Developing local capacity for war crimes trials: insights from B&H, Sierra Leone, and Colombia.

• Author: Chehtman, Alejandro
• Position: Bosnia and Herzegovina

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.

1. 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. Building on previous research on Bill, this Article provides a comparative perspective into different international and internationalized tribunals in very different contexts. (1) In my previous research, I advocated three main claims. First, I argued that there are crucial difficulties in coherence, coordination, and sequencing of capacity development initiatives, and that this is the result of structural and not merely contingent features of the dynamics in this area. Second, I argued that existing efforts in Bill had been too focused on individuals and their capacities without looking enough at the institutional and cultural context in which they are immersed. Third, I submitted that there are specific considerations of the institutional design of international and internationalized courts, such as their institutional position vis-a-vis the local judiciary, their jurisdictional regime and applicable law, that account for the main successes and shortcomings in terms of their impact on municipal legal systems.

   The main purpose in this Article is to further expand the analytical framework developed in my previous work and to assess and contrast the performance of a wider range of international and internationalized tribunals and other participating agencies in developing local capacity to conduct war crimes trials. This Article discusses both formal and informal initiatives developed in the context of the completion strategies in both the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL), the policy of "positive" complementarity of the International Criminal Court (ICC), and the experience at the Court of Bill. Furthermore, it situates these tribunals in the broader narrative of international criminal justice by incorporating considerations stemming from other relevant institutions, such as the International Criminal Tribunal for Rwanda (ICTR), the Extraordinary Chambers in the Courts of Cambodia (ECCC), or the involvement of the ICC in other situations. This Article confirms the central findings of my previous research, though it provides a more complete and nuanced picture of this area. It identifies some of the key weaknesses or needs of local legal systems, and isolates and assesses direct and indirect means of capacity development, how they have fared in different contexts, and the particular challenges they raise. Ultimately, it shows that the key consideration in developing the capacity of national legal systems is dependent on an adequate predisposition by the relevant stakeholders. This is largely a matter of the kinds of incentives stakeholders have for improving practice and enhancing collaboration between them. Critically, it is submitted that the existence of these incentives ultimately depends on 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, in turn, shaped to a large extent by the prevalent division of labor between the international and the domestic tribunals. The analysis provided has a forward looking focus: Although it addresses existing or past processes, dynamics, and synergies, it provides a critical approach to the issue of capacity development in international criminal justice aimed at improving future practice.

   Before proceeding, two methodological caveats are in order. First, this research is based on a number of interviews conducted in Bill, The Hague, Freetown, Bogota, Buenos Aires, and London between the end of 2008 and the end of 2010. The selection of interviewees was aimed at getting as balanced of a picture as possible, although, for confidentiality reasons, no statements are explicitly attributed to any interviewee. (2) Second, both for practical and methodological reasons, this Article does not consider in detail other important elements that arguably contribute to the willingness (and hence, the capacity) of local authorities to conduct war crimes trials in post-conflict situations. The first of these issues is the existing general security situation. The importance of physical security for judges, prosecutors and, most sensitively perhaps, witnesses for effective war crimes prosecutions simply cannot be exaggerated. (3) Second, political considerations are also of the essence. There are, for instance, many allegations that Bill's commitment to the prosecution of war crimes was closely connected to its interest in entering the EU. (4) Similarly, it has also been argued that one of Colombia's main incentives to initiate the transitional justice framework of Justice and Peace was that it was required to do so by the main donors of the Plan Colombia. (5) In some cases, these two elements can work together. Although the Article does not address these issues in detail, relevant considerations or caveats are hinted at throughout the Article when pertinent.

   Accordingly, Part II identifies some of the key weaknesses or needs of local legal systems to process this kind of case. Parts III and IV examine direct and indirect means of capacity development, respectively. Part V, by contrast, concentrates on what are arguably the key enabling and constraining factors that ultimately account for the extent of the impact of an international or internationalized tribunal on the capacity of the local legal system. Finally, Part VI concludes briefly.

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

   Post-conflict judicial systems usually face serious deficits or weaknesses when conducting investigations and trials for international crimes perpetrated on their territory or by their military or security forces. (6) These weaknesses are various and of different orders, ranging from lack of an independent judiciary to lack of political will to conduct effective prosecutions. Some of these weaknesses have to do with insufficient...