States exercise domestic criminal jurisdiction over individuals for the commission of genocide, war crimes, and crimes against humanity (hereinafter "the major crimes") committed within their own territory or by nationals of the state. In addition to prosecutions in domestic criminal courts, states have tried perpetrators of major crimes before military tribunals; conducted special inquiries, generally of a non-criminal nature; held truth and reconciliation commissions; and granted limited or general amnesties. Other venues for prosecuting alleged breaches of these offences include ad hoc international criminal tribunals, the International Criminal Court (ICC), and criminal courts of other states prosecuting perpetrators pursuant to some form of extraterritorial jurisdiction.
Domestic Criminal Jurisdiction
The purpose of prosecution is to punish the perpetrator and provide the victim with a measure of satisfaction, thus reducing the victim's desire to seek revenge. Prosecution ensures that a state's laws, and the value system underlying them, are respected, and demonstrates the state's, and (by extension) the people's, abhorrence for the offence. The consistent prosecution of offences also informs other people within the state that they will be punished for similar actions.
One of the most important aspects of a state's sovereignty is its right to create and enforce criminal laws. The territorial principle, whereby jurisdiction is determined by reference to the site of the crime, forms the bedrock of most domestic criminal justice systems. It is the state that determines whether a particular act committed within its territory is or is not a crime. That state normally has the greatest interest in seeing that the perpetrator is tried, as it is the state itself, inhabitants of the state, or property located within that state which has been victimized by the crime. From a more practical perspective, the territorial state generally has the greatest and most immediate access to evidence of the offence, the crime scene, and any witnesses to the offence. Usually, there are investigation and prosecution organizations in place. It is also likely that the state would have custody of the alleged perpetrator.
The second basis for jurisdiction, the nationality principle, is used by a state whose national commits an offence on the territory of another state. The exercise of jurisdiction on this basis is usually reserved for specific crimes that the perpetrator's state feels should be singled out as being particularly nefarious, such as torture or hostage-taking, or for crimes committed by individuals who are or may be taken as representing the state, such as military personnel or members of the state's diplomatic corps. By prosecuting its national, the state effectively distances itself from the crime.
The universality principle, on the other hand, is triggered in response to a treaty, international convention or customary international law-based obligation. It requires a state to take into custody an alleged perpetrator who has fled to that state after committing certain offences elsewhere. The custodial state is obliged to either extradite the perpetrator to a state willing to conduct a territorial or nationality-based prosecution or to prosecute the alleged perpetrator itself.
Post–World War I Turkish Prosecutions for Crimes against the Armenians
On October 29, 1914, the Ittihadist government in the Turkish-dominated Ottoman Empire brought that state into World War I as an ally of Germany. During the course of the war, and particularly during mobilization and deportation actions in 1915, hundreds of thousands of Turkish citizens of Armenian descent were killed, allegedly by Turkish military personnel at the instigation of the Turkish government, in what some have referred to as genocide.
The Treaty of Peace between the Allied Powers and Turkey (the Treaty of Sèvres) was signed on August 10, 1920. Article 230 of that treaty recognized the right of the Allied Powers to establish military tribunals to prosecute Turkish nationals alleged to have committed violations of the laws and customs of war. However, the Treaty of Sèvres was never ratified. Instead, it was replaced by the Treaty of Lausanne of July 24, 1923. This treaty included a declaration of amnesty for crimes connected with political events committed during the war. One of the bases for this reversal was the lack of valid law criminalizing these actions.
Following an investigation conducted by a commission of inquiry, Turkey itself formed a special court martial to try some of the alleged perpetrators, relying entirely on the Ottoman penal code. Despite the fact that a number of the highest-level perpetrators had escaped custody, a series of courts martial were held. Common to all of the trials was the question of whether the mobilization and deportation of the Armenians was an aspect of a central plan for the destruction of the Armenian population in Turkey. A number of the senior perpetrators were sentenced to death in absentia. Some lower-level perpetrators were sentenced to imprisonment. Many others were acquitted.
