber is perceived as siding with the victims’ narrative or the aggressors’ narrative.
Tendering arguments and materials relating to broader historical issues may also be unfeasible within the budgetary and time constraints that necessarily have to be imposed within international criminal proceedings, both in the interests of justice and also because of the stark resource limitations that the icc faces. 166 Long and complex ‘historical’ cases are not something that necessarily fit within the icc’s strategic and operational plans. However, it is suggested that this is not necessarily fatal to its ability to produce legal and extra-legal materials as part of trial proceedings that may constitute valuable historical resources. 167 Pursuing grand narratives in the courtroom may be of great benefit to the historical record. The merit of such an approach is that it can demonstrate how micro-level atrocities were the outcome of macro-level plans. Furthermore, it performs the function of connecting seemingly isolated atrocity crimes to the pursuit of chronic and pervasive ideologies which may comprise geopolitical or hegemonic strategies. This function is valuable as it is analogous to time-lapse photography, whereby processes that would normally appear subtle or invisible to the human eye become more pronounced. For example, it allows us to see clearly how seemingly isolated and innocuous social and demographic changes occurring over time are actually part of a pattern or a trajectory driven by insidious historico-political forces. Through this approach, the present is overlaid with the past and individual actors are placed in context. This permits both logical and reasonable inferences to be made in relation to causation and culpability, especially where high-level figures have made concerted efforts to dissemble their true intent, foresight or agency. However, such an approach risks making trial proceedings unmanageable if every aspect of the political or historical dimension to a grand narrative needs forensic examination, e.g. via viva voce testimony. The icty responded to the need for efficiencies in complex war crimes trials by adopting Rules 92 bis and 92 ter in its rpe, which allowed for the use of written witness statements rather than live testimony where they related to the “proof of a matter other than the acts and conduct of the accused as charged in the indictment” and where “other witnesses will give or have given oral testimony of similar facts”. These rules were adopted in the attempt to make trials more efficient and reduce their length. By allowing written witness statements to be admitted in lieu of viva voce testimony, lawyers could introduce information relating to such matters as the credibility of live witnesses and the context in which alleged crimes occurred more efficiently.
Adopting a classic adversarial model in complex war crimes cases may risk causing cases to collapse under their own weight, or otherwise being left unfinished, as in the case against Slobodan Milošević. The Milošević case began with three separate indictments for the wars in Bosnia, Croatia and Kosovo. These separate indictments were later conjoined into a single indictment as part of a revised narrative, or trial strategy, of demonstrating that these three wars were actually part of one war, or joint criminal enterprise, which was driven by a ‘Greater Serbia ideology’. In addition, this new approach aimed to integrate the three separate teams that were pursuing different case theories and strategies in each of these respective situations. 168 Unfortunately, although this joined-up thinking seemed to be the right decision at the time, it did not survive contact with the ensuing turn of events. Ultimately, rather than having three consecutive trials based on separate indictments that were short and expeditious, and which could have resulted in at least one conviction before his death, due to Milošević’s death before the conjoined proceedings were completed, the case was closed and the trial unfinished. Nevertheless, rather than having a ‘historical’ judgment and sentence, present and future generations are still left with important testimony, documents and reports, used and unused during trial, that can serve to address important questions about how and why crimes were committed and who and what was responsible for their commission.
When it comes to the truth, what we hold to be true about the world depends on what we take into account, and what we take into account depends on what we think matters. Furthermore, even if we have broad and deep conceptions of what matters, this is entirely predicated, in this context at least, on the support and cooperation of States and international governmental organisations in giving clearance to insider witnesses and access to documents or archives, which may not be forthcoming if they feel legally and politically exposed. Therefore, in this context and in general terms, truth is understood to be an accurate and reliable record of what can be gathered and presented in the context of criminal trial proceedings regarding “the extent of damage caused, the nature of the unlawful behaviour and, to a certain extent, the circumstances of the time, place and manner.” 169 Admittedly, this definition is full of qualifications in that it only concerns cases that are admissible and within the jurisdiction of the court, and information within those cases that can be gathered and then admitted as evidence. Furthermore, to make the process manageable, prosecutorial and judicial economy may mean that measures are taken to reduce the size of cases, such as by limiting the number of witnesses, limiting the amount of time available for witnesses to give testimony, or by limiting the number of charges in indictments in a way which encompasses or representatively samples a broad range of crime base evidence. 170 The implication of this for collective memory and historical understanding is that only certain information that is deemed relevant and admissible may be filtered and processed through the prism of individual criminal proceedings at this level and then recorded for history. Those who pursue ‘historical truth’ rather than ‘legal truth’, i.e. fact-finding and narrative formation outside of criminal trial proceedings, have the advantage of academic freedom in the sense that they do not have their hands tied by comparatively strict rules of procedure and evidence that can exclude or limit what can and cannot be admitted into a courtroom. Whilst ‘historical truth’ can accommodate and evaluate a whole range of information that may be considered important background or explanatory information, such information may be excluded from the legal or courtroom truth. However, this applies in so far as trial proceedings and the resulting trial record are concerned, but not the extra-trial materials that are produced from the process as a whole. Extra-trial materials hold great value as historical resources. 171 Therefore, whilst the results of international criminal proceedings can by no means be viewed as definitive interpretations of history, they are nevertheless one of the best mechanisms that we now have for shining light into conflict situations and creating history in a relatively rigorous and authoritative fashion, as well as protecting history from attack and distortion. 172 The goal of creating and protecting collective memory of atrocities can be used as a way of understanding their dynamics and so may serve to forestall their future commission. The alternative, oblivion, embodied in the 1648 Treaty of Westphalia, where “…there shall be on the one side and to others a perpetual Oblivion…of all that has been committed…all that has pass’d…Words, Writing…shall be entirely abolished [and] be bury’d in eternal Oblivion” 173 may serve to take fuel away from the fire of future conflicts, but it also risks evacuating the collective memory, conscience, and curiosity of present and future generations of the legal and moral sense that can come from judicial or even quasi-judicial narrative expositions of the individual and structural dynamics behind atrocity crimes.
The authors would like thank Professor Christopher Harding for his invaluable comments on earlier drafts of this piece.
Like Harding, we use the term atrocity crime(s) in this discussion as a convenient shorthand term. It is a useful “sociological/criminological/ethical epithet for … ‘international crime’, and generally conveys a sense of criminality which is large-scale, extreme in consequent human suffering, highly organised, and discriminatory in its motivation.” C. Harding, ‘The Biology and Psychology of Atrocity and the Erasure of Memory’, in M. Arksenova, El. van Sliedregt and S. Parmentier (eds.), Breaking the Cycle of Mass Atrocities: Criminological and Socio-Legal Approaches in International Criminal Law (forthcoming, 2019).
C. Wilke, ‘Remembering Complexity? Memorials for Nazi Victims in Berlin’, 7 The International Journal of Transitional Justice (2013), at 136–156. J. Winter (eds.), Beyond Memory: Silence and the Aesthetics of Remembrance (2016), at 125–39. J. Edkins, Trauma and the Memory of Politics (2003), at 108. R. Fivush, ‘Speaking Silence: The Social Construction of Silence in Autobiographical and Cultural Narratives’, 18 (2) Memory (2010), at 88–98.
