Two Steps Forward, One Step Back: The Deterrent Effect of International Criminal Tribunals Edited by Jennifer Schense and Linda Carter INTERNATIONAL NUREMBERG PRINCIPLES ACADEMY Two Steps Forward, One Step Back: The Deterrence Effect of International Criminal Tribunals Edited by JENNIFER SCHENSE and LINDA CARTER About the International Nuremberg Principles Academy The International Nuremberg Principles Academy (Nuremberg Academy) is a foundation dedicated to the advancement of international criminal law. It is located in Nuremberg, the birthplace of modern international criminal law, and is conceived as a forum for the discussion of contemporary issues in the field. The mission of the Nuremberg Academy is to promote the universality, legality and acceptance of international criminal law. The foundation´s main fields of activity include interdisciplinary research, trainings and consultant services specially tailored to target groups, and human rights education. The Nuremberg Academy places a special focus on the cooperation with countries and societies currently facing challenges related to international criminal law. The Nuremberg Academy was founded by the German Foreign Office, the Free State of Bavaria and the City of Nuremberg. The opinions expressed in this publication are solely those of the author and do not reflect the views of the institutions the authors are affiliated to or of the International Nuremberg Principles Academy. International Nuremberg Principles Academy Egidienplatz 23 90403 Nuremberg Tel + 49 911 231 10379 Fax + 49 911 231 14020 [email protected] www.nurembergacademy.org © 2016 International Nuremberg Principles Academy i Preface The idea of the deterrence project originated in one of the Academy's Advisory Council meetings. Justice Song, former President of the ICC, proposed that the Academy could conduct a study into whether the ICC has had a deterrent effect A preliminary literature survey disclosed that no major study had been conducted on this area at this time, and thus the Academy decided to make a contribution to the ongoing academic and policy debates on various aspects related to the impact of the International Criminal Court. Already at the initial stage of the project, it was decided to expand the focus to include prior international criminal tribunals, the ICTY, the ICTR and the Special Court for Sierra Leone, to provide a richer analytical frame and broader context for the study, and more useful inferences, conclusions and recommendations for enhancing the ICC’s deterrent effect. Each case study aims to track the deterrent effect of the relevant tribunal or court from its point of entry into a situation through the convictions/acquittals and appeals stages, where these procedural steps have been achieved. The Academy engaged researchers with in-depth knowledge of the situation country and of the relevant tribunal or court operating there; most of them originating from the countries involved. During an initial workshop held in Nuremberg in February 2016 the authors and editors adopted a working definition of the term of deterrence and reached a common understanding of ideas and methodology. The project on deterrence fits in the Academy's three year research plan, and intersects with the Academy's inaugural research project on acceptance of international criminal justice. As the chapters of this volume show, numerous theoretical and practical linkages between deterrence and acceptance exist. One such linkage is explored through the study's focus on perceptions held by different sectors of society, which impact on the deterrent effect or the ICC. The Academy's study is seminal because of its in-depth nature; other impact studies treat deterrence as one of several aspects of impact, and, consequently, pay it scant attention, although it is a core objective of the ICC. The deterrence project is important to the Academy for various reasons. First, the study involves field work to gather first-hand information on those who have actually experienced (or not) the deterrence effect of international tribunals. These studies aim to showcase the new information collected rather than only survey what is already known. Second, the study brings together researchers from both legal and other disciplinary backgrounds, who seek to situate their studies within an interdisciplinary context to better understand how deterrence functions in the real world. Third, the study involves researchers who bridge the academic, the practitioners’ and policy-making world to achieve a holistic approach. Klaus Rackwitz Director ii Acknowledgements Thanks must go first to the International Nuremberg Principles Academy for conceiving and implementing this project. As the editors, we appreciated the opportunity to work closely with both Ambassador Bernd Borchardt and Klaus Rackwitz, the first and second directors of the Nuremberg Academy respectively. Their commitment to the subject of deterrence, and their practical and intellectual support, helped to bring together an ambitious project in a short period of time. We are grateful to Dr. Godfrey Musila who, as the Research Director of the Academy, conceived and organized the project based on an idea generated by Academy Board member Judge Sang-Hyun Song, formerly President of the International Criminal Court. We all relied as well on the steady guidance and good grace of Darleen Seda of the Academy who saw the project to its successful completion. Additional thanks must go to the external reviewer, Professor Mark Drumbl, of Washington and Lee University School of Law. Professor Drumbl joined the project last, but with a wealth of professional experience on the subject of deterrence and international law, leavened with good humor throughout. Finally, we must express our appreciation for the chapter authors, who undertook extensive and often difficult field work to collect perceptions of deterrence from as many respondents as possible, and who found time for thoughtful analysis amongst the many other demands of their professional lives. These authors—all of whom are young professionals working in the countries about which they write—represent the future of international criminal law, insomuch as the greatest deterrent effect must arise from the scene of the crime, so to speak, and from the communities that must grapple with these crimes most directly, and for the longest time. We must understand better both the failures and accomplishments of deterrence efforts because just as international crimes affect us all, so will the solutions we each find bind us more closely as a true international community. We look forward to continued contact with all participants in this volume, and to further discussion and implementation of its recommendations. Jennifer Schense and Linda Carter Editors iii Biographies Editors Jennifer Schense is the founding director of the House of Nuremberg and of Cat Kung Fu Productions, both dedicated to creating films and other popular, cultural works reflecting on justice. She has also worked with the ICC Office of the Prosecutor in the Jurisdiction, Complementarity and Cooperation Division since 2004, and is currently contributing to the ICC Registry's external relations and networking strategy. Prior to her work at the ICC, she served as the Legal Adviser for the NGO Coalition for the International Criminal Court (CICC) from September 1998 until September 2004, and served for one year as a fellow at Human Rights Watch. She is currently completing her PhD in international criminal law at Leiden University. She received her Juris Doctorate from Columbia Law School in 1997, and her Bachelors of Science in Russian language and Russian area studies from Georgetown University in 1993. Linda Carter is a Distinguished Professor of Law Emerita at the University of the Pacific, McGeorge School of Law, in Sacramento, California, where she teaches and researches on issues of domestic and international criminal law. Her most recent publications include International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems and a forthcoming book, The International Criminal Court in an Effective Global System. Prof. Carter has also participated in programs in various international venues in teaching, research, and program development roles. These programs include working with the Brandeis Institute for International Judges from 2003-2015; serving as a Visiting Professional in the Appeals Chamber of the International Criminal Court and as a legal researcher at the International Criminal Tribunal for Rwanda in 2007; assisting in international criminal law curriculum development at universities in Sierra Leone, Zimbabwe, and Kenya in; directing a summer program on law and development in Kampala, Uganda in 2013; and teaching in the Nuremberg Summer Academy in 2016. She is a member of numerous professional organizations, including election to the American Law Institute (ALI). Authors Sharanjeet Parmar is an international human rights attorney. She has worked in the Democratic Republic of the Congo since 2009 on justice and accountability issues, including the commission of serious crimes against children. She formerly worked as an Assistant Trial Attorney for the Special Court for Sierra Leone and taught in the Human Rights Program at Harvard Law School. She is presently the Anti-corruption Project Head, Essor Programme for PwC UK. Ms Parmar has worked in over a dozen countries across Africa and Asia on human rights, gender, peace and security