Nearly all of the accused senior Ittihadists party members escaped before having to stand trial. Many of those middle level perpetrators who were sentenced later escaped or were set free. With a change in government, and the finalization of the declaration of amnesty attached to the Lausanne Treaty, Turkish efforts to prosecute the many remaining perpetrators ended.
Post–World War I German Prosecutions
World War I formally ended with the signing of the Treaty of Versailles. A Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties was established, and a list of approximately 895 people accused of war-related atrocities was drawn up, with a recommendation that they be tried before an international tribunal. However, Kaiser Wilhelm II of Hohenzollrn, the former emperor of Germany, had fled to the Netherlands following Germany's defeat. When it became clear that the Dutch government would not surrender him for prosecution, international interest in conducting trials dissipated. As efforts to prosecute lagged at the international level, diplomatic pressure applied by the German government resulted in its being given the responsibility of prosecuting the alleged war criminals.
Nationalistic fervor was running high in Germany, and the government was not eager to conduct criminal proceedings against its own nationals for their wartime conduct. Although trials were held before the German Supreme Court sitting in Leipzig, of the approximately 895 people named on the Commission's list, only twelve were prosecuted, and only six were convicted. The most famous case dealt with the sinking of the Llandovery Castle, a hospital ship, and the subsequent firing upon survivors in lifeboats by two naval lieutenants. The two lieutenants were given the longest sentences imposed by the Leipzig court: four years imprisonment. A number of the convicted escaped before serving their full sentences.
The post–WWI Turkish and German prosecutions represent one of the first times in history that a state used its domestic law to try its own nationals for the commission of what are now internationally recognized as the major crimes. The sad legacy of the failed efforts to conduct these prosecutions effectively and punish the perpetrators is that there remained an air of impunity surrounding the commission of these offences. By permitting perpetrators to escape before trial or after conviction; by not prosecuting known perpetrators; and by allowing political interests, both domestic and international, to trump the rule of law, the Turkish and German governments, and the international community, announced that the purposes of criminal prosecution were of insufficient importance in these circumstances to warrant prosecution. The Turkish government still maintains that the Armenian deaths were a result of intensive fighting, and not genocide.
Within a generation, the world was engaged in an even more horrific war. The air of impunity engendered by the failure to prosecute perpetrators following World War I undoubtedly underlay Adolf Hitler's chilling announcement, on August 22, 1939, of the first step toward the Final Solution, which was the Nazi regime's concentrated effort to destroy the Jewish people. He said: "I have given orders to my Death Units to exterminate without mercy or pity men, women, and children belonging to the Polish-speaking race. After all, who remembers today the extermination of the Armenians?"
World War II–Related Domestic Prosecutions
Following World War II, the allied powers prosecuted major Nazi war criminals pursuant to the London Agreement for the Trial and Punishment of the Major War Criminals of the European Axis Countries and the annexed Charter of the International Military Tribunal (August 8, 1945). Similar efforts were undertaken to prosecute Japanese perpetrators, pursuant to the Charter of the International Military Tribunal for the Far East (January 19, 1946, as amended by General McArthur's General Order No. 20, April 26, 1946).
Prosecutions within the Occupied Zones
On December 20, 1945, the Control Council for Germany enacted Control Council Law No. 10 (CCL 10), ostensibly to provide a uniform, domestic legal basis for the prosecution of alleged perpetrators of the major crimes, other than those prosecuted by the International Military Tribunal. However, instead of relying on CCL 10, each occupying power utilized its own, in many cases specially enacted, law and conducted trials using its own court martial procedures.
The Canadian government, under provisions of the War Crimes Regulations of August 30, 1945 and later the Canadian War Crimes Act of 1946, held courts martial for former Nazi officers and soldiers who murdered Canadian prisoners of war. The British military courts conducted trials pursuant to the Royal Warrant of June 14, 1946. The United States, pursuant to Military Government Ordinance No. 7 of October 18, 1946, appointed commissions composed of civilian judges—the only country to do so. The French conducted trials pursuant to ordinances dated November 25, 1945, and March 8, 1946. And in the British Zone of Control, Special Ordinance No. 47 provided German courts with jurisdiction to prosecute German nationals for crimes committed against German citizens or stateless people.
