Description

International or domestic war crimes tribunals and domestic war crimes trials investigate and prosecute war crimes and genocide where massive violations of human rights have been perpetrated, usually by military, para-military and political organizations associated with a government, often having incited civilians to participate in the violations. Commissions of inquiry and truth commissions investigate and publish war crimes and genocide.

Objectives

War crimes tribunals aim to tell the truth and convict war criminals while publicity and acknowledgment of such crimes confirm the international community’s intolerance of atrocity. Specific objectives are to:

· Exorcize a possible culture of impunity by holding those who commit atrocities accountable.

· Achieve a sense of justice necessary for reconciliation.

· Prosecute leading perpetrators of atrocities and acknowledge victims’ pain to break a cycle of violence and retribution.

· Stop vigilante retribution.

· Facilitate the return of refugees.

· Prevent similar acts and discourage new rounds of violence where atrocities were committed and in neighboring countries.

· Demonstrate clearly and publicly that the national government and the international community will act against those who commit genocide and other such atrocities.

· Contribute to coherent international criminal law to prevent such acts worldwide in the future.

Expected outcomes or impact

War crimes trials and other methods of reckoning for war-time offenses provide victims of atrocities with "a sense of justice and catharsis," and a feeling that their grievances and pain are heard by their government and community as well as the international community. They establish that abusers and oppressors will be held accountable in the future. Perhaps most critical to long-term reconciliation, they clarify that specific individuals—not entire religious, political or ethnic groups—committed crimes for which they must be held accountable. This subverts collective blame, guilt, retribution and continued or re-awakened hostility.

Domestic efforts to try war crimes, as in Ethiopia, can bolster a new and fragile government’s credibility. These trials can be highly visible and act as a showcase and foundation for a new domestic criminal and judicial system, both symbolically and tangibly. Finally, domestic courts are presumably more in touch with local culture and its nuances.

Relationship to conflict prevention and mitigation

War crimes tribunals and truth commissions contribute to reconciliation after particularly abusive and violent periods by recognizing the victims and what happened and reinforcing rule of law and deterrence of future violations. When combined with judicial reform—a necessary precondition—a truth commission can help break cycles of impunity and provide a public forum for discussion regarding the fate of the guilty. A properly functioning judicial process is needed to contain counter-violence and revenge killings, including of returning refugees, in the aftermath of widespread atrocities. Violent collective vengeance threatens the international assistance that a new government needs to rebuild the country, impedes the return of refugees and can plunge the country into a new round of general violence. Prompt prosecution demonstrates that people need not take personal vengeance, a key element in preventing renewed conflict.

Implementation

Organizers

National governments and international institutions initiate and organize tribunals and commissions, often under pressure from citizens, NGOs, and international organizations to address wrongs committed.

Participants

Victims and witnesses participate in the process. Private personnel may be consulted or recruited to undertake investigations; prosecution is undertaken by government or international entities. Governments must gain custody and transfer the accused for trial.

Day-to-day tribunal or commission activities require staff and administrative support. A prosecutor’s office must be established and decisions settled about its mandate. Tribunals and commissions require a court and appellate court. Investigators must be employed who are familiar with the local language, know how to interview victims of atrocities and their families, and appreciate the political and social context of their task. Personnel, witnesses and defendants all require security for the duration of the tribunal, trial or commission mandate.

Activities

Convening tribunals and commissions. In many instances the UN Security Council initiates tribunals and commissions of inquiry by appointing a Commission of Experts to investigate and make recommendations concerning "grave violations of international humanitarian law" and "evidence of possible acts of genocide." This Commission then submits a preliminary report to the Security Council, recommending the establishment of an international tribunal to prosecute atrocities during a specified time period. Based on that report and its recommendations, the Security Council votes to create a tribunal.

The Security Council can expand the mandate of existing tribunals created for other countries, create a wholly separate entity under UN auspices, with its own charter, judges, personnel, and facilities, or create a separate national tribunal, sharing administrative staff, facilities, and other resources with any existing panel for another country.Tribunals can also be initiated by international consensus, as in the cases of the Former Yugoslavia and Rwanda. This may be a new model, as compared to the "victor’s justice" in the post-World War II Nuremberg and Tokyo trials.

