Justice Beyond the Hague: Supporting the Prosecution of International Crimes in National Courts
Jan 2011 · CSR (New York, N.Y.) Book 61 · Council on Foreign Relations
Ebook
56
Pages
About this ebook
When the International Criminal Tribunal for the former Yugoslavia (ICTY) was established more than twenty years ago, the international community had little experience prosecuting the perpetrators of genocide, war crimes, and other atrocities. Unfortunately, there has been ample opportunity to build expertise in the intervening decades; ad hoc tribunals have been established to address past crimes in Cambodia and Sierra Leone, and a formal International Criminal Tribunal for Rwanda (ICTR) was convened in the aftermath of Rwanda's 1994 genocide. Since 2002, the International Criminal Court (ICC) has assumed responsibility for new prosecutions, pursuing war criminals in countries unable or unwilling to bring them to justice domestically.
Yet, after more than two decades of experience, the limits of these courts' capabilities are becoming clear. While they have brought some senior leaders to justice, the scope of the courts' budgets and their enquiries can never reach all--or even most--perpetrators of atrocities. They are physically far removed from the scenes of the crimes they are prosecuting, cannot compel evidence or conduct independent investigations, and are vulnerable to changes in funding and international political support.
To overcome these and other difficulties, the international community must place greater emphasis on strengthening the national justice systems of the countries where atrocities have occurred. In this Council Special Report, David Kaye examines existing international justice mechanisms, analyzes how they have succeeded and where they have failed, and explains what reforms national legal systems will require to secure just and peaceful outcomes. Cognizant of the myriad individual challenges facing countries experiencing or emerging from violent conflict, Kaye nevertheless identifies a core set of common needs: political pressure on governments reluctant to prosecute perpetrators; assistance in building legal frameworks and training legal officials; support for investigations, including forensic analysis and security sector reform; and creating belief in the justice system among the local population.
To these ends, Kaye outlines several recommendations for U.S. policymakers and their governmental and nongovernmental partners worldwide. Beginning in the United States, Kaye argues that Washington should expand diplomatic and financial support for national justice systems and appoint a senior official to oversee initiatives from the State Department, Justice Department, USAID, and other agencies. Abroad, he calls for the secretary of state to organize a donor conference to agree on funding priorities and responsibilities for the international community, and to establish a coordinating body to ensure that support for national-level justice systems is properly coordinated and informed by best practices.
Justice Beyond The Hague provides important insights into the strengths and limitations of current international justice mechanisms. It makes a clear case for increasing support to national legal systems and outlines a variety of ways that the U.S. government can improve and coordinate its aid with others. While there will always be a place for international courts in countries that cannot or will not prosecute perpetrators themselves, this Council Special Report successfully argues that domestic systems can and should play a more meaningful role.
Yet, after more than two decades of experience, the limits of these courts' capabilities are becoming clear. While they have brought some senior leaders to justice, the scope of the courts' budgets and their enquiries can never reach all--or even most--perpetrators of atrocities. They are physically far removed from the scenes of the crimes they are prosecuting, cannot compel evidence or conduct independent investigations, and are vulnerable to changes in funding and international political support.
To overcome these and other difficulties, the international community must place greater emphasis on strengthening the national justice systems of the countries where atrocities have occurred. In this Council Special Report, David Kaye examines existing international justice mechanisms, analyzes how they have succeeded and where they have failed, and explains what reforms national legal systems will require to secure just and peaceful outcomes. Cognizant of the myriad individual challenges facing countries experiencing or emerging from violent conflict, Kaye nevertheless identifies a core set of common needs: political pressure on governments reluctant to prosecute perpetrators; assistance in building legal frameworks and training legal officials; support for investigations, including forensic analysis and security sector reform; and creating belief in the justice system among the local population.
To these ends, Kaye outlines several recommendations for U.S. policymakers and their governmental and nongovernmental partners worldwide. Beginning in the United States, Kaye argues that Washington should expand diplomatic and financial support for national justice systems and appoint a senior official to oversee initiatives from the State Department, Justice Department, USAID, and other agencies. Abroad, he calls for the secretary of state to organize a donor conference to agree on funding priorities and responsibilities for the international community, and to establish a coordinating body to ensure that support for national-level justice systems is properly coordinated and informed by best practices.
Justice Beyond The Hague provides important insights into the strengths and limitations of current international justice mechanisms. It makes a clear case for increasing support to national legal systems and outlines a variety of ways that the U.S. government can improve and coordinate its aid with others. While there will always be a place for international courts in countries that cannot or will not prosecute perpetrators themselves, this Council Special Report successfully argues that domestic systems can and should play a more meaningful role.
About the author
David A. Kaye is the executive director of the UCLA School of Law's international human rights program and director of its international justice clinic. He has taught courses in international law, international humanitarian law, and human rights at Georgetown University, Whittier Law School, and at the universities of Toulouse and Amsterdam. He has written extensively on international humanitarian law and the use of force. Before joining UCLA, Mr. Kaye served as an international lawyer with the U.S. State Department, serving as a legal adviser to the American embassy in The Hague, where he worked with the international criminal tribunals and acted as counsel to the United States in several cases before the International Court of Justice and the Iran-U.S. Claims Tribunal. From 1999 to 2002, he was the State Department's principal staff attorney on humanitarian law and served on several U.S. delegations to international negotiations and conferences. The State Department has honored him with four of its prestigious superior honor awards. Mr. Kaye is a member of the Council on Foreign Relations, the Executive Council of the American Society of International Law, and the Pacific Council on International Policy.
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