5. Post-conflict justice: developments in international courts

Summary

The nexus between justice and peace has grown stronger in recent years. Prompted by the experiences in Argentina, the Western Balkans, Rwanda and South Africa, discussions have focused on the necessity of holding accountable those responsible for committing atrocities and grave crimes during armed conflicts to enable a more sustainable peace-building process. In 2003, several significant developments in formal institution building occurred in the sphere of post-conflict justice.

The International Criminal Court (ICC), established in July 2002, has moved from a paper court to a fully functioning one. All of the court’s key staff––the judges, the Chief Prosecutor and the Deputy Prosecutor––were elected and, by the end of the year, they had identified the situations in the Ituri region of the Democratic Republic of the Congo and Uganda as the first two cases the court would hear. However, the progress of the ICC has been beset by continued opposition, particularly from the United States, which has maintained its policy of pursuing Bilateral Immunity Agreements with states parties to the Rome Statute and non-states parties alike, and implemented the American Service Members’ Protection Act.

The Rome Statute can be seen to have established a system of international criminal law rather than simply a court. Several states have already begun to incorporate laws against crimes within the ICC’s jurisdiction into domestic law. This will further embed the concept of non-impunity.

The creation of treaty-based ‘hybrid’ courts or second-generation courts––part international and part national––such as the Special Court for Sierra Leone and the Extraordinary Chambers for Cambodia were important developments in 2003. They underline the international community’s acknowledgement that a partnership with domestic actors from the outset is essential to the peace-building process. However, the existence of the hybrid courts and the domestic Iraqi Special Tribunal brought to the fore the question of burden-sharing in the delivery of justice after conflict. The cases of Iraq and, to a lesser extent, Afghanistan illustrate that the international community is still divided as to which of the current models in place is the most appropriate. These examples also raise the question of who decides which model to apply where, and why.

Immediately after the US-led intervention in Iraq in 2003, members of the international community acknowledged that the atrocities committed during Saddam Hussein’s regime should be dealt with, but could not agree on a suitable mechanism for legal redress. Various models were considered, ranging from a military tribunal to a hybrid court. In the end, a domestic tribunal with little international participation was chosen—largely because the main occupying power has an aversion to international courts. The establishment of the Iraqi Special Tribunal could arguably be seen as a reversion to a system based on victors’ justice, which the international community has previously been anxious to move away from.

The financial viability of post-conflict justice is still to be addressed. The international community, particularly a select group of states, has spent over $1 billion on international courts. With so many international courts now in place the question of the financial sustainability of maintaining them arises. Nor is further devolution to the local level a solution because, as in the case of Bosnia and Herzegovina, the costs still fall to the international community.

The debate about striking the delicate balance between resource constraints and symbolic justice that ensures optimum and appropriate levels of punishment is one that will continue for some time.

Sharon Wiharta (Indonesia) is a Research Associate on the SIPRI Project on Armed Conflict and Conflict Management. Previously, she worked at the Center for International Affairs at the University of Washington. She has contributed to the SIPRI Yearbook since 2002.