59 Law & Contemp. Prob. 127 LENGTH: 14591 words
ACCOUNTABILITY FOR INTERNATIONAL CRIME AND SERIOUS VIOLATIONS OF FUNDAMENTAL HUMAN RIGHTS: COMING TO TERMS WITH ATROCITIES: A REVIEW OF ACCOUNTABILITY MECHANISMS FOR MASS VIOLATIONS OF HUMAN RIGHTS
NEIL J. KRITZ *
Copyright (c) 1997 by Law and Contemporary Problems
* Senior Scholar on the Rule of Law, United States Institute of Peace.
The opinions expressed herein are those of the author and do not necessarily reflect the views of the Institute of Peace or the U.S. Government.
... Dealing with the grieving, with accountability and forgiveness, and with the rehabilitation of victims and perpetrators will be a painful and delicate process. ... More recently, the International Criminal Tribunal for the former Yugoslavia has confirmed the norm that the use of mass rape constitutes a war crime under certain circumstances. ... In addition, at a time when some Western observers raise concerns over due process in Rwanda's domestic genocide trials, hearings of the tribunal inside the country would also serve as an important visible model and standards-setter for the local efforts. ... The charters of the two current international tribunals recognize the role of domestic accountability mechanisms, providing for concurrent jurisdiction with national courts over the crimes in question, although each international tribunal can assert its primacy over the domestic judicial process and require the national courts to defer to it whenever appropriate. ... As an example of this question of allocation of international financial resources, the international community is currently spending approximately $ 41 million a year on the International Criminal Tribunal for Rwanda. ...
The field of human psychology has taught the lay world a principle regarding personal emotion that is now taken as a given: To ensure good mental health and stability, it is crucial that individuals emerging from massive abuse and trauma develop appropriate mechanisms to confront and process that past experience, facilitating closure rather than repression. Figuring out which approach or mechanism will be most helpful to the healing process will vary from person to person, and will be determined in part by the background and makeup of the particular individual as well as by the nature of the trauma endured. But, for both victims and perpetrators of past abuse, dealing with the reality and consequences of its occurrence is essential.
In responding to such trauma, groups and nations tend to function similarly to individuals. Societies shattered by the perpetration of atrocities need to adapt or design mechanisms to confront their demons, to reckon with these past abuses. Otherwise, for nations, as for individuals, the past will haunt and infect the present and future in unpredictable ways. The assumption that individuals or groups who have been the victims of hideous atrocities will simply forget about them or expunge their feelings without some form of accounting, some semblance of justice, is to leave in place the seeds of future conflict.
Dealing with the grieving, with accountability and forgiveness, and with the rehabilitation of victims and perpetrators will be a painful and delicate process. It will take time -- certainly longer than the time generally allotted for technical tasks like the post-conflict separation and reduction of military forces. The process of coming to terms with past atrocities will, as a rule, far outlast the presence of foreign peacekeepers. But doing nothing in response to war crimes and related atrocities adds to the injury of victims and perpetuates a culture of impunity that can only encourage future abuses. Victims may harbor deep [*128] resentments that, if not addressed through a process of justice, may ultimately be dealt with through one of vigilante justice and retribution. A public airing and condemnation of these crimes may be the best way to draw a line between times past and present, lest the public perceive the new order as simply more of the same.
Recent years have seen a paradigm shift, which is still underway, in attitudes toward the need for accountability and confrontation with a nation's own painful past. While diplomats and negotiators involved in efforts to curtail violent disputes previously might have dismissed any focus on past atrocities as an obstacle to stability and the resolution of conflict, today, it is increasingly recognized as an integral and unavoidable element of the peace process. As examples, although recent peace accords to conclude civil wars in El Salvador, Bosnia, and, most recently, Guatemala may each have their respective weaknesses regarding accountability, each reflects this paradigm shift by incorporating various mechanisms to deal with the legacy of past violations and recognizing that a durable peace would be unobtainable without them.
The last fifty years have seen the development, in nearly as many countries, of a variety of mechanisms of accountability for mass abuses. The present essay will offer some observations as to the effectiveness of some of these approaches, as well as some modest guidelines for appropriate application. n1
In helping societies deal with a legacy of past mass abuses, the process of criminal accountability can serve several functions. Prosecutions can provide victims with a sense of justice and catharsis -- a sense that their grievances have been addressed and can hopefully be put to rest, rather than smoldering in anticipation of the next round of conflict. They provide a public forum for the judicial confirmation of the facts. They can also establish a new dynamic in society, an understanding that aggressors and those who attempt to abuse the rights of others will henceforth be held accountable. Perhaps most importantly for purposes of long-term reconciliation, this approach makes the statement that specific individuals -- not entire ethnic or religious or political groups -- committed atrocities for which they need to be held accountable. In so doing, it rejects the dangerous culture of collective guilt and retribution that often produces further cycles of resentment and violence.
