Thèses sur le sujet « International Criminal Accountability »

UN police are involved in establishing the rule of law, in UN Peace Operations. However, they themselves commit serious crimes, but are not generally prosecuted. This is likely to have an impact on the UN’s effectiveness and legitimacy. Are the UN’s mechanisms for addressing criminal accountability effective? If there is a problem, how can it be mitigated? To answer these questions, the qualifications, qualities and functions of UN police were identified. Next, an attempt was made to quantify the problem of their criminal behaviour. Current accountability mechanisms were assessed. Jurisdictional and immunity issues were examined as potential barriers to prosecution. Finally, the obligations of States and the UN to investigate and prosecute criminal acts committed by UN police were examined. Research confirmed that UN police officers commit serious crimes, but probably mostly while not on duty. Whether officers commit crimes appears to be linked more to their personal integrity than their functions. In the main, they are not being called to account. In addition, the UN is not effective in generating information fit for use in criminal proceedings. However, the laws on jurisdiction and immunity do not constitute legal barriers to accountability, although immunity poses some problems in practice. The principal problem appears to be the lack of political will to bring prosecutions. The finding that States, and arguably the UN, have an obligation to investigate and prosecute crimes may encourage prosecution. The lack of criminal accountability of the UN police appears to be linked to the mismatch between the ambitious Peace Operation mandates and the number of qualified personnel these attract. The UN also lacks transparency, which makes it difficult accurately to determine the scale of the problem. It is recommended that these issues be discussed frankly in the UN’s political organs.

Thesis advisor: David Rasmussen
This thesis begins by analyzing three different philosophies on human rights. It looks to the foundations of these theories, but focuses primarily on the obligations that each system creates. It evaluates cosmopolitanism and two different institutionalist arguments, eventually settling on a tiered system of international responsibility as the strongest and most practical conception of rights. The second chapter of the thesis discusses the role of the International Criminal Court as a part of this tiered system, and as a means to promote human rights across the globe. This section evaluates the court by considering its historical foundations, its goals and responsibilities, and its actions over the past ten years. It concludes by providing recommendations for the future of the court
Thesis (BA) — Boston College, 2013
Submitted to: Boston College. College of Arts and Sciences
Discipline: College Honors Program

Magister Legum - LLM
The Islamic State of Iraq and the Levant is a jihadist militant group. The members of this militant group have committed criminal acts of unspeakable cruelty. These staggering criminal conducts are documented by the United Nations, international human rights organisations, and media. Besides, the group itself gives first-hand information through social media and its magazine. Having witnessed the atrocities committed by Islamic State of Iraq and the Levant, the United Nations Security Council affirmed that the Islamic State of Iraq and the Levant’s conduct in Syria and Iraq is a threat to international peace and security. Therefore, the media and various role players have called for the intervention of International Criminal Court. This research paper analyses whether the International Criminal Court is a viable prosecutorial option to account the Islamic State of Iraq and the Levant members for their crimes. For the Court to be a viable prosecutorial avenue, it must have a jurisdiction. Accordingly, this research paper critically examines whether the International Criminal Court has subject matter, personal and/or territorial jurisdictions to try the Islamic State of Iraq and the Levant perpetrators. The study concludes that although the criminal conducts by Islamic State of Iraq and the Levant members constitute crimes under the Rome Statute, the Court, however, has limited jurisdictional reach over the perpetrators. It is submitted that with a limited and fragmented territorial and personal jurisdictional reach over the perpetrators, the Court is not a viable prosecutorial avenue.
German Academic Exchange Service (DAAD).

