International Justice, Transitional Justice: What Have We Learned about What 'Works'?

Diane Orentlicher, Deputy, Office of War Crimes Issues
Konover Auditorium, Dodd Research Center, University of Connecticut
Storrs, CT
April 21, 2011

As prepared

Good afternoon. What a great honor and pleasure it is to be here! Some of my personal heroes, including Samantha Power, Patricia Wald, Harold Koh and Nina Bang-Jensen, have in recent years delivered the Raymond and Beverly Sackler lecture, and I am so honored to be included in this distinguished series.

I am also thrilled to be speaking in a place that has such historic resonance for the field of international justice. Like all practitioners of this field, I owe an incalculable debt to the legacy of Thomas J. Dodd. As a senior member of the U.S. prosecution team at Nuremberg, Dodd played a pioneering role in establishing what was then an extraordinary innovation—international justice for what Dodd aptly called “history's most horrible catalogue of human crime." Dodd’s contributions went a long way toward ensuring that Nuremberg’s legacy would reverberate across succeeding generations.

And it has. Today, a permanent international criminal court, the ICC, is operating in The Hague, a direct legacy of Nuremberg. As a member of the Obama administration who deals extensively with the ICC, I am keenly aware that the Dodd Center also played a historic role in defining US engagement with that Court. In December 1995, then President Bill Clinton delivered a major speech at the inauguration of the Thomas J. Dodd Center. Speaking a half century after the Nuremberg trial of major Nazi war criminals, President Clinton proclaimed that the time had come to make good on Nuremberg’s promise to future generations and expressed support for what was then still a proposal—a proposal to create “a permanent international court to prosecute, with the support of the United Nations Security Council, serious violations of humanitarian law.”

Beyond my keen professional interest in that speech, I have a very personal connection as well: Although I did not know this at the time, the man I would later marry, Morton Halperin, prepared the first draft of President Clinton’s speech at the Dodd Center. The day after President Clinton delivered his remarks, Mort, who was then serving on the National Security Council, received a phone call from a colleague asking if it was really US policy to support the creation of a permanent international criminal court. Mort patiently explained that when the President of the United States says it’s US policy to support a permanent international criminal court, it’s US policy to support a permanent international criminal court. And so it was.

Two and a half years after President Clinton’s speech, States adopted the text of the ICC’s statute in Rome, and with surprising speed, the Court’s statute was activated several years later.

But if I seem to be suggesting that the US Government saw this outcome as a crowning achievement of its policy objectives, that would be misleading. Several aspects of the text adopted in Rome, particularly provisions allowing the Court to exercise jurisdiction over nationals of non-party States under certain conditions, troubled the US Government. And so, although President Clinton decided to sign the Court’s statute before he left office, he did so with the caveat that the United States would not become a party until its concerns about the Rome statute were addressed. Congress went farther, ultimately adopting legislation, the American Servicemembers’ Protection Act, or ASPA, that imposed major restrictions on the way the United States could engage with the Court.

Which brings me to another facet of Dodd’s legacy to international justice. As the ASPA legislation made its way through the Senate, Thomas Dodd’s son, Senator Christopher Dodd, well understood that despite US reservations about the Rome Statute, there would surely be times when U.S. interests and values would compel us to support the Court’s efforts to bring to justice those who breach the basic code of humanity.

And so Senator Dodd introduced an amendment to the ASPA bill that enables the US government to assist ICC efforts to bring to justice foreign nationals accused of crimes against humanity, war crimes and genocide. The Dodd Amendment to ASPA has since provided the crucial foundation for US efforts to help ensure that those responsible for crimes against universal conscience are made to answer when their own country’s courts are unable or unwilling to hold them to account. In short, there is a direct line from Nuremberg to The Hague, and its name is Dodd.

Building on steps taken during the previous administration, the Obama administration has pursued a relationship of principled engagement with the Court, working within the legal space created by Senator Dodd to ensure the successful completion of prosecutions already underway in The Hague.

Let me make one more preliminary observation before I turn to the central focus of my remarks: In reflecting on our experience to date with international justice, I will focus principally on the past seventeen-eighteen years. At the risk of oversimplification, that is because the model of justice established in Nuremberg, as well as Tokyo, appeared to be a historic anomaly until 1993, when the UN Security Council established the International Criminal Tribunal for the former Yugoslavia, or ICTY, to address the crimes of “ethnic cleansing” then underway in the Balkans. The following year, the Council took similar action in response to the 1994 genocide in Rwanda, and other international or internationalized courts soon followed.

