The NWO Project

In examining the impact—social, political, and legal—of the early practice of the International Criminal Court (ICC), this project is animated by the call to move from a ‘faith-based’ to an evidence-based approach in transitional justice scholarship. In so doing, the project seeks to address gaps between the ICC’s work as it is envisioned in The Hague and its reception in the situation countries where it is currently operating (Uganda, Democratic Republic of Congo, Central African Republic, Sudan, and Kenya). Three areas of inquiry, outlined below, guide this research.

I. ‘Local Ownership’ and the International Criminal Court

The first pillar of the project examines the emerging concept of ‘local ownership’ as a critical component of the ICC’s work. International judicial responses to conflict have been characterized by ad hoc-ism and deference to externally driven reform agendas. Likewise, international courts and tribunals have been criticized for deploying methods that are at odds with domestic legal cultures or ill-suited to facilitate sustainable reforms on the ground.

In response to these criticisms, the concept of ‘local ownership’ has emerged as a motivating rationale of international criminal justice interventions. Although ‘local ownership’ has been relatively under-theorized in relation to international criminal law, it has already been used to describe ICC activities. For example, an early policy paper from the Office of the Prosecutor describes the intention to “encourage States and civil society to take ownership of the Court.” Likewise, a 2009 report claims that the ICC’s Outreach Unit aims to give local communities “ownership over the Court, rendering it an institution that works for them and in their name.” And in a recent high-level gathering on the ICC and complementarity it was noted that the “legitimacy of a justice system requires that citizens of a country play a crucial role in supporting and constructing national systems of justice.” To that end, “[o]wnership of the process by domestic actors can also ensure the sustainability of any initiatives to strengthen national systems.”

But if ‘local ownership’ is seen as a key prerequisite to sustainable peace, the key components of the concept, i.e., its means, implementation and contextual pre-conditions, are still widely unexplored. Few efforts have been made to determine the meaning of the concept in the area of judicial responses to conflict, or to identify the relevant stakeholders and to determine their interests. This project seeks to fill that gap. Key questions will include: Who are the locals within these visions of the ICC’s work, and how are their priorities identified and incorporated? What does it mean to ‘own’ or have a stake in the Court’s work? How might scholars and practitioners identify progressive avenues within the ICC’s framework—e.g., through dialogue, sequencing, and/or the development of local justice initiatives—for advancing the interests of conflict-affected populations?
II. Social Impact of International Criminal Justice

The second pillar of the project examines the social impact of the ICC’s investigations and prosecutions, as well as the empirical and methodological problems associated with impact measurement. Despite some notable exceptions, few attempts have been made to assess whether and to what extent the practice of international courts and tribunals has produced tangible results for societies in transition. At the same time, it is difficult to determine complex social phenomena through quantitative analysis or chains of causation. The project will thus inquire to what extent and on the basis of which indicators these outcomes can be assessed. Questions will include: What sort of effect have ICC investigations or prosecutions had on affected communities and beyond? What impact do individual prosecutions have on the victims of perpetrators or the broader community of victims in a particular conflict? Do ICC proceedings manage to communicate a sense of fairness to affected communities? To what extent, if at all, do they contribute to the elucidation of historical facts or education and memorialization?

Relevant data will be collected by a number of methods: analysis of local and international press reports and radio broadcasts, public opinion polls, existing population-based surveys, questionnaires, interviews with victims and victims’ rights groups, military and police officers, and analysis of legal practice at the domestic level. Importantly, because most of the outcomes can only be assessed on the basis of longer-term effects, the project will examine how attitudes and effects have developed over the course of several years, rather than one moment in time.

III. Legal Impact: Domestic Capacity-Building and Harmonization

The project’s third pillar analyses whether and under what circumstances the ICC may contribute to capacity-building and legal harmonization in post-conflict situations. It is generally acknowledged that international justice mechanisms may foster accountability and human rights awareness in an in indirect manner, i.e. by way of their “demonstration effect.” In the context of the ICC, however, the potential for such impact may be increased through the application of the complementarity principle, which serves as a potential “catalyst for compliance,” and the possibility of victim participation in proceedings. Already, ratification of the Rome Statute has triggered the enactment of domestic implementing legislation, while ICC intervention has encouraged the direct application of statutory principles by some domestic military and constitutional courts.

To this end, the project examines to what extent ICC investigations and prosecutions have served as a catalyst for domestic justice and for the implementation of international legal standards in situation countries. It will analyze the scope and forms of local justice responses to ICC activities, domestic law reform activities, reception of ICC jurisprudence and the scope of victim participation in ICC proceedings. What measures has the ICC taken to engage with local actors, and/or to promote engagement with national justice institutions? How have the Rome Statute provisions been interpreted at the local level? And has the principle of complementarity, and its interpretation by the ICC, had an effect on investigations and prosecutions at the domestic level? This focus will include analysis of factors that influence the level of capacity-building and domestic empowerment, such as existence of an environment conducive to reform, the impact of public opinion, and the convergence of international and domestic agendas.

The project will further study techniques—judicial dialogue, cooperation, transfer of knowledge—that may be used to foster the implementation and harmonization of international criminal law in post-conflict societies. This includes analysis of the timing and modalities of ICC engagement (particularly exit strategies) as well as a possible sharing of labor between the ICC and domestic authorities. In particular, the project will explore the opportunities and risks attendant to the emerging concept of ‘positive complementarity’ as well as the possible downsides of legal harmonization, such as the incorporation of foreign legal transplants in the definition of crimes or the law of criminal procedure.