Global Policy Forum

By Neena Bhandari

Over the last century, the world has witnessed horrific acts of brutality, but the international community still has not found a uniform way to respond in a way that provides justice and promotes reconciliation post-conflict.

Iraq's deposed dictator Saddam Hussein earlier this month was sentenced to hang after being found guilty of ordering the deaths of 148 people in the mainly Shia town of Dujail. South Africa's government established a Truth and Reconciliation Commission rather than prosecuting Apartheid's leaders. The United Nations Security Council established two temporary international criminal tribunals over the last couple decades -- one for the former Yugoslavia and one for Rwanda -- in response to acts of genocide, ethnic cleansing and mass rapes in those countries.

At a conference, "After the War: Prosecutions, Pardons & Peace", organised by the Australian Red Cross, an expert panel debated how a nation should respond to atrocities by studying the Nazi trials in Nuremberg, the South African Truth and Reconciliation Commission, the Rwandan genocide and the trials of Slobodan Milosevic and Saddam Hussein.

On one point, all panelists agreed: The death penalty solves nothing. "Death sentences usually emphasise a continued fascination with violence as a way to respond to problems. Thus, the cycle of killing persists and not much is learned. Murder by the state, as in capital punishment, does not contribute to the building of a civil society," Stuart Rees, director of the Peace & Conflict Studies at Sydney University and director of the Sydney Peace Foundation, told the audience.

Human rights groups and legal experts across the world called Hussein's year-long trial, during which three defence lawyers were killed, deeply flawed. And though U.S. President George W. Bush hailed the death sentence a "milestone" for Iraq, Rees said a death sentence simply increases tensions within a frail nation. "No healing occurs by taking anyone's life. Even justice, not the same as healing, is not achieved by killing," Rees said. "Transformation to peace with justice, i.e. a continuous struggle to negotiate respect for and attainment of human rights, is the viable alternative. This means commitment to Mahatma Gandhi's non-violence."

The genesis of the idea that those who have violated international humanitarian law or the laws of war should be prosecuted is closely associated with the Red Cross. In 1872, Gustave Moynier, one of the founders of the International Committee of the Red Cross, recommended that a permanent international criminal court be established. That dream materialised more than a century later, after World War II, when Allied Forces established a military tribunal to prosecute key remaining members of the Nazi regime for the extermination of more than six million Jews and civilians.

The so-called Nuremberg trials, which began in 1945, constituted the first attempt by the international community to articulate and develop what would become known as international criminal law. But the high hopes that a permanent system of international criminal accountability would finally be established were not realised until the 1990s when the United Nations Security Council established temporary international criminal tribunals (ICT).

"Setting up the ICT was a bold and a highly political move. The U.N. and the United States had to be seen as doing something to end the conflict. However, the last thing the U.N. wanted was a trial and it took nine months before a prosecutor was appointed," said David Hunt, a former judge of the U.N. ICT for the former Yugoslavia, who later was assigned to the Appeals Chamber of the U.N. ICT for Rwanda.

Graham Blewitt was deputy prosecutor of the U.N. ICT for the former Yugoslavia at The Hague from 1994 to 2004 and has spent several years as the deputy director and then director of the Australian Nazi War Crimes Unit. "The war in Yugoslavia and the atrocities were being seen around the world on television screens. The ICTY was being used as a deterrent. Its aim was to bring those responsible for the war crimes to justice," Blewitt said.

"The tricky part was that we would have to indict those responsible for the war crimes, but they were still leaders. So we decided if leaders had to be prosecuted, we would have to establish the crimes, get the witnesses and move up the chain of command. Once the tribunal was operational, indictments were quick," he added.

Increasing popular and political pressure for establishing a permanent and universal institution led to the Rome Statute for the International Criminal Court, which came into operation in 2002. Still, when a brutal war has ended, and a country is seeking transition from a repressive regime to a democratic government, the panelists disagreed on how a nation should deal with its past.

Hunt believes emotions are too raw to have the tribunal in the country where events occur. "As we have seen in Iraq, people are being killed while Saddam Hussein's trial was going on. Witnesses face retaliation and it is extraordinarily difficult to protect their identity from disclosure if they have to give evidence in their own country," Hunt said. Blewitt disagreed. "While it is practical to have the criminal court elsewhere to solve the problem of witness protection, having the court where the crime happened makes the trial more meaningful," he said.

Martin Krygier, professor of law at the University of New South Wales and a fellow of the Academy of Social Sciences in Australia, said it was possible to run fair and healing trials in Germany after WWII because the country had been comprehensively defeated. "What is less likely is a trial without political pressures. In Germany there could be no resistance and interference with the activities of the court, as there has been in Iraq, and would have been in Yugoslavia if the International Court had tried to operate there," Krygier said.

The two most effective ways to implement justice, the panelists said, are through international tribunals and truth and reconciliation commissions. Criminal justice courts and tribunals have been successful in the former Yugoslavia and Rwanda; hybrid courts operate in East Timor and Sierra Leone and an additional court soon will commence in Cambodia.

An alternative transitional justice mechanism in the form of truth and reconciliation commissions has also grown in popularity. These include the Truth and Reconciliation Commission established in post-Apartheid South Africa, the Commission for Reception, Truth and Reconciliation of East Timor and the Truth and Reconciliation Commission of Sierra Leone.

These commissions are designed to provide a forum where victims and perpetrators can tell their stories in the hope that this process will promote reconciliation of the past and heal a society torn apart by violence and conflict. Underpinning them is the belief that the public or official exposure of truth is itself a form of justice.

Today, truth commissions often operate alongside criminal prosecutions. They complement each other. "There is room for both prosecutions and truth and reconciliation commissions. However, punishment for serious crimes is essential if there is to be a real and lasting deterrent," Blewitt said. The South African Truth & Reconciliation Commission made a significant contribution to the bloodless transition to democracy, but it incurred problems when the commission failed to pay promised compensation, Rees said.

Hunt added that although war crime tribunals are expensive, the international community owes it to the world to ensure justice is done and "to provide a deterrent against subsequent military commanders from committing war crimes in the belief that they will be the victors in the conflict and escape prosecution and punishment."

Cost is indeed one reason for looking at other models of justice and enforcing international humanitarian law. Because of the high cost, the criminal court in East Timor was compromised, said Lia Kent, a doctorate student at the University of Melbourne completing a thesis on transitional justice in East Timor.

"There should be truth commissions for minor crimes like theft and arson, but serious crimes need to go through the courts. We need victim-centred models where more consultation is happening," she said. That was a point concurred by Helen Durham, senior research fellow at the Law school of the University of Melbourne and director of Research and Development at the Asia Pacific Centre for Military Law.

"We have to listen to the people affected by conflict and not try to impose paradigms. In conflict situations, it is so crucial to an individual's dignity to speak out," she said. "There are still many, many forgotten conflicts e.g. Georgia. It happens when the international community doesn't have direct self-interest in the conflict." Whatever the mechanism for implementing justice and peace, experts are unanimous that it should have independent resources and no political interference.