By October 31, 1946, CCL 10 trials had resulted in 413 death sentences, 704 prison sentences, and 262 acquittals. Despite this impressive start, however, the number of investigations and trials conducted by the Allied Powers in the West soon began to decrease, and by 1955, proceedings had ceased. In 1958, under a general amnesty, most convicted perpetrators still in prison were released.
The exception to this was the prosecution of major crime perpetrators by Germany. By mid-2004, the Federal Republic of Germany had investigated more than 100,000 people for crimes committed during World War II, resulting in 6,456 convictions. These include the 1958 prosecution of Brigadier General Fischer-Schweder, who, as police chief in Tilsit, Lithuania, participated in the mass execution of Jews. He was sentenced to twelve years in prison. Nine officers and administrators from the Maidenak concentration camp in Poland were also prosecuted. One of the accused, Hermine Ryan-Braunsteiner, was found to be directly responsible for the deaths of over 1,000 people and complicit in the deaths of 700 others. He was sentenced to life imprisonment.
Twenty-one major trials took place in Germany between 1960 and 1965. Following an amendment to the statute of limitations for murder, from 1965 through 1969, 361 people were tried, resulting in 223 convictions. Sixty-three of the convicted were sentenced to life imprisonment. From 1970 through 1979, 219 accused were tried in 119 prosecutions, resulting in 137 convictions.
The German government also obtained the extradition of a number of individuals from countries around the world. In 1982, the United States extradited Hans Lipschis to stand trial in Germany for his participation in the deaths of tens of thousands of prisoners in Auschwitz and Birkenau. Canada extradited Helmut Rauca for his role as an officer in a concentration camp near Kaunas, in Lithuania, where Rauca was responsible for the deaths of more than eleven thousand people. Rauca died in prison while awaiting trail. Josef Schwammberger, extradited from Argentina, faced charges of participating in the murder of over 3,500 prisoners of the Przemysl and Razwadow concentration camps. He was sentenced to life imprisonment.
Some of Germany's most important trials took place between 1960 and 1980, well after the conclusion of the war. The German infrastructure had been rebuilt with international assistance. The country had become a stable political entity. A new generation of Germans, freed from the tensions of the conflict period, were able to effectively apply criminal law against fellow nationals who had been perpetrators of the century's worst crimes.
Prosecutions Outside of the Occupied Zones
Outside of the occupied area, formerly occupied states enacted domestic legislation enabling the investigation and prosecution of perpetrators of the major crimes committed on their territory or by their own nationals. France conducted three of the most famous postwar prosecutions outside of the Occupied Zones, namely of Klaus Barbie, Paul Touvier, and Maurice Papon. Barbie was accused of committing 340 crimes against French citizens. The Cour de Cassation determined that the concept of crimes against humanity, as set out in the London Charter, was applicable in French domestic law, and covered seventeen of the charges against Barbie. Included in the list of crimes was Barbie's participation in the deportation of forty Jewish children to Auschwitz and over 650 French citizens to German concentration camps in the last deportation action undertaken in France. On July 4, 1987, Barbie was convicted of crimes against humanity and sentenced to life imprisonment.
Paul Touvier was originally charged with numerous offences, including torture and deportation, allegedly committed while he was a Nazi collaborator and assistant to Barbie. After years of legal arguments, trials, and appeals, on April 20, 1994, Touvier was convicted of complicity to commit crimes against humanity in the murder of seven Jews at Rillieux-la-Pape and was sentenced to life imprisonment.
Maurice Papon had a postwar career which included positions as a high-level civil servant, the prefect of police for Paris, and France's budget minister. In the early 1980s, however, documentary evidence was uncovered linking Papon to the deportation of almost 1,700 Jews to German concentration camps during 1942. Despite overwhelming evidence, after a lengthy trial, Papon was convicted of complicity with respect to the arrest and imprisonment of some of the victims, but was acquitted of all murder charges. On April 2, 1998, he was sentenced to ten years imprisonment, but released in 2002 because of bad health.