U. Belavusau and A. Gliszczyńska-Grabias, ‘Memory Laws: Mapping a New Subject in Comparative Law and Transitional Justice’, in U. Belavusau and A. Gliszczyńska-Grabia (eds.), Law and Memory – Towards Legal Governance of History 1 (2017), at 1–26. P. Ewick and S. Silbey, ‘Subversive Stories and Hegemonic Tales: Toward a Sociology of Narrative’, 29 Law and Society Review (1995), at 197. M.J. Osiel, Mass Atrocity, Collective Memory, and the Law (1997). S. Moyn, Human Rights and the Use of History (2014). P. Vidal-Naquet, Assassins of Memory, Essays on the Denial of the Holocaust (1992). S. Löytömäki, Law and the Politics of Memory: Confronting the Past (2014). A. De Brito (ed.), The Politics of Memory and Democratisation (2011). J. Tamarit-Sumalla, Historical Memory and Criminal Justice in Spain: A Case of Late Transitional Justice (2013). A. Sarat and T. Kearns, History, Memory and the Law (1999). L. Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust, (2001), at 256. M. Marrus, ‘History and the Holocaust in the Courtroom’, in R. Smelser (ed.) Lessons and Legacies, The Holocaust and Justice (2002). C. Maier, ‘Doing History, Doing Justice: The Narrative of the Historian and of the Truth Commission’, in R. Rotberg and D. Thompson (eds.), Truth v Justice: The Morality of Truth Commissions (2000). B. Jackson, ‘Narrative Theories and Legal Discourse’, in C. Nash (ed.) Narrative in Culture: The Uses of Storytelling in the Sciences, Philosophy and Literature (1990).
S. D’ascoli, Sentencing in International Criminal Law: The un ad hoc Tribunals and Future Perspectives for the icc (2011), at 295.
R. Skilbeck, ‘Finding Justice: The Price of War Crimes Trials’, 15(3) Human Rights Brief (2008), at 6–10: “Many experienced individuals now work at the icty and ictr, but there is a risk that those who have only experienced the luxuries of a billion dollar budget may not understand how the job can be done for a fraction of the price’ and ‘The icc’s 2007 budget was $146 million (93 million euros), leaving it still some way behind the $1.2 billion (762 million euros) and $1 billion (635 million euros) spent by the International Criminal Tribunal for the former Yugoslavia (icty) and International Criminal Tribunal for Rwanda (ictr) respectively in their ten years of operation, a cost of between $10–15 million (6.4–9.5 million euros) per accused”. icty, The Cost of Justice, http://www.icty.org/en/about/tribunal/the-cost-of-justice (last accessed 6 July 2018): “Regular Budget: 2014–2015: $179,998,600, 2012–2013: $250,814,000, 2010–2011: $286,012,600.” S. Ford, ‘Complexity and Efficiency at International Criminal Courts’, 29 Emory International Law Review (2014), at 1–69. icc, asp, Resolution icc-asp/15/Res.1: the icc programme budget for 2017 was 144, 585, 300 Euros.
I. Bonomy, ‘The Reality of Conducting a War Crimes Trial’, 4 International Criminal Justice (2007), at 359.
J. Meernick, ‘Proving and Punishing Genocide at the International Criminal Tribunal for Rwanda’, International Criminal Law Review (2004), at 65–81.
T. McCormack, ‘Selective Reaction to Atrocity: War Crimes and the Development of International Criminal law’, 60 Albany Law Review (1996–1997), at 681. G. Simpson, ‘Didactic and Dissident Histories in War Crimes Trials’, 60 Albany Law Review (1997), at 837. J. Meernik, ‘Victor’s Justice or the Law? Judging and Punishing at the International Criminal Tribunal for the Former Yugoslavia’, 47 Journal of Conflict Resolution (2003); icty, otp, Final Report to the Prosecutor by the Committee Established to Review the nato Bombing Campaign Against the Federal Republic of Yugoslavia, http://www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal (last accessed 6 July 2018).
The modern concept of cultural property evolved with the development of nationalism in Europe at the end of the eighteenth century. See E. Barkan & R. Bush (eds.), Claiming the Stones, Naming the Bones: Cultural Property and the Negotiation of National and Ethnic Identity 18 (2002) (outlining the history of both the concept of and concern for cultural property). However, it should be noted that the concern for cultural property can be traced back as far as the ancient Greeks with the historian Polybius, who first called for the protection of cultural art and artifacts from foreign claims and seizures. J. Merryman, ‘Two Ways of Thinking about Cultural Property’, 80 American Journal of International Law (1986) at 831, 833. J. Cohan, ‘An Examination of Archaeological Ethics and the Repatriation Movement Respecting Cultural Property (Part One)’, 27 Environmental Law & Policy Journal (2004), at 349, 382 (stating no universally accepted definition of the term “cultural property.”).
S. Forbes, ‘Securing the Future of Our Past: Current Efforts to Protect Cultural Property’, 9 Transnational Law (1996), at 235, 239. J. Blake, ‘On Defining The Cultural Heritage’, 49 International & Comparative Law Quarterly Review (2000), at 61, 63.
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi, icc, Trial Chamber viii, 27 September 2016, para 76. Sir Harold Nicolson, ‘Marginal Comments’, Spectator, 25 February 1944, reprinted in J. Merryman, supra note 9, at 840: Very few would agree with Sir Harold Nicholson, “It is to my mind absolutely desirable that such works [of great artistic importance] should be preserved from destruction, even if their preservation entails the sacrifice of human lives. I should assuredly be prepared to be shot against a wall if I were certain that by such a sacrifice I could preserve the Giotto frescoes; nor should I hesitate for an instant (were such a decision ever open to me) to save St. Mark’s even if I were aware that by so doing I should bring death to my sons…. My attitude would be governed by a principle which is surely incontrovertible. The irreplaceable is more important than the replaceable, and the loss of even the most valued human life is ultimately less disastrous than the loss of something which in no circumstances can ever be created again.”
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi, ibid, para. 77.
P. Sands, East West Street, (2016), at 291.
Ibid. The Monuments Men (2014).
R. Lemkin, Axis Rule in Occupied Europe: Laws of Occupation – Analysis of Government – Proposals for Redress (1944), at A. Vrdoljak, ‘Human Rights and Genocide: The Work of Lauterpacht and Lemkin in Modern International Law’ 20(4) European Journal of International Law, at 1163. 79–95.
P. Sands, supra note 13, ibid.
The Monuments Men (2014).
A. Moses, ‘Empire, Colony, Genocide: Keywords and the Philosophy of History’, in A. Moses (ed.) Empire, Colony, Genocide – Conquest, Occupation, and Subaltern Resistance in World History (2009), at 12.
Ibid. 12. C. Johannot-Gradis, ‘Protecting the Past for the Future: How does Law Protect Tangible and Intangible Cultural Heritage in Armed Conflict?’, 97 (900) International Review of the Red Cross (2015), at 1253–1275.
Judgment, Prosecutor v Kristić, icty, Trial Chamber, 2 August 2001, paras. 574–580. The notion of a cultural genocide per se was rejected by the General Assembly Sixth Committee by 25 votes to 6, with 4 abstentions and 13 delegations absent. ilc Draft Code, pp. 90–91: ‘As clearly shown by the preparatory work for the Convention, the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group. The national or religious element and the racial or ethnic element are not taken into consideration in the definition of the word “destruction”, which must be taken only in its material sense, its physical or biological sense. However, for contrary interpretations of the intent to destroy clause in Article 4 of the Genocide Convention see inter alia 6 un Doc. ag/Res./47/121 of 18 December 1992 where the United Nations General Assembly labelled ethnic cleansing as a form of genocide and the Federal Constitutional Court, 2 BvR 1290/99, 12 December 2000, para. (iii)(4)(a)(aa), which found that “the statutory definition of genocide defends a supra-individual object of legal protection, i.e. the social existence of the group … the intent to destroy the group … extends beyond physical and biological extermination … The text of the law does not therefore compel the interpretation that the culprit’s intent must be to exterminate physically at least a substantial number of the members of the group.”
unesco, ‘un Security Council adopts historic resolution for the protection of heritage’, 24 March 2017, http://en.unesco.org/news/security-council-adopts-historic-resolution-protection-heritage (last accessed 6 July 2018).
