A crucial component of the UN Security Council Completion Strategy, the ICTY and ICTR referral practice to national courts concretely illustrates various legal challenges that arise from pluralistic accountability mechanisms. By analyzing legal problems highlighted by this practice, identifying possible root causes, and formulating potential solutions that may also be relevant for the ICC, this project sheds light on the shifting dynamic between the main actors involved in the prosecution of international crimes.

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

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

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

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

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

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

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