Translating Norms into Institutions

The International Criminal Court
Translating Norms into Institutions

The present phase in establishing a working system of international justice can be characterized as a transition from paper to practice, or from norm-setting to institution-formation. The ICTY and ICTR and the negotiations towards the ICC, have articulated the standards and determined the guiding procedures for a worldwide system to address impunity. Such norms must be transformed into institutional practice through training, network-building, institutional design, support for policy and legislative processes, and strategic casework. This forms the context for much of the work that the Justice Initiative is likely to undertake in the coming years. The aim of this work in striving to transform international justice into an effective legal reality is to avoid or overcome the obstacles that threaten to marginalize or diminish the impact of the anti-impunity movement, and thereby to see the norms and practice of accountability successfully entrenched in national and international life.

The process of effectively embedding the system of international justice within the systems of domestic and international life has several dimensions. The first is to contribute to the smooth entry into operation of the International Criminal Court, an institution which, even with a relatively modest caseload and with the many challenges that lie in wait for it, is likely to become the indispensable foundation-stone and symbol for the imperative against impunity for decades to come.

Secondly, the ICC has limited jurisdictional reach, and will be “complementary” to national systems, acting only where domestic authorities cannot or will not. This necessitates ongoing work to promote both ratification of the Rome Statute, enhancing the Court’s effectiveness and authority through broad and cross-regional participation, as well as its effective implementation, without which national authorities can neither investigate and prosecute genocide, crimes against humanity and war crimes, nor cooperate effectively with the ICC when it does so. The financial and jurisdictional limits of the ICC, as well as the frequent unwillingness or inability to prosecute on the part of the states most concerned, makes necessary investigation and prosecution by other states, notably through the exercise of universal jurisdiction. Thus, legislation, institutional reform, and the preparation and promotion of cases will all be needed to ensure that national systems fulfill their role in ending impunity.

Thirdly, and more generally, this particular time in the development of international criminal law requires a set of cross-cutting capacity-building efforts (encompassing government officials, judges and prosecutors, journalists and NGOs, etc.) to ensure that both national and international systems are able to respond, and actually do respond, to international crimes within their reach.

Finally, the distinctive area of ad hoc, hybrid and “internationalized” tribunals—such as that in Sierra Leone—warrants attention, even if the potential and the future of such initiatives are very much open to question.

To further its support for the ICC, its promotion of international justice at the national level, its capacity-building efforts and its support for hybrid or “internationalized” tribunals, the Justice Initiative will engage in partnerships, alliances or support, or act on its own behalf, in order to navigate the dangers that threaten to impede the effective realization of international criminal law and to lay the foundations for its viable establishment as a juridical system.

On a general level, the need to transform international justice from paper norms to institutional practice dictates awareness of the intersection of the emerging system of international justice with a number of other areas, with which it has not always been associated in a consistent and sustained way. These include:

- The relationship to the development of sound criminal justice systems at the domestic level, going beyond the passage of laws to encompass broad developmental aims of competence, independence, access to justice and legal aid. [See the Justice Initiative National Criminal Justice Reform program];

- The relationship to truth commissions and other processes such as lustration and civil compensation, whereby accountability discourse serves the ends of social and political reconciliation;

- The relationship to agencies that work in conflict or post-conflict environments, including the United Nations, its Specialized Agencies, the ICRC and other humanitarian or similar agencies, as these relationships are likely to come into play with the first cases of the ICC; and

- The relationship to military cooperation between states, to military cooperation in multilateral operations, whether regionally or internationally, and to national military justice systems, in all of which vital questions of cooperation and accountability arise.

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