Understanding how to cultivate each of these social conditions of law requires both theoretical and empirical knowledge.52 Theoretical analysis of the function and defining characteristics of social processes (e.g., criminal trials, truth commissions, reparations) can shed light on connections between such processes and the goals of and preconditions for reconciliation. Empirical studies can then provide important information about the circumstances that are conducive to or inimical for the achievement of the function of social pro- cesses like law. Such information can provide guidance in terms of whether, for example, international criminal trials are likely to realize their potential contribution to reconciliation in specific transitional contexts.
In this section, I first offer a theoretical argument to support the claim that international criminal trials contribute to reconciliation by cultivating legal decency and good judgment among officials and encouraging faith in law
50McGarry and O’Leary,Policing Northern Ireland. Other important studies of the police in Northern Ireland include John Brewer, Adrian Guelke, Ian Hume, et al.,The Police, Public Order, and the State: Policing in Great Britain, Northern Ireland, the Irish Republic, the United States, Israel, South Africa, China(New York: St. Martin’s Press,1988),12, and John Brewer, Inside the RUC; Routine Policing in a Divided Society(Oxford: Oxford University Press,1991), 250.
51These conditions capture only part of the obstacles because the repair that reconciliation entails is broader than the restoration of mutual respect for the rule of law.
52I am grateful to Leslie Francis for helping to clarify this point for me.
Political Reconciliation and International Criminal Trials 237 among citizens. I then explore some of the empirical conditions that can in- fluence whether these contributions are, in fact, realized. My empirical discus- sion is largely speculative. Further empirical research is required to confirm or disconfirm the considerations that I advance or point to overlooked consid- erations that might be relevant. After considering and responding to a series of objections, I end this section by highlighting the limits of the contributions to reconciliation that international criminal trials can make.
The starting premise of my theoretical argument is an empirical observation:
The international community is extensively involved in the legal processes of transitional societies, especially during their transitional period from conflict or repressive rule to peace and democracy. Ad hoc international criminal tri- bunals, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), as well as the permanent International Criminal Court (ICC) represent one dimen- sion of this involvement. These tribunals cover serious violations of interna- tional humanitarian law, including violations of the Geneva Conventions, laws of war, genocide, and crimes against humanity in a specific area during a specific period of time.53 Such tribunals are the product of international cooperation and interaction. Separate United Nations Security Council reso- lutions created the ICTY and ICTR, and the ICC is based on a treaty signed by104countries. Trial proceedings draw on both civil and common law sys- tems, and the staff of such tribunals is drawn from around the globe.54 The collection of evidence, detention of accused persons, and funding of such tribunals depends on cooperation and contributions from the international community.55
Hybrid tribunals also have been established in contexts including Sierra Leone, Timor–Leste, Kosovo, Bosnia, and Cambodia.56Such courts are hybrid in the sense that judges and prosecutors include both national and interna- tional representatives, and the rules regulating such courts include national and international regulations. They operate in the location where the crimes
53United Nations, “International Criminal Tribunal for Rwanda.” Available at http://69.94.11.53/ default.htm (accessed on September9,2007).
54As of February2007, the staff of the ICTY had members representing eighty-one countries.
The ICTR has eighty-five nationalities represented in its staff.
55United Nations, “ICTY at a Glance.” Available at http://www.un.org/icty/glance-e/index.htm (accessed on September9,2007). The relationship between these international tribunals and national courts is defined differently. Although national courts and the ICTY have concurrent jurisdiction over such violations, the ICTY can “claim primacy” if in the interest of international justice. The ICC, in contrast, represents a “court of last resort” – that is, it only pursues cases if not investigated or prosecuted in a genuine way by a national court.
56International Center for Transitional Justice (ICTJ) Web site. Available at http://www.ictj.
org/en/tj/781.html.
238 Colleen Murphy occurred.57The operating budget for such hybrid tribunals is influenced by the scale of voluntary contributions from international donors.58
Complementing such formal involvement is the work of nongovernmen- tal organizations (NGOs). William Schabas has documented the influential role of the United States Institute of Peace, Priscilla Hayner, and Paul van Zyl in determining the relationship between the court and the Truth and Reconciliation Commission in Sierra Leone.59The International Center for Transitional Justice (ICTJ) advises countries on whether to confront the legacy of human rights abuses through criminal trials and/or truth commissions and the appropriate relationship to establish between different programs (i.e., the Truth and Reconciliation Commission and Special Court in Sierra Leone);
trains and assists prosecution efforts in both domestic and hybrid tribunals;
filesamicus curiaebriefs in domestic tribunals; monitors domestic criminal justice proceedings; publishes studies on the study of hybrid tribunals; and holds conferences on domestic prosecutions with international representa- tives involved in such efforts to create a network of advisors and offer a forum for exchanging investigation strategies.60It currently works in such capacities in more than twenty-five countries around the world, including Burundi, the Democratic Republic of the Congo, Ghana, Kenya, Liberia, Sierra Leone, South Africa, Uganda, Argentina, Colombia, Guatemala, Mexico, Nicaragua, Panama, Peru, Afghanistan, Cambodia, Sri Lanka, Algeria, and Iraq.
This intense level of involvement in the legal processes of transitional soci- eties by the international community differs significantly from the role that the international community plays in the legal processes of nontransitional societies. This deep level of involvement suggests that the international com- munity is positioned to affect the norms, practices, and patterns of interaction within transitional societies in a much more profound manner than nontran- sitional contexts. That is, the operations of the ICTY and newly formed ICC, for example, have more immediate and direct ramifications on the social and legal processes of the former Yugoslavia and Uganda than they do on those of France.
