Referral Practice of Cases from International to National Justice Mechanisms

The ICTY and ICTR Experience and its Possible Relevance for the ICC

A crucial component of the UN Security Council Completion Strategy, the ICTY and ICTR referral practice to national courts concretely illustrates various legal challenges that arise from pluralistic accountability mechanisms. By analyzing legal problems highlighted by this practice, identifying possible root causes, and formulating potential solutions that may also be relevant for the ICC, this project sheds light on the shifting dynamic between the main actors involved in the prosecution of international crimes.
Project category: Doctoral thesis
Organisational status: Individual research project
Project time frame: Beginning of project: 2009
End of project: 2014
Status of Project: completed
Project language(s): English
Legal system(s): International criminal law

Head(s) of project

The 20th century has witnessed the rapid proliferation of a variety of international and internationalized criminal courts and tribunals (ICTs), whose creation have been justified by the international community’s re-solve to punish perpetrators of the gravest international crimes so as to contribute to restoring peace and justice to (post-)conflict regions. A comparison of the various courts and tribunals reveals a range of different “justice” models, with specific legal frameworks and jurisdictional features determining each ICT’s relationship with, inter alia, relevant sources of law and national judicial institutions. The specific contours of the relationship between the ICTs and relevant national accountability mechanisms continue to be the subject of some uncertainty, not least in light of the fact that national courts have now increasingly begun to prosecute international crimes. This trend is also consonant with the complementarity principle of the new permanent International Criminal Court (ICC), which is premised on the understanding that national courts are best suited to prosecute international crimes themselves.

Given the sheer scale of the crimes committed and the limited resources of ICTs, it is crucial that these courts function in parallel with national/local courts in a pluralistic, integrative system of international criminal law (ICL). At the same time, parallel judicial activities are giving rise to an array of complex legal conundrums. Contemporary legal discourse is therefore increasingly focusing on the practical and theoretical implications of a certain “diversification” (also referred to as “fragmentation”) of the body of ICL, not just on an institutional level but on a procedural and substantive one as well.

While many academic contributions have focused on the deferral of cases from national courts to ICTs, less attention has been paid to the opposite practice, namely, referrals from international tribunals to domestic courts.

The referral practice of the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR respectively) to national courts as a crucial component of the UN Security Council Completion Strategy sets a date by which the tribunals should conclude definitively trial and appellate activities. It illustrates – in a highly concrete manner – various legal challenges arising from pluralistic accountability mechanisms in the prosecution of international crimes. The effective implementation of the Completion Strategy is contingent on the tribunals’ ability to transfer cases and investigative materials to national jurisdictions for prosecution.

The referral practice lends itself well to a study as it evinces the complex interplay between normative actors, legal orders, sources of law, and other normative projections. This interplay is part of a greater trend, which is becoming increasingly relevant as the ICC starts adjudicating its first cases. The referral practice could also be relevant for the ICC, despite its different jurisdictional framework.

The project’s first research objective is to examine the most significant legal conundrums caused by the transfer of cases and investigative materials from the ICTY and the ICTR to national courts. The second and third objectives are to understand possible root causes of such legal conundrums and to formulate potential solutions. The fourth objective is to ascertain how such solutions could be transplanted into the ICC context. The final objective is to draw general conclusions about pluralistic interactions of different legal systems and norms in the ICL fora today and thereby to contribute to the growing debate regarding the theory of legal pluralism.

Research methods comprise an in-depth analysis of relevant norms, judicial decisions, and transcripts emanating from the ICTY, ICTR, ICC, and national courts, as well as a literature review and expert interviews.

Publications (selection)

  • Schuetze-Reymann, Jennifer: International Criminal Justice on Trial – The ICTY and ICTR Case Referral Practice to National Courts and Its Possible Relevance for the ICC. Berlin, Duncker & Humblot, 232 p., 2016. In addition: Diss.

  • Last update: 14 December 2017
  • Top