Legal or political protection from prosecution following the commission of mass crimes only gives confidence to those who would contemplate perpetrating them. It also conveys to victims a very real sense that their [*129] powerlessness and helplessness are genuine. Although a variety of factors may ultimately require limiting prosecution to senior key individuals or certain categories of perpetrators, total impunity, in the form of comprehensive amnesties or the absence of any accountability for past atrocities, is immoral, injurious to victims, and in violation of international legal norms. It can be expected not only to encourage new rounds of mass abuses in the country in question but also to embolden the instigators of crimes against humanity elsewhere. In short, criminal prosecution in some form must remain a threat and a reality.
INTERNATIONAL PROSECUTION OF MASS ABUSES
When trials are undertaken, are they better conducted by an international tribunal -- like those in Nuremberg and Tokyo or those for the former Yugoslavia and Rwanda -- or by the local courts of the country concerned? There are sound policy reasons for each approach.
An international tribunal is better positioned to convey a clear message that the international community will not tolerate such atrocities, hopefully deterring future carnage of that sort both in the country in question and worldwide. It is more likely to be staffed by experts able to apply and interpret evolving international standards in a sometimes murky field of law. It can more readily function -- and be perceived as functioning -- on a basis of independence and impartiality rather than one of retribution. Relative to the often shattered judicial system of a country emerging from genocide or other mass atrocities, an international tribunal is more likely to have the necessary human and material resources at its disposal.
An international tribunal can also do more than local prosecutions to advance the development and enforcement of international criminal norms. The Nuremberg trials established several key principles that continue to inform international conduct. Among these, of course, are the notions that the human rights of individuals and groups are a matter of international concern, that the international community's interest in preventing or punishing offenses against humanity committed within states qualifies any concept of national sovereignty, that not just states but individuals can be held accountable under international law for their role in genocide and other atrocities, and that "following orders" is no defense to such accountability. More recently, the International Criminal Tribunal for the former Yugoslavia has confirmed the norm that the use of mass rape constitutes a war crime under certain circumstances.
Finally, where the majority of senior planners and perpetrators of these atrocities have left the territory where the crimes were committed or are otherwise inaccessible for apprehension and prosecution by national authorities (as is the case in both Rwanda and Bosnia), an international tribunal stands a greater chance than local courts of obtaining their physical custody and extradition. The corollary to this point, not always apparent in the approach of [*130] the international tribunals for the former Yugoslavia and for Rwanda, is that these international entities, as the only bodies able to do so, should focus their energies more heavily on the investigation and prosecution of the leadership ranks of those responsible for the atrocities in question rather than on the rank and file.
The Yugoslavia and Rwanda tribunals are in several ways an improvement on the Nuremberg model. Their rules of procedure incorporate positive developments over the past fifty years with respect to the rights of criminal defendants under international law. To the extent that Nuremberg was perceived as a prosecution of World War II's losing parties by the victors, the current tribunals are nothing of the sort. The Yugoslavia tribunal, for example, is a truly international exercise, and the countries that supply its judges and prosecutors are not parties to the conflict. In addition, it is committed to the investigation and prosecution of war crimes committed by persons from each side in the war.
The authorities in charge of the Nuremberg and Tokyo trials had complete control of the field. A crucial lesson from the experience of the current international tribunals for Rwanda and especially for the former Yugoslavia is demonstrated by the challenge of enforcement of the tribunals' orders. There may be an international doctrine gradually emerging which holds that, at least in the aftermath of widespread atrocities, justice is a necessary element of any stable peace. If so, this is nothing less than a sea change in international thinking on this question. But sea changes occur gradually, and there is not yet an accompanying doctrinal acceptance of the responsibilities that come with establishment of these international criminal tribunals. States and municipalities cannot expect their courts to enforce criminal law on their own without the enforcement power of the police; the international community must similarly recognize that it cannot create these international criminal tribunals without providing these institutions with assistance and police powers to enforce their orders and decisions. This problem has, of course, been most clearly manifested in the international community's reluctance to assist in the apprehension of those indicted by the tribunals -- an issue that undermines the credibility of international resolve and, by October 1996, drove the President of the Yugoslavia tribunal to threaten his own resignation and that of his colleagues unless the situation with respect to apprehension improved by the spring of 1997. Recent months have seen some improvement on this issue; it remains to be seen if this trend will continue.
