Global Policy Forum

According to a study conducted by the University of Hawaii, genocide and state-sponsored killing were responsible for the deaths of more than 170 million people who were murdered by their own governments during the 20th century. Until recently, such flagrant abuse of human rights garnered no more than the occasional tutting of the international community. However, since the end of the Cold War, attitudes to gross human rights abuses have changed at the international level. The international criminal tribunals for the former Yugoslavia and Rwanda spearheaded a move toward accountability for those most responsible for state-sponsored killing; a move which has been followed by the introduction of the International Criminal Court (I.C.C.).

Against this background, transitions from one system of governance to another, whether after war or after regime change, now tend to include investigations into abuses that occurred, and increasingly some form of judicial process. The motive for such processes is to bring accountability and to help a society address its violent past and move forward. Yet judicial measures are not always palliative and they can even stir up resentment among the people in whose name justice is being sought. Those imposing justice are often keen to avoid the victor's justice tag, but as can be seen from the processes in Iraq, Rwanda, and the former Yugoslav republics, there are inherent difficulties in achieving justice in transitional situations.

So, can any form of judicial process, imposed by the victorious side, avoid the allegation of victor's justice? Should the terms be dictated by those who are directly affected, or is that the role of a competent international body, if there is one? And have recent advances in international criminal law gone any way to increasing the possibilities of justice in such situations?

Justice for the Iraqi People, by the Iraqi People

Saddam Hussein is currently being tried in Iraq before the Iraqi Special Tribunal (I.S.T.) for his role in the events which took place in Dujail in 1982 where 143 people were killed. On the face of it, the I.S.T. should avoid allegations of victor's justice: it was set up in 2003 by a statute approved by the Iraqi Governing Council to prosecute people accused of, among other things, committing genocide, war crimes, or crimes against humanity during the period from 1968 to 2003. It is a national court, whose specific mandate is to try Iraqis accused of such crimes. The judges are all Iraqi, although they are permitted to appoint non-Iraqi nationals to act in advisory capacities to "provide assistance with respect to international law and the experience of similar tribunals." The only official language of the tribunal is Arabic. And the proceedings are televised so that Iraqis can see their former leader being held to answer for the crimes he allegedly committed.

Chances of Saddam Getting a Fair Trial?

Yet despite the I.S.T. being Iraqi in the fundamental aspects, there is a perception that it is the puppet of the United States — an image fostered by the fact that the Iraqi Governing Council, which approved the statute, was appointed by the Coalition of the Provisional Authority's Administrator, i.e. a U.S. official. The International Center for Transitional Justice (I.C.T.J.) is one of only three official observers at the I.S.T. Its president, Juan Mendez, told IRIN: "Essentially the court was set up by an occupation force which is already questionable under the laws of war. It was then legitimated by the governing body later, but it would have been better to wait for the Iraqi Governing Council to create it from scratch."

Professor David Crane, the chief prosecutor of the international tribunal in Sierra Leone, expressed qualified optimism for the I.S.T. early on in the trial: "Despite my disdain for the way the I.S.T. was created outside of international norms by the United States, I must say I am impressed with the way the judges are carefully taking Iraqi law, along with various principles of international law, and shaping it for their use to ensure that justice is done from an Iraqi point of view." The fact that the trial was being performed by the Iraqis reduced the perception that the court was an imposition of justice by the victorious party. Yet some commentators would have preferred a more international element to the proceedings.

Hanny Megally, the director of the Middle East and North Africa Program of the I.C.T.J., commented: "We would have preferred to have a court with more international involvement. The concern was that the Iraqi judicial system, after 30 or 40 years of corruption, oppression, and nepotism, would struggle to mount trials on such major issues as crimes against humanity, war crimes, and genocide." Mendez concurs: "A hybrid tribunal (i.e. a court composed of international as well as domestic judges) would have been a better policy choice by both Iraqis and the occupation forces."