Other Western European countries conducted similar trials, in greater or lesser numbers. In most cases, these trials elicited strong political debate concerning the role of nationals in the commission of gross offences against their own people. Politics and the political and social implications of the prosecutions overshadowed most of the trials. In Eastern Europe, the Soviet Union conducted thousands of trials for warrelated crimes. However, the alleged widespread use of torture to elicit confessions or obtain evidence casts doubt over the validity of these trials.
The broad acceptance of a state's power to prosecute its own nationals for major crimes using domestic law was a tremendous development in efforts to address the problem of impunity. However, the prosecutions suffered from a number of flaws that reduced their overall impact. There were not enough prosecutions, in many cases as a result of a real or imagined lack of proper domestic legislation. The prosecutions that did occur were often politically motivated, or the courts were influenced by political considerations. Sentencing procedures were nonexistent or not followed. Once again, the message conveyed by these failures was that the states concerned, and the international community, felt that the purposes of criminal prosecution were of insufficient importance in these circumstances to warrant more effective efforts.
Modern Domestic Prosecutions
With respect to modern prosecutions of the major crimes, most of the attention has been paid to the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY, ICTR), combined national and international tribunals such as the Special Court for Sierra Leone, and the International Criminal Court (ICC). In addition, there are third-party states that use universal jurisdiction principles to prosecute perpetrators found within their territory following the commission of the offences. Some states, attempting to balance political realities with legal obligations, conduct Commissions of Inquiry into alleged major crimes in an effort to uncover the truth outside of the more threatening arena of a criminal court. Territorial and nationalitybased major crime prosecutions remain the exception rather than the rule, however.
On March 26, 1968, American soldiers and officers assaulted My Lai village in Vietnam. During the operation, described as a "command-directed killing spree," 567 unarmed civilians were murdered. Four officers and nine enlisted men were charged with war crimes, including rape and murder. Twelve other officers were charged for their participation in cover-up activities. All were tried before military courts martial. Only First Lieutenant William Calley was convicted. He was sentenced to life imprisonment. The Secretary of the Army reduced the sentenced to 10 years. Calley served only three years under house arrest.
Israel's Commission of Inquiry
In 1982, Israeli military forces invaded Southern Lebanon in an effort to end Palestinian Liberation Organization–instigated terrorist attacks emanating from that area. Trained and equipped by Israel, and under Israeli control, was the largely Christian Lebanese Phalange faction. Israeli forces moved into West Beirut, and ordered the Phalengists to enter Sabra and Shatila refugee camps, ostensibly to search for terrorists. Between 300 and 1,000 Palestinian civilians were murdered by the Phalengists during the 48 hours of occupation.
Israel established the Commission of Inquiry into the Events at the Refugee Camps in Beirut, which produced a startlingly candid report. However, while the commission recognized the command-and-control failures of senior members of the Israeli government and military, and particularly noted the personal responsibility of then Defence Minister Ariel Sharon, it concluded that the determination of responsibility for most senior political and military offenders was sufficient penalty. It did recommend that the Prime Minister consider removing Sharon from office.
Canadian Commission of Inquiry
During the first six months of 1993, members of the Canadian Armed Forces (CF) occupied the area in and around Belet Huen, Somalia, as part of a U.S.-led peacemaking operation. During that time, CF members committed a number of war crimes, including the beating death of a Somali teenager and the shooting of two unarmed Somalis in the back as they fled one of the compounds. One victim died.
A Commission of Inquiry was established to investigate events surrounding the CF deployment. After two years of investigations and public hearings, and the issuance of an Order-in-Council terminating the inquiry, a report was released which addressed all predeployment and in-theater aspects of the mission. The CF conducted courts martial. Master Corporal Matchee, the primary culprit in the beating death, was found unfit to stand trial following an apparent suicide attempt. Private Brown was sentenced to five years imprisonment for manslaughter and torture. Another private, Brocklebank, was acquitted. Captain Sox and Major Seward were convicted of negligent performance of duty and given minor sentences. One charge was laid against Captain Rainville, who led the reconnaissance platoon involved in the shootings. He was acquitted. Lieutenant Colonel Mathieu, the on-site commanding officer, was acquitted of negligent performance of duty.