Rules and procedures. Organizers must agree on uniform rules of procedure and evidence for the pre-trial phase of the proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses, and other appropriate matters. Those used in previous tribunals may be adopted with such changes as are deemed necessary.

Venue and timing. There are substantive arguments for isolating the location of trials and headquarters of tribunals or commission from the immediate area where atrocities occurred. There are also credible reasons for keeping the activity close to home and to the populace it is designed to have the greatest impact on. An organizing body must decide on the venue and timing of trials in both national and international courts and whether to hold trials simultaneously or consecutively.

International and national coordination. Tribunals may need to divide and coordinate investigation and prosecution among international tribunal and national courts. Prosecutors in an international tribunal usually focus on senior leaders of the (former) government, military or militias. Prosecutions before national courts focus primarily on the "second tier," those local leaders who were in a position to personally order atrocities—municipal officials and administrative authorities.

Security. UN forces alongside police and/or military personnel of the (new) government can be deployed to address security concerns and ensure the safety of defendants and witnesses. Detaining suspects for investigation and prosecution is especially difficult when most of senior perpetrators have fled the country. It is important to prevent the flight and disappearance of defendants, which undercuts the tribunal’s authority and credibility and increases the time and resources needed to track down these people and bring them to trial. It is also important to segregate the accused from the greater population, especially if in refugee camps.

Findings and recommendations. During and after trials or truth investigations it is important that a report of findings and set of recommendations be published and disseminated as widely as possible.

Cost considerations

War crimes tribunals and truth commissions require several millions dollars. Sponsors include the United Nations as well as various countries who volunteer funds, personnel, and equipment.

Other resource considerations

Costs and resource needs depend on the situation. The international community can provide judges, lawyers, investigators and monitors for national trials if the national judiciary system has been decimated (as in Rwanda, where 95 percent of the country’s attorneys died, fled or landed in prison). These international personnel serve as observers and advisors in addition to their specific functions. Foreigners serving as judges, prosecutors, or defense attorneys in the national courts must be proficient in the country’s primary language and understand the local legal system to function optimally.

Staff need offices and computers to maintain investigatory information and court records. Investigators need training to perform sensitive tasks such as interviewing victims and suspects. Further requirements are a prosecution staff, UN-elected appellate judges, appropriate forensic investigation equipment, and a "Victims and Witnesses Unit" to provide counseling and support.

Set-up time

It can take from several months to well over a year to set up a tribunal and have it issue its first indictments; the first trials may occur several months after that.

Timeframe to see results

Tribunals, trials or commissions can continue indefinitely; results in reconciliation are seen over time.

Conflict context

Stage of conflict

Trials, tribunals, and commissions are usually only possible once a conflict has ended and a victorious party or coalition is able to address justice issues. Recent tribunals, however, may set new precedents: there was no clear winner in the Former Yugoslavia when the Commission of Experts and later Tribunal were set up.

Type of conflict

These mechanisms are primarily useful in situations in which large-scale atrocities have been committed by an organized state-sponsored force.

Causes of conflict

Tribunals, trials, and commissions address the motivations for and structures of conflict. Breaking the custom of impunity helps remove the enabling environment which allows perpetrators and warring parties to continue to commit atrocities.

Prerequisites

Truth commissions require impartiality and good faith, independence from politics, adequate resources and information to ensure a full investigation, fast implementation, a specific and limited time frame of operation, and a mandate that includes the power to make recommendations for serious consideration. Finally, a commission’s report should be published immediately and be publicly and easily available.

Timing is critical: delays in investigation and arrest allow the accused to flee the scene or re-group for further violence. Hold-ups in prosecution deplete the impact of deterrence and allow conflicting parties to simply wait out the Tribunal and perhaps arrange a political settlement. Expedience strengthens the message that the international community will not tolerate such crimes.

Cooperation and regional and international political will are vital to the effectiveness of trials and tribunals. Investigation, extradition, and the physical and legal protection of witnesses and suspects depend on international cooperation. This political will is shown in funding and administrative legal cooperation as well as in sustained international willingness to pursue suspects aggressively. Foot-dragging and lack of cooperation undermine the possibilities for deterring future atrocities and damage the potential for healing and reconciliation.