Several developments revived Nuremberg, first as a principle and then as an institutional model, decades after the postwar leadership trials ended. First, during the 1980s, as numerous military dictatorships in Latin America gave way to democratically-elected governments, we saw a new commitment to the principle that those responsible for designing and enforcing a system of atrocities should be held accountable. Despite long years of brutally repressive rule, many of these countries were blessed with vibrant civil society organizations which, on behalf of victims, demanded justice for the violence they had endured.

While each country’s response was different, this wave of democratic transition gave rise to processes of reckoning with human rights crimes of a recently ended dictatorship that would later be captured in the phrase “transitional justice.” In many ways, Argentina’s 1985 prosecution of the then recently vanquished junta—its Nuremberg trial—inspired other newly restored democracies to answer the violence of the recent past with the judgment of legal process.

By the late 1980s, the international human rights community was engaged in an intense debate about whether issues of transitional justice should be left to each country to determine for itself or, instead, whether international law had, or should have, anything to say about how nascent or restored democracies address the legacy of systemic violence practiced by a prior regime. While views on this question were wide-ranging, one of the few propositions that commanded almost universal assent among those engaged in this debate was that crimes against humanity must be punished—a remarkable tribute to the enduring power of Nuremberg some forty years after the trial of major Nazi war criminals ended.

But it took the ghastly and widely-publicized crimes of “ethnic cleansing” in Bosnia during the 1990s to prompt the world to answer atrocious crimes with criminal prosecutions before an international tribunal, the ICTY, for the first time since Nuremberg and Tokyo. Since1993, when the UN Security Council established the ICTY, the international community has established three fully international courts and has joined with several states to create other war crimes courts that blend national and international elements.

Meanwhile, a substantial number of states have established specialized chambers to address Nuremberg-type offenses. While approaches have varied widely, when repressive governments collapse of their own weight, we are far more likely now than ever before to see citizens demanding justice for crimes of the past—as is now happening in Egypt, Tunisia and elsewhere.

More than a quarter century after Argentina prosecuted former junta members, and more than 17 years after the Security Council created the ICTY, we now have a rich record of experience with international and transitional justice. The question I want to turn to now is, What have we learned about how well these processes of reckoning are working?

To answer this requires, of course, that we first get clarity on what we expect these prosecutions and other processes of accountability to achieve. This is a vast topic and I won’t even attempt to deal with it exhaustively. Instead, I will briefly note several commonly-mentioned goals associated with international and transitional justice, and then mention several other values associated with trials that I believe to be particularly important, though often overlooked, and share a few observations about each of them.

One of the most widely-asserted goals associated with international justice is deterrence. A case in point is President Clinton’s observation in his 1995 speech that a key hope nurtured by Nuremberg was that successful prosecutions would deter future atrocities.

Today, some argue that any such hope has been put to rest by the sobering record of atrocities committed since the early 1990s—the period when international tribunals have operated extensively. A variation on this claim is the assertion, which I hear quite often in my current work, that the threat of prosecutions did not end atrocities in Bosnia in the 1990s nor in Côte d’Ivoire nor Libya in 2011. Instead, the argument goes, it takes military intervention to stop atrocities in their tracks, just as it did in World War II.

I believe this argument reflects a misplaced expectation of what international prosecutions can achieve. When I recently re-read President Clinton’s 1995 speech, I was struck by his clear-sighted and straightforward acknowledgement that NATO’s intervention was a critical component of US efforts to end the conflict and accompanying atrocities in Bosnia, even as he extolled the potential of international trials to deter future crimes. By 1995, President Clinton saw clearly that trials would hardly obviate the need for other responses to mass atrocities that were still underway. By equal measure, he believed that trials could play a key role in safeguarding the future.

On the broader point that despots and militias continue to inflict ghastly violence far too often in far too many regions despite the operation of international courts, I would offer a few observations:

First, any claims about the deterrent impact of international trials should be appropriately modest. For one thing, while we are painfully aware of atrocities that were not deterred, it is much harder to know about those that were prevented and that will be in the future by the specter of international prosecution. There is, however, extensive anecdotal evidence that some individuals have chosen to renounce leaders they had faithfully served when their superiors sought to enlist them in a campaign of repression, fearing that they may themselves face justice if they carry out manifestly unlawful orders.