Amnesties in Latin America
In many post-conflict states, transitional governments grant or uphold amnesties for crimes committed by the former rulers. Proponents of amnesties argue that they are the price of peace. Victims-rights groups argue that amnesties conflict with internationally imposed obligations to extradite or prosecute perpetrators of the major crimes, and are in reality a tool for permitting perpetrators of the world's worst crimes to continue to operate with impunity. Often, both positions share in the truth. The use of amnesties became custom in Latin America during the 1980s and 1990s to reduce or eliminate criminal liability for some or all offences committed by prior regimes.
Chile's Amnesty Law
In September 1973, a military junta led by General Augusto Pinochet overthrew the government of President Salvador Allende in Chile. Within three months, approximately 1,500 suspected leftist party members and sympathizers had been murdered or "disappeared." By August 1977, a further 600 had been murdered. In 1978, Pinochet issued an unconditional amnesty for most criminal offences committed between September 1973 and March 1977. The exceptions included armed robbery and rape, but not murder, kidnapping, and assault, which were the most common forms of terror used by Pinochet's military. In 1990, a new government, led by Patricio Aylwin, was elected. However, General Pinochet retained strong support in the army and Congress, and Aylwin's tentative efforts to revoke the amnesty met with considerable opposition. A Truth and Reconciliation Commission was nonetheless tasked to identify the victims of human rights violations and to recommend reparation measures. Any evidence of criminal activity was to be directed to the Supreme Court.
In 1998, while in England, General Pinochet was arrested pursuant to an international warrant issued by Spain. The British House of Lords determined that General Pinochet could be extradited to Spain to stand trial for major crimes. Although General Pinochet was returned to Chile as a result of his ill health, the publicity surrounding the British extradition hearings resulted in the Chilean Supreme Court annulling the 1978 amnesty law, some twenty years after its proclamation.
Despite the amnesty, some successful prosecutions have taken place, including the prosecution and conviction of the head of the secret police, General Manuel Contreras, and his second-in-command, Brigadier Pedro Espinoza, for the murder of Orlando Letelier, the Chilean Minister of Foreign Affairs. Letelier was murdered in Washington, D.C. Pressure exerted by the United States resulted in his prosecution in the face of the amnesty. Contreras was subsequently convicted for the abduction of a member of the Movement of the Revolutionary Left and the disappearance of journalist Diana Aaron in 1974.
Other Latin American Amnesties
Other Latin American governments have issued unconditional or partial amnesties, ostensibly to help stabilize the post-conflict state. Immediately prior to the 1983 Argentine elections, then-President Leopoldo Fortunato Galtieri enacted the Law of National Pacification, which granted amnesties to individuals within both his and former President Juan Peron's governments, for acts of state terrorism committed during the "dirty war" period from 1976 to 1983. Despite initial efforts by the newly elected President, Raoul Alfonsin, to repeal the amnesty law, and the creation of the National Commission on the Disappeared, political pressure from within the country resulted in a series of retrenchments, culminating in the granting of unconditional amnesties and pardons to known perpetrators on the basis that it was time to put aside the divisions within the country. Finally, in August 2003, following the issuance of international arrest warrants for forty-five former Argentine military officers by a Spanish judge, both houses in the Argentine Congress voted to repeal the amnesty laws and reopen trials of former military officers.
In 1993, broad, unconditional amnesties for political crimes were granted in El Salvador, following a report by a UN-sponsored Truth Commission which recommended that, given the close ties between the judiciary and the government, prosecutions would likely be biased and lead to further instability. The amnesties covered decades of civil strife, during which more than 70,000 people were murdered or disappeared, and countless more were tortured.