Determining the appropriate location for an international tribunal warrants careful attention. At the time of the creation of the International Criminal Tribunal for the former Yugoslavia ("ICTY"), location of the seat of the tribunal in the locus delicti was plainly not an option. A war was raging in the former Yugoslavia and the crimes in question were still being committed. In this context, the Hague was a reasonable place to put the new tribunal.
Following the 1994 genocide in Rwanda, the physical infrastructure of the [*131] country was in a shambles. The genocidaires had absconded with most that was not nailed down, and gutted much of what was. In examining options for the international tribunal, some in the United Nations also felt that it would be difficult to ensure the safety of tribunal staff in a country still in the early throes of clearing the dead and the rubble and trying to cobble together a new order. Given these considerations of logistics and security, the United Nations chose to place the seat of the Rwanda tribunal in Arusha, Tanzania.
As many of us suggested at the time, this was probably an unfortunate decision. Although the tribunal is intended to establish or confirm principles that should inform behavior worldwide, it was created to "contribute to the process of national reconciliation and to the restoration and maintenance of peace." n2 This objective highlights the fact that the tribunal ultimately has a primary audience, namely, the people of Rwanda. They, more than the rest of the world, need to see the tribunal at work, to be reminded on a daily basis that the international community is committed to the establishment of justice and accountability for the heinous crimes of 1994.
There is good reason why the post-World War II international prosecution of war criminals took place in Nuremberg and Tokyo, not in the Hague or some other foreign location. The Nuremberg principles would still have been established, but no doubt with a less immediate impact on the ground. For an international tribunal to be maximally effective, victims and perpetrators should be able to feel that its activities are not far removed from them.
The basic principle applies not only to criminal tribunals, but also to other international bodies addressing past abuses. The effectiveness and local impact of the UN Truth Commission for El Salvador was undoubtedly enhanced by its extended physical presence in that country. The Commission's international staff was located in El Salvador for six of the Commission's eight months of work, and the three Commissioners were in the country two weeks per month on average. n3 It is axiomatic that the weaker the connection between the international operation and the local population, the easier it will be for its work to be ignored or dismissed as an alien effort irrelevant to concerns in the country.
The charter of the International Criminal Tribunal for Rwanda ("ICTR") authorizes it to sit outside of Arusha as it deems appropriate; the tribunal would be well advised to exercise that authority and conduct some of its proceedings in Rwanda. Particularly for a country like Rwanda, where a substantial percentage of the population cannot benefit from newspaper or television coverage of the trials, the process of justice should be accessible and visible. In addition, at a time when some Western observers raise concerns over due process in Rwanda's domestic genocide trials, hearings of the tribunal inside the country would also serve as an important visible model and [*132] standards-setter for the local efforts. At the same time, sitting for tribunal cases inside Rwanda would more readily convey the concept that the international and domestic trials are complementary parts of an integrated, wholistic, and multifaceted approach to justice.
When an international tribunal determines that it cannot hold its sessions in the country where the alleged crimes took place, it is extremely important to ensure maximum access for the people of that country -- again, both the victims and the perpetrators -- through means other than physical attendance at hearings. Efforts undertaken to broadcast proceedings from the Hague into the former Yugoslavia, and to enable witnesses to participate in some ICTY hearings via video links, are important steps in this direction.
In the case of the Rwanda tribunal, minimal outreach and public relations meant that, particularly for its first couple of years, most Rwandans -- the people to whom it was most important that the ICTR communicate its message -- received little if any information about what the tribunal was doing. It took far too long to arrange even brief radio transmissions from the trial proceedings in Arusha into Rwanda. This was further exacerbated by the inability to generate international press coverage of the tribunal. In contrast, the press has been something of an ally of the Yugoslavia tribunal. Press coverage has informed the international public about the cases and struggles of the ICTY, has educated the public in a way that contributes to discussion of a permanent international criminal court, and has helped to generate some pressure for international assistance to the tribunal, the last especially with respect to apprehension of indictees. Inside the former Yugoslavia, unfortunately, local media tends to provide distorted information about the ICTY to fit the propaganda slant of ethnic nationalists on each side of the conflict.
This dilemma is certain to repeat itself. International prosecution of atrocities will most often be necessary in precisely those cases in which a country has been devastated by war and/or by the abuses in question. These cases can be expected to be characterized by loss of physical infrastructure, logistical basics, and qualified personnel. Security conditions may still be somewhat questionable. If international tribunals are to be effective, however, more attention needs to be given to both the physical accessibility of proceedings and the dissemination of objective information to the local population.