Truth commissions alone are not an adequate response when violations have been severe and widespread. Making decision-makers and direct perpetrators accountable requires prosecution. Even a limited number of prosecutions can make a truth commission a symbol of and tool for reconciliation. "Unless a society exposes itself to the truth it can harbor no possibility of reconciliation, reunification, and trust. For a peace settlement to be solid and durable, it must be based on truth."

Past practice

Within the Greater Horn

Rwanda. The UN Security Council passed a resolution on November 8, 1994 establishing a tribunal for Rwanda. The International Criminal Tribunal for Rwanda (ICTR) was established as a separate entity with trial judges, registry system, and administrative staff. The chief prosecutor and appeals judges perform the same functions for the International Tribunal for the Former Yugoslavia, detailed below.

The Security Council decided on the jurisdiction of the international tribunal and national courts. One issue in regard to jurisdiction is that of capital punishment. The government of Rwanda does and will impose the death penalty while the UN’s International Tribunal will not.

The statute of the Rwanda tribunal obliges all states to comply without delay with any request by the tribunal for assistance in locating, detaining, or transferring persons. However, the rules of the tribunal made it difficult to promptly issue requests for detention or transfer of suspects: "orders and warrants for the arrest, detention, surrender or transfer of persons" cannot be issued until the prosecutor satisfies a tribunal judge that a prima facie case exists and the judge confirms the indictment. This greatly delays issuing detention orders, allowing the principal suspects to flee the refugee camps and disappear. The cooperation of countries hosting fugitive suspects is also essential. Cameroon, for example, agreed to but did not extradite 12 Rwandan war crimes suspects. Andronica Adede of Kenya, then the Arusha-based registrar of the International Criminal Tribunal, traveled to Yaounde in October 1996 to facilitate the stalled process. Cameroon, as do other nations holding suspects, had 60 days to comply with an extradition request before being sanctioned by the UN. In January 1997 Cameroon signed an agreement to extradite the suspects.

The ICTR’s focus is limited to senior leaders of the former government, military, and the militias. Falling outside of that focus are tens of thousands of cases up for the consideration by the Rwanda government, judiciary and society. The Commission of Experts decided the International Tribunal should be located at The Hague to give it some distance from where the severe atrocities had been perpetrated for greater independence, objectivity, and impartiality. Most of the senior perpetrators had fled the country, complicating the problem of detaining them for investigation and prosecution. The Commission of Experts’ reports did not address the issue of locating and detaining potential defendants.

The Tribunal’s charter laid out a process for electing six trial judges by the Security Council and General Assembly. As of January 1997, there were 21 indictments. Of those defendants, twelve were in custody—seven in Arusha, Tanzania, where the prosecutor’s office is quartered. Four more await extradition from Cameroon, one each are held in the United States and Switzerland, and eight remain at large. The Tribunal’s first trial began in late September 1996 and was then postponed to October 31. The trial is that of Jean-Paul Akayesu, Hutu mayor of Taba when the genocide began, who stands accused of 10 counts of directly and publicly inciting Hutus to attack their Tutsi neighbors, of torturing Hutus who refused to comply, complicity in genocide, crimes against humanity, and violations of Article Three common to the Geneva Conventions. In January, the Tribunal resumed to hear the testimony of "K", a Tutsi woman and an accountant in Akayesu’s office at the time of the genocide.

Rwanda’s judiciary was decimated, making it difficult to deal with the huge case load. However, human rights organizations argue that defendants who will be tried in national courts should receive the due process and criminal procedure rights guaranteed them under international law, including their right "to trial within a reasonable time or to release." International support to strengthen the courts and judicial system of Rwanda, especially for the courts to deal with the genocide suspects, is crucially needed, including staff and equipment. Some argue in favor of having foreign jurists serve as observers and advisors as well as judges, lawyers, and investigators within the Rwandan legal system for the period of the national trials.

The Rwandan case provides an argument for expedience. Delays in indictments, arrests, extradition and prosecution allow those who are guilty and bent on vengeance time to re-group for further violence. The accused have jumped borders, seeking asylum abroad and recruiting manpower in the refugee camps of Zaire. Others such as Major General Augustin Bizimungu, the former regime’s military commander, waited in Zaire, openly organizing former Rwandan military and militia in the refugee camps. The whereabouts of many of the planners and leaders of the Rwandan genocide, as well as journalists responsible for hate media, remain largely unknown, including Theodore Sindikubwabo, one of the genocide’s political leaders and Robert Kajuga, head of the Interahamwe militia. While the international community responded to the Rwandan request for an International Tribunal, there has been little pressure placed on the UN to ensure that it accelerates its work.

