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includes investigators) was Sierra Leonean. The ¬rst registrar was an experienced British
court administrator. The head of outreach is a Sierra Leonean, as are almost all of her staff.
The defense of¬ce, an innovative component of the court, includes as part of its structure
three duty counsel (two were Sierra Leonean and one Gambian, as of June 2004).
145 The fact that living allowances for local Sierra Leonean jurists are less than for international
judges has nevertheless been criticized by some Sierra Leoneans.
146 The Special Court™s registrar, Robin Vincent, was a strong early advocate of establishing
a defense component modeled on a public defender™s of¬ce. His evaluation of the ICTR
in¬‚uenced his views about the need for a more robust defense capacity in Sierra Leone. At
Sierra Leone™s Special Court, duty counsel in the defense of¬ce assist defendants before they
have obtained independent counsel; they also provide research support to defense counsel
and assist in building a defense and formulating arguments. In addition, the defense of¬ce
has established a list of quali¬ed defense counsel, and it administers contracts for attorneys
appointed to represent indigent defendants and for defense investigators. Still, the Court™s
administrators will frankly acknowledge that they wish they had built up the defense of¬ce
earlier and provided it with a greater budget. Nevertheless, it is a considerable and dramatic
improvement over the limited support offered to the defense in other tribunals, both hybrid
and international.
147 See James Cockayne, The Fraying Shoestring: Rethinking War Crimes Tribunals, 28 Ford-
ham Int™l L. J. 616, 699“674 (2005).
292 CAN MIGHT MAKE RIGHTS?


Sierra Leone™s Special Court is very much a work in progress, so it is too
early to determine whether, in fact, it will ultimately succeed in delivering
meaningful justice to the people of Sierra Leone or in helping to improve
domestic capacity for fair justice and the rule of law. A number of posi-
tive signs already exist, but there are also areas of concern. In any event,
the theoretical bene¬ts of an in-country hybrid do not ¬‚ow automatically;
they require astute planning, considerable resources, and sensitivity to the
many practical and political challenges that can arise when a tribunal locates
directly in the country most affected by the atrocities.148
So far, the glass is at least half full. By indicting those who bear the great-
est responsibility for starting and orchestrating the brutal con¬‚ict in Sierra
Leone, the tribunal helped to disempower and prevent them from again com-
mitting such atrocities. Sierra Leoneans agree to a remarkable extent who
these people are. In outreach meetings all across the country held by the
Special Court™s prosecutor, Sierra Leoneans put former Liberian president
Charles Taylor at the top of the list. He was followed by two others: RUF
commander Foday Sankoh and General Sam Bockarie. All three have been
indicted, but only Taylor is still alive to stand trial. (Sankoh died of natural
causes in custody; Bockarie was killed in Liberia as was his family, allegedly
on Taylor™s orders.149 )
Charles Taylor presents the biggest challenge in the struggle for account-
ability and for peace in West Africa. Virtually everyone agrees that he bears
the greatest responsibility for the violence that engulfed Sierra Leone and
much of the rest of West Africa. Preventing him from ever again exercis-
ing power directly in Liberia “ or behind the scenes “ is a critical goal in
bringing lasting peace to the region. Throughout Sierra Leone, people over-
whelmingly support prosecuting him before the Special Court. 150 For two
and a half years, however, Taylor was in Nigeria under a grant of asylum
brokered as part of his departure from power in Liberia. During this period,
the Nigerian government, along with some other African and international
leaders, resisted handing Taylor over, arguing that to do so would undermine

148 See, e.g., id., at 674“675.
149 The chief of investigations for the Special Court stated in May 2003 that he had “credible
information” that Bockarie™s family had been killed on orders from Taylor, which “casts
serious doubts about [Taylor™s] claims regarding the circumstances of Sam Bockarie™s death.”
Press release, Bockarie™s Family Alleged Murdered; Of¬ce of the Prosecutor Demands Full
Cooperation from Taylor, Special Court for Sierra Leone, Of¬ce of the Prosecutor, May 15,
2003, available at http://www.sc-sl.org/Press/prosecutor-051503.html. See also U.S. State
Department, Bureau of Intelligence & Research, Background Note on Sierra Leone, May,
2006, available at http://www.state.gov/r/pa/ei/bgn/5475.htm (stating Taylor “probably”
directed Bockarie™s killing to keep him from testifying).
150 Sierra Leone™s Parliament in February 2006 unanimously adopted a resolution calling for
Taylor™s trial before the Special Court. Press release, Prosecutor Welcomes Sierra Leone
Parliamentary Resolution Supporting Taylor™s Trial at the Special Court, Special Court
for Sierra Leone, Of¬ce of the Prosecutor, February 9, 2006, available at http://www.sc-
sl.org/Press/prosecutor-020906.pdf.
293
ACCOUNTABILITY FOR ATROCITIES


future negotiated departures of dictators as a way to end con¬‚icts.151 Others,
in contrast, argued strongly that ending the impunity of high-level leaders
for atrocities “ such as those of which Taylor is accused “ is an essential step
in preventing their recurrence in the region.152 In the end, as international
pressure grew for holding Taylor to account, and after a newly elected gov-
ernment in Liberia called for his prosecution, Nigeria handed Taylor over to
the Special Court in March 2006.
As Taylor arrived and was taken into custody in Sierra Leone, hundreds
of Sierra Leoneans gathered in the hills of Freetown near the Special Court
to commemorate this dramatic day. Yet, whether Taylor™s trial would, in
fact, be held in Sierra Leone, as many hoped, or instead would take place in
The Hague before a panel of the Special Court for Sierra Leone assembled
there, was yet to be determined. Taylor™s trial raises special issues of security
and stability as a result of his role in West Africa™s con¬‚icts. In the end, the
Special Court and the government of Sierra Leone requested that his trial be
held at The Hague, and Taylor was transferred there in June 2006.
Although it has made considerable progress, the Special Court faces some
distinct challenges in demonstrating meaningful accountability for atrocities
to the people of Sierra Leone. To demonstrate credibly that justice is fair,
the court™s proceedings much be widely viewed as legitimate both in terms
of their substance (who is being prosecuted for what offenses) and in terms
of process. The fact that the prosecution indicted Charles Taylor as well as
leaders from all the major groups in Sierra Leone™s con¬‚ict “ the RUF, the
AFRC, and the CDF “ is important in demonstrating that no one is above
the law and in avoiding the perception of victor™s justice.
Still, there are dif¬cult, lingering issues that may affect the perceived legit-
imacy of the trials among the Sierra Leonean population. For one, Charles
Taylor™s long-awaited prosecution before the Special Court has raised public
expectations of accountability that may be disappointed, at least to some
extent, by the decision to hold the trial outside of Sierra Leone, thus making
the proceedings less accessible to the local population.153 Second, the trial
of CDF leader and former Interior Minister Sam Hinga Norman has gener-
ated controversy, at least initially: many regard him as a hero who acted to

151 For discussion of the controversy over the Special Court™s unveiling of the sealed indictment
against Taylor during a peace negotiation in Ghana and subsequent differences of view over
Nigeria™s offer of amnesty to Taylor, see Pham, Politics and International Justice in a World
of States, supra note 140, at 131“133.
152 See Zainab Bangura, op-ed., Flouting the Rule of Law, The Washington Post, June 25,
2004, at A29.
153 See John E. Leigh, op-ed, Bringing It All Back Home, The New York Times, April 17, 2006,
at A25. Leigh, who is Sierra Leone™s former ambassador to the United States, argues that
transferring Taylor to The Hague for trial “would defeat a principal purpose behind the
establishment of the special court in Sierra Leone “ namely, to teach Africans, ¬rsthand and
in their own countries, the fundamentals of justice and to drive home that no one is above
the law.” Id.
294 CAN MIGHT MAKE RIGHTS?