THE DOMESTIC COMPONENT
Prosecution of war crimes before domestic courts can also serve some important purposes, distinct from those that underlie international trials. It can enhance the legitimacy and credibility of a fragile new government, demonstrating its determination to hold individuals accountable for their crimes. Because these trials tend to be high profile proceedings that receive [*133] significant attention from the local population and foreign observers, they can provide an important focus for rebuilding the domestic judiciary and criminal justice system, establishing local courts as a credible forum for the redress of grievances in a nonviolent manner. Finally, as noted in 1994 by the U.N. Commission of Experts appointed to investigate the Rwandan genocide, domestic courts can be more sensitive to the nuances of local culture, and resulting decisions "could be of greater and more immediate symbolic force because verdicts would be rendered by courts familiar to the local community." n4
In addition, the reality is that not all cases of war crimes will result in the creation of another international judicial entity. Atrocities committed by the Mengistu regime in Ethiopia, for example, are today being handled by a Special Prosecutor's Office established for this purpose by the new government. Various countries have provided technical and financial assistance to this process, but a separate international body was not deemed necessary.
Finally, even where an international tribunal has been established to prosecute war crimes, an additional factor motivating separate local efforts at justice is the sheer pressure of numbers. For reasons of both practicality and policy, the international tribunals for Rwanda and the former Yugoslavia can be expected to limit their prosecutions to a relatively small number of people. By way of comparison, the Nuremberg operation had vastly more substantial resources than its two contemporary progeny. At peak staffing in 1947, for example, the Nuremberg proceedings employed the services of nearly 900 allied personnel and about an equal number of Germans. n5 The authorities at Nuremberg had virtually complete control of the field of operations and sources of evidence, and the prosecution team had the benefit of paper trails not matched in the Yugoslav and Rwandan cases. Even with these advantages, the Nuremberg trials ultimately involved the prosecution of only some 200 defendants, grouped into thirteen cases and lasting four years. It is doubtful that the two current international tribunals combined will ultimately prosecute this many cases; even half the number will be a major success.
This means that, even if the international bodies achieve their maximum effectiveness, thousands of additional cases of war crimes and related atrocities will be left untouched. In the case of the former Yugoslavia, the cases of thousands of war criminals -- Bosnian Serbs, Croats, and Muslims -- and tens of thousands of their victims will not be addressed by the international tribunal, and reconciliation requires that Bosnian society come to terms in some fashion with this legacy and these people. Seven cantonal prosecution offices in the Federation of Bosnia and Herzegovina are actively pursuing war crimes cases, primarily involving abuses perpetrated against Muslims. The fact is that [*134] atrocities were committed by members of each ethnic faction, and Bosnian Serb and Croat authorities each have their war crimes cases as well. My own recent discussions with Bosnian authorities from each of the three ethnic groups indicate that they collectively claim at least 25,000 war crimes cases and regard some 5,000-8,000 of these as appropriate for prosecution. This dimension of the problem of war crimes in Bosnia has received surprisingly little attention in the Western policy community, particularly considering its potential impact. But it is a reality that Bosnia needs to deal with whether by prosecution or otherwise.
MANAGING THE NUMBERS
Where prosecutions are undertaken, how widely should the net be cast? There is a growing consensus in international law that, at least for the most heinous violations of human rights and international humanitarian law, a sweeping amnesty is impermissible. n6 International law does not, however, demand the prosecution of every individual implicated in the atrocities. A symbolic or representative number of prosecutions of those most culpable may satisfy international obligations, especially where an overly extensive trial program will threaten the stability of the country. This approach has been adopted, for example, in Argentina, Malawi, and in some of the countries of Central and Eastern Europe in dealing with the legacy of massive human rights abuses by their ousted regimes.
In several cases ranging from Nuremberg to Ethiopia, given the large number of potential defendants, an effort has been made to distinguish three categories of culpability, and design different approaches for each. Roughly, these classifications break down into: (1) the leaders who gave the orders to commit war crimes and those who actually carried out the worst offenses (inevitably the smallest category numerically); (2) those who perpetrated abuses not rising to the first category; and (3) those whose offenses were minimal. The severity of treatment then follows accordingly. In most cases, given the huge pool of potential defendants and the limited capacity of national or international prosecution efforts to handle them, actual trials may be limited to those in categories (1) and part of (2). The leaders of atrocities of course need to be held accountable for prosecution to provide a comprehensive sense of justice. Reunified Germany, for example, experienced a certain discomfort at the thought that only young border guards who actually followed orders and shot East Germans trying to flee to the West would be prosecuted. There was a recognition that those who gave the orders and created the system needed to be held accountable as well.