Trials

Trials can take different forms, including international, hybrid and national courts and transnational criminal and civil proceedings. International courts have taken the form of ad hoc, temporary tribunals – notably the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) in the 1990s. The International Criminal Court (ICC) was established in 2002 to serve as a permanent international tribunal. Under Article 17 of the Rome Statute of the ICC, the Court can intervene only where a state is ‘unable or unwilling to genuinely to carry out the investigation and prosecute the perpetrators’.

Hybrid or mixed courts, located within the country in which the crimes were perpetrated, have been introduced as a mechanism for combining international intervention and support for the national judicial system. Hybrid courts are often considered to incorporate the benefits of both international and national courts. They allow for international expertise and contribute to capacity-building of national legal systems. In addition, their situation in the local setting allows for greater ownership and potential impact on the population. National courts also engage in prosecuting international crimes, often through special sections, for example the War Crimes Chamber in the State Court of Bosnia and Herzegovina (BiH).

The effectiveness of mixed and national prosecutions depends significantly on the national or local justice system, which may be weak and defective, particularly in fragile and conflict‐affected states. There is a tendency to have national trials designed and staffed by international actors in order to address this capacity gap. This can, however, cause frictions with local actors. In BiH, for example, the local judiciary felt their expertise was neglected. Even in the case of hybrid tribunals (such as in Cambodia, Timor-Leste and Sierra Leone) that lend themselves to capacity-building and knowledge transfer, experience has shown that capacity-building has been limited in part because of conflicts of interest. It is necessary for international actors to take specific additional measures to strengthen local capacity (AIV & CAVV, 2009). In Rwanda, thousands of lawyers have been trained over the past decade and have been able to replace foreign lawyers involved in genocide trials (AIV & CAVV, 2009). This can be an important component not only of capacity-building but also of outreach (see Lambourne, 2010).

At the same time, however, domestic prosecutions in Rwanda (which were supported with international funding) were undermined due to inadequate due process protections, politicisation and poor detention conditions (van Zyl, 2005). This was due in part to insufficient resources. In addition, after a period of sustained human rights violations, populations are often unwilling to accept the idea that suspects also have rights. Aside from building up a physical and knowledge infrastructure, transitional justice mechanisms can specifically help to establish a culture of human rights. Communication and outreach strategies are essential here (AIV & CAVV, 2009).

For further discussion, see the section on impact of transitional justice in this guide.