defend Sierra Leone from the RUF, and the court™s outreach staff has had to
work hard to explain that he is being tried for serious atrocities in violation
of international law “ that regardless of one™s cause, there are clear limits
on how one can ¬ght. Third, many Sierra Leoneans express frustration that
many individuals who did the actual chopping, raping, and killing remain
free. As one amputee put it, “the person who chopped off my hand lives
down the street; if there is no justice, my children may seek vengeance.”154
Or as one local TV journalist, critical of the peacekeeping forces of the Eco-
nomic Community of West African States, exclaimed: “ECOMOG forces
killed my brother and raped my sister, so why aren™t they being tried?”155
In other words, although Sierra Leoneans support trying those who bear
“the greatest responsibility” for the atrocities, there remains frustration that
other, lower-level offenders are not being held accountable as well.
The Special Court™s processes also need to be perceived as fair to credibly
demonstrate a norm of accountability and impartial justice. The fact that
both international and national jurists and staff participate in the work of
the Special Court has enhanced its legitimacy among the local population.
But even so, the Special Court™s local outreach of¬cers have encountered
skepticism in both directions: some Sierra Leoneans, based on negative per-
ceptions of the country™s own judicial system, needed reassurance that the
Sierra Leonean jurists on the court would, in fact, be impartial; others won-
dered whether the court was being forced upon Sierra Leone by international
actors. Still, the tribunal seems to enjoy considerable support and legitimacy
in Sierra Leone.156
To sustain this perception, the tribunal needs to conduct demonstrably
fair trials. The prosecution team is extremely skilled and well resourced. A
signi¬cant concern is whether defense counsel will be effective enough and
have suf¬cient resources to mount a high-quality defense or to effectively
assist defendants who have opted to represent themselves, such as former
Interior Minister Sam Hinga Norman. Ensuring that the defense has the
personnel and resources to present a credible defense will be important to the
legitimacy of the proceedings. But beyond the issue of a technically skilled
defense, whether Sierra Leoneans ultimately will regard the Special Court

154 Town hall meeting with Amputee Association in Freetown, Sierra Leone, June 2004.
155 Interview in Freetown, Sierra Leone, June 2004. ECOMOG is the acronym for forces of
the Economic Community of West African States (ECOWAS) that deployed to Sierra Leone
in response to the con¬‚ict. See ECOMOG: Peacekeeper or Participant?, BBC News¬le,
February 11, 1998, available at http://news.bbc.co.uk/2/hi/africa/55719.stm.
156 For example, in one poll conducted by the Campaign for Good Governance (CGG), a Sierra
Leonean NGO, before the trials even began, 67 percent of those surveyed had heard of
the court, 62 percent found it necessary, and 61 percent thought the court was intended
to bene¬t the people of Sierra Leone. Cited in International Crisis Group, The Special
Court for Sierra Leone: Promises and Pitfalls of a “New Model,” 2003), at 17, available at
http://www.crisisgroup.org/home/index.cfm?id=1803&l=1.
295
ACCOUNTABILITY FOR ATROCITIES


as demonstrating meaningful accountability and fair justice will depend on
whether they are convinced “ through outreach and other efforts “ that
defendants such as Sam Hinga Norman are fairly and appropriately being
tried for conduct that violates agreed rules.157 Finally, the trial of Charles
Taylor raises a whole host of issues that will demand an extremely disciplined
handling of the proceedings by the Special Court™s judiciary. The tumultous
trials of former leaders Slobodan Milosevic and Saddam Hussein have made
clear that such proceedings face the ever-present risk of turning into highly-
charged political drama, and thus require judges who can walk a ¬ne line
between protecting the accused™s rights to speak and maintaining courtroom
dignity, order, and ef¬ciency.

1. Outreach: Demonstrating Accountability and Fair Justice
Even though Charles Taylor™s trial poses special challenges, it also provides
a long-awaited opportunity to demonstrate meaningful accountability and
fair justice to the people of Sierra Leone. In fact, systematic outreach to
the population of Sierra Leone has been central to the Special Court™s work
from the very beginning. In September 2002, shortly after he arrived in
Freetown, prosecutor David Crane began traveling throughout the coun-
try to hear what the Sierra Leonean people had to say about who bore
“the greatest responsibility” for the atrocities committed during the brutal
con¬‚ict. A month later, the of¬ce of the prosecutor and the registry con-
ducted outreach together. In the spring of 2003, a chief of outreach was
hired, and the outreach of¬ce, under the registry, now also has ten district
of¬ces throughout Sierra Leone. This substantial outreach program has been
vital in engaging the Sierra Leonean people in the work of the court and
stands in contrast to the lack of systematic outreach in other post-con¬‚ict
contexts.
The explicit goal of the Special Court™s countrywide outreach program is
to “promote understanding of the Special Court and respect for human rights
and the rule of law in Sierra Leone.”158 Thus, in addition to providing basic
information about the court “ how it came about, its authority, structure
and procedures, who is indicted for what offenses, and an update on the
trials “ the outreach of¬ce raises broader issues as well. In community town
hall meetings and focused workshops around the country, outreach of¬cers
aim to demonstrate and illustrate, based on the actual proceedings before

157 For a skeptical assessment emphasizing the political nature of accountability proceed-
ings, see Tim Kelsall, Politics, Anti-Politics, International Justice: Notes on the Special
Court for Sierra Leone, October 15, 2004 (Submitted at the conference “Settling Accounts:
Truth, Justice and Redress in Post-Con¬‚ict Societies,” Weatherhead Centre for International
Affairs, Harvard University, November 1“3, 2004, available at http://www.wc¬a.harvard.
edu/conferences/truthjustice/Papers/KelsallFullPAPER.pdf).
158 Special Court for Sierra Leone, Outreach Mission Statement.
296 CAN MIGHT MAKE RIGHTS?


the court, that no one is above the law, that law can and should be fair, and
ultimately that the rule of law is more powerful than the rule of the gun.159 In
a society with limited mass media and a strong oral tradition, these meetings
are critical to convey the importance of accountability.
Outreach meetings and workshops frequently involve lively, intense, and
wide-ranging conversations on vital, dif¬cult issues. The court™s outreach
of¬cers work hard, for example, to explain what “fair justice” looks like. A
prosecution and defense before an impartial tribunal is an important concept
to convey to a population deeply skeptical of the fairness of justice systems
and inclined, from bitter experience, to believe that people are simply “on the
take.” The outreach staff uses the concrete cases before the Special Court to
illustrate key principles. For instance, when the appellate chamber ruled that
Charles Taylor was not entitled to immunity from prosecution as head of
state, this illustrated the concept that no one is above the law. The indictment
and trial of former Interior Minister Sam Hinga Norman “ controversial in
some quarters “ illustrates, the outreach of¬cers stress, that the Special Court
is not a court controlled by the government. When pressed “ as they often
are “ by victims who ask why the person who chopped off their hand is
not being prosecuted, the outreach staff discusses the principle of command
responsibility to explain that somebody is answering for the crime. These
discussions “ led by dynamic Sierra Leoneon outreach of¬cers “ are often
not easy, but they do wrestle forthrightly with the dif¬cult challenges of
justice and accountability.
There is no doubt that these outreach efforts are having an impact. In
a society where travel to rural areas is dif¬cult and access to media is lim-
ited, the outreach staff has reached out to engage the population on critically
important issues. Opinion polls indicate that signi¬cant majorities are aware
of the court and view its work positively.160 As the three combined trials of
RUF, CDF, and AFRC leaders have proceeded, moreover, the Special Court™s
public affairs of¬ce has produced weekly audio summaries highlighting crit-
ical developments in the proceedings, which are widely broadcast over the
radio throughout Sierra Leone.
The outreach and public affairs efforts have not been immune from criti-
cism. Some members of the defense staff at the Special Court have expressed

159 With a chief of outreach and substantial staff in Freetown and ten district of¬ces, the Special
Court™s outreach of¬ce conducts its outreach in a variety of ways. These include “community
townhall meetings,” held after making arrangements with local chiefs; workshops for special
groups (for instance, school pupils and university students, military forces, police, market
women, victims, ex-combatants, youths, teachers); and radio discussion programs, among
others. Sierra Leonean outreach of¬cers lead these discussions in the local dialects that allow
them to best communicate with the participants. Interviews with the chief of outreach and
with district outreach of¬cers, Freetown, Sierra Leone, June 2004. See also http://www.sc-
sl.org/outreach.html.
160 See The Special Court for Sierra Leone, supra note 156, at 17.
297
ACCOUNTABILITY FOR ATROCITIES


frustration that they have not had more opportunity to engage in outreach,
particularly after the early efforts by the prosecution.161 The weekly radio
broadcasts of trial proceedings have not been as frequent as some observers
would like. And the ability of most Sierra Leoneans to actually attend Special
Court proceedings in the capital remains limited, despite court-sponsored
programs to bring groups of citizens to Freetown to attend the trials.162
More fundamentally, whether the demonstration effects of the trials “ and
the outreach of¬ce™s efforts to convey norms of accountability and fair justice
throughout the country “ will have a longer-term impact within Sierra Leone
remains to be seen and is linked to the broader issue of capacity-building and
institutionalization of accountability norms.


