Sarah Nouwen

The Special Court for Sierra Leone and the Immunity of Taylor: The Arrest Warrant Case Continued

In its Taylor decision the Special Court for Sierra Leone denied immunity ratione personae to the, at the time of the indictment, President of Liberia. This article first analyzes the legal reasoning of that decision. The Courts finding that it is an international court is approved; the consequence it attaches to that finding is criticized. The decision is then presented as an illustration of the negative consequences of relying upon controversial elements of the ICJs Arrest Warrant case. It is suggested that instead of the distinction between national and international courts, the difference between criminal responsibility and procedural immunity could have been the basis for the reasoning of the ICJ and Special Court.

Legal Equality on Trial: Sovereigns and Individuals before the International Criminal Court

Writing in 1964, Pieter Kooijmans challenged the principle of legal equality of states: it would have to prove its value or be discarded. He also predicted the relevance of the principle for a new subject of international law: the individual. Almost fifty years later, this article reviews how the principle has fared in international criminal law, a field of international law relevant both to states and to the individual. The review shows how the emergence of a more vertical international legal order has weakened the position of the principle of equality between states. The weakening of the principle in the relation between states has in turn affected the equality between individuals, which has contributed to further actual inequality between states. Contrary to one of Kooijmans’s scenarios, the emerging international legal order has not diminished the role of the ‘factual conditions of power politics’. Legal questions on permitted differentiations always involve inherently political assessments. For instance, Kooijmans’s concept of ‘juridically relevant’ differences requires a determination of which differences are ‘of intrinsic value for the existence of legal order’, and thus a decision on what that order should look like and how it is to be pursued. Moreover, factual conditions of power politics continue to encroach upon the principle of legal equality. Perhaps the principle of legal equality, like the fight against impunity, is more of an ideal than a reality. But the pursuit of the fight against impunity has thus far undermined the fight for more equality.

Speaking of Legacy: Toward an Ethos of Modesty at the International Criminal Tribunal for Rwanda

Pour qu’un héritage soit réellement grand, il faut que la main du défunt ne se voie pas. In 2014, a year of memorial ceremonies commemorating the twentieth anniversary of the Rwandan genocide, the International Criminal Tribunal for Rwanda (ICTR) marked its own twentieth year with the launch of a “legacy website.” With the closing of the Tribunal scheduled for December 2015, the question of its legacy had become increasingly pressing. The website premiered a video that “celebrates the accomplishments of the ICTR” in a “visually compelling” style. Blurring the distinction between documentary account and film trailer, the video begins with iconic images of the African continent: a boy rolling a hoop down a dirt road; laborers ferrying wares; women in colorful dresses tending children. These scenes of daily life are interrupted by images of men wielding machetes and corpses, interspersed with the figure of the radio, reminding the viewer that the 1994 genocide was encouraged through broadcasts inciting Hutus to take up arms against their Tutsi neighbors. The video lists the Tribunal’s contributions to international criminal law, but also describes a much broader impact: “a record of legal reform in Rwanda, and outreach, education, legal training, and healing.” Young boys leap into a body of water to punctuate the final term, suggesting the hope of a new Rwanda. The narrator proclaims, “today in Rwanda, it’s safe to listen to the radio again: the sound is of a nation rebuilding.” The film’s final words reach beyond the Rwandan context, affirming that ours is “a world pushing forward despite great imperfection, each day closer to a time when international law offers justice to all people, everywhere.”

The International Criminal Court and Conflict Prevention in Africa

This chapter examines the role of the International Criminal Court (ICC) in conflict prevention in Africa. To that end, it reflects critically on three questions. First, what does the ICC have to do with prevention? Second, what does the Court have to do with the prevention of conflict in particular? And finally, even more specifically, what does it have to do with the prevention of conflict in Africa? In addressing these questions, the chapter highlights some of the most frequent assumptions underpinning claims about the ICC and conflict prevention on the continent.

Leaving Legacies Open-Ended: An Invitation for an Inclusive Debate on International Criminal Justice

As a response to the Symposium on the International Criminal Tribunals for the former Yugoslavia and Rwanda published by the American Journal of International Law on the occasion of the tribunals’ closure, this AJIL Unbound Symposium intends to broaden the debate on the “legacies” of those courts. The AJIL Symposium contains articles on the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR); the ad hoc tribunals’ jurisprudential contributions; and their extra-legal impacts and legacies. The concept of “legacy” is itself contested and the appropriateness of the courts’ own efforts to consolidate it may be questioned, especially as they have barely ended (or are about to end) their work. Nevertheless, their over two decades of existence does provide an occasion to assess all they have done and not done, and have affected, intentionally and unintentionally. Against that background, we have invited a group of scholars to respond to the AJIL Symposium and to reflect upon the work of the tribunals with a view to enriching the debate with more voices, from different regions, from different interest groups, and from different disciplines.

Complementarity in the line of fire

Of the many expectations attending the creation of the first permanent International Criminal Court, the greatest has been that the principle of complementarity would catalyse national investigations and prosecutions of conflict-related crimes and lead to the reform of domestic justice systems. Sarah M. H. Nouwen explores whether complementarity has had such an effect in two states subject to ICC intervention: Uganda and Sudan. Drawing on extensive empirical research and combining law, legal anthropology and political economy, she unveils several effects and outlines the catalysts for them. However, she also reveals that one widely anticipated effect – an increase in domestic proceedings for conflictrelated crimes – has barely occurred. This finding leads to the unravelling of paradoxes that go right to the heart of the functioning of an idealistic Court in a world of real constraints.

Combining Ownership and Neutrality in the Prosecution of International Crimes: Theory and Reality of Mixed Tribunals

Mixed tribunals, a new type of courts prosecuting international crimes, have been welcomed with the assertion that they combine the neutrality of international courts and the ownership of domestic courts. Examining the current examples of mixed courts in Kosovo, East Timor, Sierra Leone, Cambodia and Bosnia and Herzegovina this article reveals, however, that it is problematic to ascribe this potential to mixed tribunals as a category. The category of mixed tribunals appears to be very heterogeneous in itself. The common defining and distinguishing feature, panels with national and international judges, can go some way towards providing both ownership and neutrality. However, other, not defining and even not common features of the courts, such as their establishment history, legal order, location and outreach programmes, appear to be as important. Consequently, if mixed tribunals are established with the expectation to combine neutrality and ownership, mixed panels as such do not suffice. From the moment of the establishment to the dissemination of the judgments, various other factors have to be taken into consideration for this expectation to be fulfilled.