The perception that the trial may not achieve impartiality has been compounded by the killing of some defense lawyers, and furthered by the political nature of the make-up of the judiciary; there is a ban on Baathists being appointed judges. One judge has already been removed on the basis that he was a member of the Baath party. As one legal commentator pointed out: "Once all Baath judges are disqualified who will be left? Mostly judges who were victims of Saddam's regime." Mendez also sees the removal of the judge as an attack on the independence of the judiciary, but despite recognizing certain flaws, he is not prepared to rule out the possibility of a fair trial. He advocates a wait and see policy, saying: "Depending on how the trial is conducted it could still on the whole pass the test of legitimacy and conduct a fair trial. We have to wait till the end to judge whether the trial has lived up to international standards."

The Nineties Vogue for International Courts

The I.S.T., a domestic court trying Iraqis, has been questioned over its ability to provide a fair trial because of perceived vested interests or victor's justice. An alternative, which exists at the other end of the scale in terms of methods of trial, is the international tribunal. This is a tribunal set up outside the territory where the crimes have been committed, and is presided over by international judges: there is no domestic involvement. Ad hoc international tribunals were set up in the nineties to address the legacies of Rwanda and the former Yugoslavia, and were the first such internationally constituted tribunals since the trials in Nuremberg and Tokyo. The bodies constituted were the International Criminal Tribunal for Yugoslavia (I.C.T.Y.), which hears cases in The Hague, and the International Criminal Tribunal for Rwanda (I.C.T.R.), which hears cases in Arusha, Tanzania. The relevant law is in each case a specific statute passed by a U.N. resolution.

Domestic Reaction to International Courts

The incorporation of international tribunals should prevent any allegations of victor's justice or partisan trials. But this does not guarantee that they are well-received by the countries affected, or at least by the politicians in the countries affected. Both the former Yugoslavia and Rwanda sought to conduct the trials themselves in their own countries, and there was some resentment, at least initially, at a foreign body ordering the extradition of nationals to an international court.

The I.C.T.Y. was not popular among Serbians when it was created in 1993. It received scant assistance when Slobodan Milosevic was in power, and even refused entry to Louise Arbour when she was the chief prosecutor and was trying to conduct investigations into atrocities. Later, Serbia opposed the extradition of Milosevic to The Hague and initially demanded that his trial be held in Serbia by the people of Serbia. When Milosevic was finally brought before the I.C.T.Y. he called it "an illegal and immoral institution, invented as reprisal for disobedient representatives of a disobedient people — as once there were concentration camps for superfluous peoples and people." The criticism here was not that the trial was not going to be fair, but that it should not have happened in the first place; the U.N. had no right to be meddling in the affairs of other states. Some argue that Serbia's truculence towards the I.C.T.Y. explains why Ratko Mladic and Radovan Karadzic are still at large. They are also indictees of the I.C.T.Y. and Mladic is alleged to have been instrumental in the massacre at Srebrenica in which up to 8,000 Muslim men and boys died.

Similarly, the I.C.T.R. was not fully welcomed by Rwanda, which voted against its establishment, though for different reasons. The I.C.T.R. has its seat in Arusha, Tanzania and conducts the trials of those who were alleged to have been complicit in the genocide that occurred in Rwanda in 1994. Unlike Serbia with respect to the I.C.T.Y., Rwanda was initially in favor of an international dimension to these trials. The Rwandan ambassador to the U.N. wrote a letter to the U.N. Security Council requesting cooperation in establishing a tribunal with an international dimension, precisely because it wanted the world to see that it was imposing justice, not vengeance. But the government of Rwanda claimed that the I.C.T.R. should be set up in Rwanda, that it should be able to impose the death penalty and that there should be at least one Rwandan judge on the tribunal. Its continued insistence on the death penalty, as well as its perceived inability to guarantee a fair trial, has to date precluded the I.C.T.R. from considering Rwanda an acceptable place to refer cases once the I.C.T.R. in Arusha is wound up. By comparison, the Bosnia-Herzegovina War Crimes Chamber is now receiving defendants referred by the I.C.T.Y.

The question remains whether it is right for external parties to exclude domestic involvement and dictate the terms of justice being meted out in the sovereign jurisdiction of other countries.