2. Capacity-Building in Sierra Leone
The Special Court, by virtue of its location and substantial local participa-
tion, is in a position to help build domestic capacity directly by increasing the
skills and experience of local professionals. The Sierra Leoneans who work
at the court as prosecutors, investigators, defense counsel, judges, admin-
istrators, outreach of¬cers, and other staff are learning a great deal about
international humanitarian law and its basic principles, about the conduct
of fair trials, and about substantive issues in their speci¬c areas of respon-
sibility. Interactions between international and national staff are a valuable
two-way street of mutual learning “ as the international investigators who
work hand in hand with their Sierra Leonean counterparts are the ¬rst to
attest. The unanswered question, however, is how many of the local judges,
prosecutors, defense counsel, investigators, and other court staff actually will
remain in Sierra Leone after the court completes its work “ and consequently
continue to use their valuable skills in the national justice system.
The Special Court engages in a second kind of capacity-building, namely,
working with NGOs that share a common commitment to accountability. By
linking up with organizations committed to advancing fundamental human
rights principles, the court can potentially have larger ripple effects within
Sierra Leone and help to educate and empower citizens and civil society
organizations more broadly.
Two examples illustrate these effects. First, the Special Court™s outreach
of¬cers worked hard to help establish “Accountability Now Clubs” across
the country “ clubs of university students to discuss issues of accountability,
justice, human rights, and good governance, with the expectation that club
members will visit secondary and elementary schools to address these issues
and communicate the critical importance of accountability past, present,

161 Cockayne, The Fraying Shoestring, supra note 147, at 672“673.
162 Human Rights Watch, Bringing Justice: The Special Court for Sierra Leone: Accessibility
and Legacy, 2004, at 2, available at http://hrw.org/reports/2004/sierraleone0904/8.htm.
298 CAN MIGHT MAKE RIGHTS?


and future.163 Second, the outreach staff, along with other court personnel,
participate in the Special Court Interactive Forum, a gathering of local and
international NGOs that focus primarily on the work of the court and how
it can be improved, but that also can network on additional accountability
and human rights issues.
Finally, the Special Court is in a position to contribute expertise and train-
ing to Sierra Leone™s domestic justice system. International investigators at
the Special Court, for instance, have trained a number of Sierra Leonean
police of¬cers in witness management and protection “ a critical issue given
the long-term dangers that witnesses take on in coming forward to testify
before the Special Court. A number of the court™s judges and other legal
professionals have lectured on law reform and related topics at local uni-
versities and bar associations. More generally, the Special Court has worked
with the Sierra Leone Bar Association and with various organizations, both
domestic and international, to identify and develop projects aimed at “help-
ing to rebuild a devastated judiciary.”164 The Special Court™s resources and
the time of its personnel are understandably focused on its core mission of
trying those who bear the greatest responsibility for the atrocities committed
in Sierra Leone; but there is no doubt that more systematic efforts to provide
training and to share expertise with participants in the local justice system
would be bene¬cial.165
Ultimately, however, whether the Special Court™s capacity-building
efforts “ the professional skills development of its own staff, the ripple effects
of working with local NGOs, and the training and sharing of expertise with
local jurists and legal personnel “ will make a lasting and sustainable impact
on Sierra Leone™s domestic justice system and political culture will depend
on longer-term reforms within Sierra Leone. The jury clearly is still out on

163 These clubs exist at eight universities throughout Sierra Leone. See http://www.sc-
sl.org/outreach.html.
164 Crane, Dancing, supra note 142, at 6“7.
165 A joint UNDP/ICTJ report recommends that as part of its “legacy” efforts, the Special Court
should focus additional attention on substantive law reform in Sierra Leone, on professional
development for domestic justice personnel, and on programs to raise greater awareness in
the provinces of the Special Court as an example of fair, effective legal process. ICTJ &
UNDP, The “Legacy” of the Special Court for Sierra Leone, supra note 22, at 1“2. The
Special Court™s outreach staff has provided training, for instance, to lay personnel working
in the customary law system. Working together with the UN Development Programme, the
Special Court™s outreach staff offered training on fundamental human rights principles to lay
magistrates, court clerks, court bailiffs, and other participants in the customary law system.
The outreach staff provided information on the Special Court and linked principles that are
supposed to govern the application of customary law (“equity, good conscience, and natural
justice”) to human rights principles of equality, independence, and impartiality. Interview
with the director of outreach, Special Court for Sierra Leone, Freetown, Sierra Leone (June
2004). Developing a fairer, more transparent, more equitable system of dispute settlement
in the customary law system remains a very long-term challenge, however.
299
ACCOUNTABILITY FOR ATROCITIES


this, and the challenges are immense, as the previous chapter discussed. The
degree of outreach and serious dialogue about accountability that the Spe-
cial Court has inspired is impressive and has indeed sent some ripples of
hope through Sierra Leonean society. But the enormous challenge of insti-
tutionalizing principles of accountability “ including strengthening a weak
and underresourced domestic justice system and addressing deep and per-
vasive problems of corruption and governance “ ultimately will determine
how sustainable these efforts prove to be.


E. Sierra Leone™s Truth and Reconciliation Commission
Sierra Leone™s Truth and Reconciliation Commission (TRC) highlighted
these broader challenges in its ¬nal report. The commission focused on the
deeper and more systemic causes of grievance in Sierra Leone “ such as lack
of transparency and accountability in the use of governmental power, few
opportunities for young people, and pervasive corruption.166 Stressing that
many of these causes of con¬‚ict have not yet been addressed adequately, the
commission recommended reforms to strengthen Sierra Leone™s legal and
political system, including greater transparency and public access to infor-
mation and greater accountability of government of¬cials.167
As in East Timor, Sierra Leone™s TRC gained signi¬cant national par-
ticipation in its work, collecting over 8000 statements from civilians and
combatants in Sierra Leone and neighboring countries.168 Local NGOs and
human rights leaders supported creation of the TRC, in part to address the
complexity of the con¬‚ict and its devastating effects, including on children
who often were victimized and forced to take up arms. A Sierra Leonean
NGO estimates that up to 70 percent of combatants were children.169 More-
over, 72 percent of combatants claimed to have been forcibly conscripted,
with more than 80 percent of the female soldiers reporting that status.170

166 The commission emphasized that “it was years of bad governance, endemic corruption
and the denial of basic human rights that created the deplorable conditions that made
con¬‚ict inevitable,” that “[d]emocracy and the rule of law were dead” by the start of the
con¬‚ict, and that only the “slightest spark” was required for “violence to be ignited.”
Witness to Truth, supra note 16, Vol. 1, para. 11. Sierra Leone™s TRC submitted its report to
the Security Council in October 2004, available at http://www.trcsierraleone.org/drwebsite/
publish/index.shtml.
167 Id., para 12.
168 International Center for Transitional Justice, The Sierra Leone Truth and Reconcilia-
tion Commission: Reviewing the First Year (2004), at 3, available at http://www.ictj.org/
downloads/SL TRC Case Study designed.pdf; The Special Court for Sierra Leone, supra
note 156, at 10.
169 International Center for Transitional Justice & Post-Con¬‚ict Reintegration Initiative for
Development and Empowerment, Ex-Combatant Views of the Truth and Reconciliation
Commission and the Special Court in Sierra Leone, September, 2002, at 13, available at
http://www.ictj.org/images/content/0/9/090.pdf.
170 Id.
300 CAN MIGHT MAKE RIGHTS?


