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exacerbated by proceedings regarded as biased.
But what more speci¬c conclusions can we draw, from recent experience,
regarding the impact of accountability proceedings on building the rule of
law domestically? It is to this challenging question that we now turn.


III. INTERNATIONAL TRIBUNALS AND THEIR IMPACT ON DOMESTIC RULE
OF LAW: THE ICTY AND THE ICTR

The international community had good reason, at the time, to establish
special international tribunals for Yugoslavia and Rwanda. Both con¬‚icts
involved egregious and widespread violations of international humanitarian
law, and many states were determined to convey an emphatic international
message that such conduct was unacceptable. In neither case were domestic
legal systems in a position to provide fair and impartial justice. The Balkans
were in the throes of a bitter con¬‚ict, and violence and ethnic hostilities pre-
cluded chances of fair and unbiased domestic prosecutions. Rwanda™s legal
system was devastated and overwhelmed in the face of massive genocide.
The risks of “victor™s justice” in both situations were substantial. In these
circumstances, international tribunals held out a better prospect of indepen-
dent and impartial proceedings and also of gaining custody over perpetrators
beyond national borders.30
Established by the UN Security Council and funded largely by mem-
ber states, the International Criminal Tribunal for the former Yugoslavia
(ICTY)31 and the International Criminal Tribunal for Rwanda (ICTR)32 both
have accomplished a great deal. They have each brought to justice, in fair
trials, at least some of the individuals most responsible for egregious atroc-
ities. Rwanda™s former prime minister, Jean Kambanda, for instance, pled
guilty and was convicted of genocide before the ICTR and is serving a life


30 See Kritz, The Rule of Law in the Postcon¬‚ict Phase, supra note 10, at 816.
31 S.C. Res. 827, U.N. Doc. S/Res/827, May 25, 1993; see International Criminal Tri-
bunal for the Former Yugoslavia, ICTY at a Glance, General Information, available at
http://www.un.org/icty/glance-e/index.htm (last accessed February 4, 2006).
32 S.C. Res. 955, U.N. Doc. S/Res/955 (November 8, 1994).
264 CAN MIGHT MAKE RIGHTS?


sentence.33 At the ICTY, General Radislav Krstic “ Commander of the Drina
Corps “ was found guilty of genocide in the 1995 Srebrenica massacres of as
many as 8000 Muslim men and boys. The trial of former Yugoslav president
Slobodan Milosevic before the ICTY was plagued by delay and other dif¬-
culties before his death in March 2006 brought the proceedings to an end
without a ¬nal verdict; but his indictment for crimes committed in Bosnia,
Croatia, and Kosovo “ the ¬rst indictment ever to be brought against a sitting
head of state “ sent a clear message that nobody is above the law and con-
tributed to his ultimate fall from power.34 Both tribunals have also set some
groundbreaking legal precedents contributing to the development of inter-
national criminal law, and they have played an educational role in focusing
world attention on fundamental rules of international law. In bringing major
perpetrators to justice, both tribunals have established an of¬cial record of
the horrendous crimes committed and the criminal responsibilities of those
involved.
Yet, despite these signi¬cant steps, both international tribunals may be
remembered in the end as much for their shortcomings as their accomplish-
ments. For one, they are geographically and psychologically distant from
those most affected by the atrocities they are investigating and prosecuting.
This distance, coupled with only belated and limited attempts at outreach,
has undercut their legitimacy in the eyes of critical domestic audiences. Lim-
ited accurate information about the tribunals™ proceedings, at least at ¬rst,
undermined the tribunals™ potential impact among local populations. For
example, despite working hard to provide an impartial forum, the ICTY
has suffered from a crisis of legitimacy “ especially among Serbs “ many
of whom do not regard the tribunal as an embodiment of neutral justice.35
These various factors have limited the ability of the international tribunals

33 He was also convicted of conspiracy to commit genocide, direct and public incitement to
commit genocide, complicity in genocide, and crimes against humanity. The ICTR also has
brought a number of other high-level perpetrators to justice, including cabinet members and
mayors.
34 See Case Information Sheet: Milosevic (IT-02“54), available at http://www.un.org/icty/cases-
e/index-e.htm (last accessed February 5, 2006). For a discussion of the indictment™s impact,
see Burke-White, A System of Multilevel Global Governance in the Enforcement of
International Criminal Law, supra note 22, Chapter IV, at 231“234. For information on the
Krstic case, see Prosecutor v. Krstic, Case No. IT-98-33-A, Judgment in the Appeals Chamber,
April 19, 2004, available at http://www.un.org/icty/krstic/Appeal/judgment/index.htm. As
of May 2006, important ICTY indictees “ such as Ratko Mladic and Radovan Karadzic “
still remained at large.
35 See Jelena Pejic, The Yugoslav Truth and Reconciliation Commission: A Shaky Start, 25
Fordham Int™l L. J. 1 note 6 (2001). Others, including a group of Bosnian Serb and Bosnian
Croat judges and prosecutors, have also expressed skepticism regarding the neutrality of the
ICTY. See Report, Justice, Accountability and Social Reconstruction: An Interview Study of
Bosnian Judges and Prosecutors, 18 Berkley J. Int™l L. 102, 104 (2000) (hereinafter Justice,
Accountability, and Social Reconstruction).
265
ACCOUNTABILITY FOR ATROCITIES


to demonstrate fair justice and accountability for atrocities in a way that
resonates with the people most directly affected.
The ICTY and the ICTR also have contributed very little to building
domestic judicial capacity in the Balkans or Rwanda, respectively. Although
this was never their main purpose or preoccupation, both tribunals could
have done much more to assist domestic capacity-building. The ICTY and
ICTR are in a position to try only a limited number of high-level cases, so
domestic legal systems have a critical role to play if signi¬cant accountability
for atrocities is to be realized. But neither tribunal, until they began focusing
systematically on their completion strategies (for wrapping up their own
trials and investigations), had done very much to help strengthen the ability
of local courts to deal with the substantial number of potential suspects
remaining to be tried. More has been done since 2003, when the Security
Council called for greater international assistance to improve the domestic
capacity in relevant states and encouraged the ICTY and ICTR “to develop
and improve” their outreach programs.36


A. The ICTY™s Impact on Domestic Rule of Law: Kosovo and Bosnia
The ICTY™s limited impact on domestic capacity-building is especially unfor-
tunate in light of the more than a billion dollars spent on the tribunal.37
Despite the start of an outreach program in 1999 and other periodic con-
tacts between ICTY personnel and legal communities in the region, system-
atic and sustained efforts to share the tribunal™s technical expertise with
justice systems in the region were not pursued, illustrating a general lack
of priority placed on such efforts.38 As David Tolbert, former senior legal
adviser at the ICTY and later deputy prosecutor, put it: “principally due to
a failure in design and, to a lesser extent, in implementation, the tribunal™s
long-term impact on the systems of justice in the area of con¬‚ict has been
minimal.”39
Take the situation in Kosovo, for instance. The ICTY has devoted enor-
mous energy and resources to investigating war crimes committed in Kosovo
in 1998“1999, but so far the ICTY and the UN Mission in Kosovo (UNMIK)
have not developed formal arrangements for sharing information or

36 S.C. Res. 1503, U.N. Doc. S/Res./1503 (August 28, 2003), para 1. For discussion of ICTR
outreach, see Victor Peskin, Courting Rwanda: The Promises and Pitfalls of the ICTR™s
Outreach Program, 3 J. Int™l Crim. Jus. 950 (2005). For examples of ICTY outreach, see the
Calendar of Events at http://www.un.org/icty/bhs/outreach/events.htm (hereinafter ICTY
Calendar of Events).
37 Total expenditures through 2005 equaled slightly more than $1 billion. An additional $276.5
million has been authorized for 2006 and 2007. See ICTY at a Glance, supra note 31.
38 David Tolbert, The International Criminal Tribunal for the Former Yugoslavia: Unforeseen
Successes and Foreseeable Shortcomings, 26 Fletcher F. World Aff. 7, 13“15 (2002).
39 Id., at 8.
266 CAN MIGHT MAKE RIGHTS?


enhancing cooperation.40 And although ICTY staff have shared their exper-
tise with Kosovo jurists in periodic outreach activities, the ICTY failed to
develop systematic, formalized plans to help enhance the capacity of local
institutions to try such complex cases.41 Because of the substantial funds
invested in the Tribunal™s work, its “lack of impact on at least preparing
and buttressing the local courts” to conduct war crimes prosecutions is
“troubling,”42 leaving more recent efforts associated with ICTY™s comple-
tion strategy with considerable ground to cover.
The ICTY has played a somewhat greater role in Bosnia. To provide some
ICTY oversight of domestic prosecutions, Rules of the Road were agreed on
in 1996 between the ICTY and Bosnia, Serbia, and Croatia, respectively.
Under this arrangement, ICTY prosecutors review domestic warrants and
indictments to ensure their fairness.43 On this basis, trials of lesser war crimes
suspects have been taking place in the two entities of Bosnia-Herzegovina.44
The number of cases handled domestically is expected to increase sharply as
the ICTY progresses with its completion strategy, putting an already weak
domestic justice system under serious strain.
40 Legislation evidently is being developed. See press release, UNMIK/PR/1123, United Nations
Mission in Kosovo, Legislation on Cooperation with ICTY Can Only Be Promulgated by
UNMIK, February 20, 2004.
41 The outreach program in Kosovo has included ad hoc seminars and information sessions
during which specialists from The Hague share their expertise with Kosovar jurists. See
Int™l Crisis Group, Finding the Balance: The Scales of Justice in Kosovo 23 (2003); ICTY
Calendar of Events, supra note 36.
42 Tolbert, The International Criminal Tribunal for the Former Yugoslavia, supra note 38, at
12. Tolbert argues that with modest resources, the ICTY could have helped build domestic
capacity by training local prosecutors, monitoring court proceedings in war crimes cases,
training judges, and providing advice on victims™ issues. Id., at 16. Instead, despite all the
money spent on the ICTY, “there is virtually no effective enforcement of these important
laws in the courts that ultimately matter the most, i.e., the region™s domestic courts.” Id.,
at 8.
43 Paragraph 5 of the Rome Agreement of February 18, 1996, provides that “Persons, other
than those already indicted by the International Tribunal, may be arrested and detained for
serious violations of international humanitarian law only pursuant to a previously issued
order, warrant, or indictment that has been reviewed and deemed consistent with interna-
tional legal standards by the International Tribunal,” available at www.ohr.int/ohr-dept/hr-
rol/thedept/war-crime-tr/default.asp?content id=6093.
44 As of November 2003, thirteen war crimes trials were taking place before entity courts. See
Amnesty International, Shelving Justice: War Crimes Prosecutions in Paralysis 5 (2003),
available at http://web.amnesty.org/library/Index/ENGEUR630182003?open&of=ENG-
BIH (hereinafter Shelving Justice). See also International Crisis Group, Courting Disaster:
The Misrule of Law in Bosnia and Herzegovina 31 (2002) (hereinafter Courting Disas-
ter) (reporting that, as of March 2002, approximately thirty-¬ve verdicts had been entered
against accused in courts of the Federation). As of May 2002, an estimated 3000 people in
the Republika Srpska and 6000 in the Federation were suspected of war crimes. Shelving
Justice, at note 1. By February 2006, the cantonal prosecutor for Sarajevo and the surround-
ing area reported about 2100 war crimes suspects in the region and about 1600 individuals
were the subject of requests for investigation by local authorities. Bosnian TV Reports Pros-
ecutor Outlines Progress in War Crimes Processing, BBC International Reports, February
6, 2006.
267
ACCOUNTABILITY FOR ATROCITIES


