Prosecutions

Criminal justice is an essential part of an integrated response to massive human rights violations and should be pursued whenever possible. Prosecutions must focus on individual accused, yet these efforts also have the potential to reveal how large-scale crimes are committed and restore victims' dignity and public confidence in the rule of law.

Domestic courts for such prosecutions remain the preferred forum to bring lasting change. In the past, however, trials at the domestic level have been rare. This has led to significant advances in international justice efforts, such as the creation of ad hoc international criminal tribunals, various hybrid courts, and the International Criminal Court (ICC).

The ICTJ prosecutions program has worked with domestic and international justice initiatives, drawing upon staff with experience in such tribunals. Current staff include Marieke Wierda (Director), Caitlin Reiger (Deputy Director), Cecile Aptel (ICTJ senior fellow), Habib Nassar (ICTJ New York), Dorothée Marotine and Thomas Unger (ICTJ Brussels), Michael Reed (ICTJ Bogotá), and Richard Bailey (ICTJ New York). Regular consultants include Susan Kemp, Nicolas Guinard, Bogdan Ivanisevic, Thierry Cruvellier, and Mohammed Suma. The program has also benefited from the involvement of senior consultants such as Robin Vincent, Luc Coté, and Christine Chung.

Domestic Prosecutions

Domestic prosecution initiatives can have tremendous impact but also often experience problems of capacity and political will. It remains a challenge to determine which domestic prosecutions deserve support.

Prominent recent examples of the challenges faced in such prosecutions are the trials of members of the former regime of Saddam Hussein in Iraq. The Iraqi High Tribunal (IHT) suffers from a variety of problems, including political interference and perceived lack of legitimacy resulting from U.S. involvement. The ICTJ has been at the forefront of international on-the-ground monitoring of the proceedings before the IHT. It was one of only two organizations to observe the Dujail and Anfal trials in person in Baghdad from beginning to end. It has produced several briefing papers on the IHT and the trials as a result of collaboration by Miranda Sissons, other members of the MENA unit, and the Prosecutions Program. Through this collaboration the ICTJ also made available reliable translations of major documents produced by the IHT.

In previous years the ICTJ evaluated several other domestic prosecutions. The Center's Paul Seils produced detailed analyses of the Special Prosecutor's Office in Mexico and the Ad Hoc Human Rights Court in Jakarta, Indonesia. In February 2008 the ICTJ published a landmark assessment of domestic trials in Serbia by Bogdan Ivanisevic. The ICTJ was also involved in a legal challenge to the new National Prosecution Authority's policies in South Africa.

Domestic prosecutions are particularly prominent in Latin America. The ICTJ, mainly through Michael Reed, has advised the Colombian Congress on strategies to end impunity and preserve accountability in the context of the new Peace and Justice Law proceedings against former paramilitaries. In addition, the Center filed an amicus curiae brief with the Colombian Constitutional Court, resulting in significant changes to the law. Since then it has been involved in a major technical assistance program to the Office of the General Prosecutor, focusing on victim participation and the technical aspects of prosecuting large-scale crimes. The trials in Colombia are of particular importance because of the ICC's scrutiny of the proceedings.

The Center also gives training and technical assistance on prosecutions issues. It has worked with the special prosecutor in Guatemala, assisting in the development of investigations into war crimes and crimes against humanity, and has advised the Peruvian attorney general and civil society groups on strategies to investigate and prosecute crimes committed from 1980 to 2000. The ICTJ is currently engaged in monitoring the trial of Alberto Fujimori in Peru and is preparing an amicus curiae brief for that trial. Finally, the Center deployed a technical-assistance mission to Argentina and produced a report on the current trials regarding crimes committed during the military junta. Further work with the Attorney General's Office is currently being planned in partnership with the Center for Legal and Social Studies (CELS). Susan Kemp and Michael Reed will work mainly on Latin America issues. Both have a background in domestic prosecutions initiatives in Guatemala and Colombia.

In 2008 one of the ICTJ's major focus areas will be the pursuit of prosecutions in the Democratic Republic of the Congo, with special emphasis on providing recourse in the domestic courts for gender-based violence. Uganda may also seek to exercise its domestic jurisdiction through a special division of the High Court of Uganda for the conflict in northern Uganda under the provisions of a pending peace agreement. This would entail Uganda challenging the jurisdiction of the ICC for senior Lord's Resistance Army (LRA) leaders under the complementarity provisions of the Rome Statute. Members of the ICTJ prosecutions team, particularly Marieke Wierda and Richard Bailey, have been involved in advising the Court.

The prosecution of former heads of state is a particular trend that the ICTJ has identified and closely observed over the past few years. Recent efforts have included the trials of Slobodan Milosevic, Charles Taylor, Saddam Hussein, Alberto Fujimori, and Hissène Habré, as well as proceedings against Augusto Pinochet in Chile. A book on this subject, edited by Ellen Lutz and Caitlin Reiger of the ICTJ prosecutions program, will be published by Cambridge University Press in late 2008.