The Special Court™s prosecutor made clear early on that he did not intend
to prosecute child soldiers, so other approaches to accountability “ such as
the TRC™s emphasis on truth-telling, restorative justice, and reconciliation “
were a means to engage this large and signi¬cant group of former combatants
and to provide a forum for addressing the needs of victims.171
At least in some areas, the commission had some success in promoting
community-based healing ceremonies and in helping to reintegrate perpe-
trators into society through symbolic acts of reconciliation.172 Moreover,
in response to the speci¬c concerns and needs of victims, the commission
recommended a reparations program that would include free health care
to amputees, war wounded, and victims of sexual violence; monthly pen-
sions; and free education to the senior secondary level for speci¬c groups
affected by the con¬‚ict, such as amputees, children of amputees, children
who were abducted or conscripted, victims of sexual violence, and other
groups.173
But the impact of the TRC remains uncertain and indeed contested. No
government reparations program had yet been implemented as of early 2006.
Moreover, some scholars dispute whether the public hearings and reconcili-
ation proceedings were, in fact, bene¬cial to many Sierra Leoneans. Anthro-
pologist Rosalind Shaw argues, based on her extensive research throughout
the country, that many communities had already engaged in reconciliation
in their own way before the TRC™s hearings began and that asking people
to publicly recount and relive their war-time experiences disrupted ongoing
efforts to heal and move on.174 Scholar Tim Kelsall, who observed a number
of public reconciliation proceedings, questions whether the truth emerged in
any clear or full way, although in some instances the rituals that concluded


171 The TRC and the Special Court operated concurrently and tensions developed between the
two bodies on various matters, highlighting the need for careful planning regarding the
relationship between such different accountability mechanisms. In the case of East Timor,
the relationship between the Special Panels and the CAVR was addressed much more sys-
tematically and was more constructive.
172 Unlike in East Timor, the mandate of Sierra Leone™s commission did not explicitly create a
community reconciliation mechanism. However, the act establishing the TRC did provide,
that the commission “may seek assistance from traditional and religious leaders to facilitate
its public sessions and in resolving local con¬‚icts arising from past violations or abuses or in
support of healing and reconciliation.” See Truth and Reconciliation Commission Act 2000,
section 7(2), available at http://www.sierra-leone.org/trcact2000.html. Thus, after building
relationships with community leaders, the TRC™s hearings in the districts often concluded
with symbolic, customary, and religious healing ceremonies in which perpetrators “came
forward to ask their communities for forgiveness, which was granted by local traditional
leaders.” Elizabeth M. Evenson, Note, Truth and Justice in Sierra Leone: Coordination
Between Commission and Court, 104 Colum. L. Rev. 730, 763 (2004).
173 Witness to Truth, supra note 16, Vol. 1, paras. 51“52.
174 Rosalind Shaw, Rethinking Truth and Reconciliation Commissions: Lessons from Sierra
Leone, United States Institute of Peace Special Report, February 2005.
301
ACCOUNTABILITY FOR ATROCITIES


the proceedings did, in his view, suggest an opening for some degree of
reconciliation.175 These scholarly reports highlight the importance of under-
standing the aspirations and cultural traditions of the people most affected by
atrocities in order to design accountability mechanisms that will be respon-
sive and constructive. The mixed reports regarding the TRC™s impact also
underscore the continuing need for careful study of the actual effects of such
accountability mechanisms on the ground.


V. DOMESTIC APPROACHES TO ACCOUNTABILITY
AND THE POTENTIAL IMPACT OF THE ICC

The explicitly hybrid tribunals established in Sierra Leone and East Timor,
coupled with truth and reconciliation commissions, have not proven possible
in many other situations. Rwanda, disappointed that the ICTR was located
elsewhere, has tried thousands of individuals for genocide and related crimes
before its underresourced domestic courts, and it is beginning to try large
numbers of people in a community-based process that builds upon tradi-
tional dispute settlement practices known as gacaca.176 Indonesia largely
insisted on handling cases arising out of the violence in East Timor on its
own in a special domestic ad hoc human rights court, but a lack of polit-
ical commitment ultimately undermined these efforts, yielding no effective
accountability in the Indonesian domestic courts.177
175 Based on his observations, Kelsall questions whether perpetrators presented a fully truthful
account of their role or even whether victims have been willing to tell the whole truth of their
experience. See Tim Kelsall, Truth, Lies, Ritual: Preliminary Re¬‚ections on the Truth and
Reconciliation Commission in Sierra Leone, 27 Hum. Rts. Q. 361 (2005). Nevertheless, he
argues that “the addition of a carefully staged reconciliation ceremony to the proceedings,
a ritual that created an emotionally charged atmosphere that succeeded in moving many
of the participants and spectators . . . arguably opened an avenue for reconciliation” in a
number of communities. Id., at 363.
176 For a discussion of both the potential bene¬ts and due process concerns raised by the gacaca
proceedings, see Strain & Keyes, Accountability in the Aftermath of Rwanda™s Genocide,
supra note 20, at 117“122; Maya Goldstein-Bolocan, Rwandan Gacaca: An Experiment in
Transitional Justice, 2004 J. Disp. Resol. 355 (2004). As the process has unfolded, suicide
has increased among suspected perpetrators. Craig Timberg, In Rwanda, Suicides Impede
Road to Justice and Closure, The Washington Post, February 17, 2006, at A1.
177 See Commission of Experts Report, supra note 51, at 38“80. Early on, when international
pressure was stronger, Indonesia did take some initial positive steps toward accountabil-
ity, including an investigation and report by a national commission of inquiry, KPP-HAM.
Laura A. Dickinson, The Dance of Complementarity: Relationships among Domestic, Inter-
national, and Transnational Accountability Mechanisms in East Timor and Indonesia, in
Accountability for Atrocities, supra note 12, at 332“335, 352, 358“360. Although the
terms of reference for the Commission of Truth and Friendship established by Indonesia
and Timor Leste indicate a clear focus away from criminal prosecution, paragraph 8 states
that the “unprecedented judicial process” in Indonesia “has not yet come to its completion.”
Terms of Reference, supra note 120.
302 CAN MIGHT MAKE RIGHTS?


Domestic prosecutions, if they are conducted in a credible manner that is
widely viewed as legitimate and fair, can help demonstrate accountability in
a very direct way to domestic audiences. But a lack of resources, an unwill-
ingness to pursue accountability in a serious and balanced way, or both, can
undermine these domestic efforts. International assistance “ and pressure “
may be critical to bolster both domestic will and capacity.


A. Iraq™s Special Tribunal: Trying Saddam Hussein
Iraq is proceeding to try Saddam Hussein and others accused of serious
crimes, and the Iraqi Special Tribunal for Crimes Against Humanity was
established for this purpose.178 Iraqis serve as the tribunal™s judges and pros-
ecutors, although the Iraqi government can, “if it deems necessary,” appoint
non-Iraqis to serve as judges as well.179 The tribunal™s statute requires the
appointment of international experts to serve as advisors or observers, how-
ever, “to provide assistance to the judges with respect to international law
and the experience of similar tribunals . . . and to monitor the protection
by the Tribunal of general due process of law standards.”180 International
advisors also assist investigators and prosecutors.181 American lawyers have
been working closely with Iraqis, for instance, in reviewing and preparing
evidence, but European and UN of¬cials generally have declined to assist,

178 The Iraqi Governing Council, working closely with the U.S.-led Coalition Provisional
Authority (CPA), in December 2003 issued a statute creating the Iraqi Special Tri-
bunal for Crimes Against Humanity (“Tribunal”), available at http://www.cpa-iraq.org/
human rights/Statute.htm. The statute was issued and took effect on December 10, 2003.
The elected Iraqi government reaf¬rmed the statute in 2005. The tribunal has jurisdiction
over Iraqi nationals or residents accused of genocide, crimes against humanity, war crimes,
and certain violations of Iraqi law (manipulation of the judiciary, waste of national resources
and squandering of public assets, and abuse of position leading to war against an Arab
county) committed between July 17, 1968, and May 1, 2003. Statute of the Iraqi Special
Tribunal, Arts. 1, 11“14 (2003). The de¬nitions of the international crimes are taken from
the Statute for the International Criminal Court (ICC), and in interpreting those provisions,
“the Trial Chambers and the Appellate Chamber may resort to the relevant decisions of
international courts or tribunals as persuasive authority for their decisions.” Id. Art. 17(b).
Article 35 provides that “[t]he expenses of the Tribunal shall be borne by the regular budget
of the Government of Iraq.”
179 Id. Art. 4(d). The Tribunal™s Trial Chambers will consist of ¬ve judges. Id. Art. 4. The
Appeals Chamber will consist of nine judges. Id. Article 28 provides that: “[t]he judges,
investigative judges, prosecutors and the Director of the Administration Department shall
be Iraqi nationals.” Article 33 further provides that “No of¬cer, prosecutor, investigative
judge, judge or other personnel of the Tribunal shall have been a member of the Ba™ath
Party.”
180 Id. Art. 6(b). Article 6(b) further provides that “[i]n appointing such non-Iraqi experts,
the President of the Tribunal shall be entitled to request assistance from the international
community, including the United Nations.”
181 Id. Arts. 7(n), 8(j).
303
ACCOUNTABILITY FOR ATROCITIES