The Trial of Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, Part 22, at 447: ‘[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’. C. Wilke, ‘Remembering Complexity? Memorials for Nazi Victims in Berlin’, 7 The International Journal of Transitional Justice (2013), at 136–156.
A. Danner, ‘Constructing a Hierarchy of Crimes in International Criminal Sentencing’, 87(3) Virginia Law Review (2001). M. Frulli, ‘Are Crimes against Humanity More Serious than War Crimes?’,12 European Journal of International Law (2001), at 329–350. R. Jackson, ‘Nuremberg in Retrospect: Legal Answer to International Lawlessness’, xxxc American Bar Association Journal (1949), at 813–6 and 881–7. G. Mettraux (ed.), Perspectives on the Nuremberg Trial (2008), at 358–9. R. Overy, ‘The Nuremberg Trials: International Law in the Making’, in P. Sands (ed.) From Nuremberg to the Hague: The Future of International Criminal Justice (2003), at 1–29. J. Meernick, supra note 7, at 65–81. J. Meernik, supra note 8; J. Meernik and K. King, ‘The Effectiveness of International Law and the icty – Preliminary Results of an Empirical Study’, 1 International Criminal Law Review (2001).
icc, Strategic Plan 2013–2017, 24 July 2015, at 3–12. icc, otp, Report on Prosecutorial Strategy, 14 September 2006, at 4.
icc, otp, Situation in Mali, Article 53(1) Report, 16 January 2013, paras. 89–124.
G. Nice q.c., ‘Trials of Imperfection’, 14 Leiden Journal of International Law (2001), at 387.
icc, asp, Proposed Programme Budget for 2017 of the International Criminal Court, 17 August 2016, paras. 135–139: “[v]ery limited activities are foreseen for 2017 in the Mali situation … there are currently no foreseeable judicial proceedings in the Mali situation in 2017…[a]t this stage, it is also foreseen that the ongoing investigation activities related to other crimes committed in Mali will have to be completed by 2016 in the light of the existing demand for the otp’s intervention in other situations.”
icc, Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, Case Information Sheet, June 2018; see also icc, asp, supra note 27, para. 36: “It is expected that in 2017, the Court will continue operating in 10 situations under investigation [including]… Mali”; para. 40: “It is foreseen that the Court will maintain 10 field presences in 2017 [including] ….one in Mali (Bamako)”; para. 226: “…a number of distinct achievements, including some which are only recent but which are clearly the result of the Strategy that has been applied since 2013, have proven to be particularly significant for the otp… [s]ix new preliminary examinations started and another six completed: three led to the opening of an investigation: Mali…”; para. 582: “[i]n 2017, the Court will have 10 field presences in seven situation countries, [including]… Mali”; para. 594: “[t]he field office in Bamako is expected to support a limited otp presence in the country for the first half of 2017. With Al Mahdi expected to be completed by the end of 2016, no judicial proceedings in relation to the situation in Mali are foreseen for next year. The Registry’s responsibilities for witness protection will nevertheless continue in 2017, thus necessitating a field presence for operational support to the vws. The continued violent attacks by terrorist groups against international staff working in Mali require adequate security arrangements to be in place for the Court’s staff, property and assets."
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi, supra note 11, para. 66.
icc, otp, Prosecutorial Strategy 2009–2012, 1 February 2010, where the Prosecutor noted that ‘his mandate does not include production of comprehensive historical records for a given conflict’. M. Koskenniemi, ‘The Fate of Public International Law: Between Technique and Politics’, 70 Modern Law Review (2007), at 1–2. F. Johns, Non-Legality in International Law: Unruly Law (2013), at 14. M. Koskenniemi, ‘Hegemonic Regimes’, in Margaret Young (ed.), Regime Interaction in International Law: Facing Fragmentation (2012), at 305: Koskenniemi describes the gradual process of international law as ‘becoming technical’ whereby ‘an ideology under which the strategic leadership of an institution (or regime) is separated from its assumed beneficiaries in the belief that when a specialised elite of managerial experts carries out strategic choices, then the outcomes for the beneficiaries will be optimal. Under this view the regular staff of the institution is responsible only to the managerial leadership and its performance is assessed by criteria set down by it – criteria only looking for the optimal result’. E. Benvenisti and G. Downs, ‘The Empire’s New Clothes: Political Economy and the Fragmentation of International Law’, 60 Stanford Law Review (2007), at 595, 597–8. J. von Bernstorff, ‘The Relationship between Theory and Practice in International Law: Affirmation versus Reflexive Distance’, in Jean d’Aspremont (ed.), International Law as a Profession (2017), at 240. J. Charney, ‘The Impact on the International Legal System of the Growth of International Courts and Tribunals’, 31 International Law and Politics (1999), at 697, 700.
N. Tromp, Prosecuting Slobodan Milošević – The Unfinished Trial (2016), at 18.
Ibid., at 20. M. Aksenova, ‘The Role of International Criminal Tribunals in Shaping Historical Accounts of Genocide’ in U. Belavusau and A. Gliszczyńska-Grabia (eds.), supra note 3, at 49. K. Bárd, ‘The Difficulties of Writing the Past Through Law – Historical Trials Revisited at the European Court of Human Rights’, 81 Revue Internationale de Droit Pénal (2010/11), at 27–45. G. Nice Q.C., Justice for All and How to Achieve it – Citizens, Lawyers and the Law in the Age of Human Rights, (2017), at 27, 51–64.
J. Blake, International Cultural Heritage Law, (2015), Chapters 8 and 9.
Reparations Order, Prosecutor v Ahmad Al Faqi Al Mahdi, 17 August 2017, para. 17.
A. Nollkaemper and H. van der Wilt (eds.), System Criminality in International Law (2009). H. van der Wilt, ‘Joint Criminal Enterprise: Possibilities and Limitations’, 5(1) Journal of International Criminal Justice (2007), at 91–108.
See generally C. Harding, Criminal Enterprise: Individuals, Organisations and Criminal Responsibility, (2007); Harding, supra note 1, at 2–4. Nice, supra note 26, at 387–388. Aksenova, supra note 32, at 50: where this is described as ‘scaling down’ from communal to individual levels. R. Wilson, ‘Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia’, 27 (3) Human Rights Quarterly, (2003), at 908. icc, otp Strategic Plan 2016–2018, 6 July 2015: para. 35–36: “Where deemed appropriate, the Office will implement a building-upwards strategy by first investigating and prosecuting a limited number of mid- and high-level perpetrators in order to ultimately have a reasonable prospect of conviction for the most responsible… Pursuing this in-depth and open-ended approach, the Office will first focus on a wide range of crimes to properly identify organisations, structures and individuals allegedly responsible for their commission. It will then consider mid- and high level perpetrators in its investigation and prosecution strategies to build the evidentiary foundations for subsequent case(s) against those most responsible, if it cannot directly prove the responsibility of the latter. The Office will also consider prosecuting lower level perpetrators where their conduct was particularly grave and has acquired extensive notoriety”. icc, otp, Strategic Plan 2013–2015, 11 October 2015, para. 19: “The Office does investigations and prosecutions into often complex structures with the most responsible often keeping a distance between themselves and the crimes and using different mechanisms to hide their role. The structures through which these crimes are committed cover a broader range than the traditional, clear hierarchical structures. They include ideology-driven cellular structures like those encountered in the world of terrorism, as well as temporary and much more fluid structures based on the mobilization of communities. Investigations of the most responsible persons who try to create plausible deniability for themselves pose challenges similar to organized crime investigations in national jurisdictions. The Office however faces an even bigger challenge than national jurisdictions because the investigative tools it has available are more limited and depend on State cooperation. Specialized investigative techniques are in most cases not feasible or available (e.g. infiltration, interception of voice and electronic communication, controlled delivery, etc.). Such obstacles can only be overcome if the Office is getting full cooperation from all partners involved.”
