Impact of International Criminal Procedures on Domestic Criminal Procedures in Mass Atrocity Cases

Project Information

DOMAC

Grant agreement ID: 217589

Project closed

Start date 1 February 2008

End date 30 April 2011

Funded under

• Specific Programme "Cooperation": Socio-economic Sciences and Humanities

Total cost € 1 756 613,40

EU contribution € 1 386 964,00

Coordinated by

HASKOLINN I REYKJAVIK EHF
Iceland

Final Report Summary - DOMAC (Impact of International Criminal Procedures on Domestic Criminal Procedures in Mass Atrocity Cases)

Executive Summary:
DOMAC seeks to assess the impact of international courts procedures on domestic procedures for putting to trial the perpetrators of mass atrocities, with a view of maximizing such impact and improving thereby the quantity and quality of international and domestic response to mass atrocities. It thus strives to develop adequate research tools that would enable to gauge such impact, analyze the reasons for any successful demonstrable influence and seek explanations for failure to impact. It also tries to offer proposed methods through which such possible impact could be improved.

DOMAC participants are Hebrew University, Reykjavik University, University College London, University of Amsterdam, and Westminster University. During its 39 months period over forty researchers took part in the research, ranging from students to senior academics, requiring extensive fieldtrips as well as thorough desk research. The project has published numerous reports and several articles and book chapters in distinguished law journals and publications, which already are being cited by legal authorities, civil society and policy makers. A number of workshops, seminars and conferences were organized, co-sponsored by other universities, non-governmental organizations and governments. Among speakers and participants were key actors such as international and national judges, international and national prosecutors, governmental officials, officials of regional and international organizations, as well as academics and civil society.

DOMAC research was conducted within six substantive areas: Normative impact; Prosecution rates and sentencing policies; Capacity building; Case studies; The role of non-criminal international tribunals; and Reparations. The research highlighted the actual interaction between domestic, hybrid, regional, and international courts in mass atrocity cases, whether such interaction occurred in formal or informal settings. Views expressed in DOMAC report represent the opinions of the authors themselves.

DOMAC findings reveal that both domestic courts and international criminal tribunals are increasingly taking note of and referring to each other´s findings. This growing awareness will probably urge domestic courts in particular to substantiate their judgements, especially if they choose to deviate from the international course. DOMAC provided extensive data gathering which alone is very valuable contribution as for the first time a comprehensive set of data exists on mass atrocities related prosecutions in some 7 countries. Ultimately, the data did not establish clear causal relations between developments at the international and national judicial level. However, there is some evidence that shows the strengthening of national responses over time, – a finding which underscores the underutilization of some national legal systems in the first years after atrocities were committed and the concomitant significance of capacity development in promoting international justice through empowering national jurisdictions. Another finding of some of the reports is that categories of crimes established before international criminal courts influence the sentencing policies of national jurisdictions. With respect to capacity building, first, there are crucial difficulties in coherence, coordination and sequencing of capacity development initiatives, and this is the result of structural and not merely contingent features of the dynamics in this area. Secondly, existing efforts have been too focused on individuals and their capacities without adequate regard to the institutional and cultural context in which they are immersed. Finally, there are specific considerations relating to the institutional design of international and internationalized courts and the balance of incentives for both domestic and international actors that largely account for the main successes and shortcomings in terms of impact on municipal legal systems. Their geographical, institutional and jurisdictional position vis-à-vis local authorities, the applicable laws before them, their exit strategies, their exit strategies, institutional culture and key policy incentives have determined the extent of the impact they had (or failed to have) in terms of enhancing the capacity of local courts. The case studies show that international courts can and often do impact national criminal proceedings in the aftermath of mass atrocities. International courts sometimes encourage, yet sometimes discourage the exercise of jurisdiction by national courts. They also facilitate through the "sticks and carrots" they have available (transfer of cases, complementarity) institutional and legal reform at the domestic level. Finally, international courts can contribute to domestic capacity development. Still, our research also suggests that design flaws, lack of resources, and lack of awareness, cause the potential for strong collaboration between national and international criminal law responses to mass atrocities to remain under-fulfilled. Comprehensive study of the European Court of Human Rights (ECtHR demonstrates that the judgments of the ECtHR are directly relevant to, and have the potential to have a very great impact on the capability of domestic legal systems to deal efficiently and in a fair way with gross violations of fundamental human rights. In particular, the minimum standards of effectiveness of investigations required by the positive obligations identified by the ECtHR are hugely important in ensuring that domestic legal systems are then able to mount effective prosecutions. The research outlined a number of measures through which the role of the ECtHR and Council of Europe institutions can be enhanced in relation to such politically difficult matters as the domestic prosecutions of gross human rights abuses committed by State agents. The International Court of Justice (ICJ) does not enjoy as strong jurisdiction as its regional counterpart. The list of cases before the Court illustrates the Court´s frequent lack of or limited jurisdiction to receive cases involving mass atrocities. States´ submissions also reveal hesitance to require opposing states to prosecute individuals at the national level, despite clear international obligation do so. Recent cases before the Court will hopefully break this practice. Parallel proceedings at the ICJ and ICTY illustrate some tension between addressing the individual accountability of state officials and establishing inter-state responsibility. Such tensions, if left unaddressed, may complicate both sets of proceedings and weaken their legitimacy in the eyes of key constituencies. International mass claims processes have had an impact beyond the countries concerned, and on other domestic and international systems, including the regulations of the International Criminal Court Trust Fund for Victims, and have served as encouragement for victims of abuses to pursue redress. The reparation research revealed that open-ended, non-exclusive claims processes may actually reduce litigation and quiet claims better than closed and exclusive mechanisms designed to ‘end all litigation’. International claims processes need to take care not to run into conflicting goals of different international actors as well as national/international rivalries, e.g. on whether to direct resources towards legal capacity-building or human rights to reparation. At the ICC, clarity is needed on what states should handle and what the Court (and/or its Trust Fund) will handle when it comes to reparations. Positive complementarity is called for, rather than both sides sitting on their hands, as the framework arguably permits.

Project Context and Objectives:
In the last decade international courts and tribunals have become major players in the fight against impunity and the enforcement of international criminal law. Since 1993, a number of new international criminal tribunals have been created to address some of the most serious violations of international criminal law: These include the two ad hoc tribunals created for Yugoslavia and Rwanda, the International Criminal Court, and a number of internationalized (or hybrid or mixed) criminal tribunals, such as the Special Court for Sierra Leone, the Special Panels for Serious Crimes in East Timor, the Extraordinary Chambers in the Courts of Cambodia, the Kosovo Special Supreme Court Chamber, the Bosnian War Crimes Chamber, and the Special Tribunal on Lebanon. The stated mission of these new tribunals has been to bring an end to impunity, and their creation was broadly perceived as a sign of the maturation of international law and as indicative of its improved enforcement capabilities. Contemporarily, a growing number of European countries started asserting during the 1990s universal jurisdictions over some international crimes, further contributing to the advancement of accountability and the rule of law in international affairs. During the same time, the ICJ received over twenty cases relating to international criminal law, including cases on international humanitarian law, genocide, and universal jurisdiction. The involvement of the ICJ generated additional pressure on states to improve their record of compliance with international criminal law. Finally, the ECtHR and the Inter-American Court of Human Rights have increasingly become involved in international criminal law as well. For instance, the courts have been seized to decide on complaints of suspects of international crimes who have claimed that their right to a fair trial or the nullum crimen-principle had been violated. Similarly, both courts have dealt with cases brought by victims of alleged violations of international humanitarian law.
Still, with the hindsight of almost 17 years since the beginning of this 'new wave' of international judicial proceedings seeking to establish legal responsibility for the perpetration of mass atrocities, it seems as if the contribution of international and internationalized courts to the overall fight against impunity has been somewhat disappointing: First, the jurisdictional reach of the international criminal courts created in the 1990s and 2000s has been, until now, rather limited, covering only a limited number of mass atrocity situations. Furthermore, the actual number of international prosecutions has been relatively small – pertaining only to a fraction of the individuals suspected of perpetrating international crimes. Even where cases were initiated, the path to a judgment has not always been easy, clearly illustrated by the inability of the ICC prosecutor to enter Sudan, and the relatively large number of individuals accused by the ICC who are still at large.
At the same time, it is notable that the European and the international community have made a considerable financial investment towards the establishment and operation of the major international criminal tribunals. Hence, a question of cost-benefit assessment arises: Is the international criminal justice system structured and funded in a manner that maximizes its impact and in the way most conducive to the attainment of the system's goals? Question relating to judicial effectiveness also arise in respect of the role of the ICJ in handling cases arising out of mass atrocity situations. So far, the ICJ has been able to assert jurisdiction only in a handful of cases. Although most of those cases before the ICJ have resulted in a judicial finding that relevant international law norms have been violated, compliance with the Court's decisions has not been fully satisfactory. Furthermore, the cases before the ICJ that have dealt with questions of state responsibility have not necessarily led to corresponding criminal proceedings under national law. The same can be said about the human rights courts, where the courts´ repeated findings about lack of investigations and prosecutions in mass atrocity situations often seem to be ignored.
Against the backdrop of the shortcomings of the existing international judicial institutions, THE DOMAC PROJECT was established to develop an alternative, more comprehensive approach to international criminal law that would view national, international and internationalized courts as complementary parts of a single machinery of justice that should operate in a coordinated, if not synchronized manner. Such an approach may encourage a more rational allocation of material and political resources among different criminal courts and the restructuring of international institutions in ways more conducive to the promotion of criminal justice on the other levels.