largely because they oppose the tribunal™s authority to impose the death
penalty.182
This essentially domestic tribunal may allow for prosecutions that Iraqis
view as more legitimate than trials before an explicitly hybrid court in which
international jurists play a major and visible role. Iraqi leaders have empha-
sized the importance of bringing Saddam Hussein to justice in order to “heal[]
the wounds” in Iraqi society,183 and large numbers of Iraqis from families
and groups victimized by his regime are following the trials with great inter-
est. But the tribunal has faced extraordinary obstacles from the start: several
defense counsel were murdered, the presiding judge stepped down and was
replaced by a judge initially contested by the defense, and Saddam Hussein
has stridently mocked and challenged the court™s authority. The trial of
Saddam and other defendants accused of the torture and murder of more
than 140 Iraqi men and boys in the town of Dujail following a 1982 assassi-
nation attempt has been marked by turmoil since it began. Nevertheless, the
proceedings have taken on a more sober tone since the court af¬rmed that
the defendants would face charges for crimes against humanity, which carry
a possible death sentence.184
At this point, it remains to be seen whether this and subsequent prose-
cutions of Saddam Hussein and other major ¬gures before the tribunal will
be conducted in a fair and credible manner,185 and whether the proceedings
will have a positive domestic impact. Furthermore, as instability, sectarian
violence, and insurgency continue to wrack so much of the country, new
atrocities “ murders, kidnapping, torture, rape “ are perpetrated with im-
punity on a daily basis, undermining prospects for a stable rule of law built on
a reliable system of accountability. Instead, a spiral of violence and impunity
182 Marlise Simons, Iraqis Not Ready for Trials; U.N. to Withhold Training, The New York
Times, October 22, 2004, at A11.
183 John F. Burns, For Hussein, A Spartan Life at His Former Palace, The New York Times,
September 19, 2004, at 1, 6 (quoting human rights minister Bakhtiar Amin: “Without justice,
I don™t see any possibility of healing the wounds in this society”).
184 John F. Burns, Surprise. Hussein Acts as if He™s on Trial., The New York Times, May 21,
2006, at 3.
185 The statute af¬rms fundamental due process rights of the accused, including the presumption
of innocence. Statute of the Iraqi Special Tribunal, Art. 20 (2003). That article explicitly
af¬rms the right of the accused “to defend himself in person or through legal assistance
of his own choosing” and “to have legal assistance assigned to him, in any case where the
interests of justice so require.” Id. Art. 20(4). It also provides that the “accused is entitled
to have non-Iraqi legal representation, so long as the principal lawyer of such accused is
Iraqi.” Id. Art. 20(2). As of mid-September 2004, “the tribunal ha[d] found no Iraqi lawyers
to defend Mr. Hussein and his associates.” Burns, supra note 183, at 6. Currently, Hussein™s
primary defense counsel is Baghdad-based Khalil Dulaimi, though his trial has undergone
signi¬cant turmoil since it began in 2005. See, e.g., Jamal Halaby, Saddam Lawyer: U.S.
Blocking Meeting, Associated Press, February 5, 2006; Sabrina Tavernise, Hussein Trial
Resumes, But He Stays Away, The New York Times, February 2, 2006, at A10.
304 CAN MIGHT MAKE RIGHTS?


is profoundly eroding public con¬dence in the rule of law throughout Iraq,
overshadowing the signi¬cance and potential impact of Saddam Hussein™s
trial.

B. Afghanistan: Evolving Prospects for Accountability
In Afghanistan, the public has expressed strong support for accountabil-
ity processes that can remove from power those who have committed seri-
ous human rights abuses.186 Criminal trials for the most serious offenders
accompanied by vetting and removal from power of lesser offenders are cited
by many Afghans as essential to stability, security, and public trust in the
rule of law. Afghanistan™s government has shown more ambivalence about
this path “ not surprising when some of those who wield power, including
in Afghanistan™s parliament, are among those widely viewed as responsi-
ble for serious human rights abuses.187 The Karzai government did take an
important step forward in December 2005, however, when it adopted a ¬ve-
point plan for accountability. Although the issue of criminal prosecution was
¬nessed for the time being, the government did af¬rm that “no amnesty will
be granted for gross violations of human rights.”188 Moreover, drawing on
an action plan developed by Afghan of¬cials and the Afghan Independent
Human Rights Commission, with international and UN support, the gov-
ernment af¬rmed a ¬ve-part strategy for peace, justice, and reconciliation in
Afghanistan. The plan includes measures to tangibly acknowledge and com-
memorate the suffering of the Afghan people during the long period of civil
war; measures to increase public con¬dence in state institutions through fair
and transparent vetting procedures and institutional reform; development of
a truth-seeking mechanism, after fuller consideration of the potential con-
tours of such an effort; exploration of measures to promote reconciliation
and national unity; and strengthening of Afghanistan™s criminal justice sys-
tem, along with an af¬rmation that amnesty will not be granted for gross
human rights violations.189
186 See A Call for Justice, supra note 8, at 17“21, 27“29, 34, 46“47, reporting on the surveys and
focus groups conducted by the Afghan Independent Human Rights Commission (AIHRC).
187 See Afghanistan: Where™s the Justice?, The Economist, January 21, 2006.
188 Afghan Independent Human Rights Commission, press release, Truth-seeking and Recon-
ciliation in Afghanistan, December 15, 2005, at 2, available at http://www.aihrc.org.af/
pre truthseeking 22 12 05.htm.
189 Id. The government-adopted plan was based on a plan developed by the Government of
Afghanistan together with the Afghan Independent Human Rights Commission with assis-
tance from the United Nations Mission in Afghanistan. See Peace, Reconciliation and Justice
in Afghanistan, Action Plan of the Government of the Islamic Republic of Afghanistan, June
6“7, 2005, available at http://www.aihrc.org.af/tj actionplan 19 dec 05.htm. The issue of
criminal prosecutions “ and the question of a possible hybrid tribunal for this purpose “ was
not addressed directly by the government in adopting its ¬ve-part plan. The AIHRC sur-
vey found considerable support among the Afghan population for a hybrid tribunal within
Afghanistan. See A Call for Justice, supra note 8, at 24“26.
305
ACCOUNTABILITY FOR ATROCITIES


The challenge, of course, will be how seriously these goals are pursued,
and whether major offenders are ever held accountable and removed from
positions of power and intimidation. These are hard issues that will depend
on the commitment and priorities of Afghanistan™s leaders, in both govern-
ment and civil society, on international support for accountability, and on the
success of gradual efforts to extend governmental authority to remote areas
of Afghanistan where local commanders and warlords still operate largely
with impunity. What is clear is that the people of Afghanistan regard mean-
ingful accountability for abuses “ past and present “ as critical to their trust
and con¬dence in the country™s developing legal and political institutions.
Demonstrating accountability, in short, although complicated and dif¬cult,
is an integral part of moving forward to build the rule of law.

C. The Potential Impact of the ICC
Most of the interventions we have studied in this book took place before
the International Criminal Court (ICC) was up and running.190 In future
con¬‚icts, however, the ICC may have some leverage in encouraging cred-
ible national investigations and prosecutions of major atrocities. The ICC
is designed explicitly to complement and encourage domestic legal action “
not replace it. The Court will have jurisdiction over individuals accused of
genocide, crimes against humanity, or war crimes only if states with juris-
diction are “unable or unwilling” “genuinely” to investigate or prosecute
these cases.191 The primacy of national jurisdiction “ and the principle that
the ICC is to be complementary to, not a substitute for, national action “
re¬‚ects a realist core at the heart of the ICC statute: awareness that effective
national action, including domestic political will and capacity, is an essen-
tial component of lasting accountability. The ICC does provide a potential
check, however “ and a judicial forum “ if domestic action falls short.
In principle, the threat of possible ICC prosecution can help to prod and
encourage responsible domestic investigation and prosecution of atrocities.
190 The jurisdiction of the ICC took effect on July 1, 2002. Our discussion of the ICC draws
directly on Stromseth, Introduction: Goals and Challenges in the Pursuit of Accountability,
supra note 12, at 3“4, 26“32, 36.
191 Rome Statute of the International Criminal Court, Art. 17, July 17, 1998, 2187 U.N.T.S.
90. Under the complementarity provisions of the ICC, a case is inadmissible if a state with
jurisdiction has genuinely investigated the matter and prosecuted or made a good faith
determination not to prosecute. States wishing to avoid ICC jurisdiction under the Rome
Statute thus can take steps to ensure that they are able and willing to investigate and, if
appropriate, to prosecute individuals domestically for ICC crimes. So ideally the impulses
of sovereignty should combine with the prospect of international action to produce more
effective national accountability efforts. For discussions of complementarity, see Michael A.
Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome
Statute of the International Criminal Court, 167 Mil L. Rev. 20 (2001); David J. Scheffer,
Fourteenth Waldemar A. Solf Lecture in International Law: A Negotiator™s Perspective on
the International Criminal Court, 167 Mil. L. Rev. 1, 10“11 (2001).
306 CAN MIGHT MAKE RIGHTS?