One suggestion to address the backlog in indictments and cases in the Rwandan Tribunal is to establish a truth commission to operate in tandem with the Tribunal. Justice would be served with regard to the organizers of the genocide, and others who participated would be named and their crimes would be exposed.

The success of the international tribunal in Rwanda will have a significant impact on any eventual peace process, as the party line in the Rwandan government remains "no reconciliation until justice." The Commission de Triage, which seeks to absolve persons wrongly accused of participating in the genocide, is failing to address even a small percentage of disputed cases, and needs support so that a balanced process can move forward.

Ethiopia. The Transitional Government of Ethiopia created the Special Prosecutors Office (SPO) in August 1992, after nearly 2,000 officials of the former military regime were arrested. 1,700 remain accused of involvement in genocide, war crimes, or crimes against humanity. At the end of 1996, 43 members of the former regime, the Derg, were on trial in Addis Ababa, while 24 more were being tried in absentia, including former President Mengistu Haile Mariam. The SPO has developed three categories of guilt: decision-makers, field commanders, and actual perpetrators.

Most suspects remain detained without charge. Amnesty International warns that the "human rights standard-setting purpose of the process is at risk of being weakened by the prolonged failure to charge all the detainees and bring them to trial within a reasonable period." The process is painfully slow, and capacity for a faster process is limited barring additional funding.

The trials themselves are only part of the process: establishing an historical record is also important. The SPO is charged with gathering, organizing, and disseminating information throughout Ethiopia. Human Rights Watch strongly supports this element of the process: "the importance of the evidence gathering process in allowing the Ethiopian people to grieve and heal should not be overlooked."

Uganda. The Uganda Commission of Inquiry in Human Rights Abuse, established in 1986, disappointed many human rights activists since most people incriminated by testimony to the Commission were not prosecuted. Nevertheless, the Commission boosted popular confidence in Yoweri Museveni’s government’s commitment to human rights. Justice Arthur Oder, the Commission’s Chairman, also points to the public education value of the Commission.

Outside of the Greater Horn

Nuremberg. The Nuremberg Trials after World War II are the major historical precedent for war crimes tribunals. Nuremberg established state accountability, individual culpability, international responsibility for protecting human rights, the nullification of sovereignty when crimes against humanity are committed, and the non-defense of "following orders." There have been only two international tribunals since Nuremberg.

Modern war crimes tribunals derive their legal authority from the Nuremberg Principles, the 1948 Genocide Convention, the four Geneva Conventions of 1949 and the 1977 Additional Protocols I and II, the 1984 Torture Convention and other international codifications adopted since 1945. Besides war crimes and crimes against humanity, the list of crimes has expanded to include "grave breaches of international law."

Yugoslavia. On May 25, 1993, the UN Security Council created the "International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991." The tribunal sits in The Hague and consists of eleven judges from eleven countries, divided into two trial chambers and an appellate chamber. The Yugoslav tribunal is novel on two counts: it is the first time the United Nations is trying those accused of war crimes in a situation which has not seen a clear military victory; and it is also the first time in which the principal accused parties remain major (behind the scenes) participants in the ongoing peace process. The Dayton Accords barred anyone indicted by the Tribunal from seeking or holding a public office or position in Bosnia-Herzegovina. As of this writing, Ratko Mladic was in violation of the provision.

The International Tribunal for the Former Yugoslavia has faced tenuous financial circumstances throughout its existence, as funding is held hostage by the General Assembly. Though established under the Security Council’s Chapter VII peace enforcement mandate, funding for the Tribunal was to come from the UN’s regular budget rather than its peacekeeping budget. The tribunal’s 1994 budget was $11 million in UN funds plus several million dollars in voluntary contributions of funds, personnel, and equipment from various countries. The Secretariat has repeatedly requested a budget of approximately $30 million. The Tribunal was given $500,000 in 1993 and $11 million in 1994. However, funding was granted for only three months at a time in 1994 and much of 1995. In 1995, $28.4 million was requested and agreed to. Half of these funds were to come from the UN peacekeeping budget and half from the UN regular budget in an uneasy compromise between the Security Council and General Assembly.