International criminal trials can influence prospects for reconciliation in transitional contexts, I want to suggest, by playing an educative role. Interna- tional proceedings can thus offer a stark contrast to the practices and procedures
57Ibid.
58William Schabas, “A Synergistic Relationship: The Sierra Leone Truth and Reconciliation Commission and the Special Court for Sierra Leone,”15Criminal Law Forum(2004),3–54.
59Schabas, “A Synergistic Relationship,”25. Hayner and van Zyl both work at the ICTJ.
60ICTJ Web site. Available at http://www.ictj.org/en/tj/781.html (accessed on September 7, 2007).
Political Reconciliation and International Criminal Trials 239 of the past in transitional contexts. International criminal trials are structured to respect the constraints of due process and adhere to internationally rec- ognized standards. In the words of the ICTY: “The Rules of Procedure and Evidence guarantee that ICTY proceedings adhere to internationally recog- nised principles of fair trial. . .important elements include the presumption of innocence, the right to be tried without undue delay, the right to examine adverse witnesses and the right of appeal. Procedural provisions for the protec- tion of witnesses’ identities and the actual assistance provided before, during and after the proceedings by the Victims and Witnesses Section within the Registry ensure that witnesses can testify freely and safely.”61To the extent that such procedures are followed, international criminal trials provide a model for how criminal proceedings should be conducted. The procedures and safe- guards characteristic of the structure of international criminal trials prioritize and take seriously the view of all persons, including criminals, as self-directed agents whose actions determine the official response to them. As discussed in the previous section, the lawmaking and law-enforcement officials within soci- eties under repressive rule or emerging from civil conflict are characteristically corrupt, incompetent, and ineffective.
To illustrate some of the ways in which properly conducted international criminal trials can provide a sharply contrasting model for how the criminal justice process proceeds, consider first the presumption of innocence until proven guilty. Taking seriously this presumption implies the requirement that it be demonstrated, to a sufficiently justifiable degree, that the alleged perpetra- tor was indeed responsible for specific crimes. It implies the refusal to suspect or assume guilt simply because the perpetrator belongs to a suspect group or category. This is in contrast to practices in areas of conflict, where being Catholic in Northern Ireland or African in South Africa sometimes eroded the seriousness with which the presumption of innocence was maintained. The presumption of innocence is especially important to respect in transitional contexts. A shift in power often occurs in conjunction with a transition.62To the extent that previously powerful groups, which may have assumed the guilt of individuals who were members of a suspect group, are not themselves sub- ject to the same practice by the international community or newly empowered groups working with the international community, this demonstrates in prac- tice that the holding or losing of power should not and need not be responsible for or determine the outcomes of criminal trials.
61ICTY Web site. Available at http://www.un.org/icty/cases-e/factsheets/organs-e.htm.
62This is not to suggest that persons who previously held power no longer hold power after a transition. How dramatically the power dynamic shifts differs among societies.
240 Colleen Murphy Another important component of international criminal trials is the treat- ment of alleged perpetrators during the period leading up to a trial and during the course of pretrial interrogation and evidence-gathering phases. In inter- national criminal trials, suspects are not to be held in inhumane conditions, tortured into confessions, or made to suffer cruel and unusual punishment.
Taking seriously these basic protections, even with respect to persons sus- pected or convicted of failing to show the same respect toward others in the past, sets an important precedent that contrasts sharply with practices of the past. Respecting constraints against torturing suspects into confession or hold- ing suspects in inhuman conditions signals an acknowledgment of the dignity that stems in part from the agency of all individuals. The conduct of prose- cutors and law enforcement officials throughout the legal process, specifically with respect to the gathering and sharing of evidence, is critical. In contrast to the practices described by van Zyl, official conduct should be performed in a forthright manner, not manipulated.
Finally, a legal system depends on the cooperation of citizens, who are often important sources of information and can serve as witnesses who play a critical role in the successful conviction of perpetrators of crimes. In situations of conflict, cooperating with law enforcement officials may be dangerous, leading to serious bodily harm and rarely resulting in the elimination of the original threat. Thus, it is critical that the witnesses who do cooperate in such trials be provided with adequate and serious protection, and this commitment is reflected in the provisions established by tribunals such as the ICTY.
There are two primary respects in which the model provided by the process of international criminal trials can be educative in a way that is conducive toward reconciliation. First, such trials can cultivate decency and better judg- ment among lawmaking and law-enforcement officials in transitional contexts.
They do so by highlighting the absence of legal decency and good judgment among government officials during conflict or repressive rule, when dimin- ished significance is attached to proving the guilt of criminals and recognizing their humanity throughout the criminal process. In addition, by working with local officials, representatives of the international community can communi- cate training, knowledge, and understanding regarding how and in what way their practices must change for law to function as it should and for law to regulate conduct in practice.
The second way in which the educative role of international criminal tri- bunals can facilitate political reconciliation is by restoring confidence and faith in law among ordinary citizens. Seeing respect given to the constraints of due process and prohibitions against certain types of treatment can promote conditions conducive to faith in the legal system by reducing the risks involved
Political Reconciliation and International Criminal Trials 241 in participation. Knowing that arrest does not entail torture, that conviction does not entail death, and that cooperation does not risk death reduces the incentive of individuals to opt out of cooperating with (or do everything to avoid contact with) the law enforcement system. Seeing norms of interna- tional law enforced, and seeing officials held accountable for failing to respect the constraints that law imposed, can restore confidence in the fact that law will be enforced and declared rules will provide an accurate picture of what the actual practice of law enforcement will be.