Social Science Research Council

AGENDA

Thursday, November 6, 2003

9:30 AM Continental Breakfast

9:45 AM Welcome and Introduction - John Tirman (SSRC)

10:00 AM MORNING SESSION

PANEL I: International Criminal Accountability and Norm Development

Chair: John Tirman (SSRC)

Prosecutions of international crimes highlight tensions between international politics on the one hand, and the enforcement of international law on the other. While the political obstacles faced by the ICC and other international tribunals may be daunting, one could view this situation from a more optimistic perspective: the establishment of these tribunals and the domestic application of the principle of universal jurisdiction are playing an important role in developing international criminal law for international and domestic enforcement. The mere existence of these international institutions and legal proceedings before domestic courts might increase the prominence, legitimacy, and effectiveness of international criminal law.

These phenomena provide us with the opportunity to consider the various interpretations that realists, liberals, and constructivists might offer regarding the reasons for which states negotiate, sign, and ratify agreements, as well as why they comply - or do not - with their obligations. Such insights from international relations theory can be combined with those from international legal scholarship regarding the development of hard and soft law, and institutional design, to more fully explain, assess, and even speculate about the future of these developments in the international arena. This panel will also examine the historical and political contexts that at times prevented and at some other times facilitated the development of these international norms.

12:30 PM Lunch

2:00 PM AFTERNOON SESSION

PANEL II: International Criminal Accountability in Practice I: International Tribunals

Chair: Chandra Sriram (St. Andrews University)

The rapid development of international criminal law following the establishment of the Yugoslavia and Rwanda Tribunals seems to demonstrate that effective prosecutions of international crimes requires the creation of mechanisms of implementation. At the same time, the need perceived by most states to create a permanent international criminal court by way of a convention seems to show that the international community still regards codification by formal treaties as preferable to the application of essentially non-conventional law by ad hoc instances.

The experiences of the ICTY and the ICTR might help in the analysis of the difficulties involved in extraterritorial prosecutions. For example, prosecutions of violations of international criminal law in Rwanda have taken place in third countries pursuant to the principle of universal jurisdiction, in Arusha at the ICTR and in domestic courts in Rwanda (with concurrent jurisdiction). There are also "traditional/indigenous justice" mechanisms being used by villagers as a path to societal reconciliation. While some scholars have highlighted the positive impacts of the ICTR for Rwanda itself - for instance, the penetration of international legal norms into the national legal system and the pedagogic effect of the Tribunal proceedings, empirical evidence seems to challenge this position. For example, there are serious concerns regarding the relationship of the ICTR and domestic prosecutions; the division of labor between them; the disparities in sentences being rendered, in resources, and efficiency; the tribunal's ability to reach and penetrate Rwandan society and promote reconciliation and deterrence; the tribunal's ability to build legal capacity in Rwanda; etc.

This panel will look at the negotiating history of the ICC, and the precedents built up and lessons learned by the two ad hoc tribunals for Yugoslavia and Rwanda. It will examine the ICC's legal regime, and the political challenges that are coming, including the following questions:

* What does the creation of the ICC tell us about how law, norms, and institutions can reconstitute interests of key states?

* Negotiating history: how did certain states evolve positions over time? What was the role of norm entrepreneurs, including key states and NGOs?

* Subsequent political stalemate with the US: What are the implications of article 98 agreements and stipulations for mandate renewal in Bosnia?

* Case selection: What are the politics surrounding who can and cannot be brought to The Hague? How to deal with likely influx of numerous letters and petitions?

4:00 PM PANEL III: International Criminal Accountability in practice II: Prosecutions in Domestic Courts

Chair: Clarence Dias (United Nations)

From cases filed against former Chilean dictator Augusto Pinochet in Spain, Ecuador and Argentina, to filings against Ariel Sharon, General Tommy Franks in Belgium, and the prosecution of former Chadian dictator Hissene Habre in Senegal, prosecutions of international crimes in domestic courts are multiplying. And although international pressure has led Belgium to revise its legislation on universal jurisdiction earlier this year, other countries are copying this trend by enacting similar legislation allowing for the application of the principle of universal jurisdiction (most notably Germany).

In some instances, prosecutions abroad have led to the revival of local prosecutions, as in the case of Argentina's recent revision of amnesty legislation. Some scholars have referred to these phenomena of local legal proceedings being encouraged by international norm development and judicial prosecutions abroad as "justice cascade." What does available empirical evidence tell us about the depth of this penetration/justice cascade? What would be adequate indicators to measure this penetration? A comparative analysis here could shed some light onto the questions being addressed by this panel.

9:00 AM Continental Breakfast

9:30 AM MORNING SESSION

PANEL IV: Societies in Transition: The Case of IRAQ

Chair: Sally Falk Moore (Harvard University)

Societies in transition face difficult challenges and their needs are diverse and complex. In their attempt to come to terms with their past, these societies might make different political choices, ranging from truth and reconciliation commissions to prosecutions; each of these political choices will weight different factors such as retribution, stability, democratization, reconciliation, deterrence, etc. As pointed out by several scholars, any analysis of these choices must be country-specific and take into consideration the societal context and historical background.

Does the application of the principle of universal jurisdiction serve the needs of these societies? What are the effects of externalized justice on transitional societies? How can the goals of the international community (namely, retributive and deterrent purposes) be coordinated with those of transitional societies (namely, stability, democratization, reconciliation, social learning, and so forth)? Has the use of universal jurisdiction and externalized justice jeopardized democratic transitions or exacerbated conflict within transitional societies? These questions will be analyzed in the context of the current situation in Iraq with respect to the prosecution of war crimes and crimes against humanity committed by Saddam Hussein's regime. Other questions to be addressed would include: What kind of institutional arrangements could ensure that prosecutions do not appear to be a neo-colonial exercise, characterized by victor's justice and a sense of Iraqi alienation and disempowerment? What role could be played by military tribunals? What would be their impact/consequences? What law should be applied (Iraqi law/international law)? What role should the UN play? What other international/regional organizations would/should be involved in this process? What are the obligations of the occupying power in this respect?

11:00 AM Coffee Break

11:15 AM PANEL V: United States as World Hegemon and International Criminal Law

Chair: Thomas Biersteker (Brown University)

The strongest challenges to the establishment of the ICC, and also to local application of the principle of universal jurisdiction come from the position adopted by the United States. American decision makers and scholars that oppose the latest developments in international criminal law argue that they constitute an illegitimate transformation of the traditional law of nations into an unacceptable international regulatory code. They understand this transformation as one of the most potent weapons deployed against the US by both its enemies and allies in order to control the US action and undermine American leadership. As such, this "new international law" constitutes an immediate threat to US national interests. They further suggest that, by subjecting states to the will of the "elusive international community" and unaccountable lawmakers and judicial bodies, this new international law is profoundly undemocratic.

This in fact contradicts the US history of active support for this type of developments in the field of international criminal law - as shown, for example in the US support for the ICTY and the ICTR. For a realist perspective, the explanation here would be precisely the epiphenomenalism of norms and institutions, which are used by strong states only when they advance their interest but are rejected and discarded when they no longer serve those interests (defined in material terms). However, there is more to it than meets the eye. A detailed analysis of the relationship between the United States and International Law might shed some light onto questions regarding US unilateralism, the position of the US as world hegemon, US-Europe relations, federalism and IL, and so forth.

1:00 PM Lunch

2:30 PM AFTERNOON SESSION

Chair: Martha Finnemore (George Washington University)

CONCLUSIONS: General Discussion

4:00 PM Closing Remarks

4:30 PM Departures