Yet concerns about fairness and about impunity have been endemic in
Bosnia from the start. Bosnian cantonal or entity courts have dispensed
justice that has proven highly inadequate, triggering frequent allegations
that trials have been tainted by “ethnic justice” and are being used to exact
revenge.45 All too often, instead of promoting justice, war crimes prosecu-
tions in Bosnian courts have been yet another means of continuing ethnic con-
¬‚ict, undermining the goals of justice both for victims and for the accused.46
With a few notable exceptions, a disturbing pattern has emerged with mem-
bers of each of the three ethnic groups engaged in attempts to arrest, prose-
cute, and punish for war crimes members of their rival ethnic groups, who
often are still viewed as heroes by their respective communities.47 Thus far,
the majority of war crimes trials have taken place in the Federation, with
Muslim areas targeting almost exclusively Bosnian Serbs and Croats, and
Croatian areas targeting primarily Serbs and Muslims.48 Rather than pro-
moting healing and con¬dence-building among the parties, trials often end
up exacerbating divisions and mutual suspicion.49 The record so far has
been discouraging but some improvements have occurred.50 Moreover, the
creation of a special hybrid War Crimes Chamber within the national State
Court of Bosnia and Herzegovina holds real promise.
This special War Crimes Chamber is now composed of national and inter-
national judges, prosecutors, and other staff, but the international partici-
pation will gradually phase out over a period of years.51 This arrangement
is designed to build local capacity to conduct fair trials in accordance with
international standards, and ICTY staff have provided brie¬ngs and mate-
rials to judges and lawyers. The tribunal™s location in Sarajevo means that
45 See Michael Bohlander, Last Exit Bosnia: Transferring War Crimes Prosecution from the
International Tribunal to Domestic Courts, 14 Crim. L. F. 59, 67 (2003). According to the
International Crisis Group, “[p]ublic debates and mutual accusations of pursuing ˜ethnic
justice™ with the aim of eliminating political competitors or protecting one™s brethren con-
tinue[s], involving a wide range of politicians, judges and human rights™ activists,” and “[a]
leitmotif of the controversy [is] a widely shared recognition that the local judiciary [is] inca-
pable of handling war crimes cases either competently or fairly.” Courting Disaster, supra
note 44, at 33.
46 Aram A. Schvey, Striving for Accountability in the Former Yugoslavia, in Stromseth,
Accountability for Atrocities, supra note 12, at 67.
47 Id., at 48“49.
48 Id. The ¬rst war crimes trial in the Republika Srpska started only in September 2003. See
Human Rights Watch, Bosnia: Massacre Trial Highlights Obstacles to Justice in the Balkans,
January, 2004, available at http://hrw.org/english/docs/2004/01/15/bosher6939.htm.
49 See Kritz, Coming to Terms with Atrocities, supra note 12, at 136“137.
50 See OSCE, War Crimes Trials before the Domestic Courts of Bosnia and Herzegovina:
Progress and Obstacles, March 2005, at 51.
51 For a description of the special War Crimes Chamber, see S/2005/458, Report to the
Secretary-General of the Commission of Experts to Review the Prosecution of Serious
Violations of Human Rights in Timor-Leste (then East Timor) in 1999, May 26, 2005
(hereinafter Commission of Experts Report), Annex II to letter dated June 24, 2005, from
the Secretary-General addressed to the president of the Security Council, July 15, 2005, at
109“110, 112“113.
268 CAN MIGHT MAKE RIGHTS?


its proceedings are more accessible to the local population and the prospects
for direct outreach are greater. Compared to the problems that have plagued
local trials, the special War Crimes Chamber has a greater capacity to render,
and to be seen as rendering, impartial justice. The court began its ¬rst trial in
September 2005 and received its ¬rst transfer of an indictee from the ICTY
two weeks later.52 The ICTY prosecutor™s of¬ce has sought the transfer of an
additional twelve defendants, and the local courts continue to send sensitive
war crimes prosecutions to the special chamber.53 Hybrid panels within the
State Court also address dif¬cult cases involving organized crime, economic
crime, and corruption, with international participation and assistance that
will gradually be phased out leaving purely domestic actors in place.
Compared to the distant ICTY and the often problematic local trials,
the trials before the State Court™s special chamber may be able to demon-
strate impartial justice more directly and effectively to domestic audiences.
The capacity-building effects of this arrangement are also substantial and
vitally important. Even so, several concerns remain. For one, the schedule
for the phase-out of international participation, driven substantially by fund-
ing realities, may be more rapid than is ideal for effective capacity-building.
Furthermore, the entity-level Bosnian courts, rather than the State Court™s
special chamber, will continue to handle the bulk of war crimes cases, and if
they do not receive greater assistance, there is a risk that some of the same
problems that have confronted the ICTY may be “replicated at the national
level.”54 Finally, although trials before the State Court™s special chamber can
help provide a model of fair and effective justice at the national level, sys-
tematic outreach and dialogue will still be needed as different segments of
Bosnian society react to the prosecutions, including of ¬gures who retain
substantial loyalty and support within their respective communities.

B. The ICTY and Serbia
The ICTY™s contribution to improving the domestic justice system and build-
ing the rule of law has been even more complicated in the case of Serbia. For
many Serbs, the international prosecution of Milosevic robbed Serbia of the
opportunity to hold him accountable in domestic courts. Milosevic™s decision
to defend himself and to challenge the very terms of reference of the interna-
tional tribunal resonated in many quarters within Serbia, and a substantial
segment of the public questioned whether he was getting a fair trial.55

52 Council of Europe, Bosnia and Herzegovina: Compliance With Obligations and Commit-
ments and Implementation of the Post-Accession Co-Operation Program, SG/Inf(2005)21,
November 3, 2005, para. 54.
53 Id.
54 Amnesty International, Shelving Justice, supra note 44, at 8.
55 According to opinion polls, less than one-fourth of Serbs believed Milosevic was getting a
fair trial, and his approval rating doubled at the outset of his trial; he went from being a
269
ACCOUNTABILITY FOR ATROCITIES


Several factors have undercut the ICTY™s ability to demonstrate to the
Serbian population that the tribunal has been fair and impartial in its pur-
suit of accountability for atrocities. For one, many Serbs take a different
view of the history of the breakup of the former Yugoslavia, rejecting the
view of predominant Serb responsibility taken by NATO states supporting
the ICTY. The tribunal™s failure to indict leaders such as Croatian President
Tudjman, who is now dead, has left the ICTY open to perceptions within
Serbia of an anti-Serb bias. For many Serbs, this perception was reinforced by
the tribunal™s decision not to investigate NATO™s actions during the Kosovo
war. The circumstances surrounding the domestic handover of Milosevic to
the ICTY also remain controversial, and many Serbs view the government™s
cooperation with the tribunal as strictly a function of monetary pressures
rather than of justice. Finally, Milosevic sought to use his trial as a plat-
form to in¬‚uence public opinion in Serbia and was surprisingly effective in
representing himself in court and portraying himself as an underdog.
All of these perceptions have been compounded by the ICTY™s lack of
effective outreach within Serbia. If the ICTY had provided Serbs with a
clearer idea of its operations and purpose, early on, they might have been
less prone to view the tribunal so skeptically. The ICTY did establish an
outreach of¬ce in 1999 to inform people of the region about its work,
but in crucial earlier phases, the ICTY™s work was subject to “gross dis-
tortions and disinformation” in many parts of the former Yugoslavia.56
As ICTY of¬cial David Tolbert notes, “the tribunal became a political
football for certain unscrupulous politicians in the region who cynically
manipulated . . . misunderstandings.”57 The ICTY should have anticipated
this potential opposition and taken steps to ensure that the Serbian popula-
tion would hear the truth about its operations from the very start.
The ICTY™s contribution to capacity-building within Serbia has also been
sorely lacking. Although more than a billion dollars has supported the ICTY
since its inception,58 relatively little has been done to share the tribunal™s
technical expertise or to assist local courts, even though they are expected
to bring to justice many perpetrators not tried in The Hague. Even though

reviled individual to the fourth most admired Serb. Michael P. Scharf, The ICTY at Ten:
A Critical Assessment of the Major Rulings of the International Criminal Tribunal Over
the Past Decade, 37 New Eng. L. Rev. 915, 930“931 (2003). Public opinion within Serbia
has varied over the years, and there is some indication that public opposition to the ICTY
diminished after release of the Scorpions video showing members of a Serbian police unit
executing Bosnian Muslims in cold blood. See, e.g., Nicholas Wood, Videotape of Serbian
Police Killing 6 Muslims From Srebrenica Grips Balkans, The New York Times, June 12,
2005, at A1.
56 Tolbert, The International Criminal Tribunal for the Former Yugoslavia, supra note 38,
at 13.
57 Id.
58 See ICTY at a Glance, supra note 31.
270 CAN MIGHT MAKE RIGHTS?


