Thesis (M.A. in National Security Affairs)--Naval Postgraduate School, 2003. / Includes bibliographical references. Also available online.

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It has been claimed that internationalized, or "hybrid" courts, courts which mix international and local personnel and international and domestic law, can be used to replace or complement the work of the International Criminal Court. Four such hybrid courts---courts located in Kosovo, East Timor, Cambodia and Sierra Leone, have either just completed their work or are far enough along in their operation to provide a type of "justice laboratory" to test this claim. Analysis reveals that the performance of these courts has been poor. It shows that the courts in Kosovo and East Timor were doomed to failure, that the court in Cambodia is headed in the same direction, and that only the court operating in Sierra Leone offers a possibility that something close to justice will result. The summary recommendation drawn from the analysis is that hybrid courts should only be employed where: (1) international personnel control the proceedings, (2) the legal framework of the court conforms to international standards, and (3) the sponsors of the enterprise possess a clear ability, and demonstrate a credible commitment, to try and punish those most responsible for committing gross human rights offenses.

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The ICC, which came into force in 2002, was held up by human rights activists as a force that would transform a culture of impunity into a culture of accountability. However, after five years of activity, the evidence suggests that the Court's effect has been mixed. Its ability to achieve retributive justice, broader reconciliation and restorative justice, as well as to deter future offences and promote peace has been variable, at best. Despite the Court's claim that politics are not its job, political missteps and support are adversely affecting the work of a judicious Court. Using the cases of Uganda and Darfur, this paper argues that the most significant factors impacting the Court's ability to achieve the four aims outlined are its lack of enforcement capacity, lack of international political will, the result of geo-political interests and concerns over the norm of state sovereignty, and lack of attention to political context by the Court itself.

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Approved for public release; distribution is unlimited / In 1998, 120 members of the United Nations adopted a treaty establishing the International Criminal Court, designed to address issues such as war crimes, genocide and crimes against humanity. The United States, in cooperation with its European allies, was instrumental in bringing this treaty about. In the end, however, it felt compelled to withdraw its signature, an unusual step signifying a high level of dissatisfaction with the structure and competency of the Court. This thesis argues that, while the United States maintains good relations with Europe, its abandonment of the ICC has constituted a major setback to Euro-American relations, and entailed a loss of face among the international community as a whole. Even as the United States has stood aloof from the Court, fearing that its soldiers and officials could face politically motivated trials, Europeans have continued their vigorous efforts to make the ICC a success. The United States and Europe are now on opposing sides on a major issue of international criminal justice. This has already caused tensions over internationally sanctioned peacekeeping troops, and has the potential to further disrupt the Euro-American partnership, above all in the military sphere. / Lieutenant, United States Navy

Why do states of the Global South initiate international criminal justice processes for domestic atrocity crimes? The phenomenon of Southern agency regarding international criminal justice presents an empirical and theoretical puzzle given the Southern states' defence of Westphalian sovereignty, or the juridical equality of states and domestic non-intervention. International criminal justice challenges this notion of sovereignty by directly prosecuting individuals under international law through international courts. This thesis rejects this theoretical notion that international criminal justice curbs sovereignty, and argues that the initiative for international criminal justice processes is a type of short-term political strategy adopted by Southern state actors to strengthen specific aspects of their statehood. In doing so, the thesis challenges the dominant theoretical explanations of Southern state preference that relies on their relative weakness and the power of external factors, such as Great Power interests or transnational activist networks, and reclaims the possibility of agency for Southern state actors. The argument is derived from a theory developed in this thesis, referred to as judicial extraversion, or a counter-structural theory of strategic action that links the politics of statehood in the Global South and the political opportunities inherent in the nature of international criminal justice, namely, the individualisation of responsibility, criminalisation of specific forms of violence, and the privileged status of the state in the international criminal justice system. It develops this theory through the qualitative case studies of Uganda's self-referral to the International Criminal Court (ICC), Cambodia's request for an international criminal tribunal to the UN, and the counterexample of Colombia's special domestic criminal justice process for paramilitary demobilisation. The thesis finds that relative weakness of Southern states is insufficient to explain engagement with international criminal justice, and highlights the possibility of paradoxical agency. Finally, the findings suggest that, under particular circumstances, international criminal justice can be used to entrench the authority of weaker states in the international system.

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