The Prosecutor is the gatekeeper at the ICC. Her discretionary decisions determine in which situations the Court will commence an investigation and who will be brought before the Court. The Prosecutor’s focus on Africa has led to severe criticism of alleged anti-African bias and an erosion of the Court's legitimacy. Against this background, this thesis examines the exercise of prosecutorial discretion at the ICC. It identifies the scope for procedural discretionary decisions at the key junctures of the proceedings, covering areas such as how to conduct a preliminary examination, when to commence an investigation, who to prosecute and which charges to bring. The analysis is based on the theoretical understanding that the legality of decisions is crucial, which is why the thesis analyses the legal limitations of the exercise of discretion to clearly determine its boundaries. However, legality alone is not sufficient to serve the aim of safeguarding and enhancing the legitimacy of the Court. It is argued that the Prosecutor is not entirely free, but bound by the main principles and aims represented in the Rome Statute. She must ensure that her decisions demonstrate impartiality, maximize the deterrence effect of the ICC, and respond to victims' interests. To achieve a positive effect on the legitimacy of the Court, it is also required that the Prosecutor deliberates on individual decisions and makes these decisions more transparent. This will provide routes to pragmatic mechanisms of accountability, beyond the limited possibilities in the Rome Statute to hold the Prosecutor formally to account. In this regard, the thesis also analyses the role of the gravity notion, a concept that gained increased prominence in the evolving practice of the Prosecutor, and of the interests of justice, a notion that has not once been used yet. Both are indeterminate concepts that equip the Prosecutor with the necessary flexibility to respond to a variety of very different scenarios that might occur within the jurisdiction of the Court. The thesis demonstrates that the acts of applying these concepts contain a type of interpretative discretion. For the gravity notion, however, the scope is very limited, does not allow any managerial considerations, and must strictly be geared towards consistency. While the interests of justice currently appear redundant, this thesis demonstrates how this concept can gain new importance for the completion of situations, one of the challenges ahead for the Court. Overall, this thesis aims to identify avenues by which the Prosecutor can contribute to turning the Court into a more responsive institution, striking a balance between the preservation of its independence and open interaction with its stakeholders.

In the aftermath of World War Two, the International Community has shown a renewed commitment towards the protection of human rights. However, whether during wars or under dictatorial regimes, numerous human rights abuses occurred everywhere in the world, from Latin America to Eastern Europe and from Southern Europe to Africa. Countries which experienced oppressive governance or outrageous atrocities has to address the legacies of their past on the return of democratic rule or peace. In other words, they had to emerge from the darkness of dictatorship or civil war in order to establish a democracy. Today, after 14 years of civil war, Liberia is faced with the challenge of achieving a successful transition where the imperatives of truth, justice and reconciliation need to be met. The purpose of this research paper was to make some recommendations on the way the accountability process in Liberia should be shaped as far as prosecution is concerned.

This thesis investigates whether different public accountability forums interact with one another when they oversee the same decision maker. It contributes to the larger study of how decision makers are held to account in constitutional democracies where the simultaneous operation of multiple accountability relationships has become routine. Looking beyond the dominant assumption that multiple forums autonomously assess a decision maker's accountability against different and diverging standards, I aim to understand whether forums can influence the standards against which other forums evaluate the same decision maker. I draw on political and normative understandings of public accountability to answer one central question: do different public accountability forums interact with one another in a way that influences the scope of what a decision maker is obliged to account for and the normative standards against which that account is evaluated? Answering this research question involves examining the mechanisms by which interactions might occur and the motivations of actors to interact. I begin by critically reviewing the literature on multiple accountabilities, arguing that existing approaches can only partially explain how public accountability is constructed in multiple accountability regimes. I argue the focus on typologies of accountability emphasise the attributes of individual forums and overlook the broader dynamics of the accountability regime. I then develop an analytical framework to examine how the interactions between different forums, and other actors, might reshape the accountability dialogue. This framework is used to analyse the case of the Murray-Darling Basin Plan in Australia (2008-2012). By presenting a contextSrich analysis of interactions between forums, and other actors, I find that multiple forums act in concert with one another and other actors to contest and then reshape the standards against which the two decision makers are evaluated. The thesis concludes by discussing the implications of recognising accountability interactions for understanding multiple accountability regimes.

Magister Legum - LLM (Criminal Justice and Procedure)
Corruption is a global problem, which poses a serious threat to the development of countries and their people. Although its impact varies, all nations are facing the evils of corruption and, therefore, the international community calls upon states to take preventive and deterrent measures against corruption. For example, the United Nations Convention against Corruption (UNCAC) and the African Union Convention on Preventing and Combating Corruption (AU Convention) obligate their member states to have both legal and institutional frameworks for effectively fighting corruption.