Full or partial amnesties have also been granted in Guatemala, where an estimated 140,000 to 200,000 people were "disappeared" or murdered in an ongoing civil war that ended in 1996; in Honduras, where an estimated 179 people were "disappeared" by the armed forces between 1980 and 1993; and in Peru, where, in 1995, an unconditional amnesty was granted to Peruvian military, police, and civilians involved in brutal anti-terrorist activities between 1980 and 1995. In a number of these cases, truth commissions were established to investigate alleged abuses and advise their respective transitional governments. While these commissions arguably made contributions to the protection and promotion of justice and the preservation of evidence, the lack of criminal sanctions against the perpetrators has encouraged the sense of impunity surrounding the commission of major crimes.
Domestic Prosecutions in the Former Yugoslavia
Domestic prosecutions of the major crimes in Bosnia and Herzegovina are governed by the Rules of the Road, adopted in 1996 by Presidents Izetbegovic of Bosnia and Herzegovina, Franjo Tudjman of Croatia, and Slobodan Milosevic of Yugoslavia as a follow up to the Dayton Peace Accords. Under the rules, potential major crime cases are forwarded to the International Criminal Tribunal for the Former Yugoslavia (ICTY) for a decision as to whether there is sufficient evidence, under an international standard, to conduct a prosecution. As of January 2004, the ICTY has referred back to Bosnia and Herzegovina approximately 550 cases determined to have sufficient evidence to prosecute. Of these, approximately 10 percent have reached trial stage in Bosnia and Herzegovina, primarily at the cantonal court level.
The greatest advantage of this process, and of the work of the international community in Bosnia and Herzegovina, is that the justice system is being brought into line with international standards. The criminal legal system has undergone reform with the enactment of new procedural codes, court restructuring, and the creation of the High Judicial and Prosecutorial Council. Judicial and prosecutorial training programs are being implemented. Prison reform initiatives are underway. An Implementation Task Force is working towards the establishment of a War Crimes Chamber within the State Court, which should be ready to accept the transfer of cases from the ICTY by the end of 2004. While there remains room for improvement, particularly with witness protection programs and the elimination of prosecutorial and judicial bias, continued support by the international community will ensure that Bosnia and Herzegovina will be able to assume increasingly greater responsibility for domestic prosecution of the major crimes.
Croatian prosecutions have experienced problems similar to those in Bosnia and Herzegovina. Hundreds of trials have come before national courts, but the vast majority have been against Croatian Serbs, and many of these have been conducted without the accused being present. Only a handful have been commenced against Croats for crimes perpetrated against Serbs, and these have been tainted by allegations of witness intimidation and judicial bias. The worst example is the Lora Prison case in Split County Court in 2002. Eight Croatian military officers were accused of torturing and killing Serbian and Montenegrin prisoners in 1992. Evidence of the offences had been reported by local and international nongovernmental organizations (NGOs). Witness intimidation was rampant. Witnesses refused to testify, retracted their statements on the stand, or went into hiding. All accused were acquitted. While the Croatian government appears to be increasingly committed to conducting domestic trials of the major crimes, enhanced witness protection programs and the elimination of prosecutorial and judicial bias are essential.
In Serbia-Montenegro, following the transfer of former president Milosevic and other former Serb political and military leaders to the ICTY, legal reform has resulted in the commencement of prosecutions of Serbs for atrocities committed against non-Serbs. In July 2002, Ivan Nikolic, a former Yugoslav army reservist, was sentenced to eight years for the murder of two Kosovar Albanians in 1999. In September 2002, Nebojsa Ranisavlejevic, a Bosnian Serb Army volunteer, was sentenced to fifteen years for the murder of nineteen Yugoslav Muslims abducted from a train near the border town of Strpci in February 1993. In October 2002, a military court convicted two Yugoslav army officers and two privates for the killing of two ethnic Albanians during the Kosovo crisis. Finally, the trial of Sasa Cvjetan, a member of a Serbian police anti-terrorist unit, was commenced in October 2002. He is accused of the murder of nineteen Kosovar Albanians in March 1999. These prosecutions of ethnic Serbs in their own state demonstrates a limited but growing acceptance of the government's responsibility to exercise territorial and nationality-based jurisdiction over the major crimes. However, prosecutions of more senior military and non-military leaders are necessary to demonstrate a full commitment to justice.
