My prior post discussed new policy papers on transitional justice issued by the US State Department and US AID. These policy papers reflect the fact that the United States’ support for transitional justice efforts takes many different forms, depending on a range of factors, including pre-existing relationships with key actors and institutions, available resources, the United States’ history in the region, competing equities, and the priorities of influential policymakers. The history and scope of US transitional justice policy in particular countries is discussed in greater detail here and here.
It has been noted that many emerging democracies have high moral capital but low bureaucratic capacity. Accordingly, while post-conflict regimes may enjoy a period of elevated trust and popular support, they may not be well placed to put institutions in place to address and redress the crimes of the past while also working to build an inclusive and just society for the future. There is thus a role for the international community — donor nations, the United Nations, and international non-governmental organizations — to help capacitate local actors with funding and in-kind assistance, offer training and technical assistance, and provide diplomatic support. This engagement can occur with transitioning governments themselves as with civil society organizations and victims’ groups. This post discusses some ways that the United States and others in the international community can help, and have helped, support transitional justice efforts around the globe.
Support for Criminal Trials
There is now a settled expectation that there will be some form of accountability in post-conflict and post-repression societies, including potentially criminal trials. So, the question of whether or not there will be trials has largely been replaced by a more nuanced set of questions concerned with such details as: how, who, where, how many, and when. Depending on the state of the domestic legal framework, indictments post-conflict may include international criminal law charges (e.g., crimes against humanity, torture, or war crimes), domestic criminal law charges (e.g., assault or kidnapping) or substitute charges (e.g., corruption) that may be more feasible politically and that may enjoy a greater political consensus.
Trials are important not only to satisfy retributive impulses or exert a deterrence effect; they also play a vital expressive function by publicly reaffirming essential norms and values and responding to felt needs for justice on the part of victims, their families, and their communities. That said, domestic criminal justice systems have been designed for societies in which violations of the law are the exception and not the rule. When violations become widespread and systematic — involving tens or hundreds of thousands of perpetrators and victims — ordinary criminal justice systems simply cannot cope. So, choices will have to be made, such as the decision in 2004 by Rwanda to launch Gacacatrials given the enormous backlog of cases and the thousands of suspects languishing in over-crowded pre-trial detention. Hence, “the near inevitability of imperfect justice.”
The United States, in partnership with other states and entities in the international community, has supported the prosecution of abuses by standing up and fundinginternational tribunals, hybrid courts, and specialized prosecutorial chambers around the globe. Most recently, the United States provided $1 million to the Extraordinary African Chambers in Senegal, a hybrid institution that recently sentenced Hissène Habré of Chadto life imprisonment. Although international tribunals receive a lot of media and diplomatic attention, in reality, most transitional trials occur before domestic courts. However, and unfortunately, we’ve seen that international tribunals are far better positioned than domestic courts to attract the necessary resources. So, for example, in 1997–2002, international donors contributed $10 million annually in order to support almost 7,000 domestic genocide prosecutions in Rwanda. During this same period, the International Criminal Tribunal for Rwanda (ICTR) consumed a budget of close to $400 million, which resulted in only about a dozen convictions during the same period of time. To be sure, the ICTR made important contributions by prosecuting those most responsible for the genocide and developing international criminal law, but it did not necessarily contribute directly to the instantiation of the rule of law in Rwanda, especially given that it was located extraterritorially.
In addition to direct funding, the international community can help with technical assistance and with ensuring defendants and victims receive due process. States can contribute substantively by sharing intelligence, such as satellite imagery showing the location of mass graves or information establishing the responsible chain of command and order of battle. International advisors can help capacitate prosecutorial efforts and design an effective prosecutorial strategy, as we’ve seen with the International Commission Against Impunity in Guatemala. The international community can also inspire and fund documentation and evidence preservation efforts while abuses are ongoing (such as the Commission on International Justice, which is gathering information on crimes being committed in Syria); establish and contribute to witness protection programs; and support and defend local actors who may be subjected to considerable political pressure.
NGOs with international assistance can conduct trial monitoring to ensure procedural fairness and to help inoculate courts against political interference or temper over-zealous prosecutions. Donors can also help manage the second order impacts of trials, such as byenabling public outreach to, and dialogue in, affected communities. They can also assist with legal reform efforts by drawing from international jurisprudence and comparative law to draft new criminal law and criminal procedure statutes as needed and by training judges and lawyers.
Government officials can also provide diplomatic support to trials. The visit by the US Ambassador to Guatemala, Arnold Chacón, and the US Ambassador at Large for War Crimes Issues, Stephen Rapp, to the genocide trials in Guatemala signaled US support for these efforts, helped to protect the prosecutors and judges from potential intimidation or retaliation, and brought attention to the importance of judicial independence and transparency. (These visits also generated some ambivalent press, it should be noted, implying that the trials were being orchestrated from outside and calling attention to the fact that the United States had supported the Ríos Montt regime at the time it was in power.)
Read the full post at Just Security.