Many states already have adapted their domestic criminal law to provide for
national prosecution of genocide, crimes against humanity, and war crimes.
This may be the ICC™s most signi¬cant impact to date on strengthening
domestic rule of law. In practice, however, the effectiveness of the ICC™s
prodding abilities will depend on the court™s own credibility and legitimacy “
and on domestic will and capacity in particular states.
Domestic reformers may sometimes welcome the threat of international
action as a means to spur and support their own indigenous efforts.192 But
“there is a ¬ne line between pressure that strengthens the hand of internal
reformers and pressure that results in greater domestic resistance to perceived
foreign interference.”193 Also, domestic reformers must be in a position to
translate international pressure into in¬‚uence and effective national action.
Even when there is domestic will to prosecute and to prevent atrocities,
national capacity to do so effectively may be sorely lacking.
Gaps will exist, in any event, in the ICC™s ability to serve as a lever to prod
and encourage responsible domestic accountability processes. Many of the
worst atrocities in recent memory occurred during internal con¬‚icts. When
perpetrators of atrocities come from the state on whose territory the crimes
occurred, the ICC will be in a position to assert jurisdiction only if that state
is a party to the ICC statute or otherwise consents.194 Thus, many situations
of internal con¬‚ict in which atrocities occur may not be amenable to the
ICC™s prodding function. In addition, atrocities committed before the ICC™s
jurisdiction took effect on July 1, 2002, will not be subject to prosecution
before the Court “ which includes most of the situations studied in this book.
Thus other mechanisms and initiatives will continue to be needed to
encourage effective domestic accountability for atrocities. States will con-
tinue to differ profoundly in their willingness and their capacity to hold
individuals accountable for atrocities or to take effective measures to prevent
future atrocities. Different methods of strengthening and reinforcing domes-
tic capacity “ and different combinations of mechanisms and of national and
international roles “ will be needed, moreover, in response to the particular
goals, needs, and circumstances of speci¬c states in the aftermath of grave
atrocities. Finding an optimal relationship between domestic and interna-
tional actors will not be easy in many cases, but the need for innovative
hybrid accountability mechanisms will surely continue.195
192 See Dickinson, The Dance of Complementarity, supra note 177, at 358“365.
193 Id., at 372. As in Indonesia, internal reformers can play the “nationalist card” in encouraging
domestic accountability processes as an alternative to international action, but those resisting
reform can do so as well.
194 Rome Statute of the International Criminal Court, Art. 12, July 17, 1998, 2187 U.N.T.S.
90.
195 For a discussion of potential national and international roles and relationships in the pursuit
of accountability, see Kritz, Coming to Terms with Atrocities, supra note 12, at 144“152;
Turner, Nationalizing International Criminal Law, supra note 19; Stromseth, Introduction:
307
ACCOUNTABILITY FOR ATROCITIES

CONCLUSION

To revisit this chapter™s basic question: can the pursuit of accountability for
atrocities through criminal prosecutions and other methods help to build
the rule of law and strengthen domestic justice systems in post-intervention
societies? The answer is “yes, but.” As we have argued here, accountability
processes clearly are having a positive impact in a number of societies, but the
effects of these efforts on domestic rule of law have been mixed, complex,
and often unclear, and more research is needed to fully understand their
longer-term impact.
Whether accountability processes have helped to strengthen the rule of
law domestically depends, in part, as we have argued, on their demonstra-
tion effects and their capacity-building impact. On the positive side, criminal
trials of major perpetrators can help disempower destructive actors and, if
widely viewed as fair, can demonstrate that even leaders with political and
economic clout are not above the law and that pervasive impunity for serious
atrocities will no longer be tolerated. Trials can also provide some solace to
victims or their families and help to remove impunity as a source of grievance
more broadly. But if trials are seen as biased, they can have negative demon-
stration effects, reinforcing rather than diluting skepticism that law can be
fair and reinforcing grounds for grievance. On the issue of capacity-building,
an infusion of international resources can have positive effects, especially
in hybrid tribunal arrangements that provide valuable direct experience to
participating judges, prosecutors, investigators, defense counsel, and other
staff, many of whom may then contribute to the domestic legal system. But,
in the case of purely international tribunals, about two billon dollars have
been spent with little discernible impact on domestic capacity-building. More
speci¬cally:
r The ICTY and the ICTR have accomplished a great deal in terms of
bringing to justice, in fair legal proceedings, individuals accused of major
atrocities. Nevertheless, these tribunals have had only a limited impact
on demonstrating the importance of accountability and fair justice to
critical domestic audiences or on helping to build capacity in the rele-
vant national justice systems. With earlier and more effective outreach to
local populations and more systematic capacity-building programs, these
tribunals could have accomplished much more. They still have an oppor-
tunity to make a greater domestic impact if their completion strategies
focus more attention and resources on the systematic strengthening of
domestic capacities to handle complex war crimes cases.

Goals and Challenges in the Pursuit of Accountability, supra note 12, at 26“36. For a
cautionary account of the potential pitfalls of national efforts, see Bass, Stay the Hand of
Vengeance, supra note 14, at 304“310.
308 CAN MIGHT MAKE RIGHTS?

r Even the hybrid tribunals have struggled to realize in practice their theo-
retical potential. By combining national and international staff and oper-
ating in the country that directly experienced the atrocities, hybrids “
in principle at least “ offer important bene¬ts. But if they are not given
adequate resources and support, hybrid arrangements may fall short of
satisfying standards of legitimacy and credibility among international and
domestic audiences alike. At a practical level, language barriers and less-
than-systematic efforts at cross-fertilization and training can limit the
prospects for genuine capacity-building. Kosovo™s hybrid arrangement
has suffered from a lack of legitimacy among domestic audiences. In
East Timor, the hybrid tribunal™s contributions both in accountability and
capacity-building have been constrained signi¬cantly by limited resources
and by lack of political support.
r If they are designed and implemented well, however, hybrid tribunals
can have signi¬cant, positive domestic effects. As the experience in Sierra
Leone suggests, hybrid tribunals can pursue accountability fairly and
credibly while strengthening local capacity and reaching out systemati-
cally to local populations. The longer-term impact of the Special Court™s
work of course remains to be seen, especially the impact of the trial of
Charles Taylor. Although more remains to be done, the Special Court and
its innovative outreach program have strengthened public awareness of
the importance of accountability and contributed to domestic capacity-
building.
r Still, criminal trials alone, even with ambitious outreach programs, are “ at
best “ only part of what is needed to grapple with past atrocities or to build
local capacity for justice. Combined approaches that also include truth
and reconciliation mechanisms are more likely to produce more effective
and far-reaching demonstration effects and capacity-building than trials
alone. The truth and reconciliation commissions in East Timor and Sierra
Leone “ which operated contemporaneously with the hybrid criminal tri-
bunals “ played a critical role in addressing the larger factors that led to
atrocities, reaching out to victims, and recommending systemic reforms.
r Particularly in post-con¬‚ict societies where formal justice systems have
limited geographic reach, community-based accountability proceedings
that both enjoy local legitimacy and respect human rights can have an
important immediate impact and also contribute to the longer-term goal
of strengthening the rule of law. East Timor™s Commission for Recep-
tion, Truth and Reconciliation, in particular, has made a difference in
rural areas with limited access to formal justice: the commission™s inno-
vative reconciliation procedures have helped integrate individuals back
into their communities, and the commission™s deliberate effort to involve
women and young people alongside traditional community leaders helped
cultivate some potential new leaders.
309
ACCOUNTABILITY FOR ATROCITIES


