Programs in International Justice and Society

"The Relationship Between International Courts and Local Actors: Sources, Challenges and Trajectory"

The final event of the 2015 Brandeis Institute for International Judges (BIIJ) was a public round table revolving around the issue of migration to southern Europe by refugees and migrants from Africa and the Middle East. A variety of causes contribute to this influx of people into Malta, Italy, France, and Spain, an influx that has increased steadily over the past several years. Armed conflict, famine, and drought are some of the common and long-standing causes. However, global climate change represents a serious and relatively recent trigger of migration.

Unfortunately, the increase of migrants and refugees to Europe represents only the beginning of the refugee crisis that global warming is projected to generate in the coming century. Rising sea levels and increasing weather destabilization will lead to greater food and water insecurity and eventually begin to flood the very land the global South lives on. Although major cities of the North will suffer from similar effects, it is the regions of the world with developing economies that will face the greatest instability and devastation,

After observing a fascinating three days of conversation amongst some of the world's foremost international judges, I felt it was fitting to end with an event that highlighted one of the great human rights crises, and gross inequities, of our time. After centuries of exploitation, enslavement, and domination by Western nations, vulnerable populations are leaving their homes in search of refuge in the lands of their former oppressors. Popular resistance and political intractability in the European Union has placed countless refugees and migrants in legal limbo and led to the deaths of thousands. European Union law has fortunately been interpreted by the European Court of Human Rights (ECHR) so as to prevent nations from automatically ejecting potential asylum-seekers from their waters, following the principle of “non-refoulement.” They must be taken to port and be given a chance to demonstrate their claims of persecution in their home country.

This development underscores a key aim of international law: to prevent those with power and resources from categorically denying fair treatment and safety to those without. Although international law does not always prevent such abuse by the powerful, it mandates equality under the law for all individuals, and has given countless victims a voice and an opportunity to hold those responsible for their suffering accountable. International criminal courts seek, for example, to empower victims through direct participation in trials, through the establishment of an historical record that recognizes their suffering, and by publicly convicting and punishing those found guilty.

There are numerous challenges to accomplishing this mission. The limited capacity of courts cannot allow all victims of international crimes, sometimes ranging in the hundreds of thousands, from participating in the proceedings against alleged perpetrators; and geographic distance and language differences are common obstacles to smooth communication between the court and local communities. NGOs, particularly local ones, could act as a potential bridge between these institutions of justice and the victims on whose behalf they work. However, as several international judges discussed during the Institute, some NGOs involved in international justice are ill equipped, incompetent, or more concerned with disrupting the business of the court, for political or financial reasons, than with cooperating to aid victims and facilitate contact. That is not to say that the judges do not respect or appreciate the work of NGOs; indeed participants listed several organizations that have been critical in bringing about successful proceedings and communication with individuals in affected communities. This issue simply illustrates the nuances of international and local politics, which inevitably impact the nascent practice of international criminal law.

The process of building complex and far-reaching international legal institutions is extremely difficult. Reaching consensus even among the four current members of the Andean Community for example, is a challenge. This inevitably results in obstacles to cooperation with local actors. The courts must remain primarily focused on their statutory obligations to uphold the law. That involves, of course, communicating with local actors, understanding their viewpoints and incorporating their concerns as much as possible. However the law must always come first. Additionally, it is not always appropriate, or effective, to include local actors in all cases. During the Institute, participants spoke about the financial costs of including victims in international criminal proceedings and how giving them legal representation did not always seem useful. These comments came from a place of compassion for the victims, as they felt that legal representatives did not always benefit the victims and only served to delay proceedings and the administration of justice. They also expressed concern with flaws and inefficiencies in reparations instruments, such as the ICC's Trust Fund for Victims. It was clear from observing and speaking with the participants that their concern for victims and passion for justice — whether realized through criminal proceedings or the resolution of interstate disputes — were genuine. Given the willingness of these judges to listen and the alacrity with which they approach their positions, I believe that as these institutions mature, their relationship with local actors will as well.

The case of migrants and refugees to southern Europe demonstrates the value of international law and the international court/local actor relationship. In light of the centuries of injustice, and continuing economic and social disparities between the home nations of asylum seekers and their destinations in Europe — as well as within the EU itself — significant questions of legal obligations abound. It is only in international courts like the ECHR, that these disputes can be resolved fairly and without bias. The ECHR, by ruling against European states in favor of marginalized asylum-seekers, affirmed the human rights of those individuals and chose the interests of local actors over powerful governments.