This thesis considers the extent to which the International Criminal Court's Office of the Prosecutor ('OTP') has been successful in realising its self-defined mandate of ending impunity in Kenya. In particular, it focuses on the OTP's attempts to encourage domestic investigations and prosecutions as part of its strategy of positive complementarity. This strategy has been hailed as being the best and perhaps the only way that the OTP may use its finite resources to make a significant contribution to ending impunity. Despite this, no empirical study has been published that evaluates the effectiveness of this strategy and the impact that it has on ending impunity in the targeted situation country. This thesis seeks to address this gap in the literature by conducting a case study on the OTP's implementation of its strategy of positive complementarity in Kenya following that country's post-election violence in 2007/08. In doing so, I also hope to make a modest contribution to existing debates over the effectiveness of the ICC as an institution as well as international criminal justice and transitional justice more generally.

The purpose of this research is to identify and analyze rules that attribute international criminal responsibility to the individual for crimes committed against children. The analysis is carried out also considering the jurisprudence of the international criminal tribunals, namely the International Military Tribunal (so-called Nuremberg Tribunal), the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court. The research identifies serious gaps and open problems as regards international crimes committed against children, such as: the lack of a uniform definition of ‘child’; the failure to take account of “child victims” as a separate category; the need to establish a presumption of absence of consensus in case of crimes committed against children; the lack of a specific aggravating circumstance applying to crimes committed against a child.

On the 29th of June 2007, the representatives of the Government of Uganda (GoU) and the representatives of the Lord's Resistance Army/Movement rebels (LRA/M) signed an Agreement on Reconciliation and Accountability (AAR). The AAR provided for the use of both International Criminal Law (ICL) and Traditional Justice Mechanisms (TJMs) as part of the framework on accountability and reconciliation due to the conflict in Northern Uganda. Since warrants of arrest had already been issued against the top leaders of the LRA/M prior to the signing of this AAR, a rift arose between those who supported the ICC and those who supported the AAR. The former group argued that the AAR was promoting impunity while the latter group viewed the AAR as a vehicle for a sustainable post conflict transition. This project argues that a critical legal pluralist interpretive framework (CLP) for implementing Agenda Item III of the Juba peace accord is more responsive to the complexities of Uganda's history and politics than the interpretive frameworks of mainstream international criminal law (ICL) or traditional legal pluralism (TLP). In adopting a CLP interpretive framework, critics of the AAR will be able to see that the AAR is not promoting impunity.

Transitional justice has undergone tremendous shifts since it was first used in Latin American and Eastern European countries to address post-authoritarian and post-communist legacies of atrocity and repression. In particular, the establishment of the International Criminal Court (ICC) has increased the demand for prosecutions within a field that was previously marked by compromise and non-prosecution. While there are increasing expectations that countries with unresolved claims of human rights abuses should enact transitional justice policies, most of the literature on the subject largely omits to explain how elites from those countries choose among the possible options of transitional justice, and specifically, how they choose among international prosecutions, domestic prosecutions, and truth-seeking. Using case studies of Kenya and Uganda, this dissertation examines this decision-making process to understand how elites choose and reject different transitional justice policies. Theoretically, the research examines how preferences for transitional justice policies are constituted through “judicial statecraft”: the strategic efforts by heterogeneous, interest-pursuing elites to use justice-related policies as carrots and sticks in the overall contestation of power. The research finds that the choices of elites about judicial statecraft depend on three factors: the extent to which the elites are secure that their policy choices cannot be subverted from within; the cost and credibility of transitional justice threats; and the effects, both intended and unintended, of history.

The Rome Statute of the International Criminal Court is a major landmark in the development of international accountability. Its preamble affirms “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation”. Thus the signatory states were “determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. The ICC contributes to the fight against impunity and the establishment of the rule of law by punishing violations of international legal norms. Accountability is important for the past and the future of societies. The ICC needs the support and cooperation of the states to effectively perform its mandate. So without ratification and implementation of the Rome Statute the ICC will not have jurisdiction over non-member states, unless referred by the UN Security Council. The Rome Statute does not only create the ICC but it also creates the national jurisdiction of its States Parties as these states have the primary responsibility to investigate and prosecute Rome Statute crimes. With only five Arab states to date being State Parties to the Rome Statute, it is obvious that the region is underrepresented at the ICC. Despite their positive role played in the creation of the ICC, not ratifying the Rome Statute raises several questions, especially that the majority of states that voted against the Statute were from the Arab region. Ratifying and implementing the Rome Statute will strengthen the Arab states criminal justice system, enabling them to prosecute international crimes domestically and will deter any individual from committing them in the future, regardless his official position. It will also allow the Arab states to have the primary jurisdiction over international crimes and reinforces the entire judicial system. This research will examine the issue of ratification and implementation of the Rome Statute by the Arab states by analysing the reasons, challenges and obstacles of the Arab states for not becoming part of the international criminal justice system.