Weaknesses within the Tribunal’s mandate and enforcement power include difficulty in arresting suspects, minimal authority to punish, and the likelihood that many will remain free within their home borders. A larger issue involves questions as to whether the United Nations can simultaneously negotiate a peace agreement and support its implementation while promoting the prosecution of war criminals. Depleting resources, the fickle and erratic nature of global interest in the conflict, and the tribunals themselves render the ongoing work of the Tribunal vulnerable to a premature end. The most stinging criticism centers on the lack of political will by the Tribunal’s underwriters and supporters—including the United States—to aggressively pursue custody of the accused primary organizers of the Bosnian genocide, including Ratko Mladic, Radovan Karadzic, and Dario Kordic. "By loudly broadcasting its resolve not to arrest these men, the United States has emboldened them to threaten violence in the event such an attempt is made." Meanwhile, the Tribunal, the UN, the international community and the legal community debate the ethical and legal ramifications of trying suspects such as these in absentia. Notice is the key: particularly in the former Yugoslavia, the accused are aware of the indictments against them due to media coverage and their open activity. Failure to appear despite sufficient notice is grounds for trial to move forward without their presence.

NATO troops in the Former Yugoslavia are not ordered to seek out those indicted by the Tribunal, only to arrest them if they encounter them while on their regular duties. US General John Shalikashvili stated in December 1996 that police work should be done by a separate police force. While a civilian International Policy Task Force is operational in Bosnia, their mandate is limited to assisting local police duties, not investigating or arresting international war criminals. High Representative Carl Bildt has long recommended creating a separate police force to hunt down suspected war criminals.

El Salvador. El Salvador’s Commission is ground-breaking in that it is the first time a peace agreement mandated a truth commission composed of foreign nationals empowered to investigate rights violations and make recommendations. The Commission was in part established to "assist the transition to national reconciliation." All the military officers identified in the Commission’s report were retired from service within a short time after the Commission issued the report. Although many of the Commission’s legislative and administrative recommendations were not implemented, efforts have been made to reform the police and judicial systems.

One participant in the Commission, Thomas Buergenthal, sees its greatest contribution as having "a very significant psychological impact on the people of El Salvador. While the Peace Accords ended the armed conflict, the report put the country on the road to healing the emotional wounds that had continued to divide it." The Commission and its report had "a cathartic impact on the country." The Report "removed the biggest obstacle on the way to national reconciliation: the denial of a terrible truth that divided the nation and haunted its consciousness." Initial obstacles to the investigation included suspicion of the Commission’s credibility and early fears within the civilian population of reprisals. The slow release of information of questionable usefulness by the local human rights organizations caused concern. This concern applied to both the US and Salvadoran governments. US reticence was assuaged by a guarantee of confidentiality in the Commission’s mandate and the respectability of the Commissioners and staff.

South Africa. South Africa’s trials of apartheid era suspects have thus far most notably achieved an acquittal and a conviction. Former defense minister Magnus Malan was acquitted of the 1987 murder 13 black South Africans. Known as "Prime Evil" by his colleagues, former police colonel Eugene de Kock was convicted in August 1996 of murders of six black anti-apartheid activists, an attempted murder, two conspiracy to commit murder charges, a culpable homicide charge, and a variety of lesser counts of fraud and illegal possession of arms and ammunition. De Kock has applied for amnesty which the separate South African Truth and Reconciliation Commission has the authority to grant. If it decides to grant amnesty de Kock’s two life sentences will be dropped.

South Africa President Nelson Mandela heard pleas for amnesty in late December 1996. A pre-Christmas deadline was set for apartheid’s proponents and opponents to take the opportunity to own up to their offenses and apply for amnesty. The amnesty covers all politically-motivated crimes before December 1993. Archbishop Desmond Tutu had suggested the date be changed to May 10, 1994, the date Mandela was inaugurated, to embrace as many people in the amnesty as possible. Tutu emphasized the importance of the amnesty process: "Our political leaders will be squandering an important opportunity for putting the past behind them if they do not come forward and participate in the amnesty process." The amnesty committee tested the bounds of forgiveness with its first pardon: the committee freed Brian Mitchell, former policeman serving 30 years for organizing a massacre which killed 11 people in 1988.

