Post-Conflict Justice: Exploring the Options

Introduction

One of the most pressing issues facing States recovering from conflict is how to deal with leaders and/or individuals responsible for past human rights violations. A number of approaches have been pursued ranging from truth and reconciliation commissions to the creation of ad hoc tribunals and the development of the International Criminal Court (ICC). The UN has also established 'hybrid' or 'internationalised domestic' tribunals in East Timor and Sierra Leone, and has been involved in negotiations with Cambodia about a similar project. These developments raise several questions pertaining to the enforcement of international law: is international justice better than reconciliation? should we prefer international justice to national justice? what are the major pitfalls to international criminal justice? This briefing outlines some available options and important debates.

Truth and Reconciliation Commissions (TRC)

Although used in Latin America, South Africa and elsewhere, TRCs can appear counter-productive to the promotion of international law. This relates to the fact that a frequent by-product of TRCs has been the granting of amnesty to war criminals, a practice inconsistent with the view in both treaty and customary law that crimes against humanity attract an obligation to prosecute and punish.

A good example of this occurred in El Salvador, where the Mexico Agreement of April 1991 provided for the establishment of a TRC under UN auspices, mandated to investigate 'serious acts of violence' that occurred in El Salvador during the civil war of 1980-1991, 'whose impact on society urgently demands that the public should know the truth'. The Commission produced a damning report, noting the level of corruption in the Supreme Court and naming over forty individuals found responsible for human rights crimes. Nevertheless, the Salvadoran government rejected the report, and a general amnesty was passed by the Legislature that precluded the trial of persons charged with serious crimes.

This raises the question of what purpose TRCs serve? TRCs are of a different nature to trials: they do not deal with specific events, but attempt to paint the overall picture of human rights abuses over a broad period. Moreover, they can do much to reconcile political divisions, and can help facilitate an end to conflict and consolidate peace. TRCs are thus intended as a complement rather than an alternative to prosecution. In East Timor, the recently established Commission for Reception, Truth and Reconciliation (CRTR) exists alongside Special Panels dealing with serious crimes including war crimes, murder, rape and torture. Specifically lacking the power to grant amnesty, its three functions are to seek the truth about human rights violations in East Timor between 1974 and 1999, to report its work to the government, and to facilitate community reconciliation.

Ad Hoc Tribunals

Acting pursuant to its powers under Chapter VII of the UN Charter to decide on measures necessary to maintain or restore international peace and security, the UN Security Council established in 1993 an ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY) to deal with the crimes associated with the conflict. The following year, an ad hoc tribunal was also created for Rwanda to deal with the perpetrators of the genocide. While this method of promoting international humanitarian law represents an unprecedented use of Chapter VII powers, the tribunals' effectiveness as institutions charged with bringing those most responsible for serious crimes to justice is open to debate.

In part, it is easy to determine the principal merits of criminal prosecution by international tribunal. The tribunals enjoy primacy over national courts, and their Statutes impose an obligation upon all States to co-operate by complying with orders to arrest nationals and defer them to the tribunal on request. The purpose of an impartial tribunal is to determine individual criminal responsibility instead of focusing on collective guilt. It rejects the tendency in times of conflict to blame an entire people for the crimes committed by certain individuals fighting in its name. This individual focus may also have a healing effect and contribute to the creation of peace. Moreover, trying perpetrators of serious violations of international law before an independent tribunal composed of judges not parties to the conflict and applying 'impartial justice' can serve to blunt the hatred of victims and their desire for revenge.

However, ad hoc tribunals also face numerous shortcomings. First, they have limited jurisdiction relating to the time and place of offences. Second, they exist only until the Security Council determines the restoration of peace and security, and owing to their unprecedented legal basis - by Security Council Resolution acting under Chapter VII - their legality has been challenged. Dusko Tadic, the first war criminal to appear at the Hague, claimed that since the Security Council had 'exceeded' its authority, the ICTY had not been established by law, and therefore could not try him. Third, as they lack their own enforcement capabilities (a police force), an excessive reliance on state co-operation is necessary to make arrests, deliver indicated persons to trial, and provide assistance with evidence. Fourth, the costs of running the tribunals are particularly high and financial constraints limit the number of investigators and the ability to protect witnesses. Fifth, their ad hoc nature stemming from a political body prompts allegations of 'selective justice' and references to a 'political court'. Finally, the tribunals operate at a snails-pace: it took almost five years to sentence Dusko Tadic to 20 years imprisonment for eleven separate crimes against humanity.