T. Mason, ‘Intention and Explanation: A Current Controversy about the Interpretation of National Socialism’, in G. Hirschfeld and L. Kettenacker (eds.), The "Führer State": Myth and Reality. Studies on the Structure and Politics of the Third Reich (1981). I. Winkler, Contemporary Leadership Theories: Enhancing the Understanding of the Complexity, Subjectivity and Dynamics of Leadership (2010). M. Weber, The Theory of Social and Economic Organizations (1947). B.Stangneth, Eichmann before Jerusalem: The Unexamined Life of a Mass Murderer (2014). C. Stephen, Judgment Day: The Trial of Slobodan Milošević (2004). Nice, supra note 32, at 76.
M. Schrag, ‘Lessons Learned from the icty Experience’, 2 Journal of International Criminal Justice (2004), at 427, 429. A. Eser, ‘Procedural Structure and Features of International Criminal Justice: Lessons from the icty’, in B. Swart, A. Zahar, and G. Sluiter (eds.) The Legacy of the International Criminal Tribunal for the Former Yugoslavia (2011), at 110–116. M. Damaska, ‘What is the Point of International Criminal Justice?’, 83 Chicago-Kent Law Review (2008), at 329, 331. T. Rosenbaum, ‘The Romance of Nuremberg and the Tease of Moral Justice’, 27 (2006) Cardozo Law Review, at 1731, 1732. M. Cherif Bassiouni, ‘Perspectives on International Criminal Justice’, 50 Virginia Journal of International Law (2010), at 269, 293. J. Turner, ‘Pluralism in International Criminal Procedure’, in D. Brown, J. Turner and B. Weisser (eds.) Oxford Handbook on Criminal Process (2018). Sentencing Judgment, Prosecutor v Erdemović, icty, Trial Chamber, 5 March 1998, para. 21: “The International Tribunal, in addition to its mandate to investigate, prosecute and punish serious violations of international humanitarian law, has a duty, through its judicial functions, to contribute to the settlement of the wider issues of accountability, reconciliation and establishing the truth behind the evils perpetrated in the former Yugoslavia. Discovering the truth is a cornerstone of the rule of law and a fundamental step on the way to reconciliation: for it is the truth that cleanses the ethnic and religious hatreds and begins the healing process.” D. Groome, ‘The Right to Truth in the Fight Against Impunity’, 29(1) Berkley Journal of International Law (2001), at 186: Groome states that when establishing the icty “the Security Council placed the truth-finding process within the walls of a courtroom in which the individual criminal responsibility would be determined.”
17 July 1998, Rome Statute of the International Criminal Court (last amended 2010), Preamble, para. 5 (‘iccs’).
Ibid., para. 4.
Ibid., para. 3.
Ibid., para. 4.
Ibid.
Ibid., para. 9.
iccs, supra note 39, Art. 64(1)–(3).
F. Gaynor, ‘Uneasy Partners: Evidence, Truth and History in International Trials’, 10(5) Journal of International Criminal Justice (2012), at 1264.
Bonomy, supra note 6, at 348.
Aksenova, supra note 32, at 48. E. Heinze, ‘Epilogue: Beyond ‘Memory Laws’: Towards a General Theory of Historical Discourse’, ibid, at 413.
For an excellent discussion on how procedural innovations developed in the context of the icty can overcome various limitations associated with legal inquiry, see G. Nice q.c. and P. Vallières-Roland, ‘Procedural Innovations in War Crimes Trials, 3(2) Journal of International Criminal Justice (2005), at 354.
iccs, supra note 39, Arts. 12, 17, 53(1). According to Articles 11 and 24 iccs the temporal jurisdiction of the Court is from 1 July 2002 which is when the iccs entered into force for most states.
F. de Vlaming, in L Reydams, International Prosecutors (2012), at 570–1.
J. Paust, ‘It’s No Defence: Nullum Crimen, International Crime and the Gingerbread Man’, 60 Albany Law Review (1996–1997), at 657.
iccs, supra note 39, Article 53(2).
iccs, supra note 39, Article 54.
Ibid.
International Criminal Court, Rules of Procedure and Evidence, 2013, Chapter 5, Section iii (‘rpe’).
icc, asp, supra note 27, paras. 326 and 328. icc, otp, supra note 36, paras. 23–25: for example “the use of mobile phones, tablets, smartphones and computers to commit crimes; access to the internet by victims, witnesses and perpetrators to monitor and confirm the commission of crimes, as well as the activities and networks of perpetrators; the increased availability of satellite imagery and other remote sensing techniques to monitor and prove icc crimes”; paras. 62–65, “[o]ne of the main challenges is to adapt the Office to the impact that technology has on its ability to monitor, prove and present crimes… technology is evolving so rapidly that it will be impossible for the Office to keep current if it does not combine investing in its own expertise with developing strategic partnerships for the purposes of outsourcing, when needed, and for understanding and shaping how future technology can assist it to execute its mandate.”
Ibid.
icc, asp, supra note 27, para. 327.
N. Combs, ‘Deconstructing the Epistemic Challenges to Mass Atrocity Prosecutions’, 21 Washington and Lee Law Review (2018), at 38–39.
icc, otp, supra note 24, at 4.
icc, otp, Strategic Plan 2012–2015, 11 October 2013, at 7.
icc, otp, supra note 25.
icc, otp, supra note 36, para.35.
icc, otp, supra note 62, para.23.
icc, otp, supra note 36, para. 13: “At the prosecutorial policy level, the Office shifted its attention…where appropriate, towards a ‘building upwards’ strategy where culpability of the most responsible persons could not be sufficiently proven from the outset”. icc, otp, supra note 62, para. 4 “The required evidentiary standards to prove the criminal responsibility of the most responsible might force the otp sometimes to change its approach due to limitations on investigative possibilities and/or a lack of cooperation. A strategy of gradually building upwards might then be needed in which the Office first investigates and prosecutes a limited number of mid- and high-level perpetrators in order to ultimately have a reasonable prospect of conviction for the most responsible. The Office will also consider prosecuting lower level perpetrators where their conduct has been particularly grave and has acquired extensive notoriety.”
Ibid., para. 19. icc, asp, Report of the Court on Cooperation, 9 October 2013.
icc, otp, supra note 62, paras. 19 and 22.
Ibid., para 22.
T. Boutruche, ‘Credible Fact-Finding and Allegations of International Humanitarian Law Violations: Challenges in Theory and Practice’, 16 (1) Journal of Conflict and Security Law (2011), at 118–119 and 123–124.
icc, otp, supra note 25, para. 8.