The Commission was authorized by the South African parliament in addition to trials in the national courts. Headed by Archbishop Tutu, the Commission is caught up in a debate that rages throughout South African society about culpability and responsibility. Both the African National Congress (ANC) and the National Party have forwarded justifications for the excesses each was responsible for during the apartheid era, and the ANC claims it is inappropriate to weigh the abuses of each party equally within the same legal framework. There is growing tension over the void of ANC defendants. Tutu has stated that the Commission serves no purpose if one side declares itself blameless. The point of contention is not so much the lack of criminal charges brought against members of the ANC as the ANC’s lack of repentance for perceived criminal acts during the apartheid era as would be evidenced by pursuing amnesty. However, Matthews Phosa, the ANC’s chief legal advisor, claims the party will not request amnesty for acts committed during what it calls a "just struggle." Tutu has threatened to step down from the chairmanship if the ANC continues to de-legitimize the Commission’s attempts to balance justice. Rather than moving South Africa toward an environment conducive to reconciliation, some analysts say the Commission may further polarize opposing groups.

Argentina. Mechanisms of repression rather than individual cases were exposed in Argentina. When the report of the National Commission on the Disappeared was published in November 1984, a number of criminal cases were brought to court, including those against two former presidents and numerous top military brass. Top former junta leaders were convicted and sentenced to up to eight years in prison, after nearly 300 people provided testimony. But when mid-level officers began to be prosecuted, a coup was threatened, ending the attempt to prosecute. The "Law of Due Obedience" was passed citing "following orders" as duress and therefore a defense. Nevertheless, the cycle of total impunity had been broken.

Chile. The Chilean Truth and Reconciliation Commission was charged with accounting for every person who had been killed, tortured, or who had disappeared, in addition to describing the state mechanisms of repression. "The establishment of truth and justice inasmuch as these can be attained through the courts is one of the basic pillars on which to build a reconciled society." The legislature recommended a comprehensive set of changes to institutionalize human rights and justice. Consequently, the legislature authorized pensions for all those affected. The Commission published its results and sent a copy to every family with a letter from the Chilean President pointing out where in the book they could find the cases of their loved ones.

Three political assassinations followed the publication of the Commission’s report, halting a comprehensive national debate about its recommendations, even though President Patricio Aylwin implemented many of these recommendations. Judge Richard Goldstone concludes that the Commission "materially assisted that nation to put an unhappy past behind it and allow its people to get on with building a better future."

Haiti. In Haiti, the Commission concluded that the national justice system was inadequate to prosecute offenders and therefore an international tribunal should investigate and punish the most egregious human rights abusers. Members of the international human rights community criticized the Commission for not going far enough in establishing institutional responsibility for these abuses.

Alternatives. Truth commissions are but one alternative to trials and international tribunals. Some post-conflict states choose other options, while others decide not to address war crimes. Past abuses can be confronted when perpetrators to acknowledge abuses directly to victims, pay reparations, major abusers are disqualified from public service, and guilty parties are prosecuted. Namibia has worked through a constitution to address minority rights and violations of them. Angola’s recent peace agreements have focused on power-sharing without any acknowledgment of accountability. Cambodia has not determined whether it would be either viable or useful to pursue prosecution of Pol Pot’s associates.

Evaluation

Strengths

International and domestic tribunals offer differing strengths. An international tribunal is best positioned to convey a clear message that the international community will not tolerate atrocities. International tribunals are more likely to be staffed by experts able to apply and interpret international law and have the necessary human and material resources at its disposal. International tribunals are more likely to function and be perceived as functioning on the basis of independence and impartiality rather than retribution. International tribunals can advance the development and enforcement of international criminal norms and have a greater chance than national courts to obtain jurisdiction over senior officials who no longer reside in that country.

Prosecution before domestic courts can enhance the legitimacy of a new government and judiciary, be more sensitive to nuances of the local culture, emphasize that the nation holds individuals accountable for their crimes, and stress a domestic alternative to vigilante justice. Concurrent jurisdiction is necessary to prosecute persons for serious violations of international humanitarian law.