Our exploration of the links between accountability processes for past
atrocities and forward-looking rule of law reform leads us to offer two ¬nal
thoughts. First, more research is needed on the impact of accountability
proceedings in different post-con¬‚ict societies. Seeking justice by holding
major perpetrators legally accountable, of course, can and should be pursued
as a matter of principle. Yet knowing more about the impact of different
kinds of accountability mechanisms can help in designing approaches that
can seek justice fairly and also contribute more effectively to building the
rule of law domestically and to strengthening justice systems in post-con¬‚ict
societies.
Second, international actors involved in designing accountability pro-
cesses need to be both more bold and more humble at the same time. They
need to be bolder in working to link accountability proceedings more clearly
to longer-term efforts to build domestic capacity for the rule of law. Account-
ability processes should not be simply an endeavor totally apart from ongoing
processes of reform: fair justice can be provided while also working to engage
in innovative outreach to local communities, to build local legal capacity, and
to develop synergies with local NGOs. What™s required are vision, energy,
and resources to press ahead on multiple fronts.
Yet international actors also need to show more humility and modesty
regarding the ability of accountability processes to bind up the wounds of
those who have suffered atrocities. The needs and aspirations of the people
who endured the atrocities must be appreciated more fully, and their goals
must be given greater attention in designing accountability efforts. Mean-
ingful accountability for atrocities takes time, and communities may in fact
need to move forward for awhile before they can effectively look backward.
Furthermore, claiming too much for accountability processes alone in meet-
ing the often complex expectations of local communities can lead to deep
disappointment. Even the fairest and most credible trials of those responsible
for severe atrocities, the most systematic efforts at judicial capacity-building,
or the best-designed reconciliation procedures will have only a limited long-
term impact if the deeper cultural underpinnings of the rule of law “ and
the deeper obstacles to strengthening the rule of law “ are not understood
or addressed. This dif¬cult and essential topic is taken up in Chapter 8.
CHAPTER EIGHT




Creating Rule of Law Cultures




Over the past decades, most international and U.S. efforts to promote the rule
of law have focused primarily on the “formal” dimensions of the rule of law:
fostering new or improved courts, prison systems, constitutions, statutes, and
so forth. In this book, we have repeatedly emphasized that such programs,
though valuable, are unlikely to reap lasting bene¬ts unless they are inte-
grated into the far broader project of ensuring peace, stability, and security
and unless rule of law programs proceed more or less simultaneously rather
than consecutively.
Without security, neither governance nor economic development pro-
grams can hope to succeed. Without viable macro-level blueprints for gov-
ernance, legal and judicial reform projects may be impossible, incoherent,
or self-undermining. Without moderately effective police, criminals cannot
be arrested; without an adequate prison system, they cannot be detained;
without courts, they cannot be tried; without lawyers, they probably cannot
be tried fairly; without functioning law schools, there can be no lawyers or
judges. Promoting the rule of law requires interveners to keep many balls in
the air at once, and doing so presents monumental challenges.
But the challenges for interveners do not end there. However one chooses
to de¬ne the rule of law, the rule of law can neither be created nor sustained
unless most people in a given society recognize its value and have a reasonable
amount of faith in its ef¬cacy. The rule of law is as much a culture as a set
of institutions, as much a matter of the habits, commitments, and beliefs of
ordinary people as of legal codes. Institutions and codes are important, but
without the cultural and political commitment to back them up, they are
rarely more than window dressing.
This is as true in stable, democratic societies as it is in post-con¬‚ict set-
tings. Much of the psychological and sociolegal work that has been done
on why people obey the law in the United States reminds us that factors
such as the perceived morality of the substantive law and the perceived legit-
imacy and procedural fairness of legislative and judicial processes are often
310
311
CREATING RULE OF LAW CULTURES


of paramount importance in explaining why people do (or do not) behave
in accordance with law.1 When people believe that law and legal institutions
are fair and effective, they will use them and allow their actions to be con-
strained by them. When people doubt law™s fairness or ef¬cacy, they will
seek alternative methods of ordering their lives and settling problems, and
changes in the law or in institutions will consequently have less of an effect
on their behavior.
Persuading people to believe in the rule of law is a dif¬cult task in any
context and one that is particularly dif¬cult in post-con¬‚ict societies. In
post-con¬‚ict societies, prior to international interventions and subsequent
reconstruction efforts, the institutions meant to buttress the rule of law were
often badly discredited. In repressive states, legal institutions generally lose
credibility because they are used to further the political agenda of those
with power. In weak states, legal institutions may simply be too corrupt and
inef¬cient to garner much loyalty.
In weak or repressive states where the rule of law does not exist, people
develop alternative means of resolving con¬‚ict. Depending on the society,
they may look to informal mediation, to religious leaders, to tribal elders,
or to local warlords to settle their differences; they may rely on nepotism
or bribery to get what they need, or they may turn to violence and vigilante
activity if that appears the simplest way to resolve problems. Such nonlegal
ways of resolving disputes may be neither ef¬cient nor equitable, but they
are often the only avenues available for ordinary people.
In the wake of international military interventions, many people may be
reluctant to give up these methods in favor of new and untried institutions of
the sort that did not help them much in the past. Interveners eager to foster
the rule of law must thus seek ways to persuade both elites and ordinary
people to value the rule of law over the alternative (and often violent) ways
of settling disputes that have been most effective for many people prior to
the intervention.
To put it differently, interveners must seek to create a rule of law culture,
one in which a reasonably large percentage of people come to believe in
the value of legal institutions. The wisest constitutional arrangements, the
most modern and sophisticated statutes, and the most well-organized judicial
system will be of little use if most people lack faith in them and turn instead
to warlords or vigilante activity to resolve disputes.
One could, in principle, imagine a peaceful and stable society without
elaborate modern legal institutions, and historically many such societies

1 Tom Tyler, Why People Obey the Law (1995). See also Raymond Paternoster, Decisions
to Participate in and Desist from Four Types of Common Delinquency: Deterrence and the
Rational Choice Perspective, 23 Law & Soc™y Rev. 7 (1989) (noting that moral beliefs were
more central to decisions about whether to break the law than assessments of the likelihood
and seriousness of punishment).
312 CAN MIGHT MAKE RIGHTS?


have existed, particularly on a small scale. Today, however, in our glob-
alized and interdependent world, no state is likely to prosper without a
modern legal regime, because this is necessary both to comply with inter-
national legal obligations under various treaty regimes and to participate
effectively in the global economy. This means that modernized legal institu-
tions and codes are a practical necessity in post-con¬‚ict societies. But as we
have noted, the mere existence of these institutions and codes will not neces-
sarily translate into “the rule of law” in any nonsuper¬cial sense. They will
only make a difference if both elites and ordinary people are committed to
them.
But this creates something of a chicken-and-egg problem in post-con¬‚ict
societies. When people already believe law matters, it will matter; when
people think law doesn™t matter, it rarely can, and few rule of law programs
pay explicit attention to the conundrum of how to go from the latter state
to the former.2
Changing entrenched attitudes toward the law is made even more dif¬cult
by the inherently contradictory aspects of most post-intervention rule of law
efforts. The idea of the rule of law, though complex, rests signi¬cantly on the
assumption that legal process is superior to violence as a means of resolving
con¬‚icts and that even the most powerful must respect legal process and the
rights of those with less power. The rule of law elevates reason over force
and rights over mere might. This creates a dif¬cult irony. Regardless of the
speci¬c background to any given intervention, interveners have the capacity
to intervene for one overriding reason: the possession of superior military
might.
Much of the time, this is no doubt as it should be: we see no reason
to doubt that NATO™s military control over Kosovo was a better thing for
Kosovars and for the world than Slobodan Milosevic™s military control over
Kosovo. But even when a particular intervention is widely seen as legitimate,
the fact remains that on the ground, interveners are present because they have
greater military power than other contenders. From Bosnia and East Timor
to Afghanistan and Iraq, interveners are in a position to promote the rule of
law mainly because they have a superior capacity to capture, disable, or kill
most of those who get in the way. Although they may not possess a complete
monopoly on the use of force, they certainly have the biggest guns on the
block, and they can use those guns, directly or indirectly, to coerce local
actors into cooperating with rule of law initiatives.