W. Schabas, ‘Al Mahdi Has Been Convicted of a Crime He Did Not Commit, 49 (1) Case Western Reserve Journal of International Law’ (2017), at 75–101.
Ibid., at 78.
iccs, supra note 39, Art 8 (2) (e) (iv).
Ibid., Article 8 paras. (2) (e) (iv) and (2) (b) (ix). J. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Volume 1: Rules (2007), Rules 7, 9, 10, 38, 40, 50.
Schabas, supra note 72, at 77.
International Criminal Court, Elements of Crimes, 2011, Art 7 (1) (h).
S. Martínez, ‘Destruction of Cultural Heritage in Northern Mali, A Crime Against Humanity?’ 13(5) Journal of International Criminal Justice (2015), at 1074, 1078. Gaynor, supra note 46, at 1265.
Ibid. p. 1089.
Ibid. p. 1079.
Judgment, Prosecutor v Kordić, icty, Trial Chamber, 26 February 2001, para.20.
K. Wierczyńska and A. Jakubowski, ‘Individual Responsibility for Deliberate Destruction of Cultural Heritage: Contextualizing the icc Judgement in the Al-Mahdi Case’, 16 Chinese Journal of International Law (2017), at 695–721.
K. King and J. Meernick, ‘Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia: Balancing International and Local Interests While Doing Justice’, in B. Swart, A. Zahar, and G. Sluiter (eds.), The Legacy of the International Criminal Tribunal for the Former Yugoslavia, Oxford University Press (2011), at 21 and 22.
For instance, concerns could have included: whether there were sufficient resources to pursue such a trial strategy in view of icc and otp strategy as well as their commitments to other ongoing situations; whether the definition of the crime against humanity of persecution covers the free standing act of attacking cultural heritage or cultural property, given that no express mention of this is made in the icc Elements of Crimes for Article 7(1)(h), i.e. whether the destruction of cultural property alone is sufficient to constitute a freestanding crime against humanity in circumstances where it cannot be evidentially connected to other acts, such as murder, severe deprivation of liberty or torture; whether and to what extent it necessary to demonstrate that the destruction of cultural heritage amounts to a violation of a fundamental right because of its cultural value to the population under attack, and how its cultural value assessed and demonstrated; whether there was sufficient evidence to demonstrate that attacks on cultural property occurring in one city were part of a widespread and systematic attack, and furthermore, what type and range of evidence is needed to satisfy this evidential burden; whether there was compelling and straightforward evidence demonstrating the accused’s intention or knowledge that such conduct was part of a widespread and systematic attack; whether there was sufficient evidence to indicate that the targeted group had the necessary identifiable characteristics and coherence in order to constitute a protected group; whether, if the accused were to be charged with the more serious crime against humanity of persecution, this would have precluded his admission of guilt, his cooperation with the court, and as an outcome of this, an agreed and established set of facts going towards the responsibility of more senior figures, as well as their role in organisations pursuing common criminal plans; whether charging for a crime against humanity was proportionate in the circumstances in terms of being likely to result in a greater sentence, given that the attacks were against civilian property rather than attacks against civilians per se, and considering the mitigating circumstances of the case; whether, in view of the limited evidence going towards a crime against humanity at the investigation stage, charging a war crime could at least be used to gather important information as part of a landmark verdict that could then be used to build-up cases against more senior figures for more serious offences?
Given the range of speculative legal and factual uncertainties listed supra note 84, the Prosecutor’s concerns with prosecuting Al Mahdi for the freestanding crime against humanity of persecution may have been as follows: not having the charge confirmed by the trial chamber because of insufficient evidence; a lengthier and more costly investigation, as well contentious trial and appellate proceedings, with a concomitantly increased risk of acquittal; a cost-benefit analysis: on the one hand, the possibility of an acquittal after lengthy proceedings for a crime against humanity could serve to undermine the interests of the victims as well as the reputation of the court, on the other hand, the probability of securing a quick conviction on a war crimes charge could satisfy the victims’ need for justice in an expeditious fashion, whilst also enhancing the reputation of the court as a diligent organ of justice; an investigation and trial for a war crime, whilst not comprehensively or fairly labeling the crimes for some of the ICC’s constituents, may nevertheless be sufficient to document and endorse some key factual and normative issues for the record; on balance, it is in the interests of justice to devote the ICC’s limited resources to pursuing more serious and complex cases against those high-level perpetrators who are most responsible for atrocity crimes, and to this end, using the prosecutions of low to mid-level perpetrators to obtain incriminating insider information, albeit on the basis of less serious, but more efficacious charges; lengthy trial and appellate proceedings for low to mid-level perpetrators risk taking resources away from other investigations and prosecutions into more serious mass atrocities.
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi, supra note 11, para. 19.
Ibid. paras. 33–33.
Ibid. paras. 33–34.
Ibid. paras 32, 36, 38.
Ibid. paras 37, 53, 54.
icc, Prosecutor v. Al Hassan, supra note 28.
icc, otp, supra note 62, para. 4: “The Office is unable to perform high quality preliminary examinations, investigations and prosecutions without a substantial increase in resources. The Office has reviewed different alternatives to the increase (decreasing quality, prolonging timelines, or permanently decreasing the number of core activities) and none of them are viable options… [t]o limit the request for more resources as much as possible the Office will continue to systematically look to improve its efficiency and cost-effectiveness.”
icc, otp, supra note 62, at 6 and 8, e.g. para. 3: “while the past strategy has achieved a number of positive results, the Office also has to evaluate whether it is adapted to future challenges … [t]he demand on the otp remains very high and will not decrease in the foreseeable future. The resources are not adapted to this demand…[t]he Office is investigating more and more complex organizational structures that do not fit the model of traditional, hierarchical organizations. It is doing so with more limited investigative tools than are at the disposal of national law enforcement agencies. It can only do so if there is full cooperation from States”; para. 7: “[t]he Office is requesting an important increase of resources over the coming years. While the changes in prosecutorial strategy and organizational changes will contribute to improving performance, the lack of resources is the most critical factor to ensure that the Office will successfully face the new challenges and the demand on the Office”; paras. 16–17: “[w]hile the past strategy achieved a number of positive results, the Office has to evaluate whether it is adapted to future challenges…the demand on the otp remains very high and will not decrease in the foreseeable future…the Office is presently not able to sustain such high intensity efforts due to a lack of resources”; para. 24: “The Office is unable to produce high quality preliminary examinations, investigations and prosecutions without a substantial increase in resources. The Office is also not able to meet all the requests for its intervention, which ultimately impacts negatively on its legitimacy…[t]here are no defensible alternatives to the increase of resources … [t]he otp cannot compromise on its quality. The requested increase is needed to reach higher quality standards required by the judges. Without this increase, all other investments in resources risk not being cost-effective”. icc, otp, supra note 36, paras.3, 9, 18, 41, 44, 67–76, e.g. at paras. 9–10: “[t]o meet this demand, the Office’s budget needs to evolve, as does its staffing (in terms of headcount). The resource needs arising from the basic size model are explained and justified in detail in a subsequent report by the Office on the basic size of the otp…the basic size of the otp would require a yearly budget of 60.6 million euros. In comparison, the otp’s approved budget for 2015 was 42.2 million euros… [d]ue to existing and anticipated demands and concomitant resource needs, the Office would like to achieve the proposed basic size within the timeframe of the present strategic plan”; para. 68: “[w]hile recognising that a demand- driven approach is the only approach consistent with the purpose of the icc as outlined in the Rome Statute, the Office recognises that presenting a ‘full’ demand-driven approach at all times would not be realistic, since this would require the otp to respond to all demands made to it simultaneously in a manner that would vastly outstrip existing budgetary assumptions. Instead, the Office has adopted a demand-based approach, where prioritisation of activities will still be required, resulting in a pace below the level of full demand. This creates more resource stability for the Office and more predictability for the States Parties based on a projection of incremental growth, unless exceptional unforeseen circumstances were to materialise which could necessitate a deviation from the basic size model.” icc, asp, icc-asp/16/Res.1, 14 December 2017, para. 11, “Recalls the work undertaken by the Court in 2016 to evaluate the full impact of the ‘Basic Size’ model developed by the Office of the Prosecutor, which seeks to increase the predictability and certainty of the budgetary resources the Court considers necessary in order to carry out its mandate, stresses that the approval by the Assembly of the budget for 2018 is not to be understood as an endorsement of its budgetary implications as the budget for each year should be considered on its own merits as it is prepared by the Court on the basis of the actual needs foreseen for the specific year, and it is considered and approved by the Assembly on an annual basis”; para. 1, “Urges all States Parties to make timely payments of assessed contributions and requests the Court and States Parties to make serious efforts and take necessary steps to reduce the level of arrears and outstanding contributions as far as possible to avoid liquidity issues for the Court, and further requests the Court to communicate to the Committee on Budget and Finance all information concerning outstanding contributions in advance of the seventeenth session of the Assembly of States Parties.”