Second, and despite what I just said, we must have realistic expectations of what can be achieved through the model of international justice we now have. More specifically, the deterrent power of courts like the ICC is diminished by the exceptional nature of their judicial activity, even if the specter of trial makes some—perhaps many—individuals think twice before committing atrocious crimes. Typically the ICC prosecutor presses charges against a handful of individuals in each situation he investigates, and he is able to take on a very finite number of situations to begin with. (The Prosecutor’s stated policy is to pursue those “bearing the greatest responsibility” for the “most serious crimes.”)

In noting this structural limitation on the deterrent potential of international courts, I am not suggesting that tribunals that have operated in recent years have been unable to affect behavior in a positive way. Rather, it is unrealistic to expect tribunals like the ICC to exert a robust deterrent power through finite prosecutions.

A more attainable objective, I believe, is to design and deploy institutions of international justice in a manner that catalyzes a broader process of long-term prevention. What do I mean, and how do we do this?

A critical component of an effective prevention strategy is to ensure that, along with or following international prosecutions, local courts are able to play their role in securing the rule of law. Students of international justice have often noted that the lessons of Nuremberg took root in Germany only when German courts began to prosecute Nazi war criminals. We would be deluding ourselves if we thought that international trials alone could transform a country from a setting of mass atrocities to a rights protecting democracy, even if they prosecuted more than a handful of perpetrators. But Nuremberg-type prosecutions can lay a foundation for further progress in this direction.

Carrying the lesson of Nuremberg forward to our contemporary experience with the ICC, in situations where justice has to begin in The Hague—for example, when local courts are unable to tackle high-level perpetrators—it is critically important that justice is also brought home, domesticated, owned and nurtured locally. That is why the US government is enthusiastically supporting an initiative of the government of the Democratic Republic of the Congo—a country that has invited the ICC to undertake prosecutions—to establish specialized chambers within its civilian courts, in which foreign judges may sit alongside domestic magistrates, to try those most responsible for crimes against humanity and other atrocities.

We see this initiative as an important opportunity—one we must not miss—to partner with the DRC government to help it turn a corner from a setting of staggering violence to a country that protects its citizens through law. But we also know that successfully meeting the challenges ahead will require incredible perseverance. This will be the work of a generation, and our expectations and commitment must be calibrated accordingly.

As we work to strengthen the capacity of domestic courts in countries like the DRC, we must make sure that we attend above all to the needs of victims and witnesses. Witness protection is a missing link in many countries’ judicial systems, and in seeking to bolster those systems we must prioritize their capacity to ensure the protection of vulnerable people. Frankly, this issue is not solely a matter of domestic justice: States that support the ICC and other international courts must ensure that these tribunals take adequate steps to protect individuals who assume great risk by bearing witness, as well as intermediaries—non-governmental human rights organizations, for example, that link up prosecutors and investigators with potential witnesses.

I also want to say that it is clear to me that in many countries, the work of (or inspiration provided by) international tribunals has been a catalyst for local initiatives to strengthen accountability. This is clearly the case in Serbia, for example, where a domestic war crimes chamber was established in 2003. In an interview several years ago, a spokesman for that chamber described the relationship between the ICTY and the local chamber this way: “I do believe it was exactly through the Hague Tribunal that the process of facing the past was initiated in the states of the former Yugoslavia.” In another interview, the War Crimes Chamber’s president described the ICTY as “the embryo” for the local court, explaining: “Everyone learned from [the ICTY both] as an idea and as know how.”

Of course the effect of domestic trials varies widely across countries, time, and the peculiar circumstances of each country’s historic experience. But at the risk of selectively discussing best-case case-studies, it is worth noting that a study of the Latin American experience provides tantalizing data.

Several years ago, two scholars, Kathryn Sikkink and Carrie Booth Walling, examined the experience with human rights trials in Latin America, which has had a rich experience with transitional justice. Their study looked at whether this region’s experience had borne out earlier fears that human rights trials would produce destabilizing effects, setting back democratic transitions. Contrary to these fears, the authors found that in the previous two decades, coups had occurred in only three countries “in Latin America, and none was provoked by human rights trials.”