The Objectives of DOMAC
THE DOMAC PROJECT seeks to assess the impact of international court procedures on domestic procedures for putting to trial the perpetrators of mass atrocities, with a view to maximizing such impact and improving thereby the quantity and quality of the domestic response to mass atrocities. It thus strives to develop adequate research tools that would enable to gauge such impact, analyze the reasons for any successful demonstrable influence and seek explanations for failures to impact. It also tries to offer proposed methods through which such possible impact could be improved: Methods that may include the formation of formal – or semi-formal links between national and international courts, closer alignment of procedures and work methods, the generation of incentives for national courts to prosecute, reallocation of resources, sharing of staff, lending of support by international to the operation of national courts, etc.
THE DOMAC PROJECT seeks to improve the contribution of international actors to the formulation, development and implementation of policy at international or national level. The project thus tries to facilitate informed and more effective policymaking with respect to international criminal justice and responses to mass atrocities, with the overall goal of identifying overlapping, consistent, or conflicting approaches, and by proposing avenues towards piecing together the various fragments into a single coherent system.
The objectives of THE DOMAC PROJECT were reached within the project. Six interrelated RDT work packages were established:
- WP2: The interaction between international criminal tribunals and domestic jurisdictions as a catalyst for the improvement of international criminal law;
- WP3: Comparative examination of the number of prosecutions of perpetrators and sentencing policies in mass atrocity situations addressed by national and international courts;
- WP4: Identification and analysis of any formal or informal initiatives of international tribunals to contribute to capacity of domestic legal and judicial institutions for prosecutions in mass atrocity cases;
- WP5: Case study analysis – focus on the interplay between national and international courts in selected cases (Bosnia, Croatia, Serbia, Congo Sudan, Uganda, Sierra Leone, Rwanda, Colombia and, East Timor);
- WP6: Role of the International Court of Justice and the European Court of Human Rights in the enforcement of international humanitarian law and protection of human rights in mass atrocity situations;
- WP7: Comparative analysis of claims before domestic courts relating to international mass claims processes for reparations to victims of mass atrocities.
In light of the interdependence of various WPs, partners worked in close collaboration to ensure maximum use of resources, as well as to benefit from each other complementary expertise. Several researchers stayed for extended periods at one of the partners´ institutions.
Implementation of these research objectives required utilization of a variety of research methodologies, including data gathering, statistical analysis (e.g. of prosecution rates), legal analysis (e.g. study of constitutive instruments of international courts, analysis of court decisions), interviews with judges, lawyers and administrators working in national and international courts and other decisions makers responsible for configuration of criminal justice related policies, and investigation of case studies. Several field visits were conducted, including in Serbia, Croatia, Bosnia & Herzegovina, Sierra Leone, East Timor, Colombia, Rwanda, Congo, Uganda, and Cyprus. DOMAC also organized and participated in various conferences and workshops, both in Africa, North and South America, and Europe. Organization of these events was done in close collaboration and partnership with other universities, international organizations, governments, and both international and local non-governmental organizations.
THE DOMAC PROJECT has published numerous reports, including on normative impact, prosecutions rates, capacity building, and reparations. The publications include analyses of the International Court of Justice, International Criminal Court, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, Special Court for Sierra Leone, the Serious Crimes Panels in East Timor, the War Crimes Section in the Court of Bosnia and Herzegovina and the European Court of Human Rights.
All publications are available on the DOMAC website and several are also published in distinguished law journals. In addition, the results of DOMAC will be published in a forthcoming book format (probably with Oxford University Press).

Project Results:
WP2: THE INTERACTION BETWEEN INTERNATIONAL CRIMINAL TRIBUNALS AND DOMESTIC JURISDICTION AS A CATALYST FOR THE IMPROVEMENT OF INTERNATIONAL CRIMINAL LAW
This Work Package has intended to gauge the normative impact of international criminal courts on domestic jurisdictions. Obviously, the normative influence of the ICC on domestic jurisdictions is structurally embedded in the principle of complementarity. This principle stipulates that national states should have priority with regard to the prosecution and trial of international crimes. To that purpose, they are expected to enact adequate criminal legislation and conduct criminal proceedings, applying legal standards which emanate from international sources. Only if national jurisdictions fail to perform their task properly, the ICC is called to intervene which naturally entails that the latter Court will assess whether the state has lived up to the international standards or not.
The ad hoc tribunals which initially have been established to exercise primary jurisdiction, acknowledging the perceived ‘inability’ or ‘unwillingness’ of the states on whose territory the international crimes have been committed, have also gradually expanded their normative influence over those domestic jurisdictions. Within the framework of their ‘completion strategies’, they have sought to transfer cases to national courts, maintaining a quality check on the latters’ performance.
The choice of specific domestic jurisdictions has primarily been inspired by an urge to identify and analyze various patterns of relationships between international criminal courts and domestic jurisdictions (1). The gist of the research consisted of demonstrating how and in what areas the impact, if any, has materialized (2). The focus of the work package has been on substantive criminal law, although internationally driven developments in criminal procedure have been incidentally highlighted as well.
Ad 1) Relations between international (criminal) courts and domestic jurisdictions: from antagonism to co-operation
Bearing in mind the need for geographical diversification, THE DOMAC PROJECT opted to analyze domestic jurisdictions which reveal different attitudes towards international criminal law and international criminal courts, ranging from co-operative partnerships to antagonism and distrust.
a) The first report has covered the prosecution and trial of international crimes by selected Western states – Australia, Canada and The Netherlands – which have not – at least not recently – suffered from the commission of mass atrocities on their territory, but have predicated their jurisdiction on the universality principle. It is increasingly acknowledged that such states may assist the ICC in its quest to end impunity. Although these states reveal somewhat different approaches towards international criminal law and the ICC (see below, under (2)), their relationship towards the Court can generally be qualified as a ‘co-operative partnership’.
b) The Democratic Republic of Congo (DRC) is illustrative for those – African – states which have partially outsourced the prosecution of international crimes by referring a situation to the ICC themselves. Parallel to such international proceedings, domestic courts in the DRC have endeavoured to bring lower perpetrators of international crimes to justice.
c) THE DOMAC PROJECT expected the relationship between the international criminal tribunal (ICTY) and the Balkan-states to be the most tense and discordant. The research has partially endorsed this assumption. Suspicious of the ICTY’s presumed bias and lack of independence, Serbian and Croatian legislators and courts have sought to distance themselves from the ad hoc tribunal. The establishment of the Court of Bosnia and Herzegovina has unquestionably contributed to forge closer links between the ICTY and Bosnia, although the former Court has ventured to follow its own course.
d) Finally, Colombia has been included, because this country, in our view, best demonstrates the process of – what has recently been coined as – ‘positive complementarity’. In this context, the Prosecutor of the ICC made every effort to assist the accomplishment of domestic prosecutions and trials, rather than heading for a disqualification of national initiatives and subsequent start of prosecution at an international level.
Ad 2) How and in what areas have international criminal courts influenced domestic jurisdictions?
One of the central hypotheses, underpinning the research of this Work Package, has been that domestic jurisdictions would be inclined to closely follow the elements of international crimes, as established at the international level, while they would have more leeway interpreting modes of criminal responsibility and grounds for excluding criminal responsibility. Although there is some evidence buttressing this hypothesis, the research in general does not corroborate it. The major distinction is rather between states which open up their national legal order to (conventional and customary) international law and states which seclude their legal orders from international influences, requiring the implementation of international law through national legislation. This distinction cuts through preconceived divisions between the general and the special part of criminal law.

Examples of ICL-receptive approaches include the following:
- Canadian courts have relied heavily on the case law of the ICTY and the ICTR in their interpretation of the concept of ‘incitement to genocide’;
- By applying the elements as defined by the Elements of Crimes, assisting the ICC, a military court of the DRC has utilized a more expansive definition of the elements of rape and sexual violence than would be applicable under national law;
- Colombian courts have faithfully applied the concepts of criminal responsibility of co-perpetration and perpetration by means of an organization, as they have recently been developed in the case law of the ICC. Furthermore, the Colombian Constitutional Court has referred to provisions of the Geneva Conventions and the Rome Statute, highlighting the customary nature of these kinds of prohibitions based on case law of the ICTY;
- The Court of Bosnia and Herzegovina has predicated its interpretation of the crimes of rape and torture as war crimes and crimes against humanity on case law of the ICTY and provisions of the Rome Statute. The relationship between international criminal tribunals and domestic court was more complex, as it perfectly exemplified the process of ‘cross-fertilization’. In the words of Antonietta Trapani: ‘Essentially, the Tribunal jurisprudence on these issues relied upon the more thorough and fleshed out histories of domestic realms in formulating its conclusions vis-à-vis the definition of the crimes, in turn, the domestic penal systems in transition are then given guidance in proscribing offences within their own criminal codes.’

Courts and legislators of other states have been far more reluctant in assessing criminal concepts in the light of international provisions and jurisprudence:
- In conformity with the rigid dualistic system, there is no evidence that Australian courts have been influenced by international jurisprudence in applying and defining the elements of international crimes;
- Croatian courts have struggled with the doctrine of ‘command responsibility’ as espoused by the ICTY. The reigning gap between international criminal law and national law in respect of this doctrine has not entirely been bridged. While the concept of command responsibility, derived from international criminal law, has entered into the domestic law through legislative amendments, the construction of the required elements reflects the national conception of the mode of liability.
- Despite the monistic inclinations of the DRC, its courts have not always been transparent in the way they have defined and applied the elements of crimes against humanity, nor to what extent they have been influenced by international jurisprudence.

Whereas the impact of international courts and tribunals on domestic jurisdictions has been in the limelight of the research which has been conducted in this work package, it was envisaged that the reverse influence would be scrutinized as well. References to domestic (criminal) law in the jurisprudence of the international criminal tribunals have incidentally been touched upon in the distinct reports. The topic has extensively been discussed in a separate publication.
Obviously, one cannot draw sweeping conclusions from the exploration of a small sample of selected jurisdiction. The research does not sustain the currently fashionable lamentations, announcing the fragmentation of international law, nor does it prove the reverse thesis that a universally shared interpretation of international criminal law is gradually winning ground. What we can conclude, though, is that both domestic courts and international tribunals are increasingly taking note of and referring to each other’s findings. And this growing awareness will probably urge domestic courts in particular to substantiate their judgments, especially if they choose to deviate from the international course.

