This is the only way if we genuinely want to strengthen the system of accountability for grave breaches of international humanitarian law and to prevent future casualties. When? Just now is the right moment because the world that is on the verge of the potential global conflict might not have a second chance.
Davor Derenčinović is a Croatian national. He holds a PhD in criminal law sciences (University of Zagreb Faculty of Law) and has completed post-doctoral research (Fulbright program) in International Terrorism, Organised Crime and Human Rights at the International Human Rights Law Institute of DePaul University (Chicago, United States of America).
Currently, he is Professor of Criminal Law and Head of Department for Criminal Law. He has lectured and carried out research at a number of academic and scientific institutions, such at the London School of Economics, the Max-Planck Institute in Freiburg and the International Institute of Higher Studies in Criminal Sciences in Siracuza, Italy. He is the author of 30 books (including chapters) and more than 70 articles in legal periodicals.
Mr Derenčinović is a judge at the European Court of Human Rights (2022-), where he has served as an ad-hoc judge since 2010. Member of the Council of Europe Multidisciplinary Group on Corruption (GMC, 2000). Member of the Council of Europe Multidisciplinary Group on International Action Against Terrorism (GMT, 2001-2003). Member of the Council of Europe Bureau of the Committee of Experts on Terrorism (CODEXTER, 2003-2004). Member of the European Committee on Legal Cooperation of the Council of Europe (CDCJ, 2008-2009). Member of the Council of Europe Group of Experts on Action against Trafficking in Human Beings (GRETA) in two terms (2009-2012, 2017-2020, Vice President 2011-2012, President 2019-). Member of the National Preventive Mechanism for Prevention of Torture (2012-2014). President of the Pardoning Commission of the President of the Republic of Croatia (2015-2016).
Interview conducted by Paulina Rios Maya (2022)
The interview was conducted in the spring of 2022 and has been edited for clarity
Victim’s rights have become the marketable face of certain NGOs. However, it is necessary to take a step back and examine whether international courts are meeting victims’ expectations. This interview was conducted in relation to an article that assesses whether it is in these courts' best interest to engage in socio-political activities that can undermine their legitimacy as judicial institutions, thus, decreasing victims' trust.
You have multiple years of experience in the criminal law field apart from your recent selection as an ECHR judge, so, can you start by telling me from your experience, do you believe victims should be given a more critical role in international courts such as the ICC, and if so, why?
There is no doubt that the 21st century is the century of the victim in international criminal justice. For example, the European Union a decade ago adopted the so-called Victims’ Rights Directive, which gives them a very active role in the context of criminal proceedings. Furthermore, there have been numerous recently adopted international conventions that are victim centred. For instance, conventions against domestic violence and trafficking in human beings. This is in a sharp contrast to the position of victims before some international criminal tribunals, for instance International Criminal Tribunal for the Former Yugoslavia.
The reason for that was the following: according the the Statute and the Rules of Evidence and Procedure, these were adversarial criminal proceedings with two parties – the prosecutor and the defendant. In such an architecture of the criminal proceedings it was very difficult to accommodate victim and his/her rights. Priority was given to the settlement of the dispute between two parties, with very little room for the victim’s stories to be told. As a result, the victims of the wars in former Yugoslavia spent much more time in front of the courthouse demonstrating than in the courtroom effectively advocating for their rights through legal mechanisms.
Thank you so much for that answer. You mentioned some of the victims not being able to tell their stories, especially before ad hoc tribunals. Connecting with that, my question is: what is your take on the equal application of international law?
Consistent application of international law has always been a challenge. There is no other single branch of law so closely tied to the perplexities of international politics. If you take for instance the ad hoc international criminal tribunals like those for the former Yugoslavia and Rwanda, they were established under the Security Council resolutions. The Security Council is by definition a political organ. And there is always some sort of agenda in terms of the selectivity of the cases handled by the prosecution. As a contrast to the ad hoc tribunals, the International Criminal Court was established under the Rome Statute. That was in fact an international agreement. In other words, the Rome Statute was negotiated and adopted by countries that expressed their willingness to be bound by the jurisdiction of the Court. But, notwithstanding the fact the ICC was established under the different legal regime that, at the outset, might suggest less politics in its functioning, there is still a possibility that Security Council refers the case to the ICC over the crimes committed by persons that are not nationals of a state party to the Statute and in territories that are not of a state party to it. So, it is obvious that politics does in many ways undermine the consistent application of international criminal law and at this stage this simply cannot be avoided.
Do you feel like the actions that you mention mean that politics play a role in international law?
