The Effectiveness of International Tribunals

Researchers in the Field: The Effectiveness of International Tribunals

"The European Union is intensively involved in establishing and maintaining international tribunals. Yet no structured methodology has been developed for examining the effectiveness of these tribunals," says Professor Yuval Shany, dean of the Hebrew University's Faculty of Law and the founder of the Project on Assessing the Conditions for Effective International Adjudication. The project, which is being implemented under the auspices of the European Research Council, is now entering its fifth year and seeks to tackle this complex field. "The project provides a framework for evaluating the effectiveness of tribunals and ways in which this can be influenced. This kind of project can provide decision makers with tools for deciding whether to establish a new tribunal or to reform an existing one."

How did you recruit researchers to the project?

"Some of the researchers responded to a call to participate in the project – particularly post-doctorate students, some of whom came from abroad. I also contacted doctorate students whom I felt were suitable for the project. Israel is a small country, and the number of people involved in the field of international law is fairly limited."

How do you examine whether tribunals are effective?

"The question is effective in whose eyes, and for what purpose? Our central argument is that tribunals must meet the expectations of those who founded them. The research group has prepared a framework for evaluating the effectiveness of international tribunals. The researchers apply this framework, or sections of it, to research questions regarding the effectiveness of particular tribunals or specific aspects of their work."

What findings have you reached?

"In many cases, tribunals were asked to fill numerous and sometimes contradictory functions. This means that from the outset the structure of the tribunal prevented it from working effectively. For example, if a tribunal is instructed both to resolve conflicts within a short period of time and to ensure the full and final solution of all the issues it hears, a conflict may emerge between these two objectives."

A research microcosm

The concept of "effectiveness" covers a very broad research field. The research team is examining a type of effectiveness that is qualitative, rather than quantitative. Peter Drucker, the founder of modern management theory, argued that "Efficiency is doing things right; effectiveness is doing the right things." The project partners seek to answer the research question by applying diverse and sometimes multidisciplinary approaches. For example, Dr. Maria Varaki, a Greek legal scholar, is applying theories from the fields of sociology and organizational management. Varaki, who formerly served as a consultant in the Office of the Prosecutor at the International Criminal Court (ICC) in The Hague, is examining how this tribunal managed to establish its legitimacy. She comments: "No-one considered sociological legitimacy in advance, and it was never emphasized in the declarations. People focused exclusively on legal legitimacy."

Varaki. "People focused exclusively on legal legitimacy."

Dr. Shai Dothan is also examining the effectiveness of the ICC, but from a different perspective: that of a law and economy approach. Dothan is considering when the ICC should intervene in trials conducted against war criminals by some countries. "Two types of countries are subject to the authority of the ICC," Dothan argues. "Some countries will refrain from holding sham trials due to the quality of their judicial system, while others will be willing to hold such trials in order to serve their interests. If we assume that the ICC is unable to expose the sham nature of these trials, whether due to a lack of tools or a desire to avoid conflict, the question that arises is whether it should intervene in the trials of war criminals or give states an incentive to conduct trials themselves?."

Sigall Horovitz, a doctorate student and a member of the team, is also examining international criminal law, but is concentrating on the International Criminal Tribunal for Rwanda. "I am examining the tribunal's effectiveness in terms of the securing of a specific goal: to promote reconciliation."

"Horovitz is considering how changes in the domestic legal system in Rwanda, such as the abolition of the death penalty and the prosecution of war criminals from the dominant Tutsi tribe, contributed to the process of reconciliation.

 "I spent two months in Rwanda," Horovitz explains, "and I undertook over 50 in-depth interviews with attorneys who represented the parties involved in the Tutsi trial, witnesses, prisoners whose death sentence was commuted to life imprisonment, victims, neighbors and community leaders. I also interviewed national leaders in order to gain a macro perspective."

The research does not only focus on international criminal law. For example, Sivan Shlomo-Agon, a doctorate student in the Faculty, is examining the dispute settlement system of the World Trade Organization (WTO). "I show how the balance and emphasis on the goals changes in different types of disputes, depending on the challenges the dispute settlement system is required to confront." Shlomo-Agon adds that cases that do not fall into classic molds are the most relevant for her examination. "I am looking at disputes that involve commercial interests, on the one hand, together with other values, such as environmental protection, health, or human rights, on the other. In these disputes, the WTO has attempted to enhance its legitimacy in the broad sense – not only its legitimacy as a legal system, but the legitimacy of the WTO as a body."

A team meeting. "We already have graduates of the project working in the Ministry of Justice and at the Israeli embassy in The Hague."

Coming soon: The book

The project is entering its fifth and final year. Next year, Oxford University Press is due to publish a book summarizing the research findings. Apart from the book, the project has also had less direct outcomes. "One of the goals of this type of research group is to influence discourse in the country where the research takes place,"

"Our central argument is that tribunals must meet the expectations of those who founded them."

Professor Shany explains. "We already have graduates of the project working in the Ministry of Justice and at the Israeli embassy in The Hague. We have provided academic and practical tools for people who hope to work in the future in the field of international tribunals in Israel and around the world." 

The project members meet for a weekly discussion at which they review articles, projects and ideas of group members or others and engage in brainstorming. The interaction between the members of the group creates an encounter between different worlds. Some of the members of the group are not Israelis, and some of the foreign members participate in the meetings from abroad over the internet. The members also come from different academic disciplines, creating a further encounter. "One of the nice things about this project," Professor Shany concludes, "is the chance to work with all kinds of researchers from around the world. That's good for research, good for the Faculty, and good for the University."

From right: Shany, Horovitz, Shlomo-Agon and Varaki. "One of the goals… is to influence discourse in the country where the research takes place."