WP3: COMPARATIVE EXAMINATION OF THE NUMBER OF PROSECUTIONS OF PERPETRATORS AND SENTENCING POLICIES IN MASS ATROCITY SITUATIONS ADDRESSED BY NATIONAL AND INTERNATIONAL COURTS
This Work Package examines information that may establish any linkage between the operation of international criminal tribunals and the tendency of national courts to engage in criminal prosecutions in mass atrocity situations, to offer possible explanations for any positive or negative correlation that is identified, and to try and identify and explain any cross-influence between the sentencing policies of national and international criminal courts engaged in comparable mass atrocity prosecutions.
Unlike other Work Packages, that were mostly qualitative in nature, Work Package 3 has had a strong quantitative component. For each reviewed jurisdiction, data was collected as to the number of mass atrocity related criminal investigations initiated, the number of prosecutions, the number of convictions and sentences, and the outcome of any appeals processes. These numbers were contextualized in light of the structure of relevant legal systems and juxtaposed against the parallel records of international courts, which exercised jurisdiction over the same events. In addition, the reports noted important political and legal developments pertaining to the jurisdiction in question that may provide alternative explanations for fluctuations in the levels of investigation and prosecutions.
Ultimately, the reports authored under this Work Package do not establish clear causal relations between developments at the international and national judicial level. In most cases, the number of cases litigated before both fora were too small to establish a statistically meaningful correlation between the investigation and prosecution trends. Furthermore, since the operation of national criminal jurisdictions is impacted by a range of factors – domestic and international, legal and political, etc., it is difficult to assert on the basis of quantitative data only that international criminal courts have had a significant effect on the work of their national counterparts.
Still, the reports of the Work Packages are valuable in producing for the first time a comprehensive set of data on mass atrocities related prosecutions in some 7 countries (where significant numbers of domestic investigations took place), which provides us with a clearer understanding of the actual division of labor between the national and international response to mass atrocities. There is also some evidence that shows the strengthening of national responses over time, expressing itself in a growing number of domestic investigations and prosecutions – a finding which underscores the underutilization of some national legal systems in the first years after atrocities were committed and the concomitant significance of capacity development in promoting international justice through empowering national jurisdictions. Another finding of some of the reports is that categories of crimes established before international criminal courts (war crimes, crimes against humanity and genocide) influence the sentencing policies of national jurisdictions (in the sense that crimes classified as war crimes attract less severe sentences than crimes against humanity, and crimes against humanity less than genocide).
The research for this Work Package consisted of review of public records and reports by international organizations and NGO representatives. In two cases – Croatia and East Timor, local professionals were hired to review case files, in order to complete gaps in the available information. In one case, Rwanda, the hired professional was denied access to court files by a decision made by officers in the Supreme Court. As a result, no report was authored on Rwanda. After it became clear in the course of the research conducted in other Work Packages that the number of cases in Sudan, Uganda, and Sierra Leone is too small to merit separate reports, these three countries were also removed from the list of reviewed jurisdictions.
Specific findings:
- There has been a gradual increase in the caseload of national courts in Serbia, Bosnia and Herzegovina and Kosovo since the end of the conflict in the former Yugoslavia. Such an increase coincides, inter alia, with domestic institutional reforms (such as the creation of special war crime chambers), as well as with the ICTY completion strategy.
- There is some correlation between the ethnicity of defendants before the ICTY and national courts in the Balkans (most defendants in all jurisdictions are Serbs). In Croatia, however, the number of trials against non-Serbs has arisen over time, and the conviction rates of Serbs have declined. This may be attributed in part to improvements in the quality of the local judicial system. In Serbia the numbers of re-trials for Serb defendants are relatively high, suggesting perhaps some ambivalence within the legal system towards the prosecution of local nationals for international crimes.
- The average sentences imposed by the Special Panels for Serious Crimes in East Timor were 7-10 years. This may suggest some leniency in the domestic criminal process.
- Congolese military courts tend to bring more cases against suspects belonging to government forces than armed militias. However, defendants belonging to government forces tens to be low-ranked; furthermore, death penalties are more prevalent in cases involving armed militias than government forces. In the same vein, most cases in Colombia have involved militia members, whereas the rate of successful appeals is higher for government forces than non-government forces. In both cases, the data may suggest certain biases of the local legal system against opposition forces.

WP4: IDENTIFICATION AND ANALYSIS OF ANY FORMAL OR INFORMAL INITIATIVES OF INTERNATIONAL TRIBUNALS TO CONTRIBUTE TO CAPACITY OF DOMESTIC LEGAL AND JUDICIAL INSTITUTIONS FOR PROSECUTIONS IN MASS ATROCITY CASES
The objective of WP4 was to identify and evaluate the impact of: (i) initiatives and activities of international or ‘hybrid’ tribunals to foster domestic capacity for prosecutions in mass atrocity cases conforming to relevant human rights and international criminal law standards; and (ii) other intergovernmental initiatives to foster such capacity in the light of the establishment of international criminal tribunals.
Specific tasks in this work plan included:
1. to map and identify specific capacity-related and outreach initiatives of international and internationalized criminal tribunals
2. to identify ancillary capacity-related impacts of international and internationalized criminal tribunals: for example, through the employment and/or training of local staff in investigations, as lawyers or in other capacities
3. to evaluate the impact of such initiatives and activities through interviews with tribunal staff, actors in the domestic criminal justice system (including local lawyers and judges), and other relevant individuals.

Summary of findings
In accordance with the work plan described above, the first phase of this research focused on identifying the main efforts directed to develop the local capacity to prosecute individuals for crimes under international law. This part of the research addressed several jurisdictions, including Bosnia and Herzegovina (BiH), Cambodia, Central African Republic, Colombia, Croatia, DRC, East Timor, Iraq, Kosovo, Lebanon, Rwanda, Serbia, Sierra Leone, Sudan, and Uganda. The amount of information available was limited both in terms of its comprehensiveness and its quality. Yet, the data collected sufficed to identify the main trends and approaches towards capacity development in this sector in the different jurisdictions, to identify the main players, and to highlight the main difficulties and challenges these efforts face.
The second phase of the research focused on gaining a deeper understanding of these issues through research and analysis focused on a more limited number of jurisdictions. This phase sought to provide an in-depth assessment of the influence that capacity development and related initiatives and processes have had on local judicial institutions and professionals, and to examine the causes of their achievements and their shortcomings. While drawing upon experience in a number of states, this work focused in particular on the experience of Bosnia and Herzegovina, Sierra Leone and Colombia. This allowed not only an assessment of specific initiatives, but also to better examine the synergies between different projects or programmes and between different institutions. The selection of these three jurisdictions as examples emerged from the conclusions of the mapping exercise: the three scenarios illustrate very different situations in terms of existing capacities, legal and cultural context and the involvement of different types of international or internationalized tribunals. The selection of these jurisdictions allowed examination of both formal and informal ways of developing local capacity: for example, initiatives developed mainly in the context of the completion strategies in both the International Criminal Tribunal for the former Yugoslavia and the Special Court for Sierra Leone, the “positive” complementarity regime of the International Criminal Court, and the experience in the Court of BiH. Our work sought to situate them in the broader narrative of international criminal justice by contrasting them with other available experiences, such as that in relation to the International Criminal Tribunal for Rwanda (ICTR) and the Extraordinary Chambers in the Courts of Cambodia (ECCC). The main purpose here was to assess the effect of international and internationalized tribunals and other participating agencies and institutions that aim at, or can potentially contribute to developing local capacity to conduct war crimes trials. Ultimately, however, the analysis provided has a forward-looking focus: although it addresses existing or past processes, dynamics, and synergies, it provides a critical approach to the issue of capacity development in international criminal justice.
Our main conclusions can be summarized as follows :
- First, there are crucial difficulties in coherence, coordination and sequencing of capacity development initiatives, and that this is the result of structural and not merely contingent features of the dynamics in this area.
- Secondly, existing efforts have been too focused on individuals and their capacities without adequate regard to the institutional and cultural context in which they are immersed.
- Finally, there are specific considerations relating to the institutional design of international and internationalized courts and the balance of incentives for both domestic and international actors that largely account for the main successes and shortcomings in terms of impact on municipal legal systems. Their geographical and institutional position vis-à-vis local authorities, the applicable laws before them, their exit strategies, institutional culture and key policy incentives have determined the extent of the impact they had (or failed to have) in terms of enhancing the capacity of local courts.

Direct capacity development initiatives
These primarily comprise training programmes and workshops. While most international(ized) courts do not, at least initially, have a specific mandate to develop local capacity in the investigation, prosecution and trial of mass atrocity cases, nonetheless judges and staff of such tribunals have participated in these activities. Our research identified some of the common weaknesses or deficits in domestic criminal justice systems that such initiatives are designed to address. While such common needs clearly exist, our research highlighted the need to carefully tailor capacity development efforts to specific situation-countries. The level and type of needs that different legal systems face in post-conflict situations vary considerably. In this context, it is essential to conduct needs assessments before programmes directed to develop local capacities are put in place and to ensure that they fit the prevailing legal, political and institutional context. More precisely, it is crucial to get the balance right between accommodating inputs from local professionals as to what the perceived needs are, and insisting on basic conditions such as adequate procedural safeguards, establishment of adequate institutional incentives for local professionals (avoiding corruption and political influence), appropriate legal training, and adequate assistance and protection to victims and witnesses. Criticisms of such initiatives to date stemmed from the actual or perceived failure to conduct such needs assessments, to prioritise adequately among competing needs, and to consider the institutional, cultural and legal context of the capacity development activity. Evidence also suggested that there remain significant deficits in terms of long-term planning, coherence and coordination of activities. This is in part, due to inadequate or complete lack of needs assessments, insufficient local ownership over the process (or at least contribution by the relevant local stakeholders) and an extended neglect of the importance of self-education. But it is also due to the vested interest of each agency in maintaining control over their own activities, securing funds to guarantee survival, and in having success stories to show their relevant constituencies. These deficits result in significant inefficiency in terms of impact, and lack of sustainability of promising capacity development initiatives.

