National and International Trials In Ending Violence - Essay Example

The Strengths and Weaknesses of National and International Trials In Helping To End Violence and Bring Justice Usually, when a crime is committed, the suspected criminal is put on trial in a local or a national court. However, the national or local judicial system in states affected by violence (post-conflict states) has been frequently broken down and thus, their incapability to hold the alleged individuals responsible. In some states such as Rwanda and Mozambique, individuals have been brought to justice through the local traditional justice systems. However, such a solution indicates serious drawbacks (Lyck 2009, p26). It is important to note that criminal trials are usually oriented towards establishing the innocence or guilt of individual acts and are not capable of dealing with crimes committed on a larger scale such as widespread and systematic human rights violation. These trials cannot offer an account of economic, social, political, or historic circumstances that resulted in the crime or the engagement of external and internal political actors in promoting hatred and violence (Bercovitch and Jackson 2009, p158). The criminal justice system serves a vital function in efforts to control past injustices and change potential violent conflicts into settlements that are peaceful. The international community supported by the international law are of the opinion that genocide, crimes against humanity, war crimes, and gross violation of human rights ought to be investigated and punished. However, “it may sometimes be impossible to pursue criminal prosecutions in the immediate aftermath of civil strife, or they may, if procedural standards cannot be maintained, provoke renewed violence or lead to new injustices” (Theissen 2004, p2). In other words, immediately after civil violence has occurred, the criminal justice systems have been unable to pursue criminal prosecutions due to the lack of proper procedural standards or the possibility of renewing violence or bringing up of new injustices. It is worth to note that the effect of criminal prosecution on revealing the truth, enlightening the public of past injustices and accomplishing conflict transformation tends to be limited (Theissen 2004, p2). Since most of the national criminal justice, systems have been unable or they are unwilling to bring crimes against humanity, war crimes, and genocide to trial, the UN Security Council has previously instituted the International Criminal Tribunals for Rwanda and the former Yugoslavia. There has been considerable progress in making permanent the International Criminal Court (ICC) to hear majority of these atrocious crimes (Theissen 2004, p3). There are many potentials, risks, and shortcomings of criminal trials in bringing conflict transformation. The main potentials of criminal trials include the ability to end the culture of impunity, avert future abuse of human rights, and increase public awareness of humanitarian law and human rights. These trials may offer victims with a particular satisfaction and “prevent them from taking law into their own hands” (Theissen 2004, p3). Criminal trials can individualise guilt and accountability: other than looking at the entire population as inhuman villains, those responsible for particular violence are held responsible for their actions. Alleged violations can therefore be refuted or substantiated and the reintegration suspects who are not guilty accelerated (Theissen 2004, p3). However, risks and limits exist in criminal prosecutions. For instance, the criminal justice system may lack the necessary resources. The alleged individual may not be well represented and the procedural standards not upheld. Criminal trials can aggravate violent resistance from the potential suspect and their supporters or former combatants. These prosecutions are often time-consuming and costly, and thus they may not meet the demands that justice has to be done immediately. Alleged individuals are brought to the trial selectively and thus, most of the crimes remain vague. This is because the perpetrators could not be identified, have died, have gone into exile, or charges cannot be made against them due to the lack of evidence. The prosecutions can be interfered with, as the victims may be afraid of bringing charges or trusting the criminal justice system. The criminal prosecutions give less public attention to victims. Lastly, if famous suspects are vindicated because of procedural errors or there was no evidence, the trials may send wrong signals that particular are above the law (Theissen 2004, p3). International criminal tribunals are capable of establishing high procedural standards and ensuring a particular level of neutrality. They serve as a benchmark for the national tribunals and they may promote local efforts put on trial past atrocities. However, their direct effect on the local conflict transformation remains to be small. This is because they are generally expensive and they are only capable of prosecuting a small percentage of the suspects and often culturally and geographically alienated from the communities that experienced past conflicts (Theissen 2004, p3). The Rome Statue recognizes that the national courts have the primary jurisdiction because they may promote successful national procedures and implementation. For instance, if a state lacks domestic legislation “covering the crimes listed under the Rome Statute, it would not be able to try individuals accused of these crimes; the ICC would therefore assume