Welcome back to the second module of this course. In this module we will move from crimes to institutions and processes. Many people argue that international criminal justice strengthens accountability by providing teeth to the enforcement of rights. International trials are set to contribute to accountability in three ways. They draw attentions to facts and crimes, they have a certain demonstration effect, justice is seen to be done, and third, they strengthen the protection of individuals against oppression. But how is this done? This is what we'll analyze in this video, So what we will discuss in module two? We will first explore the role of international criminal courts and tribunals. These courts and tribunals are typically said to be legal agents. They claim to be apolitical or above politics. But is this true? Investigating and prosecuting crimes requires judicial diplomacy and engagement with politics. We will analyze this interplay. We will start with the analysis of justice institutions. When ICC Prosecutor Luis Moreno Ocampo took office, he said that the absence of cases would be a success of the ICC. Is this still valid? We will explore this claim and study the different models of justice that have been used to promote accountability, international courts, hybrid courts, internationalized courts, and regional mechanisms. We will then look at the main actors of the international criminal justice system. To the outside world, international courts and tribunals are often presented as one entity. But this is partly a fiction. These courts involve multiple organs with different responsibilities. The prosecutor, which brings charges, the judiciary which tries cases, the registry which supports the judicial work, and the presidency, which represents the court. They are complemented by the defense, which represents the interest of suspect and accused. We will investigate their roles. We will then discuss how cases emerge. Prosecutorial actions involves selection, and hard choices. The difficulty is often not to filter out weak or frivolous cases, but to select a few out of many. It is typically said that there is not peace without justice, but isn't it also true that sometimes there's no justice without peace? We will discuss these tensions. We will then study the different stages of the proceedings. Often, the focus is on the judgement. Procedures are seen as technical exercises, but this is misleading. Justice is a process. It involves different steps, and processes of inclusion and exclusion. Sometimes the most fundamental questions occur at the early stages of the proceedings. We will explore these different steps in this module. Let us start with five core dilemmas that international criminal courts and tribunals face in their pursuit of accountability. Independence, impartiality, fairness, effectiveness, and conceptions of justice. International criminal courts and tribunals aspire to be independent from the influence of states. But how independent are they? Court struggle was a tension between traditional dependence and stake holder dependency. They depend on states to receive budget and cooperation. They easily become the object of politics or tactics of lawfare, the use of law as a weapon. A recent example is the dispute over the surrender of the heads of the States with the African Union. It prompted the ICC Assembly of States' parties to engage with judicial issues under consideration by the court. The second premise of international criminal courts and tribunals is impartiality. Impartiality is tied to the idea of equality before the law and lack of bias. Investigation and prosecution should be even handed. But is this achievable? This premise stands in contrast to the selectivity of international criminal justice. Typically, only a handful of incidents can be investigated and prosecuted. This makes these courts vulnerable to critiques of victor's justice. International criminal courts and tribunals have struggled with this critique since Nuremberg and Tokyo. At the Yugoslavia and the Sierra Leone tribunals the chief prosecutors issued indictment on all sides of the conflict. But this balance has not always been reached. In Rwanda or Uganda, prosecutors have only sought indictments against suspects from one side of an armed conflict, although suspects from the other sides were implicated in grave atrocities. This is sometimes referred to as a new type of victor's justice. Such exclusions are typically explained by budgetary limits, or reference to different gravity of crimes. But they pose serious dilemmas in relation to the perception of justice. A third for the mental premise is fairness. Fairness has become the raison d'etre of international criminal justice. Richard Goldstone, the first ICTY prosecutor, has argued that the success of international criminal courts and tribunals should not be measured by the number of convictions, but by the fairness of the trials. But what is fairness? Fairness has a double meaning. Fairness involves certain procedural dimensions, such as, the right of the defendant to a fair trial, equality of arms, the presumption of innocence, the safety of witnesses and victims and the ability to present one's case. But it also implies certain normative considerations, such as, coherence and equal and unbiased application from norms and stands to all participants in the process. Determining fairness is a balancing act. Courts are constantly torn between different constituencies. The right of the defense, the interest of the prosecution, victims, and affected states. The fourth element is effectiveness. Effectiveness is related to the aims and goals of an institution. The concept is often confused with efficiency. International criminal institutions have been criticized for the lengths of the proceedings, but is this a fair critic? I would argue that effectiveness cannot be judged solely by the mere number of trials or proceedings, or by their pace. A figure of four to five years may appear long for a trial, but it is less threatening if it is related to the number of victims and crimes, to the complexity of cases and procedures, and external factors, such as, the intimidation of witnesses. Bringing together judges, prosecutors and staff from different backgrounds and legal traditions also creates obstacles to efficient trials. Moreover, a trial may be efficient or expeditious, but lack effectiveness if it is not perceived has being found. Finally, what type of justice do international criminal courts and tribunals pursue? The courts are striving to strike a balance between a retributive and a restorative vision of justice. Retribution is a classical feature of criminal trials. It relies on ideas of punishment, fairness of proceedings, and the strengthening of social norms and rules that have been violated by the defendant. Restorative justice devotes broader attention to the needs of victims, offenders, and affected communities. In international criminal justice, there's an increased trend across institution to strengthen the restorative features of trials. This has strengthened sensibility to the interest of victims, but this has also caused new concerns. There's a deeper critique that international criminal justice promotes a global rather than a local vision of justice. For instance, in the democratic republic of the Congo, child recruitment is hardly seen as the worst crime in the conflict. There's certain fears that victims of global crimes are prioritized over others. In this video, we've covered some of the main ambitions and challenges of international criminal justice. We've covered five dilemmas, independence, impartiality, fairness, effectiveness, and conceptions of justice. We have dispelled certain misunderstandings. We've seen that international criminal courts and tribunals are not only legal agents, but also social actors. We have learned that they are not unitary entities. We've seen that it is important to distinguish the functions of the institution as a whole from the objectives of specific proceedings. We have also discovered that international criminal courts and tribunals have multiple identities. The core function is criminal, namely to adjudicate crimes and perpetrators, but they also have a certain civil function, namely to remedy harm caused to victims. We've further learned that whatever these courts do is subject to some form of critique. It is thus important to seek critiques in context. In the following models we will discuss these issues in more detail. Our first stop will be an exploration of the justice institutions, and of options for pursuing justice.