In late 2004 the ICTJ prepared a policy tool for the Office of the UN High Commissioner for Human Rights (OHCHR) on considerations governing domestic and hybrid prosecution initiatives. It is currently distributed to UN missions around the world. In recent years another question that has become increasingly prominent in domestic settings is best practices to rebuild domestic justice systems in relation to other post-conflict goals, including transitional justice. In this regard the ICTJ has engaged consultant Nicolas Guinard to produce a six-month study of these dilemmas, based on fieldwork in Kosovo, Guatemala, and the DRC. A rule-of-law assessment is also under way in Afghanistan, and efforts to prosecute in third countries because of limitations on domestic prosecutions are being explored in relation to several other countries where the ICTJ works.

Hybrid Tribunals

The ICTJ has had specific experience with hybrid tribunals in Sierra Leone, Timor-Leste, Kosovo, Bosnia, Cambodia, and Lebanon. Hybrid courts generally operate where the crimes occurred but employ international personnel, and usually have jurisdiction to try international crimes. These courts offer an important model for bolstering national capacity with adherence to international standards while ensuring that the proceedings have relevance for affected communities.

The ICTJ's early involvement with hybrid tribunals concentrated on the Special Court for Sierra Leone. Senior Associate and Director of Prosecutions Marieke Wierda advised the Court on its relationship with the Truth and Reconciliation Commission, rules of procedure, issues of legacy and outreach-including how ex-combatants would perceive the Court-and other technical matters. Caitlin Reiger was formerly a senior legal officer in the Chambers of the Special Court. The Center also assisted in the establishment of a local NGO, the Sierra Leone Court Monitoring Program. Most recently the ICTJ has been monitoring the trial of Charles Taylor in The Hague, which has an interesting relationship with parallel proceedings before Liberia's Truth and Reconciliation Commission, and producing an updated analysis of the Special Court.

In 2004 the Center organized an exchange of judges of the Special Court with judges of the International Criminal Tribunal for the former Yugoslavia. ICTJ Senior Associate Paul Seils also gave advice on select issues related to the Serious Crimes Unit and special panels in Timor-Leste, and the ICTJ produced several reports on those trials.

In 2006 the ICTJ published landmark studies drawing on field studies and emphasizing broader policy issues of three hybrid tribunals: the Serious Crimes Unit and special panels in Timor-Leste, the Special Court for Sierra Leone, and the mixed panels in Kosovo. These studies are also available in French. A fourth study, on the War Crimes Chamber of the Court of Bosnia and Herzegovina, is forthcoming.

In July 2005 Senior Associate Caitlin Reiger conducted an assessment of the Extraordinary Chambers in the Courts of Cambodia (ECCC, also known as the Khmer Rouge Tribunal) and is currently providing technical advice to that tribunal and closely monitoring progress. In 2006 the ICTJ provided technical assistance to the ECCC on communications policy and gave input on the draft rules of procedure and evidence. In 2007 the ICTJ provided comparative information on hybrid tribunals to the ECCC and civil society and assisted in training Cambodian journalists who will cover the trials. In early 2008 the ICTJ conducted a training workshop for the judges of the ECCC on reparations, the subject of follow-up work in 2008. In addition to direct technical assistance to the Court, the ICTJ is also working on building the capacity of Cambodian civil society to deal with issues related to the Tribunal, particularly in the areas of victim participation, reparations, and the ECCC's potential legacy. The ICTJ has deployed a consultant to Bosnia and Herzegovina who has advised the UN Development Program and national actors, including the Bosnian War Crimes Chamber, on projects related to transitional justice. The Center has also provided regular input to discussions regarding the development of a national prosecutorial strategy to address the many war crimes cases still outstanding. Dorothée Marotine was formerly employed as a legal adviser at the OSCE in Bosnia, and Cecile Aptel worked with the Bosnian War Crimes Chamber in its early stages.

The latest hybrid tribunal for Lebanon was established in October 2007. The Special Tribunal for Lebanon is unique, as it will have very limited jurisdiction over political assassinations that have occurred in Lebanon since 2004. In 2007 the ICTJ held a comparative workshop for Lebanese judges and lawyers on the Special Tribunal. It also produced a briefing paper and several academic articles on this development in collaboration with the ICTJ MENA unit, particularly Habib Nassar and Lynn Maalouf.

The Center recently collaborated with the UN Office of the High Commissioner for Human Rights on another policy tool on legacy issues, measuring the potential for positive impact of hybrid courts on domestic legal systems; The tool was published in April 2008. This project included fieldwork in Sierra Leone, Timor-Leste, Bosnia and Herzegovina, Kosovo, and Cambodia.