European Parliament, Report on eu support for the icc: Facing Challenges and Overcoming Difficulties, 16 November 2011, at (R) ‘… whereas the Court is currently being called upon to deal with a rapidly increasing number of investigations, cases and preliminary examinations, while some States Parties of the Rome Statute are seeking to hold the Court to the same or even a decreased budget; para. 54: expresses its concern that the lack of resources remains an impediment to the optimal functioning of the Court; at 16: “Despite its efforts, professionalism and commitment, icc currently finds itself in a critical time juncture, due to political and financial circumstances beyond its control. It increasingly comes under unfair, politically-motivated attacks, its arrest warrants are frequently disregarded, and its current budget is not adequate to its needs. As the eu has been a staunch supporter of the icc, the purpose of this report is to evaluate how it could further assist the Court in facing the challenges and overcome the difficulties of both political and financial nature it faces… While the Court’s reach and deterring impact keeps increasing, it also increasingly faces various challenges and difficulties of both political and financial nature… [f]inancially, the Court struggles to cover its urgent operational needs as its budget does not increase proportionally to its workload. The new referrals are not accompanied by additional funding, and the overall impact of the financial crisis has negatively impacted on the key icc donors, resulting in stagnation of its budgetary resources.” B. Kloss, The Exercise of Prosecutorial Discretion at the International Criminal Court – Towards a More Principled Approach (2016), at 101. icc, asp, Report on the progress of consideration of the financial impact of the Office of the Prosecutor’s Strategic Plan 2016–2018, 4 May 2015, para. 12.
icc, asp, supra note 27, paras. 28, 325, 335, 336, 337, 378, 379, 421, 422.
Ibid. paras.135 – 138. icc, otp, supra note 36, para. 44.
icc, asp, supra note 17, para. 36: ‘It is expected that in 2017, the Court will continue operating in 10 situations under investigation [including]… Mali’; para 40: ‘It is foreseen that the Court will maintain 10 field presences in 2017 [including] ….one in Mali (Bamako)’; para 226: ‘…a number of distinct achievements, including some which are only recent but which are clearly the result of the Strategy that has been applied since 2013, have proven to be particularly significant for the otp… [s]ix new preliminary examinations started and another six completed: three led to the opening of an investigation: Mali…’; para. 582: ‘[i]n 2017, the Court will have 10 field presences in seven situation countries, [including]… Mali’; para 594: ‘[t]he field office in Bamako is expected to support a limited otp presence in the country for the first half of 2017. With Al Mahdi expected to be completed by the end of 2016, no judicial proceedings in relation to the situation in Mali are foreseen for next year. The Registry’s responsibilities for witness protection will nevertheless continue in 2017, thus necessitating a field presence for operational support to the vws. The continued violent attacks by terrorist groups against international staff working in Mali require adequate security arrangements to be in place for the Court’s staff, property and assets’. icc, otp, supra note 36, para. 68. icc, asp, supra note 94: “Following the estimated–demand-driven approach, the expected number of the activities of the otp and required resources will be derived by reviewing historical data on preliminary examinations, investigations and prosecutions in the light of the new strategy. These data will be combined with the available information on current and foreseeable situations and cases. The resulting number of basic-size preliminary examinations, investigations, trials and appeals will be discussed with the Chambers and the Registry to assess their impact on the other organs of the Court. The final financial impact of such activities will be based on (1) the cost of the Court’s operations in the past two years, which are more representative of the impact of the implementation of the new strategy of the otp, and (2) requirements arising from the new Strategic Plan.”
icc asp, supra note 93, at para. 11. iccs, supra note 39, Preamble, para. 4. icc, asp, supra note 94, para. 5: “The otp has chosen the Court’s demand-driven approach as a starting point. The Court deals with ‘the most serious crimes of concern to the international community’. States Parties have also confirmed this as the appropriate starting point in the past. Any other approach than a demand-driven one would defeat the object and purpose of the Statute. Indeed, the otp would be in dereliction of its statutory duties if it refused to investigate crimes clearly within its jurisdiction referred by a State Party on the basis that the ‘quota’ of situations that could be handled with the existing resources had been reached. It is thus imperative for the otp to be endowed with a basic structure that is capable of adequately responding to additional demands while continuing to process existing workload”; para. 9: “Applying a fully demand-driven approach would require an immediate, sharp increase in resources for the otp to be able to handle all cases fully, without having to prioritize some at the expense of others. This approach would generate unpredictability regarding resources in the short and longer term. With preliminary examinations, investigations or trials commencing and ending, the budget can be expected to fluctuate from one year to the next.”
icc, otp, supra note 62, para. 23.
iccs, supra note 39, Art. 66.
icc, rpe, supra note 56, Chapter 6.
Quoted in ‘Why did Prosecution Fail to Prove what Everybody Knows’, Sense Tribunal, 7 April 2008: “I am told all the time, ‘Why didn’t you indict this man or that man? Everybody knows he is guilty’. It is a long way from what everybody ostensibly knows to an indictment for crimes listed in the Statute of the Tribunal that will withstand the test before the court”. Gaynor, supra note 46, at 1257–1275.
icc, otp, supra note 36, paras. 22–30. Tromp, supra note 31, at 274. Nice, supra note 32, at 57–64.
Bonomy, supra note 6, at 350.
S. Bourgon, ‘Procedural Problems Hindering Expeditious and Fair Justice’, 2 Journal of International Criminal Justice (2004), at 531. Nice and Vallières-Roland, supra note 49, at 356. Eser, supra note 38, at 118, 123.
Tromp, supra note 31, at 8.
Nice and Vallières-Roland, supra note 49, at 357.
iccs, supra note 39, Art. 64.
Ibid.
International Criminal Court, Rules of Procedure and Evidence, Rule 66.
iccs, supra note 39, Art. 70.
Ibid. Art. 67.
R. Rauxloh, ‘Negotiated History: The Historical Record in International Criminal Law and Plea Bargaining’ International Criminal Law Review (2010), at 740.
