The questions concerning appropriate courses of action to reconstruct a viable polity in the aftermath of events that have included genocide or other forms of mass atrocity comprise one of the most perplexing dilemmas of the contemporary era. In dealing with past crimes, what remedies will best foster a healing process for the deep societal wounds inflicted by civil wars, mass uprisings, or other government policies? Considering the nature of atrocities during the late 20th and early 21st centuries in areas such as Afghanistan, Bosnia, Cambodia, the Democratic Republic of the Congo (formerly Zaire), Rwanda, Sierra Leone, Sudan, and Syria, what course of action will promote a general opinion that justice has been served in ways that establish a clear break with the past? Strategies must balance the individual psychological needs of victims in terms of providing support, redress, and closure with broader future goals that encompass necessary steps to move the society as a whole toward reconciliation and forgiveness. Balancing the desire for vengeance by victims against the fear of a general program of retribution by the general public requires a remarkable exercise of political will and wisdom in a climate where, as in Rwanda and Kosovo, hatred may still form a significant backdrop for victims and perpetrators alike.
This article provides an overview of international approaches to crime punishment, particularly as they relate to mass atrocities and human rights abuses such as the Holocaust or other genocides. Beginning with a discussion of strategies and goals in the aftermath of such incidents, the entry continues with an examination of what is involved in implementing trials and transitional justice measures such as truth commissions.
Strategies and Goals
After World War II, the reaction to the Holocaust ignited a firestorm of activity focusing on developing international regimes to protect human rights. In addition to the International Military Tribunal, under Control Council Law 10, the Allies held 12 trials at Nuremberg that ostensibly dealt with war crimes. Because the term genocide had not yet entered into the legal lexicon, many of the charges comprised crimes against humanity as defined in the London Charter of the International Military Tribunal. In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights, which served as the foundation document for future treaty law, and states quickly negotiated and adopted the Genocide Treaty. The Genocide Treaty envisioned an international court to try cases. However, that provision remained a dead letter for almost 50 years until the creation of the ad hoc tribunals and the establishment of the International Criminal Court (ICC) in the wake of the conflicts in Bosnia and Rwanda in the 1990s.
Trials as the appropriate strategy for dealing with past incidents of mass atrocity and mistreatment appeared to be a preferred choice, but the tumultuous events of the late 1980s and early 1990s also generated another movement that has had a considerable impact. While various conflicts and their associated events garnered center stage, a considerable number of autocratic/despotic regimes changed to democratic forms of government. The new regimes in states such as Chile, Guatemala, and South Africa also faced the issue of how best to deal with the excesses of previous governments. The trend generated many suggestions for alternative approaches to deal with the problems and inadequacies of trials as sole solutions. Based on the proposition that victims of massive human rights abuses have a right to know the truth and to receive reparations, alternative approaches emerged under the collective label, transitional justice.
Transitional justice encompasses a hybrid approach that primarily involves nonjudicial measures to redress legacies of massive human rights abuses. In theory, through an emphasis on victims’ rights, if correctly organized and implemented, transitional justice will promote civic trust and support for the institutions of a democratic rule of law. The chief methods used to implement transitional justice strategies are commissions of inquiry, commonly referred to as truth commissions, authorized to conduct official investigations into past patterns of abuse. The process may incorporate trials but not as the primary method of establishing responsibility for transgressions.
Trials
Advocates argue that trials provide an important historical function by investigating, examining, and illuminating the details of cases as well as dispensing a rough justice, particularly to the leaders, planners, and organizers regardless of their position. A by-product is the positive impact on advancing the cause of international human rights through the interpretation of substantive law as well as the development of appropriate process. The International Criminal Tribunal for the former Yugoslavia (ICTY) asserts that it has provided thousands of victims the opportunity to be heard and to speak about their suffering. Critics argue that the judicial process is ill-suited to deal with questions of justice and reconciliation that arise in the wake of either a large-scale incident (e.g., Rwanda) or a long-standing pattern of discrimination and abuse. Moreover, in the aftermath of such an upheaval, local justice systems may lack the will, resources, and administrative support to conduct investigations and protect witnesses. Personnel may lack both the motivation and skills to mount successful cases. The most cogent criticisms focus on the perceived limitations of the judicial process itself: inflexibility, scope, and the costs and time necessary for trials.
First, critics point out that the process of reconciliation requires sensitivity to situational nuances that trials cannot provide. In particular, lawyers and judges operate by methods of fact determination and processes that differ significantly from those used by politicians and diplomats. The legal process has the goal of producing outcomes according to a standard set of procedures that presumably will produce comparable decisions in related cases. Courts require proof adduced through the application of a very strict set of rules. Such proof may not always be readily available considering the murky circumstances that often surround violent conflicts. For example, in 2011, due to the lack of evidence, the ICC had to withdraw the indictments or end the trials of six high-profile Kenyans that included President Uhuru Kenyatta.
Political leaders and diplomats look for viable solutions that fit the specific situation as they see it at the time—the art of the possible. Their craft depends upon flexibility in finding the right strategy to deal with a situation to produce a politically acceptable outcome. When the Security Council debated setting up the ICTY, many diplomats expressed misgivings about the impact of possible indictments on the peace process that eventually produced the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (also known as the Dayton Accords) because the individuals essential to implementing the agreement were also the individuals most likely to be indicted. Nonetheless, the ICTY prosecutor proceeded to issue indictments, regardless of the political consequences. The 2009 ICC indictment of President Omar Bashir (Sudan) has raised similar issues with respect to Darfur.