Domestic Prosecutions in Rwanda
Following the 1993 genocide, the Rwandan government found itself faced with the daunting task of prosecuting the perpetrators of the atrocities. Organic Law 8/96 of September 1996 divided offenders into four categories, based on their level of participation in the atrocities. Confessions and the provision of information concerning other accused were to be rewarded with a significant reduction in sentence. However, by 1998, the number of prisoners being held in jails throughout the country amounted to almost 130,000, and comparatively very few trials had taken place. Frustrated by the massive numbers of accused and the lack of proper infrastructure and evidence, and recognizing the need for both justice and reconciliation, the government began to experiment with the traditional form of judicial process, called gacaca.
The original gacaca was a semi-formal judicial process designed to deal with local issues. The community met in the open and participated in the process, with local respected figures elected to serve as judges. The Gacaca Law on the Creation of Gacaca Jurisdictions, approved by the Constitutional Court on 26 January 2001, adapted traditional gacaca law to meet the demands imposed by the number and magnitude of the crimes committed during the genocide. The new law incorporated the provisions of Organic Law 8/96 concerning the classification of perpetrators and the confession/sentence reduction program. The "gacaca jurisdictions" are empowered to try anyone accused of involvement in the atrocities, except for those who held positions of power within Rwandan society and used that power to organize and carry out the genocide. These senior perpetrators are to be tried before normal criminal courts.
An early experiment with the new gacaca process was undertaken when 544 prisoners being held in Kibuye prison on little or no evidence participated in gacaca trials. Over a period of six weeks, the prisoners were presented one-by-one to the local population. Individuals who attended the trials were permitted to speak for or against each prisoner, and then to determine his guilt or innocence. By the end of the process, 256 of the prisoners had been released.
Victims rights groups have protested that the gacaca trials do not meet internationally recognized criminal process requirements, and fail to adequately punish offenders or to address victims' concerns, including the right to compensation. However, using the traditional process has significant advantages. Local people recognize and are comfortable with the procedures. They witness justice being done. The decision-making power rests with the community, tempered by the elected judges. The intent of the gacaca process is to discover the truth and to bring the offender back into the community after admission of the offence; a rehabilitation process fully in accord with the purposes of criminal prosecution. While the actual punishment imposed by the gacaca process might be lenient by international standards, it may be that it is the only available option for the Rwandan government, given the massive number of alleged perpetrators waiting for justice in horribly overcrowded jails.
History demonstrates that leaving states to prosecute their own nationals for major offences is rarely effective. Social and political tensions (post–World War I; Latin America), inadequate infrastructure (Rwanda), or simple disregard for justice when addressing major crimes committed by nationals against civilians in foreign countries (the United States in My Lai; Israel in Southern Lebanon; Canada and Somalia) have all played their part in undermining prosecutorial efforts. On the other hand, international institutions, operating on their own, are incapable of dealing with the large number of perpetrators normally involved in these offences, and the state concerned loses the cathartic benefits of the investigative process.
The most effective way to address impunity for major crimes is through a two-step process. The international community must intervene and conduct prosecutions of the most senior offenders at the earliest possible moment. This allows for the creation of a record of the offences and the removal from the transitional society of powerful elements potentially willing to reignite the conflict if threatened with domestic prosecution. Additionally, assistance must be provided to the transitional government for the rebuilding of infrastructure and the maintenance of political stability. As conflict-related tensions within the community begin to ease, the new government can commence domestic prosecutions of middle- and lower-ranking offenders, using domestic practices and laws amended to address these extraordinary offences.
SEE ALSO Argentina; Chile; Eichmann Trials; El Salvador; Guatemala; Immunity; Impunity; National Laws; Nuremberg Trials; Prosecution; Rehabilitation; Rwanda; Sierra Leone Special Court; Universal Jurisdiction; War Crimes; World War I Peace Treaties
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The views herein expressed are those of the author, and do not necessarily reflect the views of the Canadian Department of Justice or the Government of Canada.