sharing its expertise and assisting local courts is not formally part of ICTY™s
mandate, more efforts to do this could have earned the ICTY considerable
goodwill in Serbia and helped to better prepare local courts to continue
prosecutions after the ICTY concludes its operations.
Yet, despite these problems, attitudes in Serbia “ at least among some
groups “ may gradually be changing, and the ICTY may yet have a pos-
itive impact over the longer term. Although Serbia had completed only
four domestic war crimes trials by January 2003, despite a large number
of suspected war criminals within its borders, Serbia created a new Special
Court for Organized Crimes and War Crimes later that year.59 An exclusively
domestic court, Serbia™s Special Court receives international support, and the
law establishing the Court provides for cooperation with the ICTY. In the
Special Court™s ¬rst case, the “Ovcara trial,” in which a number of Serbs were
accused of executing 192 Croatian prisoners of war at the Ovcara pig farm
in the Croatian city of Vukovar in 1991, ICTY™s prosecutor Carla del Ponte
provided at least eight boxes of evidence to the Court, and Croatia provided
exhumation records.60 The ICTY™s support to the Special Court in this case
and in other potential cases is an important development as the ICTY begins
to bring its own work to a close over the next few years. In December 2005,
the Special Court completed the Ovcara trial, handing down lengthy prison
sentences for fourteen of the sixteen defendants.61
Also in 2005, the emergence of a videotape showing members of the
Serbian police unit known as the Scorpions callously executing Muslims
at Srebrenica was aired extensively in Serbia and internationally after ¬rst
being played at the Milosevic trial on June 1, 2005.62 As of late 2005, one
member of the unit depicted on the tape had been convicted in Croatia, and
¬ve others were on trial in Serbia.63
Serbia™s Special Court has only recently begun its work and its long-term
impact within Serbia remains to be seen. The Ovcara trial, at least initially,
received considerable domestic attention, and it may have helped to encour-
age greater public dialogue and awareness regarding war crimes, at least to

59 The law, passed on July 2003, is available at http://www.osce.org/documents/fry/2003/07/
446 en.pdf
60 Milanka Saponja Hadzic, Institute for War and Peace Reporting, Serbian Judiciary Fac-
ing Key Test (2004), available at http://www.iwpr.net. The Ovcara trial began on March
9, 2004. Press release, Humanitarian Law Center, “Ovcara” Case: A Trial Is Profes-
sional but the Indictment Is Amiss, April 6, 2005, available at http://www.hlc.org.yu/
english/War Crimes Trials Before National Courts/index.php.
61 Serbian Court Jails 14 Over 1991 “Execution” of Prisoners in Croatia, BBC News¬le,
December 12, 2005.
62 Nicholas Wood, Videotape of Serbian Police Killing 6 Muslims from Srebrenica Grips
Balkans, The New York Times, June 12, 2005, at A12.
63 Serb Jailed over Srebrenica Video, BBC News, December 29, 2005, available at
http://news.bbc.co.uk/2/hi/europe/4567704.stm.
271
ACCOUNTABILITY FOR ATROCITIES


some extent. The release and repeated broadcast in Serbia of the Scorpions
video has added to that public discussion. Domestic debates over the ICTY
still remain highly charged “ and prone to opportunistic manipulation by
political factions “ but the ICTY™s legal support to domestic prosecutions
like the Ovcara case may help, over time, to demonstrate accountability and
build domestic capacity in a manner more widely viewed as credible within
Serbia.


C. The ICTR: An Ambivalent Domestic Impact
The ICTR™s impact within Rwanda has likewise been a mixed one.64 The
tribunal™s relationship with the Rwandan government was uneasy from
the start. After seeking international assistance in bringing perpetrators of
Rwanda™s devastating genocide to justice, Rwanda was the only state on the
UN Security Council to vote against establishing the ICTR. Rwanda™s objec-
tions “ which still fester “ included the failure to locate the tribunal within
Rwanda, the lack of a provision for capital punishment, and limits on the
time frame of the court™s jurisdiction.65 Signi¬cant management problems
early on at the ICTR, coupled with the over one billion dollars spent on
the ICTR while Rwanda™s domestic system struggles to try thousands of sus-
pects, have also been a source of resentment and tension. The limited number
of individuals that the ICTR is able to try, the slow pace of proceedings at
the tribunal, and the limited role for, and attention to, needs of victims have
all been criticisms raised by Rwandan political leaders.66
In the face of these criticisms, the ICTR has had a dif¬cult time estab-
lishing broad credibility among the Rwandan public. “Constantly exposed
to such bitter criticism highlighting the imperfections of the Tribunal, many
Rwandans tend to hold an overwhelmingly negative opinion of international
justice,” notes Aloys Habimana.67 For many Rwandans, moreover, the indi-
viduals who directly committed atrocities in front of their own eyes matter
as much as the more distant architects of the genocide.
The ICTR should have done more from the start to explain its purpose
and its proceedings broadly within Rwanda and to address concerns raised
by citizens. Instead, the tribunal™s outreach has been belated and its physical

64 Although Rwanda is not a case involving a major international military intervention (quite
to the contrary) and therefore is not the focus of other chapters of this book, we discuss
it here because of its importance for understanding the potential impact of accountability
processes on building the rule of law.
65 Aloys Habimana, Judicial Responses to Mass Violence: Is the International Criminal Tri-
bunal for Rwanda Making a Difference Towards Reconciliation in Rwanda?, in Interna-
tional War Crimes Trials: Making A Difference? 83, 84“85 (Steven R. Ratner & James
L. Bischoff, eds., 2003).
66 Id., at 85.
67 Id., at 86.
272 CAN MIGHT MAKE RIGHTS?


presence within Rwanda is limited.68 Created in 1994, with its ¬rst trials
commencing in 1997, the ICTR established an outreach project only in 1998
and an Information Center in Rwanda in 2000.69 The ICTR™s own Web site
has improved, and several Web sites managed by international NGOs pub-
lish good information and analysis on the ICTR, but very few Rwandans
have Internet access, so this information is largely available only to foreign-
ers.70 Radio Rwanda reports from the tribunal in Arusha, Tanzania, and
a number of organizations, including the European Commission and some
NGOs, support outreach efforts that include distributing documents and
showing documentary ¬lms about the ICTR in the Rwandan countryside.71
But much more needs to be done if the ICTR expects to have a longer-term
impact within Rwanda.
Still, despite a slow start, the ICTR has the potential to demonstrate the
importance of accountability and fair justice to audiences within Rwanda in
a number of ways. For one, the tribunal has brought high-level perpetrators
of genocide to justice. This sends “a clear message to victims, victimizers,
and bystanders that leaders who commit gross violations of human rights
are not always invincible,” which is a message that “is fundamental for
ensuring the rule of law in a post-con¬‚ict society like that of Rwanda,”
as Aloys Habimana argues.72 In addition, these trials reveal how self-
interested leaders exploited ethnic differences for their own purposes “ which

68 All of the courtrooms for the ICTR are in Arusha, Tanzania, and the ICTR™s main formal
presence in Rwanda is with the Of¬ce of the Prosecutor (formerly Carla del Ponte, now
Hassan Jallow from the Gambia). The ICTY opened an Information Center in Kigali in
2000.
69 Peter Uvin & Charles Mironko, Western and Local Approaches to Justice in Rwanda, 9
Global Governance 219, 221 (2003). The Information Center, Umusanzu mu Bwiyunge
(“Contribution to reconciliation”), in Rwanda™s capital, Kigali, is open to “students, journal-
ists, civil servants, judges and lawyers, as well as ordinary citizens.” U.N. Doc. S/2003/707,
A/58/140, International Criminal Tribunal for Rwanda, Report of the International Crim-
inal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious
Violations of International Humanitarian Law Committed in the Territory of Rwanda and
Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the
Territory of Neighbouring States between 1 January and 31 December 1994, July 11, 2003,
available at http://65.18.216.88/ENGLISH/annualreports/a58/140e.pdf (hereinafter ICTR
Report).
70 Uvin & Mironko, Western and Local Approaches to Justice in Rwanda, supra note 69,
at 219.
71 Id. The U.S.-based Internews media organization, for example, has produced documentary
¬lms about ICTR and domestic war crimes trials, which are then shown in rural com-
munities, sometimes accompanied by Rwandan ICTR outreach of¬cers. Peskin, Courting
Rwanda: The Promises and Pitfalls of the ICTR™s Outreach Program, supra note 36, at 960.
Peskin urges the ICTR to establish partnerships with Rwandan civil society leaders and
academics, some of whom have tried to secure ICTR™s commitment, so far unsuccessfully,
“to hold post-trial seminars in Rwanda with ICTR of¬cials to discuss the signi¬cance of
recent trials,” which could be a foundation for further Rwandan-initiated outreach. Id.
72 Habimana, Judicial Responses to Mass Violence, supra note 65, at 88.
273
ACCOUNTABILITY FOR ATROCITIES


may contribute to a greater domestic understanding of the causes of the
genocide and possibly lay some foundation for reconciliation over time.73
Finally, through fair trials that follow fundamental principles of due process,
the tribunal can help demonstrate to Rwandans “what ˜fair justice™ should
look like,”74 potentially providing a point of reference for future domestic
reforms.
But to have any sustainable long-term impacts along these lines will
require more effective and convincing outreach within Rwanda than has
occurred thus far. This is an uphill battle given the skepticism about the
tribunal among many audiences in Rwanda. The tribunal, in short, faces a
major challenge “not only to render justice, but also to make sure that Rwan-
dans, in all their complex categories, see that justice is being done.”75 Yet,
so far, the ICTR has been reluctant to partner with independent civil society
organizations to engage in sustained outreach, thereby missing opportuni-
ties for empowering ripple effects; instead, the ICTR has preferred to interact
with the Rwandan government and “government-backed survivor groups,”
whose cooperation the tribunal needs.76
The ICTR also needs to do more, before its work comes to an end, to
contribute to capacity-building within the domestic justice system. But, to
date, the ICTR has done almost nothing to contribute to the capacity of the
Rwandan judiciary.77 One of the few activities led by the ICTR involving the
Rwandan judiciary was a September 2003 visit by twenty senior Rwandan
judicial of¬cials (judges, prosecutors, and senior of¬cials) to the tribunal
in Arusha.78 The focus was primarily on issues related to the pursuit of
justice at the ICTR (e.g., witness protection, pace of proceedings, and com-
pletion strategy) rather than on capacity-building for the Rwandan justice
system itself.79 One is left wondering whether some of the millions of dollars
spent annually on the ICTR could have been better spent on direct domestic