Weaknesses

Potential drawbacks to tribunals and truth commissions include an obsession with past over present, a degeneration into witch hunts, a threat to current stability and democratic processes, a further fragmenting of a divided society, a possible swamping of national court systems with prosecutions resulting from evidence derived from the inquiry, unreliability of security files, violations of due process for the accused themselves, and the use of the truth commission for public relations purposes or as a political tool.

Lessons learned

Debate over whether trials should be conducted before an international tribunal or before national courts interferes with progress and is not helpful. Both are necessary. The national government should begin its own prosecutions as soon as possible, and not postpone national proceeding until the conclusion of trials before the international tribunal.

An international tribunal should exercise jurisdiction over related crimes in neighboring countries.

Attempts to prosecute a large number of defendants drains needed resources, resulting in less fair proceedings, and could have a destabilizing effect rather than contributing to national reconciliation. Despite public declarations by national governments and others that every participant in the atrocities must be tried and punished, a method must be found to limit the amount of possible defendants to a more manageable number.

National courts should not impose harsher penalties—including the death penalty on convicted second- or third-tier defendants—than the penalties the international tribunal will impose on a genocide’s organizers.

A national government must firmly and visibly oppose vigilantism by prosecuting and punishing those who commit crimes of retribution.

Telford Taylor, the Nuremberg prosecutor, observed that after the initial military tribunal trial, the reorganization of resources and structure for the next twelve trials held up progress by almost a year. Taylor concluded that if the trials had begun and been completed a year sooner the consequent lessons and impacts would have been more significant and effectively brought home to the public. The impact and benefits, and more importantly the message, of present day tribunals is undercut by delays in funding staffing and organization.

To try war crimes, international advice and assistance may be involved, but a separate international entity may not be necessary. An international entity should, in any case, act as a complement to a national justice system. Whether justice is pursued with international assistance or from a domestic base, the legacy of what happens is in the hands, thereafter, of the country’s own government, judiciary and citizens.

The international community’s consistent political will is a vital ingredient in both post-conflict trials and commissions. Countries should only financially and morally support tribunals when they are willing to pursue those indicted aggressively lest the tribunal becomes a mockery rather than a symbol of justice as a current risk in Rwanda and the former Yugoslavia.

It is critical that the constitution of domestic legal systems occur parallel to the standing up of war crimes tribunals. In every society, legal systems can contribute to reducing sources of violence and establishing the rule of law except when those systems are part of a security apparatus designed for repression rather than justice. International agencies (especially human rights groups whose usual mandate is limited to monitoring and reporting) should be open to opportunities to build or support the capacity of legal systems which have the potential to reduce post-conflict violence. Donors with legal restrictions preventing the provision of assistance (relief and developmental) for justice systems should review and amend their response framework to allow for the aiding of justice systems, especially in countries emerging from complex emergencies.

Sufficient time must be given to a process of building or rebuilding justice systems. "The tendency is to want to build a large—and largely urban—‘justice infrastructure’ as opposed to taking sufficient time required to build a grassroots justice system from the bottom up," notes a donor agency official.

Truth commission offer lessons as well. An entirely international staff lends credibility with citizenry. Commissioners should also be well-known and respected in the country and region and work well together. Diplomatic assistance and political advice from donor countries can be invaluable. An alternative structure should be present in the case of transitional governments.

References and resources

Amnesty International. Ethiopia: Human Rights Trials and Delayed Justice, New York: Amnesty International, July 1996.

African Centre for the Constructive Resolution of Disputes (ACCORD). State Sovereignty and Responsibility: African Solutions to Africa Problems, ACCORD. Durban, South Africa, 1996.

Bland, Mark. "An Analysis of the United Nations International Tribunal to Adjudicate War Crimes Committed in the Former Yugoslavia: Parallels Problems, Prospects." Global Legal Studies Journal, Vol. 2:223, 1994.

Boraine, A., Levy, J. and Scheffer, R. Dealing With the Past: Truth and Reconciliation in South Africa, Cape Town. Institute for Democracy in South Africa: 1994.

Buergenthal, Thomas. "The United Nations Truth Commission for El Salvador." Vanderbilt Journal of Transnational Law, Vol. 27, No. 3. 1994.

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Cutler, Lloyd N., Former White House Council.Duke, Lynne. "Adversaries Offer Competing Truths to South African Commission." The Washington Post, 24 August 1996.

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