The United Nations tribunals for the former Yugoslavia and Rwanda have helped write new international law in investigating abuses from two brutal conflicts. Three war crimes courts in the planning stages may provide further models for how to provide justice for shattered societies. But the paths to create these new ad hoc tribunals have been difficult and illustrate the complexity and expense of mounting a national war crimes process.
United Nations, 7 September 2001 (RFE/RL) -- In the absence of a permanent international criminal court, a growing number of ad hoc tribunals have begun to fill the void in prosecuting some of the world's worst crimes.
The tribunals for the former Yugoslavia and Rwanda, set up by the UN Security Council and funded by UN member states, are fully operational. Their start-up has been slow and expensive, but they are generally regarded by governments and civil society groups as essential to the transition of these societies from war to peace.
These tribunals have already set precedents in international criminal law -- for prosecuting leaders for genocide and journalists for inciting genocidal violence, and for establishing rape as a war crime.
Two states victimized by crimes against humanity -- Cambodia and Sierra Leone -- are now attempting, with UN assistance, to set up tribunals. The UN-administered territory of East Timor, which is on the road to independence, has its own special panel investigating genocide and other serious crimes.
The UN Assistant Undersecretary-General for Legal Affairs, Ralph Zacklin, who is closely involved in these efforts, says the latest attempt to set up war crimes courts reflects a growing recognition of the need to prosecute the world's most serious crimes.
"The proliferation of ad hoc tribunals of different kinds, whether international or mixed as in the case of Cambodia or Sierra Leone in one sense, of course, is a positive development because it shows that the international community is coming to grips with the problem of impunity."
But each effort, Zacklin says, involves a separate set of characteristics, legal obstacles and fund-raising challenges. The UN Security Council, while supportive of these planned tribunals, will not fund them as it did in the cases of the former Yugoslavia and Rwanda in 1993 and 1994.
Zacklin says there is no longer support on the council for setting up such subsidiary legal bodies. And a number of UN member states, he says, do not approve of the council establishing international criminal tribunals.
The total annual cost for both the Yugoslav and Rwanda tribunals is about $100 million. The UN estimates that a Sierra Leone tribunal, set to run for three years, will cost $57 million. That money would go for trial and appeals chambers, judges and the office of prosecutor, investigators and a registrar, among other expenses.
Zacklin says just a small portion of the pledged amount for the Sierra Leone court has been received. He says he expects similar problems in Cambodia, where total expenses have not yet been estimated.
"The investigation of war crimes is a very labor intensive activity and in some cases it involves -- as it has in Yugoslavia and Rwanda -- a lot of forensic evidence, so this is quite an expensive operation."
Most governments react positively to the idea of such courts but are often slow to provide financial support, says David Scheffer, a senior fellow at the U.S. Institute of Peace, an independent organization that supports conflict resolution. Scheffer was the ambassador-at-large for war crimes under the administration of U.S. President Bill Clinton and worked to raise money for the ad hoc tribunals. He says it is difficult to muster political and financial support from governments once the real work for these tribunals begins.
"In theory, it looks good. In practice, it's expensive and it requires political capital to make it work. It requires a tremendous diplomatic effort to make it work. It requires focus by governments at a time when they would prefer to focus on other priorities in their societies."
But Scheffer says it would be a serious setback to the development of Cambodia and Sierra Leone if the planned tribunals are not established.
Cambodia is seeking to address the atrocities committed by the Khmer Rouge between 1975 and 1979. The regime is believed to be responsible for more than a million deaths. During Sierra Leone's civil war through most of the 1990s, rebels killed tens of thousands of civilians and conducted campaigns of burning and raping and the kidnapping of children to serve as fighters. A common rebel tactic was hacking off the arms and legs of civilians to instill fear. Rebel groups still control large sections of the country, and a large UN mission is currently keeping the peace.
Scheffer says it is important to provide a temporary forum for the investigation and prosecution of these abuses and any subsequent war crimes that are committed. Until the permanent international criminal court takes effect, he notes, ad hoc tribunals or national courts will be the primary venues for prosecuting war crimes.
"It's extremely important that we not only address those crimes by ensuring that there's a proper court established to deal with those crimes, but that we also learn from the work of those courts so that when the permanent court is established, it has this large body of experience in international criminal prosecutions to draw upon because this is still fairly new territory for the international community and even for international criminal law."
Complicating the process is the weak judicial structure in countries in need of war crimes tribunals. Sierra Leone is being set up as an independent international court. Cambodia, according to legislation passed last month, will set up extraordinary chambers on the national level. Both will be heavily dependent on outside funding and expertise, but the level of international legal help -- which would lend added credibility to these efforts -- is not yet certain.
In Cambodia, for example, the United Nations must first review the new national law to make sure it meets international standards before lending its assistance. Zacklin, of the UN office of legal affairs, says the United Nations wants to make sure the structure of the tribunal meets the standards of justice the UN has followed with the Yugoslav and Rwanda tribunals.
In the case of East Timor, the United Nations is facing criticism from the non-governmental organization Amnesty International that it is proceeding too slowly in investigating crimes against humanity committed in 1999 by Indonesian security forces and pro-Indonesian militia.
Amnesty said in a report released this summer that, based on the current pace of prosecutions, the UN mission in East Timor is unlikely to meet its limited target of 10 priority cases by the end of the year. Amnesty says this will undermine reconciliation efforts at a crucial time when local government is taking over and the UN political mission is phasing out.
But Zacklin says the former Indonesian territory is trying to build a judiciary in a place where none existed. He said at the beginning of the UN operation in East Timor, his office discovered that there were fewer than a dozen trained lawyers of East Timorese background in the world.
Zacklin also says the special crimes panel is dependent on Indonesia for help in investigating the abuses committed around the time of the East Timor independence vote.
"Even if they had a judiciary in East Timor that was well staffed and experienced, they would still have enormous difficulties because a lot of those cases require the cooperation of the government of Indonesia and the cooperation with Indonesia is what has been lacking."
But Zacklin draws encouragement from the efforts underway for the former Yugoslavia and Rwanda. He says they have proven to be more than what he calls "academic exercises."
"The main lesson to be drawn from what is happening in The Hague tribunal is that after all, it is possible to envisage that political and military leaders who are responsible for committing war crimes can, in fact, be brought to justice in an international tribunal. This was not self-evident when the Yugoslav tribunal was set up in 1993."
Zacklin says East Timor is a long way from being able to prosecute complex war crimes cases. He says his office expects to finalize its agreement with Cambodia by next month and that its tribunal may begin work early next year. In Sierra Leone, he says, the effort to set up a war crimes panel is part of the country's political process and will eventually play a role in reconciliation in the country. Sierra Leone's government this week called national elections for next May.