What conditions lead to confidence among civil war combatants that they will not face accountability for perpetrating sexual violence? This study investigates the causes of impunity for sexual violence among armed actors. It develops a theoretical framework which identifies three explanations for armed group impunity for sexual violence, namely (1) flawed prohibitions inside an armed group; (2) negligent enforcement by its authorities; and (3) pardons in the form of amnesties during the peace process. Adopting a two-pronged approach, the study first explores the associations between amnesties arising from concluding peace agreements and post-settlement levels of sexual violence in Burundi, the Democratic Republic of Congo, Liberia, Mozambique, Sierra Leone and South Africa. A small-scale, events-based dataset of sexual violence by governments and rebel groups in the first three years after war was constructed. The second and main part of the study is a comparison between two rebel groups in Burundi’s civil war (1994-2008), CNDD-FDD (National Council for the Defence of Democracy-Forces for the Defence of Democracy) and Palipehutu-FNL (Palipehutu-Forces for National Liberation) and their practices of prohibition and punishment of wartime sexual violence, taking into account also the possible influence of amnesties. Based on original data from 19 focus groups of ex-combatants from these rebel organisations, it is found that flawed prohibitions and negligent authorities are the main explanations for armed group impunity. The findings do not support amnesties as a cause of armed group impunity for sexual violence. Moreover, additional findings suggest that accountability for sexual violence is triggered by dependency on civilian support, while impunity is facilitated by an armed group’s ability to secure recruits, material and other resources without the help of local communities.

Le paroxysme atteint par la diffusion incontrôlée durant les années 1990 du phénomène des enfants soldats a obligé la communauté internationale à renforcer la protection des enfants et à instituer des garanties supplémentaires à l’égard des enfants touchés par les conflits armés. Les zones d’instabilité politique, les conflits, ainsi que l'impunité quasi généralisée en matière de violations graves des droits de l’homme ont été les principales sources de la montée en puissance du phénomène des enfants soldats. L’objectif qui consistait à mettre fin à l’implication illégale d'enfants dans les conflits armés a nécessité une coopération étroite entre tous les États concernés cependant que divers problèmes d’ordre juridique n’ont pas tardé à faire leur apparition. Par ailleurs, la diversité des ordres juridiques et la variété des approches doctrinales quant à la définition de la notion d’« enfant » ont rendu difficile une approche consensuelle. L’institution d'une responsabilité pénale internationale pour le recrutement des enfants, érigé en crime de guerre, n’était qu’un début. La question de la justice dans les pays sortis des conflits est toujours d'actualité et l’adoption d’autres formes de justice s’avère indispensable dans le processus de réconciliation et de réinsertion des enfants. La responsabilité pénale des enfants soldats est examinée sous son double aspect victime / bourreau, en abordant certaines affaires emblématiques
The uncontrolled spread of the phenomenon of child soldiers culminated in such a point during the 1990s that the international community was forced to strengthen the protection of children by introducing additional safeguards for children affected by armed conflict. Some of the main explanations for the rise of the phenomenon of child soldiers have been: areas of political instability, conflicts and almost universal impunity in cases of serious human rights violations. The objective of putting an end to the illegal involvement of children in armed conflict required close cooperation between all states concerned. Yet, legal complications did not take long to appear. Moreover, the diversity of legal systems and the variety of doctrinal approaches to the definition of the term "child" made a consensual approach difficult. The international criminalization of recruiting children, defined as a war crime, was just the beginning. The issue of justice in countries emerging from conflict is still relevant today and the adoption of other forms of justice is essential in the process of reconciliation and reintegration of former child soldiers. The criminal accountability of child soldiers is examined in its dual aspect of victim/executioner, addressing some emblematic cases