73 Id., at 89.
74 Id.
75 Id., at 90.
76 Peskin, Courting Rwanda: The Promises and Pitfalls of the ICTR™s Outreach Program, supra
note 36, at 961. Peskin notes that despite overtures from leading academics and human
rights activists, including Aloys Habimana, the ICTR has not embarked on cooperative
partnerships with them to engage in more extensive outreach. Id., at 960“961.
77 Id., at 957“958.
78 The ICTR Registrar extended the invitation, and two groups of ten of¬cials spent one week
each at the tribunal. The purpose was “to strengthen the co-operation between the Rwandan
judicial system and the Tribunal in what is called appui judiciaire to the national Rwandese
judicial bodies.” Press Release, ICTR/INFO-9“2“360. EN, International Criminal Tribunal
for Rwanda, Rwandan Judicial Of¬cials Visit the ICTR, September 26, 2003, available
at http://65.18.216.88/ENGLISH/PRESSREL/2003/360.htm. The ICTR has also organized
visits to the tribunal by Rwandan law students, as well as some internships. Peskin, Courting
Rwanda, supra note 36, at 955“956.
79 Press release, supra note 78.
274 CAN MIGHT MAKE RIGHTS?


capacity-building, particularly given Rwanda™s desire to undertake domestic
criminal prosecutions and community-based accountability proceedings.
In short, both the ICTR and the ICTY have faced obstacles in leaving
a positive, long-term legacy in the countries most affected by the atrocities
they are prosecuting. In future international prosecutions, some of these
dif¬culties could be addressed by earlier, more effective outreach to domestic
audiences, and by more systematic efforts to design focused, well-conceived
domestic capacity-building programs. Still, international tribunals located
far from the affected country with little or no involvement by national judges,
prosecutors, and defense counsel are inherently limited in the direct impact
they are likely to have domestically in post-con¬‚ict societies. But purely
domestic proceedings may not be the answer either “ at least in cases where
national justice systems are devastated by con¬‚ict or unlikely to deliver fair
or impartial justice. Hybrid, or mixed, tribunals with both national and
international participation may, in some instances, hold more promise.


IV. HYBRID TRIBUNALS AND THEIR IMPACT ON DOMESTIC RULE OF LAW

Hybrid tribunals ¬rst emerged toward the end of the 1990s as an alternative
to purely international or purely domestic courts. In a number of coun-
tries “ Kosovo, East Timor, Sierra Leone, and Bosnia “ hybrid arrangements
have been established to try individuals for violations of international and
sometimes also domestic law. In addition to combining national and inter-
national staff “ judges and prosecutors, among others “ these hybrids are
located directly in the country that experienced the atrocities.
Hybrids, in many ways, are like a piece of clay that can be molded to
¬t the challenges and circumstances at hand. But they have been shaped by
political necessity and compromise as much as by any grand theory. In the
case of Kosovo, for instance, biased domestic trials provoked outcries from
Kosovo™s Serbian population and led the United Nations to design a hybrid
system in which panels comprised of a majority of international judges would
address war crimes and other sensitive cases and international prosecutors
could revive cases dismissed by domestic prosecutors.80 In other situations “
East Timor and Cambodia “ hybrids were negotiated because key states
simply did not want to create new international tribunals even in the face of
major atrocities.81

80 Michael E. Hartmann, U.S. Institute of Peace, International Judges and Prosecutors in
Kosovo 13 (2003), available at http://www.usip.org/pubs/specialreports/sr112.html. Hart-
mann was the ¬rst international prosecutor to serve under this arrangement.
81 The Cambodian government together with China, for instance, rejected calls by a group of
experts for an international tribunal to try former Khmer Rouge leaders. Yet Cambodian
domestic courts were in no position to provide impartial justice in such cases. So the United
275
ACCOUNTABILITY FOR ATROCITIES


Though they differ in form and origins, hybrids have at least the poten-
tial to overcome some of the limitations of purely international or purely
domestic proceedings.82 They may, for instance, enjoy greater legitimacy
among affected local populations than either international prosecutions far
away or domestic prosecutions before a justice system of limited means or
credibility. International participation and resources can help ensure that the
proceedings satisfy international standards of due process, while domestic
participation can give citizens of the country most affected a greater stake
and sense of ownership. Thus, hybrids may demonstrate accountability in a
way that resonates more effectively with local populations.
Second, hybrids may have advantages in contributing to domestic
capacity-building and institutionalization of accountability norms. Locat-
ing tribunals directly in countries that endured atrocities “ and including
national participation in their work at all levels “ provides an opportunity
to build capacity and leave behind a tangible contribution to the national
justice system, including resources, facilities, and training. Finally, by provid-
ing for direct interaction between national and international jurists and by
enhancing opportunities for outreach to the local population, hybrids may
be more effective than either international or national processes alone in
fostering awareness of, and encouraging respect for, fundamental principles
of international law and human rights at the domestic level among citizens
and of¬cials of the country involved. They may, to borrow from political
science terminology, be more effective at “norm diffusion.”83
But whether recent hybrids are actually achieving these results is a much
more complicated question. The demonstration effects and capacity-building
impact of these diverse hybrids, in fact, have varied widely.


A. Kosovo™s Hybrid Arrangement: Mixed Results
In Kosovo, UNMIK established a hybrid judicial arrangement in 2000 to
prosecute and try war crimes cases. The ICTY has primacy over such
cases arising in the con¬‚ict in the former Yugoslavia, but it cannot try
them all, so domestic courts also have a critical role to play in achieving

Nations and Cambodia “ with U.S. involvement along the way “ negotiated a compromise
hybrid tribunal with a majority of Cambodian judges, although this agreement is only
now slowly being implemented. See Rachel S. Taylor, Better Late Than Never: Cambodia™s
Joint Tribunal, in Stromseth, Accountability for Atrocities, supra note 12, at 237. In
East Timor, the United Nations together with key states opted for a hybrid arrangement “
joint national/international judicial panels within East Timor and domestic prosecutions in
Indonesia “ even though there were good reasons to doubt whether high-level Indonesian
military of¬cials would ultimately face justice under such an arrangement, at least absent
sustained international pressure on Indonesia.
82 For a thoughtful analysis, see Dickinson, The Promise of Hybrid Courts, supra note 18.
83 For a discussion of norm diffusion, see generally Finnemore & Sikkink, International Norm
Dynamics and Political Change, supra note 26.
276 CAN MIGHT MAKE RIGHTS?


accountability.84 In Kosovo™s case, however, the local judicial system was seri-
ously incapacitated. Most of the local judges and lawyers “ of predominantly
Serb ethnicity “ ¬‚ed the province or refused to serve in the UN-established
judicial system, and newly appointed Kosovar Albanian judges lacked pro-
fessional experience because of their decade-long exclusion as a result of
of¬cially sanctioned discrimination. But in ethnically divided Kosovo, the
virtually monoethnic, UN-appointed judiciary was not perceived as provid-
ing “ nor could it deliver “ impartial justice. Only after mounting pressure
from ethnic Serbs in what was increasingly viewed as a biased justice sys-
tem did UNMIK introduce international judges and prosecutors to serve in
Kosovo™s judicial system.
The initial deployment of these international jurists in 2000 was “cri-
sis driven” and improvised, rather than the result of a carefully designed
and implemented strategy.85 Appointed to most, but not all, war crimes
and other sensitive cases, including ethnic crimes and high-level organized
crime, the international jurists initially had little impact: they were in the
minority on judicial panels and were invariably outvoted by Kosovar Alba-
nian judges. This only reinforced perceptions of “victor™s justice” among
Kosovo™s Serbian population “ now with the involvement of the international
community “ which reinforced resentments and ethnic tensions rather than
helping to defuse them. In the face of these clear shortcomings, UNMIK
issued regulations in December 2000 providing for the introduction of major-
ity international judicial panels and empowering international prosecutors
to reactivate cases abandoned by their Kosovar counterparts.
These “64 panels” “ named after UNMIK™s Regulation 2000/64 establish-
ing them “ have helped to reduce perceptions of bias in the justice system and
have redressed some earlier miscarriages of justice. Nevertheless, shortcom-
ings in implementation and some subjective aspects of this arrangement have
undermined their potential impact. Introduced by UNMIK without consult-
ing and involving local judges, the arrangement has faced widespread resis-
tance by local judges, and some have refused to participate in majority inter-
national panels.86 Moreover, the grounds for participation of international
judges and prosecutors have been criticized as overly vague and subjective,

84 The ICTY has jurisdiction over serious violations of international humanitarian law com-
mitted in the former Yugoslavia since January 1, 1991, including war crimes, genocide, and
crimes against humanity. The ICTY™s jurisdiction is concurrent with national courts, but it
enjoys primacy and can request a national court to defer to it. Statute of the International
Criminal Tribunal for the Former Yugoslavia, Art. 9, annexed to Report of the Secretary
General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN SCOR,
48th Sess., U.N. Doc. S/25704 (1993) (hereinafter ICTY Statute); ICTY R.P. & Evid. 9“11
(July 21, 2005), available at http://www.un.org/icty/legaldoc-e/index.htm.
85 Hartmann, International Judges and Prosecutors in Kosovo, supra note 80.
86 David Marshall & Shelley Inglis, The Disempowerment of Human Rights-Based Justice in
the United Nations Mission in Kosovo, 16 Harv. Hum. Rts. J. 95, 130 (2003).
277
ACCOUNTABILITY FOR ATROCITIES


contributing to a perception, especially among Albanians, that the system
is a “parallel justice system” vulnerable to political in¬‚uence and maneu-
vering. Also, because the regulation does not guarantee prosecution by an
international prosecutor before a majority international panel, Kosovo Serb
defendants also view the arrangement as vulnerable to double standards and
unequal treatment.87 Thus, the “64 panels” have only partially been able to
address public perceptions of bias in ethnically charged Kosovo.
Viewed over the long term, the demonstration effects of the hybrid panels
within Kosovo clearly have been mixed. On the one hand, the majority inter-
national panels™ ability to consider particularly delicate and divisive cases,
coupled with the international prosecutors™ ability to revive and pursue cases
abandoned by local counterparts, has, over time, helped to address systemic
biases and miscarriages of justice in the largely monoethnic local justice sys-
tem. On the other hand, UNMIK™s belated, ad hoc introduction of the “64
panels” was a missed opportunity to demonstrate a commitment and a capac-
ity for impartial justice from the start. As the ¬rst international prosecutor
in Kosovo, Michael Hartmann, has observed, international participation in
the judiciary would have been more successful had it been “immediate and
bold” rather than “incremental and crisis driven.”88 Early prosecutions and
trials before majority international panels could have enhanced the real and
perceived impartiality of the judiciary, increasing its legitimacy among the
different sectors of the population. Rather than empowering local jurists
and belatedly stripping them of their “monopoly” over sensitive cases, such
a policy also would have been easier and likely less contentious to imple-
ment. Finally, beginning with a more systematic international role in the
local judicial system could have had a broader impact by helping to limit
the destructive in¬‚uence and entrenchment of criminal power structures and
their linkages to extremist ethnic and nationalist groups.89
Not surprisingly, the capacity-building results of Kosovo™s hybrid pan-
els also have been less than hoped for. Despite the potential for mutual
learning when international jurists serve besides local judges, a number
of the international judges, especially early on, had little background or
training in international humanitarian law, which limited their ability to con-
tribute to local capacity-building in this area.90 Language barriers, the inten-
sive workload, and the lack of systematic mentoring mechanisms all ham-
pered potential capacity-building more generally. The hybrid arrangement in

87 Id., at 134.
88 Hartmann, International Judges and Prosecutors in Kosovo, supra note 80, at 13.
89 Id.
90 Marshall & Inglis, The Disempowerment of Human Rights-Based Justice in the United
Nations Mission in Kosovo, supra note 86, at 129 (“Of the internationals that were appointed
between 1999 and 2001, few had conducted trials involving serious criminal offenses and
none had any practical experience in, or knowledge of, international humanitarian law . . . ”).
278 CAN MIGHT MAKE RIGHTS?