Judgment, Prosecutor v Erdemović, icty, Trial Chamber, 29 November 1996.
Appeals Judgment, Prosecutor v Erdemović, icty, Appeals Chamber, 7 October 1997, para. 21 (1) – (3). Sentencing Judgment, Erdemović, above note 38, para. 18 (a) – (e).
icc, asp, Report on Activities 2016, p. 60.
M. Scharf, ‘Trading Justice for Efficiency’ 2 (4) Journal of International Criminal Justice (2004), at 1079. D. Rothe, J. Meernik and T. Ingadottir, The Realities of International Criminal Justice (2013), at 17. J. Doherty and R. Steinberg, ‘Punishment and Policy in International Criminal Sentencing: An Empirical Study’ (2016) 110 (1) American Journal of International Law, 65. J. Meernik and K. King, ‘The Sentencing Determinants of the International Criminal Tribunal for the Former Yugoslavia: An Empirical and Doctrinal Analysis’, 16 Leiden Journal of International Law (2003), at 730. Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi, supra note 11, para. 44.
Sentencing Judgment, Erdemović, supra note 38, para. 21.
Scharf, supra note 117, at 1081.
Bonomy, supra note 6, at 359. Nice and Vallières-Roland, supra note 49, at 375. O. Kwon, ‘The Challenge of an International Criminal Trial as Seen from the Bench’, 5 Journal of International Criminal Justice (2007), at 360–371.
Judgment on the Appeals of The Prosecutor and The Defence against Trial Chamber i’s Decision on Victims’ Participation, The Prosecutor v. Thomas Lubanga Dyilo, icc, 17 July 2008, para.3. Kloss, supra note 94, at 194. R. Hodžić, ‘Living the Legacy of Mass Atrocities, Victim’s Perspectives on War Crimes Trials’, 8 Journal of International Criminal Justice (2010), at 113. T. Todorov, ‘Memory as a Remedy for Evil’, International Criminal Justice (2009), at 447. K. Bárd, supra note 32, at 27–45.
icc, asp, Report on Activities in 2016, part 7: in 2016 2091 victims were authorised to participate in the trial phases of Al-Mahdi, furthermore, the vprs conducted a mission to Mali to facilitate victim participation in the proceedings for the reparations phase and transmitted an initial batch of more than one hundred applications for reparations in the proceedings. B. Bitti and H. Friman, ‘Participation of Victims in the Proceedings’, in R Lee (ed.) The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (2001) at 456, 457. S. Kendall & S. Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Justified and Abstract Victimhood’, Law and Contemporary Problems (2013), at 235, 239–41.
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi, supra note 11, para. 67.
Ibid. paras, 75–76.
Ibid. para. 100.
Ibid. para. 78.
Ibid. paras 78 and 80. A. Vrdoljak, ‘Introductory note to Prosecutor v Ahmad Al Faqi Al Mahdi: Judgement and Sentence & Reparations Order (International Criminal Court)’, The American Society of International Law, International Legal Materials (2018), at 18 and 57.
Ibid. para. 80.
D. Anayiotos, ‘The Cultural Genocide Debate: Should the un Genocide Convention Include a Provision on Cultural Genocide or Should the Phenomenon be Encompassed in a Separate International Treaty?’ 11 New York International Law Review (2009), at 125. L. Bilsky and R. Klagsbrun, ‘The Return of Cultural Genocide?’ 29(2) European Journal of International Law (2018), at 395–396.
K. Hon, ‘Bringing Cultural Genocide in by the Backdoor: Victim Participation at the icc’, 43 Seton Hall Law Review (2013), at 359–406. Judgment, Prosecutor v Blagojević, 17 January 2005, paras. 659–666. R. van Krieken, ‘Cultural Genocide Revisited’, 12 Australian Indigenous Law Review (2008), at 76. S. Mako, ‘Cultural Genocide and Key Internationl Instruments: Framing the Indigenous Experience’, 19 International Journal on Minority Groups and Rights (2002), at 175–194. L. Smith, Deconolising Methodologies: Research and Indigenous Peoples (2012). M. Kovach, Indigenous Methodologies: Characteristics, Conversations and Contexts (2010). E. Novic, The Concept of Cultural Genocide: an International Law Perspective (2016). A. Vrdoljak (ed.), The Cultural Dimension of Human Rights (2013). D.Short, Cultural Genocide and Indigenous Peoples: a Sociological Approach, 14(6) International Journal of Human Rights (2010), at 833–848. 6 un Doc. ag/Res./47/121 of 18 December 1992 where the United Nations General Assembly labelled ethnic cleansing as a form of genocide and the Federal Constitutional Court, 2 BvR 1290/99, 12 December 2000, para. (iii)(4)(a)(aa), which found that “the statutory definition of genocide defends a supra-individual object of legal protection, i.e. the social existence of the group … the intent to destroy the group … extends beyond physical and biological extermination … The text of the law does not therefore compel the interpretation that the culprit’s intent must be to exterminate physically at least a substantial number of the members of the group.”
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi, supra note 11 para. 108.
icc, Prosecutor v Al Mahdi, Reparations Order, paras 14 and 15.
A. Eser, above n.38, p. 115.
Tromp, supra note 31, at 19.
Ibid., at 20. Eser, supra note 38, at 114–115.
icc, asp Report on Activities 2016.
P. Edge and R. Christumony, ‘Sacred sites and state failures: A case study of the Babri Masjid/Ram Temple dispute in Ayodhya’, at 1–51 (on file with the authors). R. Wilson, ‘Restoration of Historical Memory and Dignity for Victims of the Armenian Genocide’, 14 International Criminal Law Review (2014), at 332–342.
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi, supra note 11, para. 49.
Aksenova, supra note 32, at 53. R Teitel, Transitional Justice (2000), at 72. H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (1994), at 268, 269. D. Pendas, ‘Seeking Justice, Finding Law: Nazi Trials in Post-war Europe’, 81 The Journal of Modern History (2009), at 367.
K. Bárd, supra note 32, at 27–45.
icc, otp, Prosecutorial Strategy 2009–2012, 1 February 2010, para 8. icc, Integrated Strategy for External Relations, Public Information and Outreach. icc, Outreach Unit, Outreach Report 2010, icc, asp, Strategic Plan for Outreach Activities of the International Criminal Court, 29 September 2006. icc, asp, Report on Activities 2016, 6 June 2017, part 7: "in Mali, where outreach activities could not be held in the field due to security constraints, efforts were made from The Hague to inform the affected communities about the trial, verdict and sentence in Al Mahdi through the main national media. An information visit to the Court’s Headquarters during the proceedings was organized for nine representatives of Malian tv and radio. This resulted in wide, accurate and timely coverage by the key national media followed by the local communities. In 2016, the Court bolstered its use of social media, which has proved to be an efficient and cost-effective way of reaching a wider global audience. The Court’s Twitter account has become a reference and its number of followers rose by over 25 per cent last year, reaching a milestone of 200,000, more than all the international tribunals together. While Facebook has been a powerful tool used for specific campaigns – the 17 July Facebook campaign successfully garnered support from participants from over 90 countries – Flickr, Tumblr and YouTube remain key for sharing photos, videos and stories of all the Court’s activities. In 2016, the Court’s YouTube channel gained 3,378 subscribers, reaching a total of 11,268 subscribers (up 40 per cent on 2015, which ended with 7,890 subscribers) and 2,709,059 views.”
Heinze, supra note 32, at 424–428. Simpson, supra note 8, at 837. Douglas, supra note 3, at 256.
