Monday, April 2, 2012

Conference: Pluralism v. Harmonization: National Adjudication of International Crimes

On June 14-15, 2012, the Common Civility Project of the Vrije Universiteit Amsterdam will host a conference on "Pluralism v. Harmonization: National Adjudication of International Crimes." The program is here. Here's the idea:

The objective of the conference on Pluralism v. Harmonization is to contribute to the development of international criminal law by the exchange of thoughts between legal scholars and practitioners from international as well as domestic institutions. It focuses on the fragmentation of core crimes prosecutions at the international and domestic level.

The Conference will be hosted at the historic Trippenhuis, the permanent headquarters of the Royal Netherlands Academy of Arts and Sciences (KNAW), located in the heart of Amsterdam, the Netherlands.

Background information

In the twentieth century, starting with Nuremberg in 1945, the international community witnessed the establishment and functioning of international tribunals and courts. In the twenty-first century, the paradigm has shifted to national courts to try persons for war crimes, crimes against humanity and genocide. In adjudicating international crimes, domestic courts may be viewed as representing the interests of the international community. As such they may be expected to rely on international norms in interpreting the law, or at least turn to international criminal tribunals for guidance. This is problematic; the international normative framework is cursory, incomplete and at times even inconsistent. The questions domestic courts are confronted with here touch upon the dilemma of a pluralistic school of thought versus the search for harmonization and unification of international criminal law.

The issue is particularly pertinent with regard to liability theories in international criminal law. At the international level the prosecution of those bearing greatest responsibility has proved to be difficult and has challenged traditional theories of criminal responsibility. The problem of linking those at leadership level to those at execution level puts a strain on the principle of individual criminal responsibility. Theories like Joint Criminal Enterprise and Control of the Crime have been developed as viable alternatives, yet they have not been without critique. Moreover, from an empirical point of view one may wonder whether these theories capture the reality of the commission of core crimes.

Problems in attributing liability are sometimes solved through evidentiary techniques. The use of circumstantial evidence, reliance on normative standards (‘reasonableness’) and the admissibility of large quantities of ‘evidence’ building a context of crimes rather than a focus on individual conduct can fill gaps in the liability theory. The link between substantive law and evidence law is too often overlooked and warrants closer scrutiny.

Differences in procedural criminal law contribute to the fragmentation of core crimes prosecutions at the national level, too. For instance, as evidentiary rules fall largely within the domain of domestic jurisdictions, the outcomes of national and international prosecutions of international crimes differ considerably. Through the due process clause of the Rome Statute’s Article 17, the ICC’s guiding role possibly also affects that area of law where fairness in procedure comes closest to fairness in outcome: law of evidence. However, taking fact-finding impediments and evidentiary challenges experienced at today’s international tribunals into account, who should guide whom?

Objective of the conference

The main objective of the conference is to explore the background and the consequences of ICL’s fragmentation at the international and national level. Thus, the speakers and participants will have to deal with questions on both international and national criminal law and procedure such as:

  • To what extent is harmonizing ICL desirable, or even realistic? How does a pluralistic approach contribute to the development of ICL?
  • How to deal with the tension between collective action and individual responsibility when prosecuting international crimes?
  • To what extent does the principle of complementarity as laid down in Article 17 of the Rome Statute require adherence to international standards; does this also affect procedural law, in particular domestic laws of evidence?
  • Given fact-finding impediments and evidentiary challenges when dealing with core international crimes, can national courts be of guidance to international criminal tribunals; or vice versa?