The International Criminal Court (ICC)

Created by the Rome Statute in 1998, the ICC is a permanent institution seated in The Hague (Netherlands) dealing specifically with the crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Influenced heavily by the experiences of the ad hoc tribunals, it is useful to consider the ICC in comparison to these bodies.

There are several positive aspects to the ICC. With a permanent seat, its operating costs are reduced. Further, there are no temporal limitations on the crimes it has jurisdiction to deal with after its start date of 1st July 2002. Its Statute also recognises recent advances in human rights law. For example, crimes against humanity are established as crimes that can be committed in times of peace as well as war, and sexual violence - previously absent in international law - is identified as a crime. Finally, there is no need to undergo the potentially painstaking process of obtaining a Security Council resolution required to establish an ad hoc tribunal, as cases can be immediately referred to the ICC.

Even so, the advantages of the ICC should not be overstated. Unlike the ad hoc tribunals, the principle of 'complementarity' laid out in the preamble of the Statute means that the ICC has no superior position to national courts, and thus its jurisdiction can only be founded if it is proved that the State concerned is 'unwilling or unable' conduct trials. Additionally, a number of ICC crimes already exist in international treaty, such as the Geneva Conventions, raising questions about its usefulness. Critically, in accordance with Article 13, the Court can only exercise its jurisdiction if a case:

is referred to the Prosecutor by a State Party;
is referred by the Security Council acting under Chapter VII of the Charter of the UN; or
the Prosecutor has initiated an investigation.

In effect, when read with Article 16 - which enables the Security Council to delay for a period of 12 months any investigation or prosecution - the Statute affirms the limits imposed by international politics on international law.

Thus, it is difficult to assess the comparative advantages of the ad hoc tribunals and the ICC when both are subject to their distinct problems. Two observations can be made, however. First, it is difficult in both cases to assess their contribution to the furtherance of international criminal justice. In the case of the ad hoc tribunals, 'success' not only depends on the impartial deliverance of justice, but also on trying the 'big-fish'. On both counts, the jury is still out, even in the light of the proceedings against Slobodan Milosevic currently underway at the Hague. For the ICC - unlikely to receive many cases because of compromise in Rome - its major contribution may well be to bolster the capacity of national courts, again a mark of success difficult to gauge. Second, both the ICC and ad hoc tribunals share one important feature: they do little to promote feelings of local ownership. Trials are conducted in foreign countries by foreign judges, where the results are not always tangible. Hybrid courts thus enjoy a clear advantage in this regard.

Hybrid Courts: The Way Forward?

In early 2001, the UN Transitional Administration in East Timor (UNTAET) began trials relating to atrocities committed in East Timor during the violence of 1999. These trials are conducted at the Dili District Court, but under international leadership, with exclusive jurisdiction over genocide, war crimes, crimes against humanity, murder, sexual offences, and torture. This creative project, influenced by an earlier model for Cambodia, reflects a trend towards a new method of international justice: the 'internationalised domestic tribunal'. Still in its infancy as a concept, these hybrid tribunals are already described as models for the future. This section will consider some of the principal features of the tribunals, and offer some remarks on this suggestion.

The Cambodian Experience

The worst atrocity since the Holocaust occurred on the killing fields of Cambodia between 1975 and 1979, with 1.7 million lives lost as the Khmer Rouge peasant movement conducted a campaign to eliminate its enemies. However, not until 1997 did the Cambodian government seek assistance from the UN to instigate a mechanism to prosecute the offenders. A UN Group of Experts, having explored the available legal options, recommended the creation of an international tribunal under UN control and categorically declined a mixed national-international court:

Based on our assessment of the situation in Cambodia, [such] a process would be subject to manipulation by political forces in Cambodia. The possibilities for undue influence are manifold, including the content of the organic statute of the court, its subsequent implementation, and the role of Cambodians in positions on the bench.