Kosovo “ which places the most sensitive cases before the “64 panels” “ also
has delayed the day when Kosovo™s local judges have to take full responsi-
bility for adjudicating such cases.
All of this suggests that hybrids are more likely to be effective in demon-
strating accountability and fair justice “ and in developing local capacity “
if they are designed in a more strategic way than was the case with Kosovo™s
early experiment. It may well be, at least in circumstances where local legal
capacity is absent or devastated, that turning to international jurists early
on “ if they possess the necessary legal background and skills “ makes sense
as an initial response, while local jurists are trained effectively and expedi-
tiously to join, as soon as possible, in the task of adjudicating sensitive and
dif¬cult war crimes cases. In any event, creating standing panels with clear
jurisdiction “ rather than ad hoc discretionary panels “ to address war crimes
and other sensitive cases may be less vulnerable to perceptions of political
malleability by affected populations.

B. Timor Leste: “Independence Is a Form of Justice”
East Timor™s hybrid tribunal for serious crimes has faced tough challenges in
pursuing accountability amidst the political complexities associated with the
nation™s transition to independence, yielding deeply ambivalent demonstra-
tion effects. During East Timor™s historic referendum in 1999, militias oper-
ating with the aid and support of the Indonesian army perpetrated atrocities “
murders, rapes, looting, burning “ against Timorese independence support-
ers. An international commission of inquiry established at the UN Human
Rights Commission in 1999 called for an international tribunal to bring
those responsible to justice. But critical states and UN leaders “ involved in
delicate negotiations with Indonesia to secure its consent to the deployment
of an international military force, INTERFET, to stabilize East Timor after
the referendum “ instead pressed Indonesia to bring those responsible for the
violence to justice domestically.91 In opting not to establish an international
tribunal for this purpose, many no doubt hoped that persistent international
pressure on Indonesia might produce meaningful domestic accountability;
but, at the same time, the absence of an international accountability mech-
anism with clear enforcement authority undermined the prospects of trying
leading Indonesian suspects if Indonesia itself chose not to do so.
91 In an April 2000 MOU between Indonesia and the UN, Indonesia agreed to share infor-
mation and transfer indictees to East Timor. Memorandum of Understanding Between the
Republic of Indonesia and the United Nations Transitional Administration in East Timor
Regarding Cooperation in Legal, Judicial and Human Rights Related Matters, Indon.-
UNTAET, April 6, 2000, available at http://www.jsmp.minihub.org/Reports/MOU.htm.
INTERFET, a UN-authorized military force (with Indonesian consent) led by Australia
deployed in August 1999 to restore stability to East Timor, followed by a UN provisional
administration “ the UN Transitional Administration in East Timor (or UNTAET) together
with a UN peacekeeping force. S.C. Res. 1272, U.N. Doc. S/RES/1272, October 25, 1999.
279
ACCOUNTABILITY FOR ATROCITIES


Within East Timor, the UN Transitional Administration (UNTAET) estab-
lished an innovative hybrid tribunal in June 2000 (in lieu of an international
tribunal per se). The Special Panels for Serious Crimes “ hybrid judicial panels
within the Dili District Court consisting of two international judges and one
Timorese judge “ were created to try cases of crimes against humanity, war
crimes, and other atrocities.92 UNTAET also established the Serious Crimes
Unit, a UN-funded prosecutorial and investigatory of¬ce for serious crimes,
to serve as the prosecutorial and investigations arm of the hybrid tribunal.93
Although both the Special Panels and Serious Crimes Unit received UN fund-
ing, defense counsel received more limited, ad hoc support “ an imbalance
of concern from the start.94 In 2002, the successor UN mission (UNMISET)
established a Defense Lawyer™s Unit to provide more resources and expertise
to assist in defense of suspects before the Special Panels.95 Overall, however,
neither political support (international or domestic) nor resources for East
Timor™s hybrid tribunal were ever as forthcoming as many originally had
hoped.
These limitations seriously constrained the tribunal™s impact both in
achieving accountability for the atrocities surrounding the referendum and
in capacity-building. The special tribunal faced chronic shortages of admin-
istrative, legal, and linguistic support, particularly at the beginning. In early
trials, for instance, no court reporters or other means were available to pro-
duce records of the proceedings.96 Interpreters frequently were unavailable
in some of the four languages (Portuguese, Bahasa Indonesia, Tetum, and
English) in which proceedings were conducted. Resources for defense coun-
sel were particularly limited, and no defense witnesses were called at all in
a number of the early trials.97 Signi¬cant improvements certainly occurred
over time, but a shortage of resources and support personnel continued to

92 The panels were given jurisdiction over genocide, torture, crimes against humanity, and war
crimes; in addition, they had jurisdiction over murder and sexual offenses committed from
January 1, 1999, through October 25, 1999 “ the period leading up to and following the
referendum and before the UN became administering authority in East Timor. UNTAET Reg.
2000/15, U.N. Doc. UNTAET/REG/2000/15, June 6, 2000. Although the jurisdiction over
crimes against humanity and the other international crimes was not time limited, the Serious
Crimes Unit focused its prosecutions on the crimes surrounding the 1999 referendum.
93 UNTAET Reg. 2000/16, U.N. Doc. UNTAET/REG/2000/16, June 6, 2000.
94 See David Cohen, Seeking Justice on the Cheap: Is the East Timor Tribunal Really a
Model for the Future?, Asia Paci¬c Issues (August 2002) at 5, available at http://www.
eastwestcenter.org/stored/pdfs/api061.pdf; Suzanne Katzenstein, Hybrid Tribunals: Search-
ing for Justice in East Timor, 16 Harv. Hum. Rts. J. 245, 251, 262“264 (2003).
95 For analysis of the Defense Lawyer™s Unit, see Commission of Experts Report, supra note
51, at 36“37.
96 Cohen, Seeking Justice on the Cheap, supra note 94, at 5; Katzenstein, Hybrid Tribunals,
supra note 94, at 260.
97 Cohen, Seeking Justice on the Cheap, supra note 94, at 5“6; Katzenstein, Hybrid Tribunals,
supra note 94, at 253.
280 CAN MIGHT MAKE RIGHTS?


hamper the tribunal, which concluded its last trials in 2005, with appeals to
be completed in 2006.98
Substantively, the hybrid tribunal™s impact in terms of demonstrating
accountability and fair justice has been ambiguous, at best. On the one
hand, the tribunal tried a signi¬cant number of individuals for crimes against
humanity and other offenses in proceedings that an international commis-
sion of experts concluded generally accorded with international standards.99
A total of eighty-seven defendants were tried, with eighty-four convicted and
three acquitted.100 The Serious Crimes Unit also issued many indictments “
a total of 95 against 440 defendants “ including some against high-level
Indonesian military of¬cials.101 On the other hand, the vast majority of the
accused (339 individuals) are beyond the physical jurisdiction of the court
(mostly in Indonesia), and they are unlikely ever to be either extradited to
East Timor for trial or credibly tried in Indonesia “ absent sustained interna-
tional pressure on Indonesia, which has not been forthcoming, particularly
since 9/11. The net result is that East Timor™s hybrid tribunal tried only mid-
and lower-level indictees, mostly Timorese ex-militia members involved in
the violence surrounding the referendum, but did not reach the higher-level
suspects in Indonesia. When those at the top never face justice, it sends a
very mixed message about accountability to Timorese citizens.
The situation of Indonesia™s General Wiranto illustrates this dilemma.
Wiranto, who was defense minister and commander of the armed forces of
Indonesia at the time of the Timorese referendum, is charged, along with six

98 The UN Security Council decided to conclude the mandate of the special panels in May
2005 when UNMISET™s mandate ended, and it urged that all trials be concluded by then.
S.C. Res. 1543, U.N. Doc. S/RES/1543, May 14, 2004. In fact, some appeals were han-
dled subsequently and, as of February 2006, two defendants still had appeals pending. See
Judicial System Monitoring Programme, available at http://www.jsmp.minihub.org/ (follow
hyperlinks under SPSC Case Information).
99 Commission of Experts Report, supra note 51, para. 357, at 86.
100 See Judicial System Monitoring Programme, The Special Panels for Serious Crimes Hear
Their Final Case, Justice Update, May 12“May 20, Issue 12/2005, available at http://www.
jsmp.minihub.org (hereinafter JSMP Justice Update). For information on cases, see the
JSMP Web site, as well as American University, War Crimes Research Of¬ce, Special
Panels for Serious Crimes in East Timor Status Updates, available at http://www.wcl.
american.edu/warcrimes/easttimor status.cfm.
101 JSMP Justice Update, supra note 100. Those indicted include General Wiranto (former
Defense Minister and Commander of the Armed Forces of Indonesia), Major General Zacky
Anwar Makarim (Security Task Force Advisor), Major General Adam Damiri (former chief
of the Regional Military Command), Brigadier General Suhartono Suratman (former Mil-
itary Commander for East Timor), Colonel Mohmanned Noer Muis (Commander of the
Sub-Regional Command 164), Brigadier General Timbul Silaen (former Chief of Police for
East Timor), and Lieutenant Colonel Yayat Sudrajat (Commander of the Intelligence Task
Force of Sub-Regional Command 164). Amnesty International & Judicial System Moni-
toring Programme, Justice for Timor-Leste: The Way Forward, April 2004, available at:
http://news.amnesty.org/library/index/engasa210062004.
281
ACCOUNTABILITY FOR ATROCITIES


