The DOMAC research 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 of 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 will also try 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 (along the lines existing for some internationalized courts), closer alignment of procedures and work methods, the generation of incentives for national courts to prosecution, reallocation of budgets, sharing of staff, lending of support by international to the operation of national courts, etc. 

Concepts and objectives

International courts and tribunals have in the last decade 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. 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.

Still, with the hindsight of almost 15 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 (or hybrid or mixed) courts to the overall fight against impunity has been somewhat disappointing. Actual number of international prosecutions has been relatively small – pertaining only to a fraction of the individuals suspected of perpetrating international crimes. And ongoing violations of human rights on a massive scale in Sudan and other places also put into question the degree of deterrence actually produced by the different international criminal procedures.

The effectiveness of international courts is almost necessarily limited by political and institutional factors:

(1) Limited jurisdictional powers: Political difficulties – in particular, lack of cooperation by states directly or indirectly implicated in mass atrocity situations or states opposed, in principle, to the development of effective international judicial institutions – lead to restrictions on the jurisdictional powers of international courts, and, as a result, to the exemption of many crimes from their de jure and de facto jurisdiction;

(2) Limited trial capabilities: Given the steep expenses associated with international criminal processes (resulting from the complexity of the trials, the distance between the site of the trial and the location of the victims, witnesses and evidence and the involvement of top professionals in the process), international courts can only try a handful of crime suspects;

(3) Limited enforcement capabilities: The typical background conditions for the operation of international courts – lack of cooperation on the part of some of the states involved or collapse of local structure of justice and government – limit the prospects of compliance, including detaining many crime suspects.

Due to the limited capabilities of international courts (as well as internationalized courts and national courts applying universal jurisdiction), the vast majority of trials of individuals suspected of perpetrating criminal offences in the context of mass atrocity situations is expected to take place before the domestic courts of the state in whose territory the events took place, or in the state of nationality of the perpetrators. Such trials do not only present a way to reduce costs and improve enforcement capabilities, they may also enjoy greater social legitimacy than trials conducted by international courts that are far removed from the events discussed on trial and are sometimes accused of being ignorant of local conditions and history, offering the accused an inhospitable forum, and embracing a selective approach toward some parties to some conflicts.

The project comprises three different, yet inter-related analytical components

First, the project will gather data and offer analysis of the actual interaction between national and international courts in mass atrocity situations – exploring, cross-fertilization between national and international courts. In addition, the actual interplay between national and international courts in the context of specific case studies is explored, and the specific interaction facilitated by the involvement of the International Court of Justice and European Court of Human Rights in mass atrocity situations.

Second, the project analyses the problems that lack of coordination and synchronization and under-utilization of national courts may entail.

Third, the project will consider specific solutions to the problems identified in the second stage. Some of these deal with past attempts to improve coordination between national and international courts.

Strategic impact

The DOMAC Project will entail original case studies and comparisons of their interactions between the different legal systems – domestic, regional, and international – and it will make recommendations for optimizing the complementary nature of international and national courts.

The DOMAC Project will improve the contribution to the formulation, development and implementation of policy at European or national level, including peace building and peace keeping initiatives. The project will facilitate informed and more effective policy-making with respect to international criminal justice and responses to mass atrocities, with the overall goal of identifying overlapping, consistent, or conflicting approaches, and proposing avenues towards piecing together the various fragments into a single coherent system.

By offering certain measurable criteria for evaluating the influence and effectiveness of traditional responses to mass atrocities, the empirical work should encourage more rational decision making, for example, on the allocation of resources, and coordination or synchronization-enhancing strategies and other policy decisions affecting national courts, international courts, and their interrelations. The methodology developed as part of the project will help in assessing the desirability and effectiveness of various reform measures designed to remedy the shortcomings of the present situation.

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