Dialogue with Member States on rule of law at the international level

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Dialogue with Member States on rule of law at the international level

The Rule of Law Unit organised a panel discussion on strengthening the nexus between international criminal justice and national capacity to combat impunity on 9 April 2010, at the UN Secretariat in New York.
The Rule of Law Unit organised a panel discussion on strengthening the nexus between international criminal justice and national capacity to combat impunity on 9 April 2010, at the UN Secretariat in New York.

A panel discussion on strengthening the nexus between international criminal justice and national capacity to combat impunity took place on 9 April 2010, at the UN Secretariat in New York . Organised by the Rule of Law Unit and chaired by Mr. Doctor Mashabane, Deputy Permanent Representative of South Africa to the United Nations, the panel was the third event in the dialogue with Member States on strengthening the promotion of the rule of law at the international level, recommended by the Secretary-General with a view to overall coordination and coherence of United Nations rule of law activities (A/63/226). The General Assembly has welcomed this dialogue series, initiated by the Rule of Law Coordination and Resource Group and the Rule of Law Unit, and called for its continuation (A/RES/64/116, A/RES/63/128).

The panelists focused their presentations on building States’ capacities to combat impunity at the national level, and how the UN can support Member States in this regard. They discussed the lessons learned from ad hoc and hybrid tribunals, and how to align knowledge and initiatives from international criminal justice with efforts to strengthen domestic prosecutions and capacities.

Mr. Paul Seils, Chief of Rule of Law and Democracy Unit, United Nations Office of the High Commissioner for Human Rights, opened the discussion by drawing attention to the pressing need to enhance national capacities, in order to strengthen the rule of law at both the national and international levels. He highlighted existing UN standards and the policy framework laid out by the Secretary-General in reports and Guidance Notes on rule of law; urged the UN to enhance its capacity and cooperate with key actors in this field to maximise resources, including regional organizations and courts, whose jurisprudence has contributed to the development of international criminal law; and noted that experts carrying out evaluations and programming on the ground should bear in mind the political climate and will of the countries they are operating in. He recalled that the Department of Peacekeeping Operations (DPKO) and the Office of the High Commissioner for Human Rights (OHCHR) are currently developing indicators which should allow for a better assessment of the integrity and capacity of critical rule of law institutions in a given country, particularly those focused on criminal justice. Such indicators should be used in assessing the national and regional needs of Member States.

Acknowledging the forthcoming completion of several ad hoc and hybrid tribunals, Mr. David Tolbert, President of the International Center for Transitional Justice, emphasised that domestic prosecutions will be increasingly important for delivering justice for crimes against humanity and genocide, and the role of the tribunals in supporting the development of national courts. He explained how the experiences of, among others, the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the Extraordinary Chambers in the Courts of Cambodia (ECCC) had contributed to the development of the International Criminal Court (ICC) and the principle of complementarity. Mr. Tolbert also described some of the challenges of proceedings in the ICTY and the ECCC, namely their disconnect with the domestic system, their limited contribution to strengthening national judicial capacity, and the lack of understanding by the local population of the role of these tribunals.   Mr. Tolbert called upon the international community to better bridge the divide between international justice efforts and the broader rule of law development.  

Mr. Jim Goldston, Executive Director of Open Society Justice Initiative (OSJI), emphasised the complementarity principle as a core concept of the Rome Statute of the ICC. The ICC is meant to be a court of last resort, used when a “State is unwilling or unable genuinely to carry out the investigation or prosecution” [Article 17(1)] and there is significant debate on what the ICC could do to strengthen national prosecutions. The UN and other organizations, including bilateral donors, could do more to align existing assistance with international obligations, including the complementarity principle. Studies undertaken by OSJI show that little has been done by Member States and donors to further national capacity-building; however, a report by Denmark and South Africa , the focal points for the complementarity session of the Kampala Review Conference, contains useful recommendations in this respect [1]. Legislative assistance (e.g. incorporating Rome Statute obligations into domestic legislation), technical assistance (e.g. the training of police, judges and defense officials), advice on victims’ reparations, support to civil society, and the provision of physical infrastructure complying with international standards are some practical steps to enhance national capacity. Better coordination among rule of law donors and assistance providers would also help.

Ad Litem Judge Kimberly Prost of the ICTY continued the discussion on the complementarity principle, citing it as a great achievement of the Rome Statute but deplored the little attention focused on the “complementee”. She suggested a more proactive, integrated and coordinated approach. Constructing a national justice system that acts to prevent and not only respond in the aftermath of a humanitarian crisis will significantly bolster the rule of law. International criminal law assistance needs to be designed and provided in the broader framework of strengthening the rule of law in a country. International assistance in this respect would benefit from greater coordination efforts, dialogue, and networking between national and international rule of law actors. Judge Prost proposed the creation of a specialized crimes chamber, which would integrate traditional and alternative justice mechanisms to adjudicate a variety of serious transnational crimes other than genocide, crimes against humanity and war crimes, such as drug trafficking, corruption and terrorism, which also have a direct impact on the rule of law in a country.

Dr. Vasuki Nesiah, Lecturer, International Relations and Gender Studies, Brown University , focused her discussion on the relationship between international criminal justice and gender. It is unfortunate that the focus on gender in the international arena is usually related to sexual violence; other aspects such as internal displacement and forced removals have significant gender implications, which remain often invisible in the prosecution context and often do not receive sufficient attention by the UN and international law. She recommended not singling out criminal justice issues but addressing them in assistance designed to cover broader justice concerns that are often equally important for the people, such as distribution of natural resources. She reminded the audience that the political context and the will of national authorities in a country need to be taken into consideration when making recommendations on implementing international norms and standards.    

Following the presentations, the audience of Member State delegates, UN staff and NGO representatives engaged in a lively discussion on issues related to funding for specific international courts; how international justice can work towards improving States’ security in order to prevent conflicts and the perpetration of international crimes; improving the international justice system with regards to arrests of indictees; bringing national experts to the stage; and narrowing the gap between international mechanisms and national capacities.

Information about upcoming panel discussions organised by the Rule of Law Unit as part of this dialogue series with Member States will be posted on this site.

[1] ICC Assembly of States Parties, Resumed eighth session, New York , 22-25 March 2010, “Report of the bureau on stocktaking: Complementarity” (18 March 2010), para. 17.