jurisdiction because the state was “unable genuinely” to try the case” (Gow 2002, p25). To avert such a situation, the nationals are encouraged to make sure that their national legislation is in accordance with the Rome Statute. This is important for national legal systems that cannot adequately deal with violations of international humanitarian law (Gow 2002, p25). International courts such as the ICC have their weaknesses in an attempt to bring justice victims of violence. The complimentarity regime enables the states to protect their citizens from criminal trials through sufficient show of prosecution and/or investigation. ICC has limited resources and capacity that prevents it from following many cases and from those it attempts to pursue, effective prosecution is hampered. A police force or any other mechanisms for enforcing ICC orders lack and this forces the court to rely heavily on state cooperation for the enforcement of the orders. Many have assumed that the states that have experienced or are likely to see the violations of ICC crimes are most likely not to ratify. Thus, leaving the ICC deprived of jurisdiction over crimes done by these states. It is evident that the potential of ICC’s effect as a trial court is very limited. Other than, the difficulties mentioned above, ICC would likely to face difficulties such as the domestic perception of fairness and legitimacy the ad hoc tribunals have faced (Baylis 2008, p17). There are certain severe consequences of the history of violence in Congo that renders any attempt to attain justice for the attacks experienced by the civilians inevitably incomplete and inadequate. These obstacles include: 1. the ubiquity of the violence that featured in the war and that continue in the present conflict; 2. the practical implication of universal impunity for the violence thus far; 3. the limited ability of both the international and national legal systems to deal with these atrocities (Baylis 2008, p24); 4. the deep suspicion of foreign motives in DRC (Democratic Republic of Congo) and their proposed involvement in the Congolese issues and; 5. a strong distrust of the domestic government institutions by the Congolese people (Baylis 2008, p25). In other words, the above-mentioned obstacles will prevent any justice from being attained for all or a considerable portion of the wrongs done during the Congo conflict. It is worth noting that the number of victims and the level of atrocities are very large. Crucial details and evidence have been obliterated by the distance and time of these events and the intervening chaos. They have also completely separated the perpetrators of the violence from their crime scenes and their victims. Where these perpetrators have been found, the military and political leaders have shielded majority of them from prosecution or arrest. On the institutional level, the war has destroyed the national justice systems and they do not exist outside urban regions. The international and national justice systems do not have the capacity to begin a considerable amount of cases. Finally, Congolese people confidence that the international and national justice systems will bring their judgments with legitimacy and credibility lacks (Baylis 2008, p25). The Congolese prosecutors presented the following three cases in an attempt to achieve justice. a. L’Auditeur Militaire contre Blaise Bongi Massaba Blaise Bongi Massaba was the captain of the DRC army. Massaba and soldiers under his command were deployed in a region called Ituri, one of the DRC eastern provinces. Atrocities and intense fighting took place in this region (Ituri) in both wars, and majority of the nongovernmental armed militias have been operating in Ituri since then. Attacks on the civilians are usual and very brutal (Baylis 2008, p27). The mission of Massaba and his troops was to secure and patrol an assigned region with the aim of curbing militia activities there. On October 12, 2005, five boys (mostly students), were arrested by Massaba and his troops. With his troops, they stole a radio, solar panels, a motorized pump, a motorcycle, and other items in a town called Tchekele (Tchekele was within their patrol area). The boys were forced by Massaba to carry the stolen goods to the command post and then on order from Massaba, the boys were killed by the troops on alleged reason that they members of militia. Massaba was convicted of war crimes by the courts under the Rome Statute. The court sentenced Massaba to life imprisonment and ordered to pay damages worth 300,000 U.S. dollars to the families of the killed boys (Baylis 2008, p28). b. L’Auditeur Militaire contre Lieutenant Eliwo Ngoy, et al. The MLC nongovernmental militia members were the defendants in this case. Baylis (2008, p28) states that these militia members “had made their defensive headquarters near the town of Songo Mboyo for about five years, and they had grown accustomed to living off of the local population.” There were plans for the militias to be integrated into the DRC military army. Immediately before this event, the local commander made an announcement that the militia members of MLC were to be incorporated into the DRC regular army. As a result, the soldiers were to be shifted to a new area, far away from the Songo Mboyo compliant population. They were also to get a pay increase that would multiply their pay by 5 times. However, the commander did not pay them promptly. Instead, he held the soldiers’ money after the army’s agent gave him. On December 21 and 22 of 2003, having not received their money, the soldiers