And Justice for Some

In the universe of international criminal law October 2, 1998 is a bright, shimmering star. It was on that day that Jean Paul Akayesu, school teacher and bourgmestre of the Taba commune, was sentenced to life imprisonment for his role in the Rwandan genocide. It was the first time since the Genocide Convention was adopted in 1948 that a person was convicted of genocide.

The ad hoc tribunals played an important role in ending impunity, but they were also instrumental in interpreting and developing international criminal law. Two examples are the Trial Chambers in Akayesu and Celebici which equated sexual violence with genocide and  elucidated command responsibility, respectively.

Even among the convictions of war criminals and maturation of international law there lurked flaws in the ad hoc system. For one, the tribunals were established in faraway lands (the ICTY in the Netherlands and the ICTR in Tanzania). They were removed from the context of the violence as well as set apart from the victims and societies they were charged with healing.

Some have also pointed out that the tribunals are an administrative mess. One UN report even singled out the ICTR for not having a single administrative support function operating either efficiently or effectively. The trials themselves are also slow and plodding. In the thirteen years of its existence the ICTR has completed only 45 cases, with seven of those still awaiting appeal. Conservative estimates of the Rwandan genocide place the death toll at 500,000 in the time period between April and July 1994. Many more than 45 men committed this crime (in fact some scholars claim that 1 in 4 Rwandans participated directly in the killings). In comparison, since 1996, the ICTY has completed 86 cases with 41 cases pending. Both tribunals are set to finish their work by 2010, undoubtedly leaving many guilty parties still free.

An even more troubling accusation is that the ad hoc tribunals violated state sovereignty. Both tribunals were established by UN Security Council resolutions and populated with judges and prosecutors from a variety of countries. The governments of the former Yugoslavia and Rwanda accepted the courts because they had little choice in the matter not because they were looking for international justice.

Recognizing these flaws the UN attempted another approach to transitional justice in the new millennium. They formed partnerships and worked with post-atrocity governments to create what were known as "hybrid courts". Two examples of such courts are the Special Court for Sierra Leone established in 2002 and the Extraordinary Chambers in the Courts of Cambodia which began work in 2007. These courts would be placed in the countries where the crimes were committed, would include both national and non-national judges and would rule on matters of domestic and international law.

But was the problem being addressed? Were genocide survivors looking for more ownership over the process? Or was the process itself the problem? Next time we will look at non-judicial responses in the quest for justice.

[Photo from ECCC website, it's of the public galllery during testimony of S-21 survivor Vann Nath on June 29, 2009.]