A Halfway House: Hybrid Tribunals

The middle ground between international tribunals and wholly domestic courts are courts called "hybrid tribunals." This type of court is incorporated in the country where the relevant crimes took place, and is presided over by a mixture of both national judges and international judges. It is the model that some transitional justice experts were advocating for Iraq, in place of the I.S.T. Such tribunals have garnered praise for four principal reasons: the first is that the cases take place in the community affected, which lends immediacy to the proceedings. This is sometimes found wanting in, for example, the I.C.T.R. trials which many Rwandans feel cut off from and feel has little relevance to their lives. Hybrid tribunals also tend to avoid allegations that they are partisan as the judicial body is composed of a mixture of domestic judges and international ones. They are also vital in helping to reconstruct a body of legal knowledge in the affected country, which may have been depleted under the previous regime; and they are cheaper than fully international tribunals which take place outside the relevant country.

Nicholas Koumjian, the Deputy General Prosecutor for Serious Crimes in East Timor, points out that the benefits of these hybrid courts include "the ability to better contribute to reconciliation of communities; the ability to help build capacity of domestic judicial systems and respect for the rule of law in the community that suffered the violence; and the lower cost of this mechanism as opposed to an international tribunal." The hybrid tribunal was the model used in the Special Court for Sierra Leone and in the Special Panels for Serious Crimes in East Timor. It has now been adopted for the war crimes tribunals in Bosnia and the proposed Cambodian courts to try the Khmer Rouge. All of these tribunals deal with crimes committed before 2002, when the I.C.C. was established, changing the landscape of international justice.

The I.C.C.: A New Dawn

In respect of war crimes, genocide, and crimes against humanity committed after 2002, the I.C.C. — created by the Rome Statute and located in The Hague — will now be able to exercise jurisdiction. There are two important caveats: one is that the I.C.C. will only deal with such crimes when the country in which the crimes took place has failed to take legal action against the perpetrators. National courts will be responsible for trying those accused of such crimes under the principle known as complementarity. So individual nations get the first bite of the judicial cherry. The second is that the jurisdiction of the I.C.C. is not total, relying as it does on the country in question to invite I.C.C. investigators in, or having no interested friends among the permanent members of the U.N. Security Council to protect it.v Whatever its flaws, the world now has a permanent body devoted to trying genocide, crimes against humanity, and war crimes: an idea first mooted after the Second World War has finally come into being. This means that not only ad hoc international tribunals such as the I.C.T.Y. and I.C.T.R., but also hybrid tribunals such as the Sierra Leone Special Court, will in theory no longer to be set up under international auspices. Paul van Zyl of the International Center for Transitional Justice, although a staunch supporter of the I.C.C., sees this as a negative. He has described hybrid tribunals as "a welcome trend" that "have an effect on the domestic jurisdiction."

Commenting on the fact that the I.C.C. only has the capacity to prosecute a very few people, perhaps as few as five "big fish" for each war or regime change, he continued: "It would be unfortunate for the international community and donors to view the I.C.C. as a panacea: to say that they have invested in the I.C.C. and there is no need for intervention on the justice front at a domestic level in the countries in question. Domestic institutions need to be given resources and resource-strengthened to be able to deal with this impunity gap between the people the I.C.C. targets and the vast majority of people underneath. "These people are not only low level trigger-pullers, they is also going to be a large number of middle and senior ranking perpetrators who will escape the jurisdiction of the I.C.C. The Sierra Leone Special Court and others have shown us what hybrid tribunals can do and if anything they make the case for more hybrids not less."

The Future

International justice is itself currently in transition. It exists in various forms in different places: exclusively domestic, exclusively international, or hybrid. The I.C.C. has been designed to allow national courts primary jurisdiction and will only step in where that obligation has not been met. Practitioners of international criminal justice welcome the advent of the I.C.C. as an important addition to the armory in the struggle for international justice, which will bring an end to the impunity human rights abusers have for so long enjoyed. It is the flagship of international justice. However, they are concerned that it should not be seen as the only weapon. There will still be a need for building the capacity of legal systems at a national level, as well as a need to try more than just the few "big fish." The I.C.C. is a symbol of justice throughout the world, but there is room to focus on how it can be complemented by processes at other levels.