Adam Smith’s book posits that international criminal tribunals, especially those of the Former Yugoslavia (ICTY) and Rwanda (ICTR), don’t actually do justice for the people of the places where atrocities occurred. The Tribunals are remote, have a tin ear for local politics, and don’t lead to lasting improvements in local justice systems. Instead, Smith proposes relying on, and using international assistance to strengthen, national judicial systems. He uses the example of local courts in the former Yugoslavia, especially Croatia, to show that even under difficult circumstances such local courts do a better job.

I agree with much of Smith’s analysis. It is true that international tribunals have significant drawbacks. Some of these are inherent to being far removed from the nuances of local politics and culture; indeed, one of the strengths of these tribunals is that they can be impartial because they have no prior allegiance to any party to the conflict. Others are a product of the way these particular courts have developed over time: a better outreach strategy, and a greater awareness of the importance of outreach, would have improved the ICTY’s image in the Balkans considerably.

But I have a number of problems and questions about the analysis. First, if the problem is that different people have differing conceptions of justice, isn’t that an argument not only around national vs. international courts, but about courts, period, versus other ways of dealing with wrongdoers? I was really surprised that Smith didn’t go down the road of restorative justice/traditional justice/truth commissions that has been the most well-rehearsed response to the relative nature of justice argument. Not that I agree with all of the arguments against trials and in favor of “local” non-judicial solutions: far from it. I think that trials serve a number of limited purposes that cannot be avoided. The problems come when they are seen as the end-all-and-be-all: the one indispensable mechanism to make society heal. Rather, as I’ve written before(1) no single way of dealing with past atrocities is likely to be adequate: some combination of truth-telling, symbolic and material reparations, legal reform and structural reform aimed at economic and social inequalities, in addition to trials or other justice mechanisms, is likely to be necessary, even if not sufficient.

Second, it has seemed to me that positing the question of where trials should take place – in national or international courts — as an either/or is inadequate. The two are intimately connected. Smith writes of a paradox, in which the very conditions of stability and state cooperation that make international trials have any hope of success (at least outside the context of a Nuremburg-like trial established after complete military victory) are the same conditions that make national trials possible. Thus, to argue that international trials are needed because the conditions for national trials are missing makes no sense. In this regard, Victor Peskin’s book on the Trials of Cooperation confirms Smith’s point that international justice, at least in its current, not very muscular mode, cannot proceed without some negotiation with the states involved. This may take the form of economic coercion or bribes, or of threats or promises related to witness or document availability or the like.

But there is another paradox. Sometimes the only way to get credible domestic trials started is through the use of international judicial mechanisms. This may take a number of forms. The most obvious is the design of the ICC, in which states may avoid an ICC investigation or prosecution, under the complementarity mechanism, if they are credibly investigating or prosecuting in national courts. The trick for the ICC Prosecutor is to push his or her own investigations just the right amount to convince national authorities that they must act. In other cases, prosecutions brought in “third-party” national courts under universal jurisdiction can prod national authorities to act because they have committed to trial at home in an effort to avoid trial abroad, or because national pride on the part of judges or government officials (or even the preference of the defendants to be tried at home if they are to be tried) pushes towards national trials. But those national trials, now under international scrutiny, are now less likely to be mere shams. The paradigmatic case here is the investigations and almost-trial of Augusto Pinochet in Chile. After Pinochet’s arrest in London on a Spanish warrant, lawyers argued to the British courts that he could not possibly be tried at home, given an amnesty, the jurisdiction of military courts, statute of limitations issues and political reality. However, by the time Pinochet returned home, and driven in part by the universal jurisdiction case itself, those conditions had changed. Judges limited the scope of the amnesty and found that civilian, not military courts, had jurisdiction. Politicians fell over each other explaining why the courts had to do justice, especially after it became clear that Pinochet and his family had stashed multiple millions of dollars in offshore accounts. He died weeks away from standing trial. A third variant can be seen in Peru. After the Inter-American Court of Human Rights held that an amnesty law put in place by former president Alberto Fujimori was a violation of the state’s legal obligations, judges began investigating human rights violations, including those of high-ranking military officers accused of massacres. Eventually, the evidence led to the top, and when Fujimori made the mistake of showing up in next-door Chile, he was successfully extradited and tried on massacre charges, and sentenced last April to twenty-five years in prison. The paradox: the very act of bringing a case abroad because it cannot be brought at home changes the conditions at home, and may make it more possible, over time, to bring the case there.(2)

There are also increasingly mechanisms that try to combine national and international trials in interesting ways. In Guatemala, for example a UN-backed Commission on Impunity in Guatemala (CICIG) is to “determine the existence of illegal security groups and clandestine security organizations, their structure, forms of operation, sources of financing and possible relation to State entities or agents and other sectors that threaten civil and political rights in Guatemala, in conformity with the objectives of this Agreement,” collaborate with the State in the dismantling of these groups, promote the investigation, criminal prosecution, and punishment of those crimes committed by their members, and recommend the adoption of public policies for eradicating such groups and preventing their re-emergence.

To accomplish its goals, CICIG cannot directly prosecute crimes, but can initiate criminal complaints, provide information to the Prosecutors’ Office, and act as a complementary prosecutor (querellante adhesive) in criminal cases. It can subpoena documents, hire its own staff of investigators, file disciplinary complaints against public servants, guarantee confidentiality to witnesses, and publish its results. It has been looking into everything from large-scale drug smuggling to corruption in the Attorney General’s office to the murder of a well-connected lawyer. It remains to be seen how effective such a hybrid mechanism will be, but it does suggest another way of bridging the national/international divide.

This leads me to a final point that Smith raises: the link between violations of human rights and international humanitarian law and corruption. In both the Pinochet and Fujimori cases, what broadened and solidified majority support for trials was information that not only had they killed, tortured and disappeared people, but they had enriched themselves and their families while doing so. The ideological justifications for using “excessive force” or “unavoidable excesses” fell away in the face of corruption-related charges. Smith makes the same point with respect to former Yugoslav president Milosevic. It might have been better to try him in Serbia for corruption, rather than immediately send him to The Hague. Perhaps the concern was that Serbia would “lose” its defendant, who would then slip through the fingers of international justice. I doubt that would have happened. At this point, we’ll never know, but the question of spending more time looking at the pecuniary peccadilloes of violators, and of combining human rights with corruption charges where possible, remains a valid one.

Naomi Roht-Arriaza is professor at the Hastings College of the Law, University of California.

—
(1) See Roht-Arriaza and Mariezcurrena, eds., Transitional Justice in the Twenty-First Century: Beyond Truth vs Justice (Cambridge University Press, 2006). Forgive the crass advertisements, but some readers might want to look at the extended versions of some of these observations.
(2) For more on this dynamic, see Roht-Arriaza, The Pinochet Effect: Transnational Justice in the Age of Human Rights (Penn Press 2005).