got frustrated and revolted against their commander and he was attacked. After the attack, he went to Songo Mboyo, where he stole a huge amount of commercial and personal property. Other than stealing property, 31 women were raped by him (Baylis 2008, p28). The defendants were convicted on different accounts; (a) under the Rome Statute for the rapes; seven of them were charged with crimes against humanity and were sentenced to life imprisonment, (b) under the Congolese military code, five of the seven defendants were also charged of pillage and sentenced to twenty-year terms of imprisonment. The convicted defendants were ordered to pay damages amounting to 10,000 U.S. dollars to the families of dead rape victims, 5,000 U.S. dollars to the surviving rape victims and other damages to people whose property was stolen (Baylis 2008, p28). c. L’auditeur Militaire contre Kalonga Katamisi, et al Sdt. Alimasi, Kalonga Katamisi, and other unidentified partners in crime were Mayi-Mayi militia members. In 2004, the Mayi-Mayi militia members kidnapped 10 women from Kamanga town and took them to the forest, and raped them. One of the kidnapped women was held captive as Katamisi’s wife for 3 months. Katamisi was the only defendant present at the trial; the rest were still at large and they were tried in absentia. Of the absent defendants it is only Alimasi who was identified, the others were not identified. This case presents a remarkable difference from the Ngoy and Massaba cases; the defendants were charged for crimes against humanity under the Congolese Military Penal Code. Alimasi, Katamisi, and the unidentified partners in crime were found guilty and sentence to death. They were also ordered to pay damages worth $20,000 to 3 of the rape victims who had made claims in a similar civil action (Baylis 2008, p29). The Rome Statute had a considerable effect on the charges made against the above-mentioned defendants. In DRC, two overlapping legal frameworks exist; these frameworks are used to prosecute war crimes, genocide, and crimes against humanity. In all the cases, the courts made different rulings about which framework was to be applied; in the Katamisi case, national law was used and in the Ngoy and Massaba cases, international law was applied. “On the international level, the Rome Statute defines the crimes of genocide, crimes against humanity and war crimes for cases before the International Criminal Court” (Baylis 2008, p29). When states ratify the treaty they do not adopt the definitions, instead, they agree to collaborate with the court and develop a nexus where the court can decide to exercise its jurisdiction. In 2002, the Rome Statute was ratified by DRC but the implementing legislation has not yet been passed (Baylis 2008, p29). At the national level, there are unique definitions for war crimes, crimes against humanity, and genocide in the DRC military penal code that to some level overlap with Rome Statute’s definitions (Baylis 2008, p29). In September 2002, after the ratification of the Rome Statute, DRC enacted a legislation amending the military code to incorporate new definitions of the crimes (war crimes, crimes against humanity, and genocide) in a way that they do not reflect the Rome Statute (Baylis 2008, p30). From the above cases, it is evident that the domestic or national courts fail to maintain satisfactory due process standards. Use of the Rome Statute standards in the Massaba case by the court seems to have brought the trial and conviction more in relation with the due process standards than it would have occurred under the national law. In contrast, the court’s definition of its procedures in the Katamisi case brings out fundamental due process issues that could have been resolved by choosing the procedures endorsed in the Rome Statute. In the Massaba case, the national law was unable to declare any penalty for the war crimes committed by Massaba and his troops. The DRC law requires that a punishment be declared before for every crime same as the general principles of fairness to the suspect (that is, nulla poena sine lege). If the defendants were convicted and punished under the provisions of national war crimes, the court would have violated both the international and national due process standards (Baylis 2008, p32). The trials in absentia of the Almasi and the unidentified accomplices violated the concept of a right to a fair prosecution/trial and defense. The court in this case fails to discuss the decision to try in absentia the unidentified defendants in its judgement, thus, it is not clear if the national law permits such a decision or it is just a vagary of the court’s procedure (Baylis 2008, p33). References Baylis, E. (2008) Reassessing the role of international criminal law: Rebuilding national courts through transnational networks [online], From the Selected Works of Elena A Baylis. Available from: [Accessed 4 Nov. 2011]. Bercovitch, J. & Jackson, R. (2009) Conflict resolution in the twenty-first century: Principles, methods, and approaches, Michigan: The University of Michigan Press. Gow, M. (2002) The International Criminal Court: Finding justice for victims, ending impunity for perpetrators, Monrovia: World Vision International. Lyck, M. (2009) Peace operations and international criminal justice: Building peace after mass atrocities, New York, NY: Routledge. Theissen, G. (2004) Supporting justice, co-existence and reconciliation after armed conflict: Strategies for dealing with the past. Berghof Research Center for Constructive Conflict Management, pp1-18. Read More