It is highly unlikely that we will see ad hoc international tribunals or elaborate hybrid courts such as the SCSL and the ECCC in the future, asserted ICTJ President David Tolbert at an expert meeting about the future of international justice in light of past experiences and progress made at the Council on Foreign Relations (CFR).
Since the establishment of the International Criminal Tribunal (ICTY) in 1993, there has been a veritable revolution in efforts to hold to account those responsible for the most serious crimes known to humankind—genocide, crimes against humanity and war crimes. Building on these achievements, the Rome Statute of the International Criminal Court (ICC) has been widely adopted and is now part of the international architecture.
Alongside their successes, however, these courts also have significant shortcomings and, at times, failures. One pervading issue has been the length of trials. At the International Criminal Tribunal for Rwanda (ICTR), some defendants have languished 12–14 years in detention before a judgment was issued. Another issue lies in the cost of these courts and tribunals and the hard reality of donor fatigue. The ad hoc tribunals have a combined lifetime cost upwards of $1 billion. The Special Court for Sierra Leone (SCSL) alone has cost $250 million and has dealt with only nine accused.
“This is not to cast too negative a light,” Tolbert said, “but these issues and lessons will drive what happens next in international justice and the fight against impunity.”
For the reasons outlined, Tolbert believes it is unlikely that we will see ad hoc tribunals in the future. It is also unlikely that we will see elaborate hybrid courts such as the SCSL and the ECCC. However, nationally-based courts which utilize the support and expertise of international experts, as well as integrate skills transfer and capacity building have a potential future.
This approach grows out of the complementarity principle, the cornerstone of the Rome Statute. This holds that the primary responsibility for the investigation and prosecution of Rome Statute crimes rests with states. The ICC is essentially a court of last resort, complementing national jurisdictions, and will intervene only when a state cannot or will not carry out the necessary investigation and prosecution. It is on how the complementarity principle is put into practice that the future of international justice rests.
And the ultimate success of complementarity relies on the support by the international community. International legal development bodies and actors, human rights organizations and the UN organization family, must be actively involved in pushing the international justice agenda forward in the work they do if the complementarity principle is going to work in practice.
Tolbert closed by emphasizing: “It is very important if we are going to have a battle against impunity and if we are to take this battle seriously, the complementarity principle has to work in action.”