Indirect capacity development
Our research identified various types of activity of international(ized) courts that can or do impact in some way upon the capacity of domestic criminal justice systems to investigate and prosecute mass atrocity cases. These included ‘on the job’ training (in the rather limited situations where domestic investigators and lawyers from situation countries are recruited into the international(ized) tribunals); the transfer of files and information from international(ized) courts to national agencies; and legislative changes. Such interactions may be positive, negative or neutral, but their existence and effect largely depends upon the nature of the relationship between the international(ized) tribunal and the domestic system. So, for example, rather than capacity development from the ‘top down’, whether through direct training, study visits or the mere co-existence of international and domestic judges and court staff on internationalized tribunals, what was perceived as most effective was the development of actual, horizontal working relationships between international and national prosecutors and judges – in situations of shared, or concurrent, competence. In that sense, the most striking conclusion of this work is that capacity development in this field is to a large extent determined by structural and institutional dynamics, such as reluctance to hire nationals in international(ized) tribunals, or resistance from locals to be “chaperoned” by their international colleagues.
Accounting for effective capacity development in the justice sector: institutional incentives and constraints
Our research showed that institutional relationships, incentives and constraints shape the impact of international(ized) tribunals on domestic criminal justice systems. These include:
- jurisdictional relations between the international(ized) tribunal and national courts, and to a lesser extent the geographic location of the international(ized) tribunal;
- the applicable law in the international(ized) tribunal; and
- the exit (or ‘completion’) strategy, if any, implemented in respect of the international(ized) tribunal.
Thus, any comprehensive analysis of the impact of international or internationalized tribunals in developing local capacities in the justice sector must take into consideration the existing incentives that shape both the relevant policies towards the domestic judiciaries, and those of domestic judiciaries towards them. That is, the issue is whether the international(ized) tribunal has itself any concrete interest in local authorities handling part of the case load, and whether the international community can provide the right kind of incentives for the local constituencies to take a real interest in handling a portion of these cases domestically. Under this framework, we found that impact is generally driven by the way in which institutional relationships between the domestic and the international system are structured, namely, whether they are relationships of collaboration, competition, resentment, or mere indifference. Furthermore, we suggest that these incentives are to a significant extent shaped by the prevalent division of labour between the international and the domestic tribunals – their jurisdictional relationship. This situation is illustrated most aptly by the changing relationship between the ICTY and the Court of Bosnia and Herzegovina (BiH) in light of the ICTY Completion Strategy, where the need to bring the work of the ICTY to a close provided a prompt and strong incentive to enhance the capacity of local legal systems. This situation stands in contrast to the initial relationship between the ICTY and local courts under the ‘Rules of the Road’, whereby the ICTY would conduct its investigations irrespective of what took place domestically. It also contrasts with the experience in relation to the Special Court for Sierra Leone, where the understanding that no prosecutions would take place before the domestic courts (due to the amnesty contained in the Lomé Peace Agreement) created no incentive for capacity development.
These conclusions have resonance as well for the work of the ICC now and in the future. In this context, we examined the impact to date in relation to the ICC’s involvement in Colombia, and make some suggestions as to ways to develop informal institutional relationships to engage the type of collaboration in Colombia. Put shortly, the ICC has used the “threat” of an intervention in Colombia to push domestic criminal proceedings forward. This policy has been to some extent successful, but has significant shortcomings. On the one hand, it could result in a loss of credibility in the long run; and, on the other, if and when the ICC does decide to intervene in a given jurisdiction it may lose to a significant extent its capacity to influence local decision-makers. Hence, we suggest that the ICC’s positive complementarity policy should include, both before and after intervention in a given situation, a greater number and range of incentives to promote and facilitate domestic action.

WP5: CASE STUDY ANALYSIS – FOCUS ON THE INTERPLAY BETWEEN NATIONAL AND INTERNATIONAL COURTS IN SELECTED CASES (BOSNIA, CROATIA, SERBIA, CONGO SUDAN, UGANDA, SIERRA LEONE, RWANDA, COLOMBIA AND, EAST TIMOR)
World Package 5 seeks to examine in detail the interplay between national and international courts in specific mass atrocity situations, to aim and understand the specific dynamics that may lead to competition or improved synchronization between national and international courts and to explore the practical and doctrinal problems associated with lack of coordination between national and international proceedings. Specifically, this Work Package integrates the work undertaken by three other Work Packages – WP2, WP3, WP4 – reviewing, respectively, the impact of international courts on the norms applicable in national criminal proceedings relating to mass atrocity cases, their impact on local investigation and prosecution rates and on capacity development. Where relevant, findings of WP6 dealing with the possible impact of other course, such as the International Court of Justice and the European Court of Human Rights were also considered.
The research conducted involved a review of literature, official state documents, reports by international organizations and NGOs, and on-site visits, in which interviews were conducted with international and national court officials, state officials, officers in international organizations, local academics and lawyers and NGO workers. Among countries visited by WP5 researchers were the Netherlands, United States, Rwanda, Tanzania, Sierra Leone, Uganda, Congo, East Timor; Serbia, Croatia, Bosnia and Herzegovina and Colombia. The ten reports prepared under WP5 were sent to international and local experts for comments; some of the reports were also presented in regional conferences that took place in Belgrade and Kampala and in the final PICT conference in Amsterdam.

General findings:
The research conducted largely corroborated our hypothesis that international courts can and do impact national proceedings, but that the cooperation between national and international courts involved in criminal proceedings has been up until now sub-optimal.

Impacts:
Our research shows that international courts sometimes play a role in encouraging or discouraging the operation of domestic criminal law systems. Furthermore, through employing the ‘sticks and carrots’ at their availability courts can encourage institutional and legal reform at the domestic level. Finally, cooperation between international and national criminal courts has the potential of developing the capacity of both sets of institutions.
Rates of prosecution – Our research shows that, at times, the existence of an international jurisdiction has been used as an explanation (or pretext) for domestic inaction in the face of mass atrocity crimes. Hence, during the 1990s, prosecutions in Bosnia and Herzegovina came to a halt by reason of the “rule of the road” – an agreement investing the ICTY with supervision over the propriety of national proceedings; similarly, the existence of the Special Court for Sierra Leone may have removed pressure from the local government to reconsider the almost blanket amnesty it legislated and to address mass atrocities relating to the civil war through the ordinary court system.
At the same time, the completion strategy, and the Rule 11bis avenue for transfer of cases from the ICTY to the Balkan states appears to have encouraged Croatia and Serbia to increase their efforts to prosecute war criminals. The threat of international proceedings may have also pushed the authorities in Colombia and Uganda to start domestic prosecutions, although in both cases the number of trials has been low.
Our research shows that international courts can play an important role in raising awareness to the need for criminal accountability and in legitimizing national efforts in that direction. Hence, many interviewees were of the view that without the ICTY the number of proceedings in domestic courts in the Balkans would have been much lower. Similarly, proceedings in Congo appear to be related to the decreasing international tolerance towards impunity – a message underscored by the operation of the ICC
Institutional and legal reforms – Our research suggests that international courts have been an important factor in encouraging institutional and legal reforms at the domestic level. Such reforms may have been caused in part by the aforementioned awareness raising function of international courts, but, perhaps more directly, by the wish to meet international standards in order to qualify for international court driven cooperation arrangements and programs. Hence, the desire to receive cases from the ICTR and ICTY has led Rwanda and the Balkans states to undertake a number of important reforms, including the creation of special war crimes chambers (in Croatia, Serbia and Bosnia and Herzegovina), the adoption of new procedural codes (especially in Bosnia and Herzegovina), the development of internationally-consistent legal doctrine (for example, greater flexibility in assigning superior responsibility by Balkan courts), and changes in sentencing policies (e.g. the abolition of the death penalty in Rwanda). In the same vein, legal changes in Colombia and Uganda have been explained by reference to the principle of complementarity – a principle that enables the ICC to monitor the propriety of local proceedings.
Capacity development – Our research shows that over time strong professional links have been formed between national and international authorities involved in the prosecution of mass atrocity crimes: information is nowadays routinely shared between such authorities, professionals move between the systems, and there is greater appreciation of the need to learn from each others experience. The internship program at the ICTY is a particularly impressive model of such a capacity development exercise, as is the increased involvement of local professionals in the work of the Sierra Leone Special Court. On a more general level, the functioning of the War Crimes Section in the Court of Bosnia and Herzegovina offers a positive example of a model of cooperation with long-lasting effects, as well as spill over effects (to entity courts).