I argue that the justice cascade--the recent trend toward holding leaders accountable for massive human rights violations--produces both positive and negative effects by influencing the post-tenure fates of leaders. On the negative side, the justice cascade exacerbates conflict. By undermining the possibility of a safe exile for culpable leaders, the pursuit of international justice incentivizes such leaders to cling to power and gamble for resurrection during conflicts when they would otherwise flee abroad. On the positive side, the justice cascade deters atrocities. Precisely because leaders know that committing gross human rights violations will decrease their exit options if they need to flee abroad, international justice effectively increases the cost of atrocities. Taken together, these predictions form the justice dilemma: ex ante deterrence and ex post gambling for resurrection are two sides of the same coin.

To test my argument, I exploit remarkable variation over time in the threat international justice poses to leaders. Specifically, I examine the arrest of former Chilean leader Augusto Pinochet in the United Kingdom in 1998--the first time a leader was arrested in a foreign state for international crimes--as the watershed moment in the push for international accountability for culpable leaders. Before 1998, leaders lived in an impunity era where the expected probability of international punishment for atrocities was virtually zero. Starting in 1998, the world shifted toward an accountability era in which a slew of culpable leaders have been arrested and transferred to international courts, causing other leaders to update their beliefs on the likelihood of facing international justice.

Three main empirical results provide compelling support for the theory. I show that the decision of leaders to flee into exile is conditional on their expectations of post-tenure international punishment. Whereas culpable leaders are no more or less likely to flee abroad than nonculpable leaders before 1998, culpable leaders are about six times less likely to go into exile than nonculpable leaders after 1998. Rather than flee abroad, culpable leaders now have incentives to fight until the bitter end. Indeed, while there is no evidence of a relationship between leader culpability and conflict duration before 1998, I demonstrate that civil conflicts last significantly longer when culpable leaders are in power during the post-1998 period. This dark side of justice, however, creates a benefit: deterrence. Since leaders want to keep the exile option open in the event they need it, leaders are about five times less likely to commit mass atrocities after 1998 than they were previously.

Dissertation

Defence date: 12 October 2017
Examining Board: Professor Ruth Rubio-Marin, European University Institute (Supervisor); Professor Nehal Bhuta, European University Institute; Professor Morten Bergsmo, Peking University Law School and the Centre for International Law Research and Policy; Professor Susana SáCouto, American University Washington College of Law
First made available in Open Access 9 October 2020
Despite the centrality in the Rome Statute of both the principle of complementarity and gender justice norms, little research exists connecting these two core ideas. Using Harold Koh’s transnational legal process theory, this thesis seeks to fill that gap by analysing normative interactions between the Rome Statute and national accountability processes for sexual violence crimes in Colombia and the Democratic Republic of Congo (DRC). It examines how, why and in what way the Rome Statute’s gender justice accountability norms and standards have been domesticated in these two countries, and what this reveals about (positive) complementarity as a tool in the fight against impunity for sexual violence. This analysis starts from a doctrinal analysis of gender justice pressure points in the ICC’s admissibility framework, but also seeks to investigate the practical application of (positive) complementarity in both Colombia and the DRC. This analysis ultimately demonstrates that, while the existence of the ICC (as an institution) is important, most developments around accountability for sexual violence, while often grounded in the idea of complementarity and linked to the Rome Statute, happen through the actions of other actors. The ICC’s constitutive documents and the norms and standards around accountability for sexual violence enshrined therein, on the other hand, have provided an important normative impetus for these developments, particularly where catalysed by civil society organisations and domestic political actors acting as norm entrepreneurs. This thesis thus aims to contribute to illuminating both the prospects and the limitations of (positive) complementarity as applied to the fight against impunity for sexual violence crimes.
Chapter 3 ‘Title of the chapter' of the PhD thesis draws upon an earlier version published as chapter 'Case selection and complementarity at the International Criminal Court : exposing the vulnerability of sexual and gender-based violence crimes in the admissibility test' (2018) in the book ‘Thematic prosecution of international sex crimes’

