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Key Text Cambodia, East Timor and Sierra Leone: Experiments in International Justice

Author: S Linton
Date: 2001
Size: 63 pages (310 KB)

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Summary

Can international tribunals achieve justice following massive violations of human rights? Are expectations that they will bring international standards to domestic judicial processes realistic? This paper for the Criminal Law Forum considers and draws lessons from internationalised domestic tribunals in Cambodia, East Timor and Sierra Leone.

International tribunals are one of a range of transitional justice options available to nations seeking to address legacies of violence. They use mixed national/international panels to attain international standards with local ownership. This represents a move away from earlier prevailing wisdom that impartiality is preserved by the exclusion of nationals on tribunals. International tribunals have the potential to bring accountability and justice for massive violations of human rights close to the affected population. They give a nation in transition the opportunity to be directly involved in an internationally sanctioned judicial process delivering justice to its own people. This is preferable to nations doing nothing, doing it alone, or being on the sidelines of a purely international process. However, the experiences of the countries considered is that achieving justice through international tribunals is difficult:

Prosecuting and trying international crimes is complex, politically sensitive, and requires substantial resources, including experienced and competent personnel.
Enterprises born of compromises on fundamental issues are unlikely to be able to be implemented in accordance with international standards.
Many problems arise where domestic legal institutions are weak and not firmly grounded in due process.
Problems also arise in politically and emotionally charged circumstances if judicial processes do not satisfy public demands for accountability and international standards of human rights.

Failure may cause a fragile society to reject rule of law and cause irreparable damage to long-term efforts to achieve peace and reconciliation. The selection of an internationalised domestic tribunal as a mechanism for achieving transitional justice must not be simply copied from elsewhere. There must be full and informed consideration of other models, and designed with the needs and circumstances of the particular country. Consultation with experts and public debate are essential, other policy implications are:

Consideration of international relations and how they will impact on the tribunal and its process is also important. A means of ensuring that these courts have the means to secure the co-operation of third party states needs to be developed.
Where domestic legal systems are weak and the decision is taken to go ahead with an internationalised tribunal, there must be international control of the process, and over key administrative elements (such as selection of judges).
If domestic police/investigative institutions are weak, there must be provision enabling skilled international investigators to conduct investigations.
Legislation must not be rushed through. It must accord fully with international standards of human rights.
The selected model should not be unduly complicated, or used to deal with peripheral problems such as those arising from state failure or inability to discipline peacekeepers.
In situations of massive violations of human rights, it may be necessary for legislators to identify a target group, such as leaders, as it will not be possible to prosecute every criminal act.

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Source: Linton, S., 2001 'Cambodia, East Timor and Sierra Leone: Experiments in International Justice', Criminal Law Forum 12