In the last video, we've covered some of the main general features of international criminal justice. In this video, we will focus particularly on institutions and the options for pursuing justice. To the outside, international criminal courts and tribunals are often seen as a key means to address international crimes. The main argument is that international criminal justice institutions might be better suited than single states to address violations. Domestic systems are typically seen as less able or not sufficiently legitimate and independent to pursue fair justice. But is this true? International criminal courts and tribunals have similar weaknesses. One of them is that they've been largely deployed in the aftermath of atrocities. For instance, Nuremberg, Tokyo, Rwanda, Sierra Leone, and Cambodia all came after the facts occurred. Action against existing atrocity regimes has remained an exception. International criminal institutions have struggled to target crimes by existing political elites or acting heads of state or government. Second, international criminal courts are often, as the late Judge Antonio Cassese put it, giants without legs. This means that these courts lack the power to enforce obligations. For example, in Darfur, ICC member states failed to execute arrest warrants against Sudanese President Omar Al Bashir. And in Kenya, the court struggled to gain the necessary cooperation and protection of witnesses to build solid evidence against president Kenyatta. One of the main achievements of the developments of international law is that nowadays there's a multi-layered accountability structure for serious crimes. It involves institutions at multiple levels, the main question is there's no longer if there's accountability, but rather when, how and by whom. So what are the different justice options? The first option to achieve accountability is through domestic jurisdiction. States remain the main port of entry for the exercise of criminal jurisdiction. They typically capture a wide spectrum of offenses and offenders, including medium and low level perpetrators and bystanders. These courts can assert three titles of criminal jurisdiction. Jurisdiction of a person of any nationality who commits crimes within their territory. Jurisdiction of crimes committed by their nationals or against their nationals, and universal jurisdictions of crimes that affect the international community as a whole such as genocide, crimes against humanity and war crimes. The second option is to hold perpetrators accountable through prosecution on an international level. The options of international or international law enforcement have increased. There are at the moment no less than four different models available. International criminal courts and tribunals, hybrid courts, internationalized domestic courts, and regional courts. How do they differ? International criminal courts and tribunals can be distinguished by their nature of jurisdiction. The situation-based ad hoc tribunals and the more globally oriented and permanent ICC. The ad hoc tribunals, which means the criminal tribunals for the former Yugoslavia and Rwanda are hallmarks of a modern turn to accountability. They were created under Chapter VII of the United Nations Charter in the 1990s as an instrument of maintaining peace and security. Based on this legal authority, they were vested with primacy over domestic jurisdiction and the power to oblige states to cooperate. This ad hoc model has several advantages. It allows a situation-specific tailoring of jurisdiction and offenses, it comes with robust powers, and it reflects a strong level of international commitment. But this formula has failed to gain the necessary political support in more recent context, such as Syria, MH17, or ISIS. The ICC is a treaty based court, and thus, grounded in domestic consent. The jurisdiction for the court is not tied to a specific situation, but more global in reach. Its powers are in principle limited to state parties. The most innovative feature of the Statute is its more systematic turn to the interaction between the international and the domestic legal system. By ratifying the statute, a state acknowledges that crimes within the jurisdiction of the court shall, in principle, either be investigated or prosecuted by a domestic jurisdiction, or by the court itself. The second model is the hybrid court model. What does this mean? Hybrid courts are mixed national-international courts that operate as independent criminal institutions outside the traditional realm of domestic jurisdiction. They hybrid court model offers a midway between international and domestic justice. The legal basis of the court is typically formalized in an international instrument, but it is subject to domestic consent. The advantage lies in the inter-linkage with the domestic system. Justice is more closely related to the traditions of the domestic legal systems and domestic communities. The most classical examples of the hybrid model are the Special Court for Sierra Leone and the Special Tribunal for Lebanon. In practice, these hybrid courts have tended to argue that they are international rather than domestic. This technique has allowed them to claim binding powers of cooperation and to discard immunities or amnesties that would normally be applicable to a state. A third model of justice is the integration of mixed domestic-international courts into the structure of the domestic legal system. How do such mixed court chambers differ from hybrid courts? The difference is that they lack a separate international legal identity of their own, distinct from the legal personality of the domestic state. The advantage of this model is that it combines internationalization with local expertise and access to justice. Early examples are the former UNMIK courts in Kosovo, the Special Crimes Panel in East Timor, and the Extraordinary Chambers in the Courts of Cambodia. This model is less effective in situations in which the prime suspects are located in a different jurisdiction. Finally, there's the option of regional enforcement. This is a relatively new trend. A prominent example is the adoption of the Mabolo Protocol by the African Union in 2014. It gives the African Court of Justice and Human and People's Rights jurisdiction over crimes and other offences. It has merits and downsides. For instance, the Mabolo Protocol contains a number of offences such as illicit exploitation of natural resources that have particular relevance to the African continent. But it also contains certain crimes that lack universal recognition, such as the alleged crime of unconstitutional change of government. It is further questionable whether international crime adjudication should be entrusted to a human rights court. Such courts typically differ from criminal courts in terms of their expertise, their methodology, for example, their investigative capacity and their judicial culture. We've seen in this video that the network for enforcement has considerably expanded, but what can we learn from this? A clear lesson from existing experience is that international criminal justice as such does not create justice. Justice is a process. It requires proper timing of justice intervention, a sustainable exit and most importantly, a broad range of responses that induce investigation and prosecution. Second, there's a wide range of institutional options to pursue justice, whether in an international framework, a domestic one, or some novel and flexible hybrid format. In this context, international justice is no longer only a mechanism to fill justice gaps at the domestic level, it is also a means to strengthen domestic justice. One of the main challenges is to identify the proper role of individual response schemes and to catalyze political will to promote accountability. Our next video will focus on the main actors within the international criminal justice system.