More than ever, the competition to lead the technological race puts artificial intelligence in the centre of the global power play. The idea of a potential mortal weapon system that does not require a human agent on the loop is far from being just an academic hypothesis and the question arises on whom to allocate responsibility for its unlawful acts. Being a current topic, transversal to several legal and ethical issues, the focus of the present dissertation will remain on the possibility of accountability for Autonomous Weapon System’s unlawful acts in International Armed Conflicts.
Atualmente, mais do que nunca, a competição para liderar a corrida tecnológica coloca a inteligência artificial no centro do poder global. A ideia de um sistema de armamento autónomo que não requer a intervenção de um agente humano durante a sua operação está longe de representar uma mera hipótese académica levantando-se, assim, a questão de saber a quem imputar a responsabilidade por atuações ilegais. Sendo um tópico atual, transversal a várias questões éticas e jurídicas, o foco da presente dissertação permanecerá na possibilidade de imputação da responsabilidade por atos ilegais de sistemas de armamento autónomo em situação de Conflito Armado Internacional.

This thesis investigates both substantive and procedural issues pertaining to allegations of crimes committed by UN peacekeepers in three African countries, Somalia, Burundi, and the Democratic Republic of Congo. Under the current UN Model Status-of-Forces Agreements, criminal jurisdiction over peacekeepers rests with their sending States. However, although the UN has no criminal jurisdiction, it has been the Office of Internal Oversight Services that has conducted investigations. It is argued that every Status of Force Agreement and every Memorandum of Understanding should contain specific clauses obligating Troop-Contributing Countries to prosecute and the UN to follow-up. If rape, murder, assault, and any other crimes by UN peacekeepers go unpunished, the message sent to the victims is that peacekeepers are above the law. Rape is the most commonly committed crime by peacekeepers, but is usually considered as an isolated act. The procedural issue of prosecuting peacekeepers is investigated in order to establish whether troops can be caught under the ambits of the criminal law of the Host State to hold UN troops criminally accountable for their acts. The laws relative to the elements of each crime and the possible available defences under the three Host States, and the criminal law of South Africa as a Troop-Contributing Country, are discussed. The apparent lack of prosecution is investigated and existing cases of prosecution discussed. Alternatives to the unwillingness by States with criminal jurisdiction under the Status of Forces Agreement or under the Memorandum of Understanding are considered. Considering the current rules related to crimes committed by peacekeepers, the argument put forward is that crimes by peacekeepers must be dealt with completely and transparently though a Convention aiming at barring Troop-Contributing Countries who do not meet their obligations under international law from participating in future operations of peace. This thesis, furthermore, suggests a tripartite court mechanism to fill the lacunae in the law relating to the prosecution of peacekeepers. It considers the issues of reserving jurisdiction over peacekeepers to the Troop-Contributing Countries which are reluctant to prosecute repatriated alleged perpetrators. The victims’ importance in criminal proceedings and their their right to a remedy are highlighted.
Criminal & Procedural Law
LL.D.

This research seeks to establish a methodology by which transitional justice strategies ought to be incorporated within the International Criminal Court (ICC) framework. The study is based on the situation in Uganda as an example of the state that has a situation and cases before the ICC. The aim of the thesis was achieved through the adoption of a combination of theoretical legal research and the non -doctrinal approaches. This research establishes that the primary responsibility to prosecute persons suspected of violating international law lies with the states. The importance of the concept of individual criminal responsibility, the idea that every person suspected of committing the most serious offences must be held accountable regardless of status. The principle of individual criminal responsibility is further developed with the creation of the ICC. This research clarifies that there are limitations in terms of what prosecutions can achieve during transitional periods; further, that trials in the ICC and national courts can be undertaken together with proceedings of the Truth and Reconciliation Commissions or indigenous mechasims. Such an approach will allow for confines of prosecutions to be addressed. Despite the existence of principles and institutional framework that are intended to ensure individuals are held accountable for the most serious offences of international concern, the majority of individuals are not held accountable. In order for the ICC to operate effectively it would need to seek to go beyond deterrence and retribution. This would require post – conflict states to devise transitional arrangements that compel with the ICC structure. Thus the research recommends that it would be better for judicial and non- judicial measures to be adopted in states that have cases before the ICC. Particularly Uganda must adopt the mato oput method formally as a tool to address the past human rights abuses in Uganda. All persons regardless of whether they have been granted amnesty or not must be held accountable under the mato oput measures. This implies all persons with exception to those that the ICC has issued the warrants of arrest against.
Public, Constitutional and International Law
LL. D.

