Punishing Atrocities Symposium: Fairness and Accountability in International Criminal Law

[Jonathan Hafetz is a Senior Staff Attorney in the Center for Democracy at the American Civil Liberties Union and Professor of Law at Seton Hall Law School. This post is part of our Punishing Atrocities Symposium.]

The central purpose of Punishing Atrocities through a Fair Trial is to unpack and examine the enduring tension in international criminal law between principles of fairness, on one hand, and accountability for atrocities on the other.

Any system of criminal justice that seeks to hold perpetrators responsible for their violent and destructive actions must wrestle with this question. Yet, international criminal proceedings amplify these tensions given the nature and magnitude of the crimes. Moreover, they require navigating a unique combination of practical obstacles, including a tribunal’s limited resources, lack of enforcement power, and dependence on states for assistance with gaining access to evidence, protecting witnesses and victims, and other critical functions. In short, the friction between accountability and fairness may be universal in criminal law, but it assumes distinct features in international criminal trials.

The book examines the evolution of notions of fairness in ICL, starting with Nuremberg. Nuremberg’s most important achievement was to establish a framework that provides legal accountability for atrocities by holding individuals responsible through a criminal trial. Nuremberg also established that the legitimacy of any such trial depends ultimately on its adherence to prevailing fair trial standards and that the enormity of the crimes increases, rather than diminishes, the importance of those standards. Nuremberg’s legal procedures may appear rudimentary by today’s metrics, but its articulation of this overarching principle remains critical to its legacy.

The book then traces the development of fairness beginning with ICL’s revival in the mid-1990s, examining the International Criminal Tribunal for the former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Court (ICC), along with various hybrid tribunals. It describes how these tribunals expanded procedural fairness by creating more elaborate safeguards to protect the rights of defendants, while also noting trends, such as the growing reliance by judges on written evidence in place of live testimony and limits on the disclosure of evidence to the defense, that can jeopardize those safeguards. The discussion additionally considers how procedural developments at international tribunals can affect domestic trials for atrocities under the ICC’s complementarity framework.

The book then introduces two other dimensions of fairness. One is the use of modes of criminal responsibility that are essential to reaching individuals who do not physically perpetrate crimes, but that also can be applied too expansively. The book discusses, for example, how broad use of modes of liability, such as the ICTY’s application of joint criminal enterprise, can collide with principles of personal responsibility. 

The other dimension is the selection of situations and cases for investigation and prosecution, examining how selection decisions have tended to favor powerful countries and disproportionately target weaker countries, particular regions, or non-state forces, most notably at the ICC. Selection decisions present among the most intractable issues in ICL since they are enmeshed with the limited authority and resources of international tribunals and are especially vulnerable to the influence of external forces. Even if a tribunal rigorously applies procedural safeguards, prosecutions that consistently target weak countries or nonstate actors, while failing to pursue grave crimes committed by more powerful countries and their allies or by government forces more generally, will erode perceptions of fairness and legitimacy rooted in the equal application of law.

Two recent developments highlight the continuing tension between fairness and accountability at the ICC. The first concerns recent failed prosecutions in high-level cases—the ICC’s dismissal in January of crimes against humanity charges against former Ivory Coast president Laurent Gbagbo, the first former head of state to be tried before the court, which followed last year’s acquittal of former Democratic Republic of Congo Vice President Jean-Pierre Bemba by the ICC Appeals Chamber and the termination of the prosecutions against Uhuru Kenyatta, William Ruto, and others stemming from post-election violence in Kenya in 2007-08. In Gbabgo, despite the prosecution’s presentation of more than 80 witnesses and 4,500 items of evidence, the Trial Chamber ruled (2-1) that there was insufficient evidence to find Gbago and his co-defendant, former youth leader Charles Blé Goudé, guilty. While decisions protecting a defendant’s rights in the face of widespread atrocities provide evidence of the court’s independence, they also raise significant concerns about its ability to deliver on its promise of accountability and raise questions about the strategic decisions of the Office of the Prosecutor (OTP), including its targeting of the most senior-level officials without first building a case against mid-level perpetrators to help link them to the crimes.

The second is the Pre-Trial Chamber (PTC) II’s recent unanimous decision denying the OTP’s request for authorization to open a formal investigation into crimes committed in Afghanistan, following the OTP’s lengthy preliminary examination. The decision concluded that prosecution would not serve the “interests of justice” in accordance with Articles 15(4) and 53(1) of the Rome Statute, noting that while there was a sufficient basis for concluding crimes had been committed, Afghanistan’s current political situation limited the prospects of success. The PTC’s decision was issued after intense U.S. pressure and on the heels of President Trump’s revocation of ICC Prosecutor Fatou Bensouda’s visa. The investigation, which could have subjected Taliban, Afghan National Security Forces, and U.S. military and intelligence officials to potential criminal responsibility—would have unquestionably faced tremendous obstacles. But the PTC’s decision raises serious concerns about the ICC’s continued vulnerability to political considerations and manipulation. As the book suggests, and as others have argued, better for the ICC to have withstood the pressure—and failed—than to reinforce perceptions that power and politics dictate who stands trial for the gravest crimes.