Shortomings:
The following recurring problems have been identified:
Lack of a comprehensive vision – The first generation of international criminal courts – the ICTY and ICTR – began operating with limited awareness to the untapped potential of national legal systems for addressing international crimes. In both cases, problems of capacity may have slowed down the work of national courts; furthermore, proceedings that took place – especially, in Croatia and Rwanda, raised serious due process concerns. In addition, in both the Balkans and Rwanda, governments often lacked the will to bring to justice suspected perpetrators belonging to politically powerful ethnic groups. It is against this backdrop that the establishment of ad hoc international criminal courts has to be evaluated. Our research suggests that capacity issues were initially given little attention– they were either excluded altogether from the mandates of the ICTY and ICTR, or grossly under-budgeted. Furthermore, the courts themselves sometimes failed to consider the possible ‘spill over’ effects that their work may generate for local proceedings. Hence, for example, they did not always collect evidence through methods which would be admissible in local proceedings, they sometimes refrained from employing local experts, who could have subsequently been integrated in the local legal system, and even failed initially to translate some court decisions into local judgments. In other words, they were physically and mentally removed from the countries in which the international crimes in question have occurred.
This sub-optimal state of affairs has changed over time. Gradually, international courts have turned to regard themselves and national courts as involved in a cooperative judicial exercise. This ‘learning curve’ has coincided with the introduction of the completion strategy, which pressurized international courts to allocate some of their caseload to national courts. As a result, significant improvements can be identified in the second decade of the operation of the ICTY and ICTR in the flow of information between national and international authorities, in their day-to-day collaboration, and in the involvement of international criminal courts in capacity development.
The ICC internalized early-on some of these lessons and has adopted a policy of ‘positive complementarity’ designed to encourage national authorities to assume a significant part of the burden of investigating and prosecuting mass atrocity related crimes. The policy appears to have been somewhat successful with regard to Colombia, and has had some positive impacts on normative and institutional reforms in Congo and Uganda. Still, the Court’s ability to tackle countries hostile to its jurisdiction – such as Sudan – is still very limited.
The third model of international judicial intervention in the aftermath of mass atrocities – hybrid or internationalized courts – was supposed to offer an even more promising avenue for developing a coordinated national-international response. Hybrid courts, such as Special Court for Sierra Leone, or internationalized courts, such as War Crimes Section in the Bosnia and Herzegovina Court or the Special Panels for Serious Crimes in East Timor, offered the promise of a comprehensive response to mass atrocities harnessing local and international resources, and marked a possible avenue for lasting normative reform and expertise transfer. Our research, however, shows that the success of this model in pushing prosecution rates, inculcating international norms and building capacity, has been partial at best. Whereas the Bosnia Court appears to have generated an all-in-all impressive case law, the Sierra Leone has dealt with a meager number of cases (involving major actors, though). Disappointedly, it appears that the impact of both the Sierra Leone Court and the East Timor Panels on the ordinary judiciary has been minimal. Hence, after the dismantling of the East Timor Panels, prosecutions came to a halt; the same outcome can be found in Sierra Leone. Even in the field of capacity development, results have been not as good as expected. Local employees often occupy low-ranking positions, local court officials complain of a ‘brain drain’ from the ordinary system to the hybrid court (and from the country to other countries where international organizations operate), and the relevance of the experience accumulated in the hybrid or internationalized courts is at times unclear to local legal elites.
Lack of resources – Even when a comprehensive approach has been internalized by the relevant international court – such as in the case of the ICC - our research suggests that international courts may lack the necessary resources – manpower and budgets – to create meaningful links with national judicial institutions. Hence, the ‘positive complementarity’ policy of the ICC has been unable to have a strong impact in complex situations such as Congo and Uganda, where serious problems of capacity and/or political will are encountered. Similar problems have also haunted the ad hoc courts – during the first years of their operation (where outreach activity – an important aspect of capacity development and norm internalization – was not budgeted at all, or severely under-budgeted), and hybrid and internationalized courts. In part, because of the disconnect between needs (the multiplicity of judicial functions) and resources, international courts have sometimes rejected any role in the field of capacity development or other forms of interaction with the local legal system. As a result, lack of resources served as a disincentive to the development of a comprehensive approach to criminal adjudication.
Lack of ultimate responsibility – another complicating factor we have identified, which exacerbated the ‘tunnel vision’ problem – the tendency of international courts to examine the situation from their idiosyncratic needs perspective – is the lack of clear lines of responsibility. The involvement of numerous international actors in countries rebounding from mass atrocities – such as, the UN, EU, OSCE, and donor countries – generates uncertainty as to who should be taking the lead in fostering the national legal response to mass atrocities. In fact, our research suggests that officials in international courts often cite the existence of other international agencies as reason why it should not get involved in capacity development. At the same time, we observed that international agencies other than courts, also face resource limits, and often lack a comprehensive vision on criminal adjudication. Thus, for example, in the first decade after the end of the war in the Balkans, the EU has applied considerable pressure on Croatia to cooperate with the ICTY, but almost no pressure to revamp its domestic legal system and to rectify its due process problems and selective prosecution practices.
Lack of legitimacy – Finally, our research suggests that the impact of international courts on national legal systems is often hampered by lack of legitimacy of the former in the eyes of key players in the latter. Thus, for example, perceptions of the ICTY as anti-Serb or anti-Croat, may have led to the rejection of the Court’s case law by some local judges, and could have slowed cooperation with those institutions by local governments. In the same vein, key functionaries in the Sierra Leone judicial system view the Special Court with suspicion, and pays little heed to its decisions. Arguably, the impact of the ICC in Uganda and Sudan suffers from similar problems. While certainly not a panacea to image problems (which are sometimes the product of manipulations by local politicians), the limited awareness and resources allocated by international courts to outreach programs may have exacerbated some of these tensions between national and international institutions. In addition, we remain unconvinced as to the wisdom of some court design issues, with legitimacy implications – such as not appointing a Rwandan judge at the ICTR, or not conducting any of the ICTY or ICTR hearings in the respective countries.

In sum, our research suggests that design flaws, lack of resources and lack of a comprehensive vision, cause the potential for strong collaboration between national and international criminal law responses to mass atrocities to remain under-fulfilled.

WP6: THE ROLE OF THE INTERNATIONAL COURT OF JUSTICE AND THE EUROPEAN COURT OF HUMAN RIGHTS IN ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW AND PROTECTION OF HUMAN RIGHTS IN MASS ATROCITY SITUATIONS.
The inclusion of these tribunals was considered paramount in the overall picture of international criminal justice and fight against impunity. While international criminal tribunals play a major role in enforcement of individual responsibility the International Court of Justice and European Court of Human Rights have no less prominent role – that is to enforce national prosecutions at the national level via state responsibility. States have undertaken a number of obligations to invesigate and prosecute individuals for serious human rights violations and grave breaches of international humanitarian law, includingin under the European Convention on the Protection of Human Rights and Fundamental Freedoms and the Geneva Conventions of 1949. However, enforcement of that obligation has always been problematic: states have been very reluctant to prosecute their own forces. International criminal tribunals were a major development in prosecution of individuals, but as has been illustrated, they can and will only deal with handful of cases. Due to lack of jurisdiction and sources international criminal tribunals will never substitute the need of national prosecutions. The role of the International Court of Justice and human rights tribunals to enforce states´responsibility to investigate and prosecute serious crimes at the national level is therefore of major importance.