The Cambodian government rejected the report, and the UN ultimately agreed to the establishment of a tribunal under Cambodian law, controlled by Cambodians, with international participation.

However, implementation of the project has been delayed by contention surrounding the ability of the Court to function efficiently within the Cambodian national system. Subject to political interference and corruption, confusion over what laws are applicable, and human rights concerns surrounding provisions dealing with arrest and detention, Cambodia's courts are hardly conducive to conducting fair or expeditious trials. Largely owing to this controversy, the UN announced in February 2002 its termination of negotiations with Cambodia to set up the hybrid tribunal. At a press briefing, Under-Secretary-General for Legal Affairs, Hans Corell, commented:

The proceedings of the Extraordinary Chambers would not guarantee the international standards of justice required for the United Nations to continue work towards their establishment ... currently envisaged, the Cambodian tribunal would not guarantee independence, impartiality, and objectivity that a court established with the support of the UN must have.

Despite the conclusion in March 2003 of a draft agreement between the Cambodian government and the UN concerning the prosecution under Cambodian law of crimes committed by the Khmer Rouge, the problems outlined above remain.

The East Timor Experience

The UN appointed an International Commission and despatched three Special Rapporteurs to the region to examine the events of 1999 and recommend appropriate courses of action. Both investigations supported the creation of an ad hoc international tribunal to try the 1999 atrocities. Nevertheless, East Timor's hybrid court was created within months of the UN's arrival and contrasts radically from the problems of composition encountered in Cambodia. The Court is characterised by a prosecution service exclusively international in composition, with an international investigation unit, that pursues cases before panels of judges known as Special Panels. These consist of one East Timorese judge and two judges of other nationalities. Their judgements can be appealed to the Court of Appeal, the majority of whose members are again international.

Despite these organisational advantages, the Court still suffers from various problems. It attempts to incorporate the forward-looking legal regime of the ICC Statute into a radically different situation. Drafted onto the district court of one of the world's poorest countries, rather than receiving maximum international support for its work as the ICC does, the Special Panels instead suffer from the drawbacks of a weak national criminal justice system, including shortages of support staff, inadequate court facilities, an insufficient interpreting capacity, and inexperienced judges.

In addition, while the 'hybrid' tribunal is certainly a less expensive option than a fully-fledged international tribunal, the costs are still considerable given the international expertise required for complex cases. The budget for 2001 was $6,300,000: of this, $6m was allocated to the prosecution, while almost all of the remainder went on salaries for international judges. The subsequent financial constraints mean that the special panels struggle to function efficiently.

Final Remarks

In post-conflict situations, there is no 'best way' to promote and enforce international criminal law: the advantages of one approach over another depend heavily on the scale and nature of the crimes committed in a conflict. Nevertheless, while it remains to be seen what impact the ICC will have, of the options outlined above hybrid tribunals appear the most effective mechanisms. Although they can be challenged as conceptually flawed owing to the weaknesses of domestic legal systems in post-conflict environments as well as their difficulty in ensuring the impartial dispensation of justice, hybrid tribunals use international judges and prosecutors and promote international standards of justice and embrace the local legal community. Thus, unlike ad hoc tribunals and the ICC, their major advantages are that justice is brought close to home, the presence of international judges alleviates fears of retaliatory justice, and local institution-building is an important by-product that contributes to long-term stability.

Author: Tim Pippard, Research Assistant, editor: Alex Ramsbotham, Head of Research.

This set of briefing papers has been financed by a donation in memory of Joy K B Wynn-Jones and Mary Owen. For a full publication list and more detailed information on the work of the Programme, please contact Alexander Ramsbotham, Head of Research, UN and Conflict Programme, UNA-UK, 3 Whitehall Court, London SW1A 2EL.

Tel: (switchboard) +44 (0)20 7766 3444 (direct line) +44 (0)20 7766 3446 Fax: +44 (0)20 7930 5893 E-mail: aramsbotham@una-uk.org.