other high-ranking Indonesian military of¬cers and the former governor of
East Timor, with committing crimes against humanity “ murder, deportation,
and persecution “ in 1999.102 After many months, the special court issued a
warrant for his arrest, but East Timorese of¬cials refrained from handing the
warrant to Interpol for international action. Key Timorese leaders, including
President Xanana Gusmao, have placed a higher priority on forward-looking
reconciliation and on building a strong relationship with Indonesia than on
seeking judicial accountability for the 1999 atrocities.103 Gusmao, in partic-
ular, has argued that pressing Indonesia might produce a military backlash
just at a moment when the country was struggling to solidify its own demo-
cratic reforms.104 Indeed, Gusmao met with Wiranto “ then a candidate
for president of Indonesia “ in 2004, just before the Indonesian elections,
proclaiming that bygones should be bygones.105 Although other Timorese
of¬cials, such as Foreign Minister Jose Ramos-Horta, were critical of this
meeting and its timing,106 few Timorese leaders are comfortable pressuring
their powerful neighbor to hand over top ¬gures given their strong desire
to improve East Timor™s economy, to resolve border issues, and generally to
build cordial relations with Indonesia. Even East Timor™s prosecutor-general,
who earlier had emphasized the importance of bringing Wiranto to justice,
later backed off.107
Timorese political leaders consistently have emphasized the importance of
consolidating East Timor™s independence and building a strong relationship
with Indonesia. Ramos-Horta has stressed, moreover, that “independence is
a form of justice.”108 This is an important point from someone who, along
with Gusmao and many others, devoted his career to East Timor™s long and
historic struggle for independence. Independence for the Timorese people

102 Wiranto is charged under the principle of command responsibility. The February 2003
indictment is available on the JSMP Web site at http://www.jsmp.minihub.org/index.htm
(follow link to SPSC Case Information for 2003).
103 President Gusmao was elected overwhelmingly as East Timor™s ¬rst president, and he has
placed a strong emphasis on looking forward. Gusmao has focused on pursuing economic
development and “social justice” in East Timor “ and on achieving reconciliation and rein-
tegrating resistance ¬ghters and remaining remnants of opposing militias into Timorese
society. See Rachel S. Taylor, Justice and Reconciliation in East Timor, Interview: East
Timorese President Xanana Gusmao, World Press Review, October 1, 2002, available at
http://www.worldpress.org/Asia/743.cfm. Gusmao has also sought to establish constructive
relations with Indonesia “ East Timor™s powerful neighbor and key trading partner.
104 See, e.g., Letter dated June 22, 2005 from the President of Timor-Leste to the Secretary-
General, Annex I to letter dated July 14, 2005 from the Secretary-General addressed to the
President of the Security Council, U.N. Doc. S/2005/459, July 15, 2005, at 3.
105 East Timor™s Foreign Minister Questions Gusmao™s Meeting With Wiranto, Associated
Press (May 30, 2004).
106 Id.
107 Forwarding Wiranto Warrant to Interpol Not in E. Timor Interest: Prosecutor, Agence
France Press (May 25, 2004).
108 Interview with Foreign Minister Jose Ramos-Horta in Dili, Timor Leste (November 2003).
282 CAN MIGHT MAKE RIGHTS?


does provide tangible vindication for their struggle and their suffering. And
East Timor clearly needs to consolidate its long-sought independence and to
build constructive relationships with its neighbors.
Yet lack of accountability has been a bitter pill to swallow. As many
human rights advocates, church leaders, and civil society organizations in
East Timor and elsewhere emphasize, the victims and survivors of the brutal
atrocities in 1999 “ and during the much longer quarter century of Indone-
sian occupation “ deserve to know the truth about who was responsible,
and those who bear the greatest responsibility need to be held accountable
in some way. East Timor™s Commission for Reception, Truth and Reconcilia-
tion has argued that “the crimes committed in 1999 were far outweighed by
those committed during the previous 24 years of occupation and cannot be
properly understood or addressed without acknowledging the truth of the
long con¬‚ict”; the Commission also urges that the mandate of the Special
Panels and Serious Crimes Unit be renewed so that they can concentrate on
key cases from the longer period of 1975“1999, and it calls for a serious
effort on Indonesia™s part to hold major perpetrators accountable as well.109
Realistically, this will only happen if there is much stronger and more consis-
tent international pressure on Indonesia to live up to its earlier commitment
to pursue accountability domestically, as well as international support for
an international accountability mechanism of some kind if this does not
occur.
Within Indonesia, however, the recent trend has been in the exact opposite
direction. In August 2004, an Indonesian court overturned the convictions of
four Indonesian security of¬cials previously found guilty of crimes against
humanity in the violence in East Timor.110 No reasons were given for the
court™s reversal. These acquittals mean that no Indonesian security of¬cials
are serving time for the horri¬c violence and brutality perpetrated against
the East Timorese in the period surrounding its referendum.111

109 Chega!: Final Report of the CAVR, supra note 6, Part 11: Recommendations, at 23“25.
110 Evelyn Rusli, Indonesia Court Voids 4 Convictions in 1999 East Timor Strife, The NewYork
Times, August 7, 2004, at A2.
111 In the end, all those tried before Indonesia™s Ad Hoc Human Rights Court “were acquitted
either at trial or on appeal except for one, Eurico Guterres, whose appeal has yet to be heard.”
Commission of Experts Report, supra note 51, at para.171. The August 2004 acquittals trig-
gered sharply divergent reactions. They caused an outcry among human rights NGOs, both
domestic and international, and provoked strong statements by a number of governments.
But many Timorese of¬cials took a very different view. Foreign Minister Ramos-Horta
expressed support for an international truth commission but opposed an international crim-
inal tribunal. Prosecution of Indonesian of¬cials, he argued, could be destabilizing within
Indonesia and would undermine East Timor™s efforts to improve its relations with Indonesia.
Dan Eaton, East Timor Urges End to Push for UN Tribunal, Reuters, August 9, 2004; East
Timor™s Foreign Minister Opposes Rights Tribunal, Associated Press, September 8, 2004.
For a discussion and critique of the Indonesian prosecutions before the Ad Hoc Human
Rights Court, see Commission of Experts Report, supra note 51, at 38“80.
283
ACCOUNTABILITY FOR ATROCITIES


Meanwhile, in East Timor, the capacity-building impact of the hybrid tri-
bunal, like its accountability record, has been mixed. Valuable experience
clearly has been gained by Timorese judges serving on the Special Panels and
by Timorese investigators and prosecutors working in the Serious Crimes
Unit. The fact that the Timorese judges serving on the trial and appellate
panels are also part of the domestic justice system and likely will continue
to serve there means that their experience on the Special Panels “ in trial
procedures, opinion-drafting, and so forth “ will be of direct bene¬t to the
national courts.112 This is valuable capacity-building. Nevertheless, language
barriers among the national and international judges limited the opportu-
nities for exchange of ideas and mutual learning. Also, salary and support
arrangements made Timorese judges on the Special Panels sometimes feel
like second-class citizens.113 A lack of systematic and well-planned train-
ing early on also constrained the capacity-building potential of the hybrid
tribunal.114
On the prosecution side, few Timorese were integrated into top positions
in the serious crimes prosecutorial of¬ce. More generally, the stark contrast
in resources between the Serious Crimes Unit and East Timor™s “ordinary
crimes” capacity presented a constant struggle for East Timor™s prosecutor-
general, Longuinhos Monteiro, who headed both components and whose ¬ve
district prosecutors had no land phone lines by which to communicate.115
Monteiro expressed concern that when the tribunal™s mandate ended (as it
did in 2005) and the UN departed, equipment and resources on which Tim-
orese prosecutors in the Serious Crimes Unit had come to depend would
also leave with the UN, despite the considerable domestic legal challenges
that would remain.116 As of February 2006, the wrap-up arrangements,
including provisions for storage of the Serious Crime Unit™s ¬les, were being
112 Although, as we discussed in Chapter 6, Timorese judges failed their exams to move beyond
probationary status, they are engaged in intensive training programs and many passed their
midterm evaluation. See U.N. Doc. S/2006/24, Progress Report of the Secretary-General on
the United Nations Of¬ce in Timor-Leste, January 17, 2006, para. 19.
113 The United Nations pays the salaries of international judges, prosecutors, and investigators.
Timorese counterparts are paid at local rates by the Timorese government. It is not so much
salary differentials but rather some differences in basic support “ such as computers and
other resources “ that has grated on some Timorese judges, for instance.
114 This has been a more general problem in the East Timorese judicial system. See Katzenstein,
Hybrid Tribunals, supra note 94, at 265“268.
115 Interview with Prosecutor-General Longuinhos Monteiro in Dili, Timor-Leste (November
2003).
116 Id. In the end, the UN-funded Serious Crimes Unit was able to investigate only less “than
half of the estimated 1,450 murders committed in 1999.” U.N. Doc. S/2005/533, Progress
Report of the Secretary-General on the United Nations Of¬ce in Timor-Leste, August 18,
2005, para. 49. Arrangements for storing the Serious Crime Unit™s original ¬les in Timor
Leste, and for storing a complete copy of these records at the United Nations are being
¬nalized. Id., at paras.12“14. For discussion of the conclusion of the tribunal™s mandate, see
supra note 98.
284 CAN MIGHT MAKE RIGHTS?