Significantly, during this period human rights trials were common in Latin America—a region where many democratic transitions “are increasingly considered consolidated.” According to the study’s authors, in the two decades they studied, human rights trials had taken place in 14 countries in Latin America, none of which had experienced a successful coup since the trials were instituted.

Particularly in an academic setting like this, I must add that these findings were based on preliminary and incomplete data, and later studies have added and will add further refinements to their conclusions. With that caveat, their findings on the whole tended to counter concerns that prosecuting human rights violators would in general be harmful.

It is more difficult, however, to assess the positive impact of prosecutions in the Latin American countries the authors surveyed, in part because trials are never the sole phenomenon underlying changes in a country’s human rights situation. But the study found encouraging patterns. In brief, the authors found that among “the 14 countries that held human rights trials for at least two years, 11 improved their human rights situation after trials,” while in three countries “the human rights situation worsened.” They also found that “countries that held more trials had a higher average improvement in human rights than the countries that had fewer trials.” And, they noted, “[t]here is not a single transitional trial case in Latin America where it can be reasonably argued that the decision to undertake trials extended or exacerbated conflict.”

So far I have focused on claims that judicial processes can deter or help prevent future atrocities or, conversely, that they may provoke further violence or otherwise have a destabilizing impact. Yet I do not want to suggest that these or other consequentialist claims reflect the sole, or even the most important, considerations in assessing the work of international or transitional justice.

What I have learned through decades of experience in numerous countries is that for many victims who have endured unspeakable crimes, justice itself—not its anticipated consequences—is the most important point of prosecutions. As one Bosnian woman observed when I interviewed her several years ago, after experiencing all manner of grotesque violations, what is important to many victims in Bosnia is “that someone guilty be punished.” Another Bosnian, who had lost more than 60 relatives to “ethnic cleansing” and had himself been detained in an infamous internment center, tried to explain why he considered the ICTY to be essential even though he registered serious concerns about the way it operated. “What I have gone through,” he explained, “I think whoever was in my shoes would … like to see some justice being done.”

I hear similar sentiments the world over. In the Democratic Republic of the Congo, I have been astonished by the determination of women and young girls who have been ruthlessly gang-raped to secure justice in their country’s courts—though they have scant reason to expect justice from courts that have all too infrequently dispensed it. Even when human rights violators are convicted in the DRC, they have often escaped or bribed their way out of prison. One Congolese activist, who has helped dozens of rape survivors file criminal complaints, explained that many of these women nonetheless derive satisfaction from having made their perpetrators face a judicial reckoning. But of course these victims want their courts to work better, much better.

Likewise, the Bosnian victims I mentioned earlier cherish the justice they have found in The Hague, even though they have experienced myriad disappointments in specific aspects of the tribunal’s work. What, then, are their principal complaints? The ones I heard most often were as follows:

First, as one Bosnian survivor put it—and I quote: the ICTY’s “trials took too long, way too long.” Compounding this common complaint, trial proceedings that may last years often begin only after long years of waiting for justice. The ICTY’s most recent verdict, rendered earlier this week, involved allegations of violations committed in 1995—sixteen years ago!

While many factors contribute to the latter type of delay, victims have been especially outraged by the international community’s failure to apprehend fugitives from justice during periods when their whereabouts were known.

Second, victims have often been deeply disappointed by what they see as derisorily short sentences. Individuals convicted of serious crimes under international law by the ICTY have received sentences as light as two, three, five, six, seven and eight years long and are typically granted early release after serving 2/3 of their sentences.

Third, victims have been outraged by dictators in the dock who, like former Yugoslav President Slobodan Milosevic, opt to represent themselves and transform the courtroom into a political platform.

While the points I have just made focus on victims’ experiences of international justice, other key stakeholders have emphasized the contributions they believe prosecutions, as well as the work of credible truth commissions, can make to their societies. Many believe that trials and other processes of accountability can facilitate a wider public reckoning with violence of the recent past—a reckoning that, in turn, can empower societies to prevent a recurrence of violence. One civil society activist in Serbia made the point this way: She told me that the ICTY would achieve a significant measure of success if “people remember over time things that were brought into public knowledge by the ICTY’s work.”