Second, judicial systems are not equipped to handle a large volume of cases in a timely manner. The sheer scale of genocidal crimes involving thousands of killers can overwhelm almost any judicial system, but what tribunal could hope to punish all of the guilty or impose an appropriate sentence for those who planned and facilitated genocide while promoting a general feeling that justice has been done? In the aftermath of the 1994 Rwanda genocidal campaign, jails held 130,000 accused, far beyond the capabilities of any justice system to prosecute in a timely manner. Although national courts prosecuted a larger number, during its 20-year life span (1994–2014), the International Criminal Tribunal for Rwanda dealt with a total of 93 cases; 75 of these actually went to trial.
Third, trials by their nature seem an extraordinarily awkward, slow, and expensive way to deal with the types of problems presented by genocide and mass atrocity. At its peak, the ICTY employed 1,200 people. These included 18 permanent judges and a number of judges ad litem (temporary) to help move the workload forward. The ICTY indicted 161 individuals. The trial of Slobodan Milošević, the first ever of a sitting head of state, had just entered its fifth year when his death in 2006 ended proceedings.
Fourth, in terms of retributive justice, what sentence or series of sentences could possibly appropriately balance the scale when guilt involves death and injury to thousands? We tend to think in terms of domestic criminal law systems where the idea that, in some measure, the law applies penalties proportionate to the crime. Yet the crimes of the worst serial killers seem insignificant in comparison with genocide and crimes against humanity. The deeds of those responsible for the appalling level of atrocities in Rwanda or Cambodia mock the ideal of appropriate punishment. European Community courts and all international courts may not impose the death penalty. As of 2017, the ICTY and International Criminal Tribunal for Rwanda have been reluctant to hand out life sentences. Still, given the age of many defendants, these may equate to a life sentence.
Truth Commissions
Archbishop Desmond Tutu, who chaired South Africa’s Truth and Reconciliation Commission, briefly summarized the theory behind alternative strategies. He asserts that the best strategies must originate from within, not from the outside. Simply, those who have suffered have to decide what is best for them. Arguments for commissions of inquiry also emphasize the ideas of fairness and due process. If prosecutions are part of the process, they will focus on those who committed the most barbarous acts. Advocates argue that commissions of inquiry and limiting prosecutions to the few directly responsible for specific acts, while avoiding the attribution of collective guilt to the entire population, will establish an impartial historical record and provide victims with a sense that their grievances have been addressed.
In theory, truth commissions reach more people directly in that the process requires involvement and dialogue at the grassroots level rather than often remote judicial hearings. As cogent as this may sound in humanitarian terms, these processes can be as slow as, if not slower than, judicial hearings and involve some of the same problems. Because of hardened attitudes, incidents of mass atrocity and genocide, such as in Kosovo and Rwanda, produce perceptions of winners and losers. Practically, seeking to overcome those attitudes to engender a genuine dialogue has its pitfalls. Beliefs often do not change, and psychological wounds do not heal easily. The ultimate evaluation will depend upon two factors: the willingness of individuals to come forward to speak and how a government deals with the findings of the commission. Given that the goal is to reach as many victims and others with knowledge of events, the number of witnesses and hearings may consume considerable time and expense. Sheer numbers may preclude more extensive investigations into individual cases.
Foremost among obstacles is establishing the trust necessary to have people come forward. Resource constraints often make witness protection programs problematic or nonexistent. Those involved have a high motivation to destroy any evidence of their complicity and often still remain committed to the cause. Targets will include witnesses and those perceived as collaborators. In Northern Ireland, 10 years after the Good Friday Agreement, individuals who attended local meetings aimed at promoting reconciliation between local groups of Catholics and Protestants received death threats.
The impact also depends on how governments then respond to the findings. The difficulties of moving forward in the aftermath of such upheaval require a resolute political will to tackle sensitive cases that involve high-profile instigators or other participants who may still have a following. Programs of amnesty at the local level, often enacted by a still-corrupt regime, have sought to preclude investigation and prosecution. In some countries, the assassinations of judges and prosecutors and others who have sought to move beyond the violence seemed to have dampened the zeal to investigate, let alone punish. The final assessment of truth and reconciliation projects remains to be seen, as does the long-term impact of the ad hoc international courts and that of the ICC.
References:
- Bisset, A. (2012). Truth commissions and criminal courts. Cambridge, UK: Cambridge University Press.
- Drumbl, M. A. (2007). Atrocity, punishment, and international law. Cambridge, UK: Cambridge University Press.
- Gready, P. (2011). The era of transitional justice: The aftermath of the truth and reconciliation commission in South Africa and beyond. New York, NY: Routledge.
- Hafetz, J. (2018). Punishing atrocities through a fair trial: International criminal law from Nuremberg to the age of global terrorism. Cambridge, UK: Cambridge University Press.
- Hayner, P. B. (2002). Unspeakable truths: Facing the challenges of truth commissions. New York, NY: Routledge.
- King, K. L., & Meernik, J. D. (2017). The witness experience: Testimony at the ICTY and its impact. Cambridge, UK: Cambridge University Press.
- Minow, M. (1998). Between vengeance and forgiveness: Facing history after genocide and mass violence. Boston, MA: Beacon Press.