The present research is the result of the need of evaluation of perceptions of justice of crimes against humanity survivors, in places were accountability was achieved through international tribunals. The opinion of the survivors is a way to achieve conclusions regarding main aspects about the decision on the need of accountability, especially in what concerns the mechanism that should be used. The effectiveness of any mechanism, taking in account the needs of the population will have positive effects, such as reconciliation, peace, the achievement of social rights, truth, emotional healing (both individual and of the community). The method of the investigation is the analysis of empirical datasets that were obtained in regions were international trials took place, such as Sierra Leone and Cambodia (hybrid courts), Rwanda (ad hoc tribunal), Congo and Uganda (International Criminal Court). The data was select by applying and conceptual model that gather the most relevant data (although the data was insufficient) regarding the need of evaluation the perceptions of justice, such as exposure to violence, individual priorities, the need of accountability and the perceptions about the international tribunals. The results reveal the high level of exposure to violence, that socioeconomic priorities are more important than justice, the need of accountability of perpetrators trough criminal procedures, but also a positive awareness of the work of the tribunals regarding effectiveness, justice values and equity. The conclusion demonstrates the need of a holistic approach and complementarity between mechanisms that could respond do victim’s needs (concerning both retributive and restorative justice). There is a general acceptance of international justice, but the lack of legitimacy can affect the results, that can be conditioned by externalization of the tribunals and insufficient knowledge. The social and economic context is an issue that affects the acceptance of the tribunals, but the construction of a legacy and the correct management of victim’s expectations can create guarantees of non-repetition. The accomplishment of transitional justice purposes, such as truth, justice and guarantees of non-repetition have a great role regarding reconciliation, emotional and social healing, but also the creation of social rights and the implementation of democratic processes.
A presente investigação resulta da necessidade de avaliar a perceção de justiça dos sobreviventes de crimes contra a humanidade em regiões em que uma das soluções para a respetiva responsabilização foi a justiça internacional. A opinião da população sobrevivente permite alcançar conclusões sobre os principais aspetos a ter em conta na decisão de responsabilizar, nomeadamente quanto ao método de execução. A efetividade de qualquer mecanismo, que vá ao encontro das necessidades reais da população, terá um efeito positivo em aspetos como a reconciliação, a restauração da paz, a implementação de direitos sociais, a necessidade de apuramento da verdade e na cura emocional, tanto dos indivíduos como da sociedade. A análise partiu do recurso a dados empíricos já existentes em regiões onde foram utilizados tribunais internacionais: na Serra Leoa e no Camboja (tribunais híbridos), no Ruanda (tribunal ad hoc) e no Congo e no Uganda (pelo Tribunal Penal Internacional). Ao conjunto de dados obtidos foi aplicado um método conceptual que agrupou respostas que responderam (ainda que parcialmente, atendendo à escassez de dados) à necessidade de avaliar o sentimento de justiça, partindo da exposição à violência das vítimas, as suas prioridades individuais, a responsabilização dos agressores e as perceções sobre os tribunais. Os resultados permitiram delinear conclusões, como os elevados níveis de violência sofrida, a prevalência das prioridades socioeconómicas em detrimento da justiça, a necessidade de responsabilização dos agressores através do processo criminal, o reconhecimento de uma prestação positiva aos tribunais internacionais relativamente à sua efetividade, justiça e equidade. Em conclusão, existe a necessidade de uma abordagem holística e de complementaridade entre mecanismos que respondam às necessidades de justiça retributiva e restaurativa da população. O recurso à justiça internacional é aceite, mas a legitimidade é um aspeto condicionador de resultados, afetados pela externalização e o desconhecimento. O contexto socioeconómico da região influencia a aceitação dos tribunais, mas a construção de um legado e uma correta gestão de expectativas pode criar condições para que os crimes não se repitam. O cumprimento de objetivos da justiça de transição, como a verdade, a justiça e as garantias de não-repetição constituem metas a alcançar com vista à reconciliação, à cura emocional e social, à criação de direitos sociais e à implementação de um processo democrático.