In many countries that have been ravaged by ethnic violence, citizens were mobilized to participate in extermination campaigns by vicious propaganda. In these settings and others, civil society leaders have often supported international trials because of their perceived power to help dispel the lingering and pernicious effects of systemic distortions of the truth. Thus, assessing the contributions of the ICTY in his country, a Serbian lawyer told me that the Tribunal’s judgments had helped to “shrink the public space for denial” in his country.

The degree to which international courts have achieved this type of goal is difficult to gauge but, with respect to the ICTY experience, I think that two conclusions are warranted.

First, the work of the ICTY appears in fact to have shrunk the space for credible denial of Serbian leaders’ responsibility for crimes against humanity committed during the 1990s conflicts. Second, supporters of the ICTY nonetheless have been, on the whole, disappointed in the limited degree to which it has done so. There is much that could be said about this, but for now I will simply note that I believe this again highlights a theme that has run throughout my remarks: At best, international justice can play a valuable role—often an invaluable role—as one among many necessary responses to mass atrocity. But we should never expect trials alone to transform societies that have been disfigured by ruthless repression—much less over a very short period.

Nor do trials alone satisfy most victims’ understanding of justice. Don’t get me wrong: Many victims find deep satisfaction in seeing wrongdoers called to account before a legitimate court. But they also want greater attention to their need for reparations—in some instances, so they can reconstruct a self-sustaining livelihood that was decimated in the same attack that led to criminal prosecution. In this and other respects, I believe it critically important that international actors pay greater attention to victims’ understanding of justice—and try harder to shape our policies to address their needs, not our own conceptions of what they need.

Time is now running short, and so while there is much more to be said on this point, I want to use my remaining time briefly to return to a point I mentioned earlier—the selective nature of international prosecutions. Earlier I noted how this phenomenon affects the ability of international courts to deter future violence. But there is another important consequence: When, as has routinely happened in the ICC, an international prosecutor brings charges against only a handful of suspects in a context of mass atrocities, his or her selection of targets becomes hugely consequential.

Indeed, it would be hard to exaggerate how important the question of selection becomes—and the degree to which it can be manipulated by defendants’ supporters—in countries where mass atrocities were committed or where the defendants are nationals. Every international prosecutor in the past two decades has had to reckon with the challenge of demonstrating on the one hand his or her evenhanded, principled approach to the selection of defendants without, on the other hand, creating a false equivalency in order to achieve perceived balance. There is no playbook for getting this challenge right, but the perils of getting it wrong are considerable. To successfully meet this challenge, an international prosecutor must be both principled and prudent.

Beyond the actual selection of suspects, another critical factor affecting domestic perceptions of international tribunals is the way that a court explains the way it operates. When an international court’s top officials are silent about glaring questions such as how and why only “these six suspects” or “those three” were selected, they risk leaving the field open for misinformation and manipulation: “The court is biased against this ethnic group,” or “organized to convict that one,” and so forth. As then Secretary-General Kofi Annan said in 2003: “The decisions and public statements of the [ICC] Prosecutor will do more than anything else to establish the reputation of the Court.”

This is not to suggest that international judicial officers should litigate their cases in press conferences rather than in court. Far from it. But what I am suggesting is that it may be important to articulate core principles, such as the principal that a prosecutor’s selection of defendants is guided by the gravity of alleged offenses and of personal responsibility for them.

A prime example of this type of messaging is the statement that many international prosecutors, judges and other officials have made, to the effect that the court they serve prosecutes individuals, not ethnic or political groups. I know that some commentators have questioned this mantra, either because they think a tribunal’s focus on individual responsibility can have the adverse effect of absolving those who abetted mass atrocities through their complicit silence or, conversely, because judgments of international tribunals sometimes do implicate institutions, criminal groups, or complicit societies.

These points are well taken. But over the years, I have also seen that the repetition of this claim—the claim that a court renders judgment on individuals, not groups—has helped alleviate public anxieties and tensions in the face of controversial prosecutions and rulings. The message itself has served a salutary role.

In closing, I believe that our experiences with international and transitional justice hold extremely rich lessons. My own “big picture” takeaway is that victims of mass atrocities often crave and value justice far more than we appreciate, but by the same token have experienced a litany of frustrations with the way the international community has addressed their calls for justice. If there is a single pervasive failure in the way the international community has gone about our work in this area, it may be our poor capacity to listen to victims—and to let their voices shape our policies.