¬nalized. On the defense side, the capacity-building has been more limited.
Internationals largely handled the defense in serious crimes cases, while pro-
viding some training for Timorese public defenders.117 In short, important
local capacity-building clearly has taken place, but the potential offered by
East Timor™s hybrid arrangement has been realized only partially.
To sum up: The mixed results of East Timor™s Special Panels re¬‚ect the
broader ambivalence of Timorese leaders, UN of¬cials, and major govern-
ments about pressing Indonesia too hard. Other goals “ consolidating inde-
pendence, forging political and economic ties, resolving outstanding bor-
der issues, counterterrorism cooperation “ have consistently taken higher
priority. Given how closely East Timor™s fate is tied to that of Indonesia,
and taking into account the broader international unwillingness to pressure
Jakarta, the path chosen by East Timor™s leaders is understandable. Never-
theless, disappointment within East Timor about the limited accountability
for the 1999 atrocities, and more broadly for atrocities throughout the long
Indonesian occupation, may fester unless more is done to seek meaningful
accountability.118 Furthermore, Indonesia™s unwillingness to acknowledge
the responsibility of speci¬c Indonesian military leaders and militia forces
for the violence in East Timor perpetuates a pattern of impunity that bodes
poorly for its human rights accountability in other contexts.
Against this background, it is hardly surprising that the decision of East
Timor and Indonesia to establish a bilateral Commission of Truth and
Friendship (CTF) in late 2004 has evoked ambivalent responses within East
Timor.119 According to its terms of reference, the CTF aims to “resolve resid-
ual problems of the past” and to “establish the conclusive truth” regard-
ing “the events prior to and immediately after the popular consultations,”
including the “nature, causes and the extent” of the human rights violations,
and to do so through “a forward looking and reconciliatory approach”

117 Katzenstein, Hybrid Tribunals, supra note 94, at 263, 267. See also Commission of Experts
Report, supra note 51, at 36“37.
118 As we discuss below, many Timorese participating in the community-based reconciliation
proceedings have expressed strong disappointment that many of those who committed seri-
ous crimes have not been prosecuted at all. See Chega!: Final Report of the CAVR, supra
note 6, Part 9: Community Reconciliation, at 48 (para. 170); Zifcak, Restorative Justice in
East Timor, supra note 11, at 41; Pigou, An Evaluation of the Community Reconciliation
Process, supra note 11, at 100“101; Commission of Experts Report, supra note 51, at 89
(para. 381) (citing 2004 opinion poll in which “52 per cent of the population responded that
justice must be sought even if it slows down reconciliation with Indonesia, while 39 per cent
favoured reconciliation even if that meant signi¬cantly reducing efforts to seek justice”).
119 The leaders of Indonesia and East Timor met in Bali on December 14, 2004, to establish
the Commission of Truth and Friendship. Information about the Commission, including its
terms of reference and members, is available on its Web site at http://www.ctf-ri-tl.org. The
Commission has ten members, ¬ve of whom are Indonesian and ¬ve Timorese, including
the Chair of East Timor™s CAVR.
285
ACCOUNTABILITY FOR ATROCITIES


that “will not lead to prosecution and will emphasize institutional respon-
sibilities.”120 The CTF ultimately will issue a report that will establish a
“shared historical record” and recommend measures to “heal the wounds
of the past.” Human rights and victims groups in East Timor, however,
have expressed deep concern about aspects of the CTF™s mandate, partic-
ularly the idea of “amnesty for those involved in human rights violations
who cooperate fully in revealing the truth.”121 There is also concern that
the Commission will face pressure from the Indonesian side not to call
senior military leaders at all, and that it will backtrack on what has already
been accomplished thus far in documenting the historical record and issuing
indictments.

C. East Timor™s Innovative Community Reconciliation Procedures
Within East Timor, it is the Commission for Reception, Truth and Rec-
onciliation (CAVR) that may ultimately have the greater domestic impact,
particularly through its innovative community reconciliation procedures
and through its comprehensive report and recommendations. An indepen-
dent body supported by voluntary contributions, the CAVR included seven
national commissioners and twenty-nine regional commissioners and was
chaired by Aniceto Guterres Lopes, an accomplished and widely respected
Timorese human rights lawyer.122 From 2001 until it completed its over-
2000 page report in 2005, the Commission worked diligently to seek the
truth regarding human rights violations in East Timor during the period
between April 1974 and October 1999, reaching out to citizens throughout
East Timor, gathering testimony from victims, and holding a series of major
public hearings.123 The CAVR was also charged with assisting the reception
and reintegration of individuals into their communities after the long period
of political con¬‚ict in East Timor.
The Commission™s community reconciliation process made a unique con-
tribution to this goal. The Commission™s staff traveled throughout the
country to visit communities affected by violence during the Indonesian

120 Terms of Reference for the Commission of Truth and Friendship, paras. 7“14, available at
http://www.ctf-ri-tl.org.
121 Id., at para. 14.b.i.
122 The commission was supported by voluntary contributions from states, nongovernmen-
tal organizations, and individuals. Established by UNTAET in 2001, the commission™s
mandate was negotiated with Timorese leaders. See UNTAET Reg. 2001/10, U.N. Doc.
UNTAET/REG/2001/10, July 13, 2001; Carsten Stahn, Accommodating Individual Crimi-
nal Responsibility and National Reconciliation: The UN Truth Commission for East Timor,
95 Am. J. Int™l L. 952 (2001). The commission was headquartered at Dili™s former Balide
Prison, the site of horri¬c torture and atrocities during Indonesian rule “ a location that will
become a museum once the commission™s work is ¬nished.
123 See Chega!: Final Report of the CAVR, supra note 6.
286 CAN MIGHT MAKE RIGHTS?


occupation. Working with community leaders, the Commission established
panels composed of a regional commissioner and local leaders before which
community-based reconciliation proceedings took place. The involvement
of traditional local leaders helped provided legitimacy within communities,
but the Commission also took pains to ensure that women and young people
were included in the process.124 This helped to empower some new voices
in traditional community settings.
Under a carefully devised procedure, individuals who committed lesser
offenses “ such as looting or minor assault “ were able to acknowledge what
they had done in a public hearing before their community, express contrition,
and enter into a “community reconciliation agreement” (CRA). Prosecutors
in the Serious Crimes Unit reviewed written statements from these individ-
uals before the community hearings even took place in order to determine
whether the person was eligible to participate or, instead, potentially liable
for prosecution for more serious crimes. Eligible individuals who concluded
CRAs are immune from civil liability or criminal prosecution for the acts
underlying the agreement. The CRAs were registered with district courts,
however, providing a link to the formal justice system in the event of non-
compliance.
The Commission received more than 1500 statements from individuals
(called deponents) wishing to participate in the process. Ultimately, 1371
deponents completed the community reconciliation process, and the CAVR
estimates that up to 3000 more might have participated had the process
continued for a longer time. Over 40,000 Timorese “ nearly 5 percent of
the total population “ attended the community hearings held throughout the
country.125
These community reconciliation proceedings have had three results or
accomplishments, in the view of the Commission™s chair, Aniceto Guterres
Lopes.126 First, they helped to stabilize the situation in rural areas after
a turbulent period. Second, they provided a sense of justice processes in
communities throughout the country that have limited access to formal
courts. The proceedings “reinforced the value of the rule of law, and con-
tributed to the ¬ght against impunity by resolving a signi¬cant number
of cases that could not realistically have been dealt with through the for-
mal justice system.”127 Third, the community reconciliation process encour-
aged local cultural traditions of reconciliation and con¬‚ict resolution. They

124 The CAVR followed the requirement of its mandate “that a minimum 30% of all Regional
Commissioners be women” and that community reconciliation panels have “appropriate
gender representation.” Id. Part 9: Community Reconciliation, at 43 (para. 154).
125 Chega!: Final Report of the CAVR, supra note 6, Part 9: Community Reconciliation, at 29,
43, 47.
126 Interview with CAVR Chair Aniceto Guterres Lopes in Dili, Timor-Leste (Nov. 2003).
127 Chega!: Final Report of the CAVR, supra note 6, Part 9: Community Reconciliation, at 47.
287
ACCOUNTABILITY FOR ATROCITIES


also provided some valuable mediation training and capacity-building to
panel members and other participants. These accomplishments are steps in
building a foundation for further development of the rule of law in East
Timor.
Not surprisingly, the community-based reconciliation procedures were
more successful in some communities than in others. The hearings attracted
signi¬cant numbers of people in many communities. Some participants con-
fessed to speci¬c offenses such as looting, whereas others acknowledged only
a general association with Indonesian police or authorities. Some community
reconciliation agreements required individuals to provide concrete restitu-
tion to victims “ such as rebuilding a destroyed home, returning stolen goods,
or repaying a victim for lost livestock “ or to engage in forms of community
service such as working on damaged school buildings or assisting orphan-
ages or churches.128 Many CRAs, however, simply involved a formal, public
apology before the community.129 Some individuals seemed genuinely con-
trite in these reconciliation proceedings, others far less so. The impact of the
proceedings thus no doubt has varied in different communities and among
different participants.
Most of the deponents who entered into community reconciliation agree-
ments have expressed clear satisfaction with the process. A number of former
militia members, for instance, have felt that the procedures helped them inte-
grate more effectively into their communities.130
The response among victims has been more mixed, however, for a number
of reasons. For some, the confessions of the deponents were not as forthright
as hoped for, and the CRAs in many cases were not very demanding.131
Victims hoping for more information about the fate of their loved ones were
sometimes disappointed. Some victims found the proceedings and the public
apology before the community to be a constructive and af¬rming experience,
but others felt a certain sense of pressure or community expectation that they

128 Pigou, The Community Reconciliation Process of the Commission for Reception, Truth and
Reconciliation, supra note 11, at 56.
129 Id. As Zifcak explains, as the reconciliation process unfolded over time, “simple apology”
became more common as the basis of reconciliation agreements: “A straightforward apology
embodied in a legal document signed by all parties combined with a commitment not to
take part in any similar activities became, then, the quickest and easiest means of obtaining
some form of closure, which in turn signaled ˜success.™” Zifcak, Restorative Justice in East
Timor, supra note 11, at 22. For additional re¬‚ections on why only apology was required
in many CRAs, see Chega!: Final Report of the CAVR, supra note 6, Part 9: Community
Reconciliation, at 33.
130 Pigou, The Community Reconciliation Process of the Commission for Reception, Truth
and Reconciliation, supra note 11, at 81; Chega!: Final Report of the CAVR, supra note 6,
Part 9: Community Reconciliation, at 33“34.
131 Pigou, The Community Reconciliation Process of the Commission for Reception, Truth
and Reconciliation, supra note 11, at 81“83; Zifcak, Restorative Justice in East Timor, supra
note 11, at 20“22, 25“26.
288 CAN MIGHT MAKE RIGHTS?


would reconcile with perpetrators.132 The CAVR acknowledges that clearer
guidelines regarding the role of victims in the proceedings and a greater focus
on their needs would have been bene¬cial.133
Despite the range of reactions to the community reconciliation proce-
dures, they do seem to have brought some sense of justice procedures to
rural communities that have little access to the country™s formal justice sys-
tem. The emphasis on confession, forgiveness, and reconciliation also had
deep cultural resonance in predominantly Catholic East Timor. Problematic,
however, is a lingering sense of injustice and inequity that many Timorese feel
because of the failure of the Serious Crimes Unit and Special Panels to bring
to justice many who committed more serious offenses. For many Timorese,
support for the community reconciliation process was tied to expectations
that serious offenders living within their communities would be brought to
justice. Yet the vast majority have not been investigated or charged. When
lesser offenders conclude reconciliation agreements but more serious offend-
ers often face no process at all, the resulting “justice de¬cit” has disappointed
public expectations of fair accountability.134
Unfortunately, the circumstances surrounding the release of the CAVR™s
¬nal report have also created a sense of injustice in East Timor. In late 2005,
the CAVR completed and presented its report to President Gusmao, who
subsequently presented it to the Timorese parliament. But, as of February
2006, the report had not been publicly released within East Timor, despite
the fact that it had been presented to UN Secretary-General Annan and
was available in full or in part on various Web sites.135 The fact that the