The challenges of local cooperation and the lack of unfailing compliance by nations with international legal decisions are not indicative of a systemic failing within the international justice regime. They are the result of an international community slowly, but surely, beginning to adapt to new legal regimes and norms. It is easy for a nation to agree to respect human rights or the terms of a riparian rights treaty with its neighbor. It is considerably more difficult to enforce the terms of those agreements. As one judge described his task as an international judge, it is a “veritable minefield.” But with determined efforts and increasing political support, the international rule of law will significantly improve the situation of those affected by injustices ranging from war crimes and crimes against humanity to economic inequality and global warming.

"Domestic Politics and International Justice"

This January, the Brandeis Institute for International Judges tackled one of the most important and contentious issues that arises in international justice — the relationship between national politics and international courts and tribunals. Ideally, as in domestic courts, war crimes cases should be adjudicated impartially within an apolitical context. However, it is undeniable that — within a Westphalian order where states reign supreme – politics determines the spaces in which international law can be enacted. The clear impact of domestic politics on international justice is evident in the International Criminal Court's recent struggle to try the current President of Kenya. While everything from the creation of international courts to the enforcement of their decisions requires interdependence, the debate continues as to what the optimal form of interaction between states and international courts might look like.

While law is often defined as the antithesis of politics, the use of international justice procedures in relation to conflict-ridden and post-conflict countries has increasingly been utilized as a mechanism for achieving or reestablishing peace. Pursuit of this aim operates at the intersection of international law and national politics. The International Criminal Tribunals for the former Yugoslavia and Rwanda were created under the United Nation Security Council's Chapter VII mandate to maintain international peace and security. In its preamble, the International Criminal Court's founding document, the Rome Statute states that, “grave crimes threaten the peace, security and well-being of the world.” In recognizing that international courts are created to remedy political crises, it becomes increasingly difficult to disassociate law and politics in the international sphere.

The extent to which international courts should be influenced by domestic politics is a contentious issue. For example, some fervently argue that courts must take into consideration the timing of arrest warrants, particularly in the case of ongoing conflicts. The International Criminal Court's perceived negative impact on the 2006 peace negotiations in Uganda was a major source of contention. The “peace versus justice” debate, and disagreement over whether these pursuits are actually dichotomous, continues to be disputed among both academics and professionals.

Currently, various courts are responding to a range of political pressures. The Special Tribunal for Lebanon has designated diplomacy and communication as central aims as it operates within an ongoing conflict.¹ The Tribunal seeks to work with domestic courts to restore the rule of law and ensure a sustainable legal order in Lebanon. Therefore, the Tribunal must interact with the Lebanese population and domestic government. Likewise, hybrid courts are intimately enmeshed in domestic politics by their very nature of bringing together international and local legal professionals. In the Extraordinary Chambers in the Courts of Cambodia, local judges may themselves be victims of the conflict they adjudicate, as members of the intelligentsia were targets of the Khmer Rouge. Moreover, Cambodian judges also hail primarily from the ruling party. Therefore, local judges are highly affected by personal experiences and political context.² Such tribunals and courts must navigate overwhelming political influence despite the dominant narrative that justice must be served independent of politics.

One of the greatest problems facing international courts is abuse by politicians seeking political aims. In Uganda, President Museveni first referred the conflict in northern Uganda for International Criminal Court investigation. However, the President became a vocal critic of the ICC once it appeared that the Court would not successfully arrest rebel leaders. Similarly, the Security Council has recently moved away from the Court's involvement in Sudan as it pursues other strategies. As a result, international courts are faced with the challenge of defending themselves against political hijacking while attempting to meet international expectations of non-political engagement.

While the preferred relationship between international justice and domestic politics continues to be hotly contested, international legal professionals are finding their way through a myriad of political obstacles. The Rwandan, Yugoslav, and other courts and tribunals each defined a specific relationship with their political context differently. However, the creation of a permanent International Criminal Court highlights the need for a set of standardized principles to guide the relationship between the Court and various national governments towards an identified ideal. But an essential question still remains: what does an ideal relationship look like and what guiding principles will take us there?

¹ Judge Sir David Baragwanath. “How Can the STL Contribute to the Rule of Law in Lebanon?”

² Christopher Dearing. “An Analysis of Corruption, Bias, and the High Presumption of Impartiality in the Extraordinary Chambers in the Courts of Cambodia.”