Another feature of contemporary international criminal law that contributes to its politicisation and consequently, to the inconsistency in its application, is the fact that the concept of international criminal justice rests on the so-called indirect enforcement scheme. This means that international criminal tribunals, do not have their own police executing the warrants issued by the prosecutors or judges. In other words, the international criminal justice almost exclusively depends on the willingness of implementing states and their active role in the investigation of the cases that fall under the jurisdiction of international criminal tribunals. In this regard, I would like to highlight here probably the major challenge of international criminal tribunals and that is the collection of evidence when the conflict is still ongoing, as we can see now in Ukraine. This is also something that inevitably leads to the tendency of the prioritisation of the cases because for some crimes that were committed the evidence might be available while for some others might not. However, we have seen the cases where the evidence of violations of international humanitarian law were easily available, but the prosecutors preferred not to bring charges. Sometimes it has not been that clear why some crimes are investigated while the others, perhaps even more serious from the human rights perspective, remain unprosecuted.
Could you maybe elaborate on that or give an example?
We are now witnessing what is going on in Mariupol. The city has been destroyed by the occupation forces and civilian population has been indiscriminately targeted by those who should be held responsible under the international criminal law. We have to wait and see exactly what avenues the international justice will take in a near future (ICC – not very likely because of the probable veto of the Russian Federation, ad hoc international criminal tribunal, use of universal jurisdiction by domestic authorities of third countries etc.). This is a horrible crime, no doubt. However, many people tend to forget that this is not the first time after the II World War in Europe that a city under the siege had been turn to a dust. It was Vukovar in the Eastern Croatia that was destroyed by the occupation forces of the former regime of Slobodan Milošević. However, nobody was ever charged nor convicted for this heinous crime against humanity. There were several officers held responsible for taking and killing the prisoners of war and civilians from the Vukovar hospital, but there were no charges for systematic and widespread attacks civilian population. This brings a bitter taste because the justice, as well as injustice, is always about the perception.
Thank you for that example. Now in your opinion, what do you think should be the path forward in terms of the equal application of the law?
To overcome the problems in the implementation of the international criminal justice, I think we should reconsider and redesign the existing patterns. As we have seen so many times before, the indirect enforcement scheme might not work as ideal solution for comprehensive criminal justice which means that it should be upgraded with at least of several elements of direct enforcement scheme. Instead of relying on the local investigators who could be under the pressure of threats or corruption (see Lubanga case as an example), the system should be built on the concept of self-sustainability, with its own personnel and methods of work. No matter how far from the realpolitik this might seem at this stage of the development of the international criminal law, this is the path to be taken and reconciled with the concept of the state sovereignty. If we genuinely want to improve the system of international criminal justice, we need international forces, well trained and equipped, independent and impartial. They should have realistic possibility to access and collect the evidence in real time. There is also another aspect and that is international tribunal own system of execution of sentences that, at the moment, does not exist.
What is that?
Well, international criminal tribunals do not have their own prison system. The convicts are sent to prison to the countries that have agreement with the organisation. Most countries do not have special prison facilities and wings for persons convicted for war crimes and other violations of international humanitarian law and they are jailed with other convicts who serve their time for common offences. This is not good for neither of two groups. Likewise, since the prison conditions greatly vary (from Scandinavia where prisons are in very good conditions, to some other countries where accommodation facilities are below the human dignity), placing of convicts in one or another prison might bring into question not only principle of equality in the execution of sanctions, but the safety of the prisoners themselves. As a matter of example, one Serbian general convicted for genocide over Muslim population in Bosnia and Herzegovina was imprisoned in the UK together with other convicts, many of them Muslims. He was attacked by other inmates and almost killed as a retaliation for the crimes he committed. That is why system of execution should be reconsidered and redesigned as well. This is an important part of the comprehensive criminal justice system.
The last, but definitively not the least problem, is the fact that most of the international tribunals are very far away from the places where gross violations of international humanitarian and human rights law took place. The Hague is out of perimeter for people living in Africa, now Ukraine etc. This is not good neither from victim nor from perpetrator perspective. The justice must be brought closer to the people who live in the regions torn apart with conflicts. Therefore, another path that the international criminal justice should take is the one of – institutional decentralisation and justice distribution to the zones affected with hostilities. This goes hand in hand with much better outreach programmes designed to raise awareness of the local population of the importance of international criminal justice.
Could you explain how under these circumstances that you outlined we could show the public and victims that institutions like ICC are worth relying upon?
To sum up, what needs to be done considers building comprehensive system of international criminal justice, development of direct enforcement scheme, investigations and executions done by the court internal resources and better outreach. This is, in my opinion, the only way if we genuinely want to strengthen system of accountability for grave breaches of international humanitarian law and to prevent future casualties. When? Just now is the right moment because the world that is on the verge of the potential global conflict might not have second chance.
About the interviewer: Paulina Rios Maya is an incoming Schwarzman Scholar and student of International Security at Sciences Po Paris. She is eager to write and learn about trans-Pacific cooperation, law enforcement and everything related to transnational crime/criminal law, whilst bringing her experience in criminal intelligence, anti-corruption, and organised crime to the security debate