Role of the European Court of Human Rights
The research focused on the role played by the European Court of Human Rights (“ECtHR”) in enhancing the capability of domestic legal systems of the State Parties to the European Convention on the Protection of Human Rights and Fundamental Freedoms (“ECHR”) to effectively investigate and prosecute serious violations of fundamental human rights committed in the context of armed conflicts, military occupation or situations of prolonged and intense internal unrest as the result of terrorist activities. In light of the overall aim of THE DOMAC PROJECT, the research analyzed through the medium of case studies the discrete question of the way in which the interaction between the ECtHR (and other relevant organs of the Council of Europe, in particular the Committee of Ministers) and the national authorities in Member States has fostered the development of domestic institutional structures, legislation and procedures aimed at ensuring effective accountability for serious human rights violations. In addition, it examined the extent to which these developments have been effective in ensuring that prosecutions are brought to justice, and meaningful sanctions imposed on those responsible. More specifically, the first objective of the research was to examine whether, to what extent and how the States parties to the ECHR have complied, or are currently complying, with judgments of the Court relating to situations of gross human rights violations, characterized by violations of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman and degrading treatment). Second, the research assessed whether, quite apart from the question of direct compliance with specific judgments in individual cases, the Court’s judgment have had a broader impact on the capability of the domestic legal systems in question to investigate serious violations of fundamental rights and prosecute those responsible.
The research was carried out in two different strands. The first strand focused on four case studies dealing with situations of widespread and serious violations of human rights committed by agents of State which have been parties to the ECHR for a relatively long period of time (in particular, the case studies concerned the events in Chechnya during the “Second Chechen War” 1999-2001, the actions of members of the Turkish security forces in the context of the conflict with the PKK; the actions of the Turkish security forces in northern Cyprus; the actions of the United Kingdom security forces in the context of the “Troubles” in Northern Ireland). The findings of this part of the research are presented in a comprehensive report issued by DOMAC in July 2010. The second strand focused on the role of the case-law of the ECtHR in states which are relatively new to the ECHR system and were not parties to the Convention at the point where the atrocities took place, namely Croatia and Bosnia Herzegovina. This latter strand of the research explored two specific issues which are particularly relevant in the context of domestic prosecution of war crimes, namely, the application of the principle of legality under Article 7 ECHR and the applicability of the fair trial guarantees as enshrined in Article 6 ECHR.
From both strands of the research emerged that the judgments of the ECtHR are directly relevant to, and have the potential to have a very great impact on the capability of domestic legal systems to deal efficiently and in a fair way with gross violations of fundamental human rights. In particular, the minimum standards of effectiveness of investigations required by the positive obligations identified by the ECtHR are hugely important in ensuring that domestic legal systems are then able to mount effective prosecutions.
The research outlined a number of measures through which the role of the ECtHR and Council of Europe institutions can be enhanced in relation to such politically difficult matters as the domestic prosecutions of gross human rights abuses committed by State agents.
The measures in question can be divided into measures to be adopted by the ECtHR, by the Committee of Ministers and by other Member States of the Council of Europe. With regard to the first category of measures, the research advocates a more robust approach to just satisfaction under Article 41 ECHR, in particular through the indication of specific measures to be adopted by the State by way of just satisfaction. By setting out clearly and specifically what remedial measures should be adopted by the respondent State, the ECtHR would undoubtedly foster increased compliance with its judgments and enhance their impact on the wider legal system. Such an approach would reduce the ability of States to claim, in the context of monitoring of compliance by the Committee of Ministers, that the minimal measures they have adopted constitute adequate compliance. A further proposed measure is the adoption of “pilot judgments” in some of the cases under consideration. Admittedly, such an approach is not without its problems. In particular, in contrast to the types of cases at issue in the case studies, the situations which have previously been found suitable for the “pilot judgment” procedure have generally involved large numbers of similar violations in which there was no significant dispute over the facts. By contrast, applications involving violations of the right to life or the prohibition of torture and ill-treatment, especially if occurring in the context of armed conflict and a wider pattern of alleged violations, will very often involved substantial disputes of fact both as to precisely what occurred and as to who was responsible. However, given the systemic problems which are at the basis of the deficiencies identified by the Court as regards investigation and prosecutions in some of situations examined by the case studies, consideration should be given as to the ways in which the “pilot judgment” procedure might be adapted and expanded with a view to improving compliance. Finally, opportunities are provided by the new enforcement procedures introduced by Protocol No. 14, in particular the possibility for the Committee of Minister to refer to the Court the issue of whether a State has adequately complied with a judgment. As for measures involving the Committee of Ministers, the primary recommendation is that the Committee be far more rigorous in its examination of compliance before taking a decision to close its consideration of compliance with particular judgments of the Court. This would require an assessment not only of the formal adoption of general measures in compliance with a judgment, but also as whether those measures had in fact resulted in a concrete impact within the legal system in question. In addition, in extreme cases of persistent non-compliance, the Committee of Ministers should consider the possibility of suspension or withdrawal of membership of the non-complying State pursuant to Article 8 of the Statute of the Council of Europe. Following the entry into force of Protocol No. 14, the Committee of Ministers should also ensure that it makes effective use of the new additional enforcement mechanisms envisaged. In particular, it should ensure that it makes appropriate use of the possibility under Article 46(3) of the Convention (as amended) of referring instances of failure to comply with final judgments back to the Court. Obviously, the decision whether or not to refer a case back to the Court will be subject to political considerations. However, where a State has consistently denied that it is required to adopt the measures recommended by the Committee in order to ensure effective compliance with a judgment of the Court, or has argued that the measures it has adopted are sufficient, the effectiveness of the Convention system requires that the Court should be given the opportunity to resolve the dispute authoritatively, rather than the matter being allowed to be dragged out over prolonged periods of time.
Finally, as for measures involving individual Member States of the Council of Europe, the obvious means at the disposal of other Member States is an increased resort to the inter-State complaint procedure under Article 33 ECHR. In this regard, a number of problems historically related to inter-State applications (and in particular the risk of politicization) could be avoided by the bringing of cases jointly by coalitions of States.

Role of the International Court of Justice
In the last decade, the International Court of Justice (“ICJ” or “Court”) has received a number of cases relating to international humanitarian law and gross violation of human rights. The research focused on three aspects: First, the jurisdiction of the ICJ with respect to these cases; second, the impact of these cases on national prosecutions; and third, the inter-relations between the cases at ICJ and parallel cases at international criminal tribunals.
To say the least, many situations involving violations of international humanitarian law and gross violations of human rights never reach the Court. The Court´s jurisdiction is still based on state consent and with only 66 declarations under the optional clause (even many of those contain far reaching limitations) it has never been close to become the “world court” or for that matter the “the principal judicial organ” of the United Nations. Many cases did not make it through the jurisdictional hurdle, such as the NATO cases, and Congo v. Rwanda. A major conflict, occupying the agenda of the international community for decades -the Israel-Palestinian conflict- only reached it a few years ago to the Court as a request for an Advisory Opinion (and then only one aspect of the underlying dispute), a procedure not binding on relevant parties. Many of the cases that did reach the Court did so based on provisions in treaties, i.e. the jurisdictional clause in the Convention on the Prevention and Punishment of Genocide (Bosnia and Herzegovina v. Serbia and Croatia v. Serbia). This left the Court with jurisdiction strictly limited to violations of those treaties – excluding any considerations of possible violations of other human rights treaties or international humanitarian law. In other cases, the potential jurisdictional base is limited, and the Court has taken a restrictive approach in determining whether certain preconditions to the exercise of its jurisdiction established by the relevant treaty have been met (International Convention on the Elimination of All Forms of Racial Discrimination in Georgia v. Russian Federation, 2011). Only in one case was the Court endowed with a broad jurisdiction, the Armed Activity Case (Congo v. Uganda), and was able to base its findings on all major instruments of human rights and humanitarian law. But even here the situation cannot be regarded as satisfactory as, for want of jurisdiction, the Court found itself in a position where it had no jurisdiction to decide another case related to the same broader conflict (Congo v Rwanda).
Realistically, the Court will only be able to exercise jurisdiction over cases of concern if more states parties to the Court accept the compulsory jurisdiction under Article 36(2) of the Statute of the Court. A second option is to add jurisdictional clauses to major conventions, such as the Geneva Conventions of 1949. In the absence of compromissory clauses, the enforcement of most UN human rights conventions and the Geneva Conventions of 1949 are truly left at the mercy of states parties. However, in an era of fight against impunity and general trend towards compulsory jurisdiction both options are worth the pursuit. A further step towards enhancing the role of the ICJ in realizing the goals of international criminal justice rests with the Court itself. The ICJ could be expected to exercise jurisdiction where a basis for such jurisdiction exists, and to avoid approaches that restrict its role in this regard.
In general, states have a good compliance record with decisions of the ICJ. The cases involving mass atrocities do not reveal the same pattern. Non-compliance with preliminary orders of the Court both in Bosnia & Herzegovina v. Serbia and Congo v. Uganda are good examples. The recent transfer of Ratko Mladic to ICTY is also a case at point, taking place 4 years after the ICJ decisions to that affect, let alone 16 years after his indictment at the ICTY. The cases demonstrate the reluctance of states to enforce decisions of ICJ. It could been argued that the enforcement mechanism at place, the role given to the Security Council in Article 94 of the Charter of the United Nations, has not been applied rigorously. Evidently, the issue of non-compliance with decisions of the Court is much rather of political nature rather than of a lacuna in the legal framework of the Court. Ironically, in the few cases that states did comply with the decisions of the ICJ, it at times had a negative impact on national prosecutions. For instance, following the decision of the Court in Belgium v. Congo national authorities in Belgium narrowed considerably its national legislation regarding universal jurisdiction. The Court found in Bosnia & Herzegovina v. Serbia that Serbia had no obligation under the Genocide Convention to the prosecute individuals for the genocide committed, as it took place outside the territory of Serbia. Finally, one should always keep in mind that an evaluation of compliance with decisions of the ICJ is fraught with difficulties. Most cases before the Court were adjudicated in a midst of dynamic political reality, with many competing forces having an impact on developments at the national level, such as changes in governments, membership applications to regional organizations, loan application to international organizations, etc. For instance, after the decision in the case of Bosnia & Herzegovina v. Serbia the Serbian government improved its co-operation with the ICTY. However, it cannot be established that the ICJ decisions was a decisive factor in that development, much rather the country´s negotiations with the European Union on the Stabilisation and Association Agreement.
In the same manner, the cases demonstrate a reluctance of states to enforce states obligations to prosecute at the national level. This is evident in states´ submissions. States hardly include in their submissions the duty of a state to prosecute, not even as a primary obligation, what then as a secondary obligation (as a form of reparation). This was in particular evident in the Armed Activity Case, compelling one judge to address this issue in a separate decision. The practice is very surprising given the nature of the some cases, the clear obligation undertaken by states to prosecute, cf. the Geneva Conventions of 1949, and the undisputed obligation of states to give satisfaction for the injury caused, including by penal action against the individuals whose conduct caused the internationally wrongful act, cf. Article 37 of the International Law Commission´s Draft on Rules of Responsibility of States for Internationally Wrongful Acts. Recent cases, such as Belgium v. Senegal, where the primary submission is the obligation of Senegal to prosecute Mr. H. Habré, will hopefully brake this pattern. The missed opportunity in earlier cases is regrettable, in particular in light of the lack of the enforcement of the obligation at the international level.
Despite the weaknesses described, one would assume that the findings of ICJ could still have a major relevance at both national level and international level. However, while the ICJ did make a finding that an atrocity took place, such as in Srebrenica and various locations in Congo, it did not have an impact on the number of prosecutions at the national level. Indeed, only a handful of national cases made use of that finding. The ICTY has hardly made any use of findings of the ICJ in the Bosnia & Herzegovina v. Serbia, and same can be said about the International Criminal Court with respect to Congo v. Uganda. Similarly, the UN Human Rights Committees did not make note on the Court´s findings in their reports.
It can also be argued, in particular from the victims´ point of view, that the states´ discretion at the Court is not always bringing justice home. Even when a state holds a decision of award of reparations enforcement seems not to be its primary consideration. Hardly has the Court found a state in such serious breaches of obligations under peremptory norms of international law as in the Armed Activity Case and as a consequence found that Uganda had an obligation to make reparations to Congo. As before, only failing a settlement between the parties should the question of reparations be decided by the Court. Now six years later such a settlement has not been reached. Of more importance, under traditional international law, those reparations are the state´s, not its citizens and victims. It is to be wished that the Court will have the opportunity to access reparations. It will be closely watched whether the Court will follow its careful steps taken in its Advisory opinion in the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, acknowledging individuals rights to reparations and also stating that reparations must be awarded to those who had suffered damages by the state of Israel. Such a development would be consistent with development in other forums, such as at the human rights tribunals, international criminal tribunals and mass claims mechanisms, such as the United Nations Compensation Commission