The ICTJ's work on the ad hoc International Criminal Tribunals has concentrated on legacy and residual issues that may arise after the Tribunals complete their trials and appeals. Cecile Aptel, Marieke Wierda, and Thomas Unger were all former staff of the International Criminal Tribunal for the Former Yugoslavia (ICTY). Dorothée Marotine and Cecile Aptel also worked at the International Criminal Tribunal for Rwanda (ICTR). Cecile Aptel was appointed to a UN group of experts that will consider how best to store and use archives of the Tribunals-an initiative headed by ICTJ board member and former Tribunal prosecutor, Richard Goldstone. In February 2007, with the University of Western Ontario, the Center hosted a landmark conference on legal obligations that will continue after the tribunals close their doors. The conference was attended by high-level participants from ICTY, ICTR, the Special Court for Sierra Leone, and the Khmer Rouge Tribunal. In late 2007 Cecile Aptel participated in a high-level meeting on legacy at ICTR. In February 2008 consultant Thierry Cruvellier attended a similar conference on the Special Court for Sierra Leone. The Center will be engaged in various legacy initiatives as they go forward, particularly in relation to ICTY.

The International Criminal Court

The ICTJ attaches particular importance to the advent of the International Criminal Court and its potential global impact. The Center's focus to date has been on select issues, such as complementarity, the "interests of justice," and victims' issues, including outreach, the Trust Fund for Victims, victim participation, and survey work. Additional work with the ICC is primarily through its country programs in Uganda, the DRC, and Sudan.

In Uganda the ICTJ produced a population-based survey, "When the War Ends," as a follow-up to the 2005 "Forgotten Voices" report. Undertaken during the peace talks in Juba and in partnership with the University of California, Berkeley, and Tulane University, the survey found generally higher levels of support for non-prosecution-oriented measures, indicating a shift from 2005, when many respondents preferred punishment of crimes committed by the LRA and the Ugandan army. In 2007, 60 percent of respondents had heard of the ICC, compared to 27 percent in 2005. A similar survey from the DRC will be published in 2008.

The Center maintains a close relationship with the ICC and has participated in the final Preparatory Commission meetings in New York and several of the Assembly of State Parties meetings. It also participated in expert groups on the Trust Fund for Victims, reparations, and complementarity. In 2006 it hosted a week of discussions between the prosecutor and a broad-based group of civil society activists from around the world on the interests of justice. The ICTJ produced a discussion paper on the ICC's Victims Trust Fund and is planning further activities on this subject. In 2004, with the Liu Institute for Global Studies, the ICTJ convened a meeting of international justice policy-makers, addressing the so-called "impunity gap" for cases that will not come before the ICC. In 2007 the ICTJ collaborated with the Royal African Society and the London School of Economics on a series of discussions held in London about the ICC in Africa.

The ICTJ is particularly involved in peace and justice issues involving the ICC. The Center has advised mediators on the ICC's relevance to conflict mediation and produced a paper on the topic that was translated into Spanish and presented in Colombia. It has produced analysis of complementarity issues in Colombia and Uganda.

In June 2007 the ICTJ cohosted a major conference on peace and justice with the governments of Germany, Finland, and Jordan and the Conflict Management Initiative in Germany. The conference, "Building a Future on Peace and Justice," was attended by 350 diplomats, practitioners, prominent personalities, and grass-roots activists from around the world. It resulted in the drafting of the "Nuremberg Declaration on Peace and Justice," which soon will be publicly available.

Prosecutions Network

In May 2005 the ICTJ and the Foundation for Human Rights of South Africa held a major international conference on domestic prosecutions near Johannesburg. This conference was the first of its kind and was attended by representatives of some 15 countries involved in prosecutions.

The conference was intended to stimulate interchange between domestic prosecutors and to encourage a re-examination of post-TRC prosecutions in South Africa. Since the conference the ICTJ has worked on establishing a prosecutions network of experienced practitioners in the field. The network exists to provide an organized forum for the exchange of investigative strategies and legal approaches for the promotion of domestic prosecutions. In November 2006 members of the network met in New York to discuss challenges of trying heads of state and senior political officials. The meeting on "Planning for Residual Issues for International and Hybrid Tribunals," organized with the University of Western Ontario and the Open Society Justice Initiative, was also a network activity. In February 2007 another network activity, a meeting on legacy and residual issues related to ad hoc tribunals, took place in New York. In November 2007 Caitlin Reiger participated in the Fourth Colloquium of International Prosecutors in Phnom Penh, Cambodia.

As part of its network activities the ICTJ Prosecutions Program is continuing to develop policy materials for use by practitioners. It recently developed two best-practice manuals, including a handbook on establishing in-country courts by Robin Vincent, the former registrar of the Special Court for Sierra Leone. The former chief of prosecutions of the Special Court for Sierra Leone, Luc Coté, has developed a second best-practice manual on establishing in-country investigations and prosecutions for mass crimes. In conjunction with the ICTJ Gender Program a handbook on gender and prosecutions is also under way.

In another major initiative headed by Thomas Unger, the ICTJ is producing a handbook for NGOs on gathering documentation in ways that assist or do not hinder future prosecutions. The production of this handbook has involved widespread consultation efforts with various tribunals, as well as on-the-ground consultations with NGOs about the content and utility of the handbook, which will be published in the first half of 2008.

(Updated April 2008)