132 Zifcak, Restorative Justice in East Timor, supra note 11, at 20“22, 25“26. See also Chega!,
Final Report of the CAVR, supra note 6, Part 9: Community Reconciliation, at 39.
133 Chega!: Final Report of the CAVR, supra note 6, Part 9: Community Reconciliation, at 39
(para. 33) (noting that “[g]uidelines establishing a right of victims to a say in the decision
on what ˜acts of reconciliation™ the perpetrator should perform, and a stronger place for
victims in the formal decision-making structure of the CRP would have helped to ensure
that their interests were not overlooked.”).
134 For analysis of this problem, see Chega!: Final Report of the CAVR, supra note 6, Part 9:
Community Reconciliation, at 48 (para. 170); Zifcak, Restorative Justice in East Timor,
supra note 11, at 41; Pigou, The Community Reconciliation Process of the Commission
for Reception, Truth and Reconciliation, supra note 11, at 100“101. Less than half of the
1450 murders estimated to have been committed in 1999 were ultimately investigated by
the Serious Crimes Unit. U.N. Doc. S/2005/533, Progress Report of the Secretary-General
on the United Nations Of¬ce in Timor-Leste, August 18, 2005, para. 49.
135 The commission submitted its report to President Gusmao on October 31, 2005, who pre-
sented it to East Timor™s parliament and cabinet in November 2005. In January 2006, Presi-
dent Gusmao presented the report to UN Secretary-General Annan. Yet, as of February 2006,
the report had not been publicly released in East Timor, even though the CAVR™s mandate
provides that the report “shall be immediately available to the public and shall be published
in the Of¬cial Gazette.” UNTAET Reg. 2001/10, U.N. Doc. UNTAET/REG/2001/10, July
13, 2001, section 21.3. The report has been available in full on the Web site of the Inter-
national Center for Transitional Justice since January 30, 2006, see http://www.ictj.org in
289
ACCOUNTABILITY FOR ATROCITIES


report has not been presented publicly in East Timor “ when it is otherwise
widely available “ is perplexing and upsetting to many Timorese human
rights and victims organizations and to members of the public. It remains
to be seen whether and how this will be recti¬ed, and whether many of the
Commission™s important and innovative recommendations are taken up by
the Timorese government and by other states.


D. Sierra Leone™s Special Court: A Promising Hybrid
Though it faces many challenges, Sierra Leone™s Special Court is probably
the criminal tribunal that has been best able, thus far, to begin realizing in
practice the potential bene¬ts of a hybrid accountability mechanism. The
tribunal has made a reasonably strong start in its primary mission of seek-
ing justice and accountability for the brutal atrocities that marked Sierra
Leone™s decade-long civil war “ a war that claimed the lives of an estimated
75,000 people and displaced a third of the country™s population.136 Two
major trials began in summer 2004. These include the trial of three leaders
of the RUF “ the Revolutionary United Front “ who are accused of horri¬c
crimes against humanity and war crimes, including terrorizing the civilian
population, rape, murder, amputations, abduction of women into forced
“marriages,” and forced recruitment of child soldiers.137 Also on trial are
three leaders of the CDF “ Civilian Defense Forces “ who are on trial for mul-
tiple counts of crimes against humanity and war crimes, including murder,
inhumane acts, terrorizing the civilian population, and conscripting child
soldiers.138 A third trial against three members of the AFRC “ Armed Forces
Revolutionary Council “ for similar crimes began in March 2005. One year
later, in March 2006, former Liberian President Charles Taylor was ¬nally
taken into custody by the Special Court, where he stands charged with eleven

English and Bahasa Indonesia, but, as of February 2006, translation of the Report™s intro-
duction into Tetum had not been completed.
136 Institute for Transitional Justice, The Special Court for Sierra Leone: The First Eigh-
teen Months, 2004, at 1, available at http://www.ictj.org/downloads/SC SL Case Study
designed.pdf. For a discussion of the con¬‚ict, see Avril D. Haines, Accountability in Sierra
Leone: The Role of the Special Court, in Accountability for Atrocities, supra note 12,
at 176.
137 The RUF leaders on trial are Issa Hassan Sesay, Morris Kallon, and Augustine Gbao. See
http://www.sc-sl.org/RUF.html. In his opening statement, Special Court prosecutor David
Crane described a meeting on February 27, 1991, in which Liberia™s Charles Taylor, along
with RUF General Foday Sankoh and others, planned the invasion of Sierra Leone and the
capture of its diamond-rich areas “ an invasion that set in motion the devastating decade-
long con¬‚ict in Sierra Leone.
138 Sam Hinga Norman, former Commander of the Civilian Defense Force (CDF) and former
Deputy Defense Minister and Minister of Internal Affairs, is one of the three accused in this
case. The other two accused are Allieu Kondewa and Moinina Fofana. See http://www.sc-
sl.org/CDF.html. The three members of the AFRC on trial are Alex Tamba Brima, Brima
Bazzy Kamara, and Santigie Borbor Kanu. See http://www.sc-sl.org/AFRC.html.
290 CAN MIGHT MAKE RIGHTS?


counts of crimes against humanity, war crimes, and other serious violations
of international humanitarian law, including terrorizing the civilian popula-
tion, murder, rape, sexual slavery, and use of child soldiers.139
The Special Court, established in 2002 by agreement between the gov-
ernment of Sierra Leone and the United Nations, was a deliberate effort
to design a tribunal that could overcome some of the limitations of purely
international or purely domestic proceedings.140 In many ways, the Court™s
structure and mandate re¬‚ected the lessons “ the “accountability learning
curve” “ of the previous decade. As a hybrid tribunal supported by the
United Nations “ with both international and domestic judges, prosecu-
tors, investigators, defense counsel, and administrators “ the Special Court
has greater resources and credibility than Sierra Leone™s struggling domes-
tic justice system.141 Yet the Court™s physical location in Sierra Leone, with
nationals participating in each of its components, provides important oppor-
tunities for building domestic capacity “ and for extensive outreach efforts
designed to deepen public understanding and expectations of accountability
and fair justice, producing a more direct impact on the local population. In
contrast to the enormous expense and open-ended time frames of the ICTY
and ICTR, Sierra Leone™s Special Court has a mandate focused on those
who bear “the greatest responsibility” for serious violations of international
humanitarian law “ a mandate that the Court™s original prosecutor, David
Crane, argued is manageable and achievable in a time frame that he believes
should allow both justice to be done and wounds to begin to heal as Sierra
Leone moves forward.142

139 Taylor™s indictment, and a summary of the charges against him, are available on the Web site
of the Special Court for Sierra Leone, available at http://www.sc-sl.org/Taylor.html. Taylor
was taken into custody by the Special Court on March 29, 2006, and he was arraigned on
April 3, 2006.
140 The court™s design also re¬‚ected political compromises as, for example, in the time frame of
its jurisdiction. Haines, Accountability in Sierra Leone, supra note 136, at 214“215; see also
J. Peter Pham, Politics and International Justice in a World of States, 4 Hum. Rts. & Hum.
Welfare 119, 131“32 (2004).
141 The court has primacy over Sierra Leone™s domestic courts and is a “mixed” or “hybrid”
tribunal in at least two ways: its staff includes both international and national personnel,
and it has authority to prosecute certain offenses under international law and under Sierra
Leonean law. As a treaty-based court explicitly empowered to try those bearing “the greatest
responsibility for violations of international humanitarian law” committed in Sierra Leone
since November 30, 1996, the tribunal can prosecute those shielded from domestic prosecu-
tion by the amnesty of the 1999 Lome Agreement. Haines, Accountability in Sierra Leone,
supra note 136, at 213.
142 Interview with prosecutor David Crane in Freetown, Sierra Leone (June 2004). Crane
argued that the mandate, in his view, was achievable within a time frame of three to ¬ve
years. Id. See also David Crane, Dancing with the Devil: Prosecuting West Africa™s War-
lords, Current Lessons Learned and Challenges, in Colloquium of Prosecutors of Inter-
national Criminal Tribunals, Arusha (2004) at 4“5, available at http://65/18/216/88/
ENGLISH/colloquim04/04 (hereinafter Crane, Dancing).
291
ACCOUNTABILITY FOR ATROCITIES


The Special Court has faced some but not all of the practical challenges of
earlier hybrid tribunals. Maintaining adequate and reliable funding has been
an ongoing concern, because the Special Court depends primarily on volun-
tary donations.143 Nevertheless, starting up its operations with voluntary
rather than UN-assessed funding actually proved to be bene¬cial because it
gave the Court ¬‚exibility in hiring, enabling it to assemble an extremely tal-
ented staff very quickly. The Court has also managed to blend national and
international staff quite well,144 avoiding some of the disparities in salaries
and support that created tensions, for instance, in East Timor.145 Language
barriers between international and national staff have not been an issue
here, so easier exchange and give-and-take between staff is more possible.
The Special Court™s Defense Of¬ce also represents an important (and earlier)
effort to achieve greater equality between the prosecution and the defense
than has been the case in other tribunals.146 Still, the many practical dispar-
ities between support for the prosecution and for the defense have been a
continuing issue.147


143 For instance, insuf¬cient voluntary contributions led to a budget shortfall of about US $20
million in the tribunal™s third year of operations, requiring a one-time UN contribution of
over $16 million. Commission of Experts Report, supra note 51, at 29, para. 103.
144 Each of the Special Court™s four components “ chambers, of¬ce of the prosecutor, defense
of¬ce, and registry “ is an interesting blend of international and national staff. As of June
2004, for example, the Trial Chambers included three judges: a Sierra Leonean national
appointed by the government of Sierra Leone and a Canadian and a Cameroonean appointed
by UN Secretary-General Annan. The Appeals Chamber included ¬ve judges: a Sierra
Leonean and a British/Australian jurist, both appointed by Sierra Leone, and three judges “
a Nigerian, a Sri Lankan, and an Austrian “ appointed by the Secretary-General. The pros-
ecutor was an American, and approximately 50 percent of the prosecutor™s of¬ce (which

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