WP7: REPARATIONS FOR MASS ATROCITY AND THE INTERACTION BETWEEN INTERNATIONAL CLAIMS MECHANISMS AND DOMESTIC COURTS
Reparations and criminal procedures
The first report of the work package addressed the question of how reparations fit within a project such as DOMAC, which is focused on criminal procedures. Throughout the research period, the relevance and connections became increasingly obvious, not only through the project collaboration, but also through input from other institutions and from external events. For example, at the same time as DOMAC winds down, the first trial at the International Criminal Court (ICC) draws closer to an end, and the Court now urgently needs to clarify its policy on reparations in time for conducting its first reparations proceedings. At the same time, the ‘Arab spring’ of 2011 has brought ICC indictments and the seizing of assets, and claims for reparations will surely follow throughout the region.
Such claims, if unresolved, have a tendency to linger on, as EU member states were reminded in November 2009, when the President of the Czech Republic signed the Treaty of Lisbon after being reluctant to do so out of a concern that it could lead to a flood of property claims by Germans expelled from the country after World War II. Thus, 70-year-old property claims stood in the way of a regional treaty entering into force for 27 member states.
Despite growing recognition of the legal and moral justifications for victim reparations in international law, the ad hoc criminal tribunals – the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) – were given limited tools to facilitate reparation. In 2000, the ICTY President explained that the ICTY judges all agreed that the need of the victims to obtain compensation was fundamental for restoration of peace and reconciliation in the Balkans, but that the Tribunal should not be responsible for introducing the compensation mechanism. The ICTY’s Rules Committee was instead asked to undertake a thorough examination of the matter, and it found that victims were entitled to reparation under international law but suggested that an international compensation committee, modeled on the United Nations Compensation Commission (UNCC) would be a better solution. The Extraordinary Chambers in the Courts of Cambodia (ECCC) has a civil party procedure but has thus far not been a resounding success for victims.
The number and resources of international courts is insufficient to process large numbers of reparations claims, and national courts have been reluctant to admit such cases. The credibility of the human rights movement suffers because of the general lack of reliable mechanisms for delivering remedies to victims of egregious human rights violations. The quest for human rights class actions in domestic courts has brought to light the procedural problem that national codes of civil procedure were not designed to deal with mass actions on atrocities. Two groups of lawyers and academics are finding themselves having to work together, namely proceduralists and human rights lawyers. Some would say there is an impending clash between human rights class action litigations and the harmonization and development of procedural law.

Focus of the work package
WP7 focused on areas of international practice relating to private reparations claims for public international law violations. Two main areas were looked at:
- The impact of international mass claims processes (MCPs), which are in a sense an ‘outsourcing’ of the judicial function into more or less self-contained regimes that issue final and binding decisions with flexible procedures tailored to each factual situation. MCPs have been a laboratory for testing and developing procedural and technical solutions for reviewing and deciding hundreds of thousands of claims that domestic courts routinely refuse to address on the merits (on grounds of immunity or political question doctrines and deference to the executive branch), or do not have the procedures or resources to handle.
- Decisions of international courts concerning domestic reparations, to the extent that they were called upon to evaluate domestic and mixed (international/ domestic) claims mechanisms.
Influence of MCPs on domestic procedures
MCPs have been a way to get around many thorny mass atrocity issues, such as the global dispersal of victims, the unavailability of evidence, comparative inheritance law issues, and so on. Given the vast numbers of claims in many such processes, their ultimate success can be measured inter alia by the ability to quiet claims and mitigate disappointments and reduce or pre-empt litigation – in other words, by the beneficiaries’ satisfaction with the process and its outcome. The benefits of MCP are clear: they allow for consolidation of cases in one forum and efficient decision-making. But they often involve some due process compromises.
MCPs have had an impact not only in the countries concerned, but on other domestic and international systems as well, on the regulations of the ICC Trust Fund for Victims (TFV), and have served as encouragement for victims of abuses to (continue to) pursue redress. MCPs have led to:
- Adoption of domestic legislations and enforcement mechanisms;
- Entire new domestic institutions where an international process is transferred post-conflict, or merged into the domestic legal order;
- Human rights courts assessing the functioning and legitimacy of claims programs;
- Considerable local recruitment and training of staff as claims collectors, reviewers, implementation teams, etc;
- Incidental capacity-building and technology transfers;
- Diffusion of some local tensions where parties could not accept the legitimacy of a local decision-making body or applicable law (e.g. Cyprus; Kosovo), but complications where local bodies resisted the international procedures (e.g. Iraq);
- Subsequent cases in domestic courts, human rights bodies, and international courts to clarify the norms applicable to victims of mass atrocities; and
- Empowerment of victims to organize and have their diverse voices heard. For example, MCPs may serve as models for home-grown process such as the Sierra Leone mechanism, which was the first domestically conceived and run reparations program in Africa.

Processes studied and discussed in WP7
WP7 examined reparations mechanisms in Bosnia and Herzegovina; Cambodia; Colombia; Cyprus; Eritrea and Ethiopia; Iraq; Kosovo; Sierra Leone; South Africa; Sudan; Turkey; World War II claims (Italy, Germany, Switzerland, Poland). The ICJ, ICC and its Trust Fund for Victims, and – though some case studies – the work of the European Court of Human Rights and the Inter-American Court of Human Rights.
Impact on closure and finality
The stated goal of most claims processes is to settle quickly, once and for all, the claims arising out of each factual situation. As there can be no real closure without a sense of justice, if a process is too tightly sealed off, it may have the opposite effect, namely of leading to more and more litigation and possibly rekindling of resentments and conflict. In order to assess which types of claims process would be more or less likely to generate further legal disputes, WP7 asked, with respect to each claims mechanism, whether it was:
- Open – i.e. a process that does not bar lawsuits elsewhere but merely has procedures for preventing double recovery; or
- Closed – i.e. a process fully outsourced from the domestic legal system, seeking a definitive break with the past and an enduring legal peace.
Another area that greatly affects the sense of legitimacy and acceptance of a claims program is if appeals are allowed and if so whether they are decided by an independent appeals body or the same body as decided the first instance. WP7 therefore looked at whether the processes had the possibility of appeal, and if so, what the rate of appeals was as a further indicator of a MCP’s ability to arrive at legal peace and satisfaction.

Findings
The WP7 research revealed that open-ended, non-exclusive processes do not appear to lead to more protracted claims than hermetically sealed processes with strict deadlines and limited appeals. If victims feel unjustly excluded or prevented from pursuing their claim, they may persist, whereas if the process was fair but the claim denied on reasonable grounds, at a minimum, they will have been heard. In order to be an attractive alternative to court litigation, an open (i.e. non-exclusive) MCP has to give great thought to procedures, remedies, speed, transparency, etc, and thus ‘compete’ with other alternatives.
Fears about opening up the floodgates to masses of identical suits are understandable and often warranted, but closed processes may lead to a greater incidence of subsequent litigation, appeals, or request for reconsideration of decisions on awards, and bad perceptions about the process generally.

Conflicting goals of international actors
The property restitution programs in the Balkans have provided important lessons for the international community. Of these, Kosovo is an example of perhaps the most complicated web of interfaces between an international claims mechanism, the international entities that established it (UN, EU), and national courts and other entities that have joined the mix, such as EULEX. In Kosovo, an ad hoc property commission met with resistance from those who felt that, since there now was a domestic court system in place, the ad hoc commission would oust jurisdiction of the courts, and that placing the claims outside the courts ran counter to the policy of transferring competences to domestic institutions, wasting financial resources on an international body rather than investing in local institutions and capacities. Human rights principles were then invoked to argue that capacity building of the courts at the expense of speedy reparations for victims was morally repugnant.
A similar situation arose in Iraq, where judges were reluctant to adopt mass claims procedures into the domestic legal system, with the result that the use of the ordinary justice system might perhaps have yielded the same or better results. The rivalry and non-recognition of authority would then have played a lesser role and absorbed less time and energy of all involved.

ICC and national reparations
The ICC is complementary to national criminal jurisdictions. It can order reparations against a perpetrator after trial and conviction, but it is as yet unclear how the two levels will interface on the issue of complementarity – given that the national jurisdiction is to have primacy, at least as far as criminal trials. Strictly speaking, the ICC in fact need not involve any kind of claims process at all. The minimum requirement is that it adopt principles on reparations. It very clearly needs to rely on domestic implementation as it does not have an enforcement arm. The Court itself would not in its own name initiate proceedings in the countries in question.
WP7 explored the yet to be triggered reparations mechanism of the ICC and its potential implications for the future of transnational public law litigation. The idea of complementarity as merely a substitution of one court for another – where either the ICC or a state judiciary should act in any given situation – leads to some paradoxes when it comes to reparations. The ICC Office of the Prosecutor has indicated that the Court’s goal is not to have to prosecute often but rather be a catalyst for action and strengthen the primacy of domestic jurisdictions. But when it comes to the reparations provisions of the Court’s Statute, states when implementing it into domestic legislation seem mostly to commit to carrying out reparations orders handed down by the Court rather than asserting their own ability to handle such matters. And since the Court itself need not order reparations, the ‘stick’ of complementarity is missing when it comes to reparation.
The widely endorsed ‘positive complementarity’ idea – whereby the ICC, states, international organizations, human rights bodies, alternative justice mechanisms, and donors all live up to their respective spheres of competence and cover the areas that the others cannot reach – is more promising as a framework and more in line with what transnational litigation and international mass claims practice already is.
Hopes and possibilities
In 2008, the then Executive Director of the ICC Trust Fund for Victims shared with WP7 that, in the experience of the TFV thus far, victims generally hoped for two things, namely (1) Accountability – victims want those responsible to say that what they did was wrong and that they are sorry. They want to hear this from the perpetrator or from the Court in the perpetrator’s stead; and (2) a returning to one’s former life – to overcome the sense of guilt and shame of being a victim, in the end, what most victims want is to return to their old lives. ‘Charity tends not to be appreciated. People prefer to earn their recovery – to get back their dignity, to get their due. Money often makes people feel as if their silence is being bought.’
Whether it is land, money, or some other type of remedy that is sought in any given case, the fact of the matter is that there is now technology and know-how available for accomplishing what was until recently impossible in international law, namely to offer individualized review of claims of hundreds of thousands of victims of mass atrocities. For legal practitioners, the matter is relatively straight forward: if given a mandate (if there is a will), they can carry out the tasks (there is a way). The more difficult question is to whose will the international law on reparations should respond. With competing views not only between international actors, victims, and local authorities, but also among different international actors (e.g. rule of law versus human rights concerns), within the victim communities themselves, between victims and their community representatives, or between victims and advocates pursuing systemic change through impact litigation in their name – the need is growing for neutral procedures and impartial decision-makers in the area of mass atrocity reparations.

