Courts of First Resort: Prosecuting International Crimes at the National Level

In the quest to bring perpetrators of massive crimes to justice, international tribunals should only be used as courts of last resort. Efforts to establish the rule of law require states to develop their capacity to prosecute the most serious crimes within their own judicial systems.

On October 25 and 26, 2012, leading international actors from the judicial, rule of law, and development sectors will convene at the Greentree Estate in Manhasset, NY, for the third Greentree Conference on Complementarity. The meeting will be led by ICTJ, supported by UNDP, and hosted by the governments of Denmark and South Africa.

The conference aims to examine the needs of individual states and the challenges they face to conduct national prosecutions of the most serious crimes, looking at four countries: Colombia, the Democratic Republic of Congo, Guatemala, and Ivory Coast.

In the coming months, ICTJ will release a series of articles and podcasts offering an in-depth look at national prosecutions in these four countries. These features will present the experiences and viewpoints of government actors and experts working on the frontlines to strengthen domestic judicial capacity . They will also consider the challenges and needs faced in each of these four unique transitional contexts.

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Pursuing Justice in National Courts

In the wake of massive human rights abuses, a society’s demand for accountability and justice cannot be ignored. Criminal prosecutions - one of the central tenets of transitional justice - are a tangible way that a country can demonstrate that the abusive “norms” of the past are punishable crimes that must not be tolerated.

When architects of atrocity fall from power, criminal prosecutions offer society a transformative potential: a trial is a widely understood concept that defines concretely the charges against the accused. If trials are fair, they can send a powerful signal that no one is above the law and convictions can sometimes serve as powerful deterrents.

But criminal initiatives do not take place in a vacuum, and the task of doing justice for serious crimes is complex. Judicial officials are sometimes forced to fend off powerful political interests that oppose prosecutions, and in some cases, the judiciary cannot rely on the police or state security forces to protect investigators, prosecutors, or witnesses.

In several situations in recent past, the international community has stepped in when trials for crimes of a serious nature could not be held in the national court systems: the United Nations established ad-hoc criminal tribunals for Rwanda and the former Yugoslavia and the mixed courts in Sierra Leone and Cambodia.

In 2002, the International Criminal Court (ICC) was established as the first permanent international criminal court mandated to investigate and prosecute individuals who are most responsible for war crimes, crimes against humanity, and genocide. The ICC’s principle of “complementarity” requires that the court defer to the national jurisdictions of its member states (which now includes 121 signatories) and limits the ICC’s involvement in conducting criminal investigations and prosecutions to situations where a state is unable or unwilling to investigate.

In June 2010, states parties to the ICC passed a resolution confirming that the fight against impunity and the need to deepen respect for the rule of law require states to prosecute the most serious crimes committed in their own territory or by their own nationals.
Three subsequent meetings on complementarity brought together national and international actors to determine the way forward to strengthening national prosecutions of serious international crimes. Greentree III will continue this discussion by focusing on the experiences of four countries: Colombia, the Democratic Republic of the Congo (DRC), Guatemala, and Ivory Coast.

Colombia
In Colombia, the ICC is conducting a preliminary examination into crimes committed during the conflict. A host of complex and interrelated initiatives to deal with massive crimes committed by multiple armed forces are ongoing. New rounds of peace talks between the government of Colombia and FARC guerillas, with the goal of ending the longest running armed conflict in the Western hemisphere, may be the first step toward determining how crimes of the past will be prosecuted.

Democratic Republic of the Congo
In the DRC, investigations by the ICC are ongoing and a variety of national efforts have met with varying levels of success. Prosecutions through the model of mobile courts have drawn praise and criticism, and in some cases, victims still await court-awarded reparations.

Guatemala
Guatemala is attempting to bring to justice alleged perpetrators of war crimes and genocide that were carried out during the worst periods of the civil war, which predate the state’s accession to the Rome Statute. However, investigators and members of the judiciary face serious security threats.

Ivory Coast
Ivory Coast is not a Member State of the ICC, but it is under investigation by the ICC as a result of Article 12(3) of the Rome Statute, which allows cases to be referred to the court by outside parties. Brutal violence followed a contested presidential election in 2010. Ousted President Laurent Gbagbo now faces charges of crimes against humanity from the ICC. He is the first former head of state to be taken into custody by the court.