Bassiouni, supra note 38, at 293.
Transcript, Prosecutor v Tadić, icty, Trial Chamber, 7 May 1996 at 123, lines 1–25: [Dr James Gow, Expert Witness]: “Overall I think the purpose of the evidence that I am attempting to give is to set the events of 1991 and afterwards in their military-political context. In order to do that I have been reviewing some of the factors which went to create the Yugoslav states which dissolved in 1991, and that has meant making reference to not only the 14th Century but the 4th Century…to give a sense of the way in which the territories which went to make up the federation which dissolved came to be.”
Ibid. p.171. Eser, supra note 38, at 147.
P. Steinbach, Nationalsozialistische Gewaltverbrechen: Die Diskussion in d. dt. Öffentlichkeit Nach 1945, (1981), at 49.
Kloss, supra note 94, at 195.
iccs, supra note 39, Art. 53.
Tromp, supra note 31, at 23.
Ibid. Kloss, supra note 94 at 171. Eser, supra note 38, at 147. otp Prosecution Strategy 2016 – 2018, paras. 55–59: “[p]reliminary examinations are critical … to open an investigation. They also greatly facilitate … investigative work in various ways, such as: e.g. by systematically capturing and exploiting open source data; and building networks of cooperation partners and contacts for handover for investigative activities; and identifying potential cases for future investigations.”
Tromp, supra note 31, at 20.
icc, rpe, supra note 56, Chapter 4, Section 1.
Eser, supra note 38, at 147.
Wilson, supra note 36, at 917.
Judgment on the Appeal, Prosecutor v Katanga, icc, Trial Chamber, 13 May 2008, paras. 59 and 65: “a careful assessment will need to be made, in each case, to ensure that any measures restricting the rights of the Defence that are taken to protect individuals at risk are strictly necessary and sufficiently counterbalanced by the procedures taken by the Pre-Trial Chamber”; para. 73: “in balancing the various interests at stake, the Pre-Trial Chamber must make sure that adequate safeguards are in place to protect the interests of the suspect so as to comply, as far as possible, with the requirements of adversarial proceedings and equality of arms.” Decision on the Prosecution’s Applications, Prosecutor v Mbarushimana, icc, Trial Chamber 20 May 2011, para. 6: “the Single Judge will pay particular attention to the relevance of the information sought to be redacted to the Defence and will ensure at all times that the non- disclosure of such information ‘would not result in the confirmation of the charges, viewed as a whole, to be unfair to the suspect’”.
Tromp, supra note 31, at 22. R. Rauxloh, ‘Negotiated History: The Historical Record in International Criminal Law and Plea Bargaining’, International Criminal Law Review (2010), at 744. Nice, supra note 32, at 27.
Kloss, supra note 94, at 173. Eser, supra note 38, at 147.
Tromp, supra note 31, at 19. Nice, supra note 32, at 80.
United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Report of the Secretary-General, 23 August 2004, at 4.
Damaska, supra note 38. Arendt: supra note 139, at 220–233: “The purpose of a trial…is to render justice, and nothing else…even the noblest of ulterior purposes, the making of a record of the Hitler regime which would withstand the test of history… can only detract from the law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.” M. Osiel, ‘Ever Again: Legal Remembrance of Administrative Massacre’, University of Pennsylvania Law Review (1995), at 144, 463, 524. A. Marston Danner & J. Martinez, ‘Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Law’, 93 California Law Review (2005), at 75, 79. P. Wald, ‘The International Criminal Tribunal for the Former Yugoslavia Comes of Age: Some Observations on Day-to-Day Dilemmas of an International Court, 87(5) Washington University Journal of Law & Policy (2001), at 116–117.
Tromp, supra note 31, preface.
L. Bilsky, ‘Transnational Holocaust Litigation’, 23(2) European Journal of International Law (2012), at 349.
In a similar fashion to the shorter Al- Mahdi trial, see Kristić, supra note 20, para. 4 where “[t]he Trial Chamber draws upon a mosaic of evidence that combines to paint a picture of what happened during those few days in July 1995. In all, the Trial Chamber heard more than 110 witnesses over 98 days of trial and viewed in the vicinity of 1,000 exhibits. A large number of former residents of Srebrenica who survived the events came to The Hague to testify. The Trial Chamber considers that the essence of their testimony was highly credible. The accounts given by the survivors of the execution sites are corroborated by forensic evidence (such as shell casings and explosive and tissue residues) at some of the execution sites, expert analysis of the contents of mass graves and aerial reconnaissance photographs taken in 1995. The Trial Chamber has also considered the testimony of un military personnel who were in Srebrenica, records of vrs radio communications that were intercepted by the Army of Bosnia Herzegovina (‘abih’) in July and August 1995, records seized from the abih, records seized from the vrs, the analysis of military experts called by both the Prosecution and the Defence and the testimony of General Kristić himself, as well as other witnesses who testified for the Defence. In addition, the Trial Chamber called two witnesses of its own accord, both of whom formerly held senior positions in the abih and were closely monitoring the unfolding events in Srebrenica in July 1995.” Eser, supra note 38, at 147. N. Eltringham, ‘We are not a Truth Commission: Fragmented Narratives and the Historical Record at the International Criminal Tribunals for Rwanda’, 11 (1) Journal of Genocide Research (2009), at 57. R. Wilson, Writing History in International Criminal Trials (2011).
Tromp, supra note 31, at 20. Gaynor, supra note 46, at 1258. See also Kristić, supra note 20, para. 2: “The Trial Chamber leaves it to historians and social psychologists to plumb the depths of this episode of the Balkan conflict and to probe for deep-seated causes. The task at hand is a more modest one: to find, from the evidence presented during the trial, what happened during that period of about nine days and, ultimately, whether the defendant in this case, General Kristić, was criminally responsible, under the tenets of international law, for his participation in them. The Trial Chamber cannot permit itself the indulgence of expressing how it feels about what happened in Srebrenica, or even how individuals as well as national and international groups not the subject of this case contributed to the tragedy. This defendant, like all others, deserves individualised consideration and can be convicted only if the evidence presented in court shows, beyond a reasonable doubt, that he is guilty of acts that constitute crimes covered by the Statute of the Tribunal. Thus, the Trial Chamber concentrates on setting forth, in detail, the facts surrounding this compacted nine days of hell and avoids expressing rhetorical indignation that these events should ever have occurred at all. In the end, no words of comment can lay bare the saga of Srebrenica more graphically than a plain narrative of the events themselves, or expose more poignantly the waste of war and ethnic hatreds and the long road that must still be travelled to ease their bitter legacy.”
Ibid. p. 21.
icc, rpe, supra note 56, Rule 101. Bonomy, supra note 6, at 359. Bourgon, supra note 105, at 527.
N. Tromp, ‘Understanding the Milošević Case: Legacy of an Unfinished Trial’ in H. van der Wilt, J. Vervliet, G. Sluiter and J. Houwink ten Cate (eds.) The Genocide Convention: The Legacy of 60 Years (2012), at 27–39.
Bonomy, supra note 6, at 372. Nice, supra note 46.
Judgment and Sentence, Prosecutor v. Ahmad Al Faqi Al Mahdi, supra note 11, para. 76.
Kwon, supra note 120, at 371.
Tromp, supra note 31, at 21.
Ibid. at 20. A Cassesse, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’, European Journal of International Law (1998), at 9, 10.
Peace Treaty between the Holy Roman Emperor and the King of France and Their Respective Allies.