Potential Impact:
Target audience
THE DOMAC PROJECT has sought to impact four principal communities – the academic community, international decision makers, national decision makers and NGOs.
Academic community – The academic field of international criminal law and the study of international criminal courts has been flourishing in recent years. Considerable attention was also given to the inter-relations between national and international courts – in particular, to the concept of complementarity under the ICC Statute. Still, THE DOMAC PROJECT advances the existing academic discourse in important ways, by emphasizing the need to view national and international courts as part of the same comprehensive response to mass atrocities, and by focusing on the contribution of international courts to the work of national courts. This new perspective to the operation of international criminal justice, invites a new focus for the study (and design) of international courts – the extent to which they advance criminal proceedings at the national level. Such re-focused academic research may lay the groundwork for subsequent reform proposals.
International decision makers – THE DOMAC PROJECT sought to impact the ways in which international decision makers perceive the goals of international judicial interventions in mass atrocity situations. From a traditional point of view that regarded the successful functioning of international courts in the specific cases presented before it as an independent and supreme international goal, THE DOMAC PROJECT sought to nurture an alternative view, which regards the exercise of jurisdiction by international courts as mainly catalytic in nature (while accepting the inevitability of international judicial involvement in some case/circumstances). This change in perception may also imply a change in resource allocation (both material resources and the expenditure of political capital) – e.g. reducing the number of cases dealt with by international courts and channeling more funds to capacity development at the local level; spending more political capital on pressurizing states to undertake war crime prosecution (possibly at the expense of pressures to cooperate with international courts). It may also imply a change in future institutional design plans – in particular, integrating an ‘exit strategy’ or ‘legacy component’ into the structure of international courts, embedding international judicial elements in national legal systems, devising ‘sticks and carrots’ that can spur national authorities into action.
In addition, THE DOMAC PROJECT sought to impress upon international decision makers the need to develop a more coherent and sustainable strategies of capacity development. In particular, the research undertaken by us in this field militates in favor of embarking on need assessments before offering specific capacity development efforts, creating focal points for coordination and execution of capacity development efforts and opting for long-0erm structural cooperative solutions (such as joint investigation and transfer of information protocols and internship programs), at the expense of ad hoc assistance programs.
National decision makers – THE DOMAC PROJECT sought also to affect perceptions of national decision makers, in particular, by strengthening their sense of ownership of post-mass atrocity criminal prosecution processes, and encouraging them to think about international courts – criminal and non-criminal - as a possible source of expertise and assistance (as opposed to a source of a legal threat). By encouraging national decision makers to critically assess the impact of international courts on their work, THE DOMAC PROJECT may have assisted them in formulating more clearly their expectation from international courts – thus contributing to a more balanced rapport between the two sets of institutions.
NGOs – In the same vein, THE DOMAC PROJECT sought to affect the strategies employed by international and national NGOs involved in the operation of international criminal justice at the national or international level. Like national and international decision makers, such organizations may benefit from refocusing their expectations and efforts in the field of capacity development, resource allocation and campaigning, so as to produce a better synergy between national and international criminal processes in the aftermath of mass atrocity situations.

Dissemination
Academic conferences – The main findings of THE DOMAC PROJECT presented in a large number of conferences in which leading figures in the relevant academic fields participated. The main such events have been the world’s two most important international law conferences – the 2009 American Society of International Law Conference (which devoted a whole panel to discussion of THE DOMAC PROJECT) and the 2010 European Society of International Conference in which the work of DOMAC on capacity development was introduced. In addition, the final DOMAC Conference in Amsterdam (2010) was widely publicized and attracted a large number of academic interested in the field. Finally, one may note the regional conferences organized by the DOMAC staff in four continents as an important avenue for dialogue with the local academic communities in those regions. (Regional conferences were conducted in Colombia, London, Amsterdam, Reykjavik, Jerusalem, Belgrade, and Kampala). Particularly noteworthy have been in this regard the series of DOMAC workshops organized on reparation schemes – an understudied aspect of the international response to mass atrocities.
Academic articles - A second avenue for dissemination of DOMAC research findings to the academic community has been through the publication of academic articles in top law journals. In particular, one may note in this respect a series of articles published by Prof. Harmen ven der Wilt on his DOMAC research in the leading international law and international criminal law journals (International Criminal Law Review, Journal of International Criminal Justice). In addition, one may note that a book containing the main findings of THE DOMAC PROJECT will be soon published by a leading publishing house (probably Oxford University Press). These publication venues provide DOMAC’s work with academic prominence and potentially a long-lasting impact.
Teaching - Members of DOMAC belonging to academic institutions have added DOMAC related findings to their academic curricula - thus expanding considerably the number of young academics exposed to THE DOMAC PROJECT and its outcomes. Students have participated in many of DOMAC’s conferences. In addition, advanced degree students comprised the backbone of the DOMAC research team. These young professionals are likely to incorporate DOMAC findings in much of their future work in the field.
The website – The DOMAC website has been a major avenue for dissemination of the work of DOMAC to all target audiences (in particular, NGOs and academics). Almost all DOMAC reports were published on the website (the exceptions being a number of academic articles that were published in law journals insisting on exclusivity in publication). It also provided general information about the project, its personnel and its fundamental aims.
Interviews – A considerable part of DOMAC’s research was conducted by way of interviews with decision makers operating at the national and international level, as well as with NGO activists. Although these interviews were primarily designed as a method of obtaining information about the impact of international courts on national court proceedings, they also served the important function of drawing attention of interviewees to the work of DOMAC and to the set of issues it raises. Often, interviewees asked us to receive further information about the project (other than the relevant reports on the subjects of the interview - which were of course sent to them automatically). In the same vein, practitioners asked to comment on the reports served a dual function of DOMAC critics as well as dissemination agents.
Regional conferences – DOMAC researchers have made a particular effort to participate in regional conference, in which national and international decision makers, as well as NGO activists were present. Such conferences fostered direct dialogue between DOMAC and individuals confronting the very same problems the project studies. Again, they served the dual function of transmitting to DOMAC information from “the ground”, as well as conveying our ideas thereto. In particular, we may note the participation of all of the DOMAC senior researchers in the 2010 ICC Review Conference in Kampala, Uganda in which the notion of positive complementarity – central to DOMAC’s work – was part of the State Parties’ agenda. Our participation in Kampala enabled us to provide an input to the negotiation process that led to the Kampala Declaration. Before that, a number of DOMAC researchers have attended one of the preparatory inter-governmental conferences in New York. On both occasions, DOMAC researchers presented their work in collaboration with NGOs monitoring the same processes. One side effect of this structural attribute has been the strengthening of ties between DOMAC and the leading NGOs in the field (such as REDRESS and the ICTJ) – thereby providing DOMAC an way of influencing the work of such NGOs.
Another notable conference has taken place in 2009 in Belgrade, in collaboration with the OSCE and the Belgrade Center for Human Rights. The conference brought together for the first time a sizeable group of judges, prosecutors and ministry of justice officials from Serbia, Bosnia and Herzegovina and Croatia, on the one hand, and ICC and ICTY judges and officials, on the other hand. In doing so, DOMAC may have contributed to improvement of communication channels among regional stakeholders, and between them and international actors.
Distribution of reports – Paper and electronic copies of the main DOMAC reports were circulated in the various DOMAC conferences, as well as through direct mailings to key decision-makers.
Other dissemination efforts - DOMAC researchers have been frequently consulted on academic and policy related topics by a variety of national and international officials, including officials belonging the EU Commission.

Concluding remarks
In the three years of its existence, THE DOMAC PROJECT has been successful – we believe – in impacting the academic and professional discourse on the interplay between international courts and national courts. We have been able to reach directly many hundreds of academics and practitioners, of all levels of seniority – from students and NGO ground workers, to presidents of national and international courts, ambassadors and government ministers. Furthermore, our reports, articles, website data and conference presentations have reached many thousands of stakeholders. Given the interest in our work, its venues of publication and the enthusiastic reaction we receive, it appears that DOMAC has been able to make a long-lasting contribution to the study of international criminal justice, and has laid foundations for future reforms in the field.
Not the least important has been the contribution of DOMAC to the strengthening of academic ties between the five respective academic institutions involved in the project. The close collaboration between the DOMAC research teams has already led to other forms of cooperation between ourselves (student exchange, joint conferences, etc.). We sincerely believe that the exemplary harmonious and fruitful working relations that have developed within DOMAC have been one of the most positive side effects of the project for us, in the best tradition of the Framework Programs.

List of Websites:
www.domac.is

contact details: Thordis Ingadottir, at [e-mail].

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