Developing Local Capacity for War Crimes Trials: Insights from BiH, Sierra Leone, and Colombia

Article excerpt

Generally, in post-conflict situations the domestic justice system is in a state of collapse. Doubts exist as to whether alleged perpetrators of international crimes will be prosecuted effectively, or as to whether they will receive a fair trial. International penal interventions are therefore envisaged as a way to assure individual accountability. Yet it has become increasingly clear that these tribunals themselves lack the capacity to deal with the vast majority of cases. If the tribunals' impact is to be enhanced, they will need to rely on national courts. The way out of this circle is for them to develop the capacity of local legal systems. This Article examines the impact of international tribunals on municipal legal systems by providing an in-depth, comparative analysis off our different international or internationalized tribunals--the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, the Special Court for Sierra Leone, and the Court of Bosnia and Herzegovina--and their impact on the respective domestic legal systems. This Article critically examines the main direct and indirect ways in which the international community has sought to develop local capacity for war crimes trials, such as training initiatives, "on the job" knowledge transfer, and the provision of information and access to evidence. Yet, it argues that the focus in this area should be more on the structural or institutional aspects, such as the institutional position of the international or internationalized tribunal vis-a-vis the local judiciary, the law applicable before each tribunal, and the main features of each exit strategy. Ultimately, this Article submits that effective capacity development is to a significant extent the result of adequate predisposition by the relevant stakeholders, which is largely a matter of the types of incentives they have for improving practice. Interestingly, these incentives are significantly shaped by the prevailing institutional dynamics between the domestic and the international system, namely, whether they establish relationships of collaboration, competition, resentment, or mere indifference. Such dynamics are themselves determined to a large extent by the prevalent division of labor between the international and the domestic tribunals. The analysis provides critical insights into this important area of international criminal justice.

I.    INTRODUCTION

II.   WEAKNESSES, NEEDS OR DEFICITS OF NATIONAL LEGAL SYSTEMS
      IN POST-CONFLICT SITUATIONS

III.  DIRECT CAPACITY DEVELOPMENT INITIATIVES

IV.   "INDIRECT" CAPACITY DEVELOPMENT
      A. On the Job Knowledge Transfer
      B. Transfer of Files and Information

V.    INSTITUTIONAL INCENTIVES AND CONSTRAINTS
      A. Institutional Position, Applicable Law and Exit Strategy
      B. Creating the Right Kind of Incentives

VI.   CONCLUSION
ANNEX A: LIST OF INTERVIEWEES

I. INTRODUCTION

In post-conflict situations the domestic justice system is generally in a state of collapse. International penal interventions are envisaged as the way to assure individual accountability for international crimes. Through the experience of the ad hoc Tribunals, it has become increasingly clear that international or internationalized tribunals themselves lack the capacity to deal with the vast majority of alleged perpetrators of international crimes. If their impact is to be enhanced, it seems, they would need to rely on support from the national legal systems. Yet doubts often exist as to whether alleged perpetrators of international crimes would be prosecuted effectively before domestic courts, or if they would receive a fair trial. The international community, through international and internationalized courts, must rebuild, enhance or develop the national capacity.

This Article examines the impact of international and internationalized courts on municipal legal systems by looking in-depth into Bosnia and Herzegovina (Bill), Sierra Leone, and Colombia. …