2 Cf. Paul Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship 36 (1999).
(“The rule of law is a social practice: it is a way of being in the world. To live under the rule
of law is to maintain a set of beliefs about the self and community, time and space, authority
and representation. It is to understand the actions of others and the possible actions of the
self as expressions of these beliefs. Without these beliefs, the rule of law appears as just
another form of coercive governmental authority.”)
313
CREATING RULE OF LAW CULTURES


To be sure, the relation between law and sheer coercion is uneasy even
in peaceful, democratic societies with strong rule of law traditions. This is a
problem that has preoccupied jurisprudential theorists from Hobbes through
Austen and Hart. Law seeks to appeal to reason, but always relies in part
on the threat of coercion for its ef¬cacy. This seeming paradox can never be
completely eliminated in any society. Nonetheless, in democratic societies,
the state holds a monopoly on force through the consent of the governed.
Although that consent may be tacit, most ordinary people in democratic soci-
eties readily accept the legitimacy of the state™s monopolization of violence.
The notion of the social compact, however mythical, remains a powerful
legitimating factor in democracies.
In post-intervention societies, however, the tension between the law™s
appeal to reason and the realities of coercion is particularly glaring, and
greatly complicates efforts to create rule of law cultures. In these societies,
interveners have an opportunity to convince local people to believe in the
value of law, reason, and rights as an alternative to sheer power and vio-
lence, but they are in a position to hold the ¬‚oor only because they have just
provided an object lesson in the ability of force to settle arguments (however
temporarily).
Possession of superior force thus creates both opportunities and chal-
lenges for interveners. On the one hand, interveners have perhaps a unique
capacity to foster positive change. Rule of law initiatives in societies that
have not gone through major con¬‚icts or interventions inevitably proceed
in a piecemeal fashion, because it is hardly feasible or desirable to wholly
dismantle state and civic institutions to start from scratch with “better”
ones. But in post-intervention societies, the very degree of breakdown creates
unique opportunities for renewal and change. In post-intervention societies,
the “old” institutions have often collapsed, and local stakeholders may be
willing, even eager, to make an entirely new start, rethinking every civic verity
from how they understand nationality and ethnicity to how they want their
society to function. They may simply be tired of con¬‚ict, and willing to let
outside actors take the lead. In the absence of credible and functioning local
governance institutions, interveners can set the conditions under which local
people can participate in governing their own society. Because interveners
can compel cooperation “ or at least the outward forms of cooperation “
they can easily spearhead the creation of new institutions or reformed legal
codes.
But in other ways, possession of superior force only increases the dif¬-
culties faced by interveners eager to help foster a rule of law culture. The
example of the intervention itself tends to undercut subsequent arguments
made by interveners about the value of reason and legal process over force,
particularly if the intervention was of contested legality, as in Iraq. If the
intervention itself is read as an object lesson about the irrelevance of law
314 CAN MIGHT MAKE RIGHTS?


as a constraint on power, people on the ground may be particularly resis-
tant to efforts to convince them of the virtues of the rule of law. Even when
local people initially called for or welcomed the intervention, possession of
superior force can nonetheless reduce the credibility of the interveners once
they are on the ground, as they may themselves be inclined (or appear to be
inclined) to fall back on superior force when reasoned argument does not
suf¬ce to convince local people to do things the “right” way.
The challenge for interveners who want to promote the rule of law thus
goes far beyond the challenge of ensuring security and designing sensible
governance blueprints, judicial reform programs, and accountability mecha-
nisms. The challenge for interveners is to foster “ or even create from scratch “
a rule of law culture, and to do so in the face of the enormous inherent
dif¬culties and paradoxes described above.
What™s more, just as judicial reform will have little value if it is not accom-
panied by simultaneous legal reform, police reform, prison reform, and so
on, the project of creating a rule of law culture must similarly be under-
taken from day one, in parallel with all of the other critical post-intervention
projects.
Although its intangible nature may tempt interveners to relegate it to the
back burner, creating a rule of law culture cannot be put off until some vague
future time when the institutional framework is already in place, because by
then it is already too late. In the immediate wake of crisis and intervention,
there is a brief window in which people may be willing to give new alterna-
tives a chance; that window closes rapidly as time passes with little or no
evidence that things are changing for the better.
To date, few international and U.S. efforts to create the rule of law in
post-con¬‚ict settings have paid explicit attention to the challenge of creating
rule of law cultures. Perhaps “culture” appears to many policymakers like
a matter most appropriately left to anthropologists; the term may seem too
soft and ill-de¬ned to suit hard-nosed political realists. Rule of law programs
are generally assigned to lawyers, who are trained to think in terms of codes
and institutions rather than in terms of cultural change. And changes to laws
and institutions are indeed a critical part of creating the rule of law, as the
preceding chapters of this book have emphasized. But on their own, they are
insuf¬cient.
The task of creating rule of law cultures requires interveners to enter
into largely uncharted territory, but it is territory that can™t be neglected
and that requires interveners to go beyond the traditional skill sets normally
considered essential in post-con¬‚ict planning. As one thoughtful critic puts
it, rule of law practitioners “need to think less like lawyers and more like
agents of social change.”3

3 Stephen Golub, Beyond Rule of Law Orthodoxy: The Legal Empowerment Alternative,
Carnegie Endowment for International Peace, Paper No. 41, October 2003.
315
CREATING RULE OF LAW CULTURES


Promoting social change requires creativity, openness to alternative and
nontraditional approaches, and a willingness to move beyond political elites
to focus as well on grassroots efforts. It requires demonstrating to ordinary
people the concrete advantages of turning to law rather than some other
dispute resolution methods, and it also requires the creation of narratives
about law that capture imaginations. This in turn requires a willingness to
consider the role of media, civil society, and even popular culture as well as
the role of institutions and political elites.
So far, the international community™s track record in this area is not
impressive, and it is dif¬cult to feel optimistic that future interventions will
excel where past interventions have fallen so far short. As previous chap-
ters have already noted, promoting the rule of law involves keeping track
of so many moving parts that even the wisest and best-prepared interven-
ers may often be stymied. (And this is to say nothing of the problem of
resources and coordination on the part of the interveners, a subject that will
be taken up in the next chapter.) Nonetheless, although there is little reason
to imagine that creating rule of law cultures will be easy or even wholly
possible in all post-con¬‚ict societies, this book would not exist if we did not
think we can do better in the future than we have in the past. The remain-
der of this chapter focuses on how interveners might do a better job in the
future.
For interveners as for physicians, the most fundamental duty might be
construed as “do no harm.” In keeping with that principle, the ¬rst part of
this chapter looks at how interveners sometimes unintentionally undermine
their own efforts to promote the rule of law through cultural insensitivity
or apparent arbitrariness. We suggest that to avoid undermining their own
efforts, interveners must acknowledge and address the paradoxes created by
trying to pull the rule of law from the barrel of a gun and shore up their
own legitimacy as much as possible. This requires linguistic and cultural
know-how on the part of interveners; the ability to plan carefully and avoid
early errors that will require seemingly arbitrary about-faces; a willingness
to act collaboratively and multilaterally; and, perhaps most important, a
commitment to transparency and accountability. Only if interveners are seen
to hold themselves to the same high standards they demand of others can
they hope to gain public trust.
The second part of this chapter takes a different course. Because rule of
law efforts that are unduly formalistic have a very poor track record, the
second part of this chapter examines the kinds of programs that seem most
likely to help af¬rmatively create a widely shared cultural commitment to
the rule of law in post-intervention societies.
It emphasizes the importance of moving beyond political elites and beyond
the strictly “legal” to design programs that reach rural citizens, the poor, the
disempowered, and the disaffected; that build on preexisting informal dis-
pute resolution mechanisms; that are integrated into local-level development
316 CAN MIGHT MAKE RIGHTS?


and antipoverty programs, and that creatively use media and popular cul-
ture techniques to educate and inspire ordinary people. It also emphasizes the
importance of civil society and education to the long-term project of build-
ing the rule of law. Although nothing described in this chapter is a panacea,
what empirical work has been done so far suggests that such an emphasis is
likely to be more productive than programs that focus solely on elites and
institutions.



I. DOING NO HARM: HOW INTERVENERS CAN AVOID
UNDERMINING THEIR OWN EFFORTS

Chapter 6 brie¬‚y introduced several examples from Kosovo that suggest the
ways in which well-intentioned rule of law promotion efforts can sometimes
inadvertently undermine the rule of law. These examples are discussed here
in somewhat greater detail.
In 1999, the ethnic cleansing campaign by Serbs against Kosovar Alba-
nians led ultimately to NATO military intervention and to Security Council
Resolution 1244,4 which created an international civilian administration in
Kosovo (UNMIK) under the auspices of the United Nations. In post-con¬‚ict
Kosovo, UNMIK faced the daunting challenge of governing 1.8 million peo-
ple in a devastated region with no functioning courts, no functioning prisons,
no police, and a legacy of ethnic bitterness between the Serbs and the Koso-
var Albanians, who for a decade had been unable to participate in Kosovo™s
governance.
In the wake of NATO™s military intervention, Kosovo also lacked an
agreed-on body of law. With Serbia no longer in control, and the UN running
the show, it was unclear what body of law was applicable in Kosovo. The
uncertainty about applicable law caused confusion on numerous fronts: no
one knew what laws should govern the apprehension and trial of criminal
suspects; the thorny problem of disputed property claims; or, for that matter,
the actions of UNMIK itself.
The route UNMIK took to resolve these issues helps demonstrate that
a simplistic formalism can be a dead end for rule of law reformers when
more culturally potent symbolic issues are at stake. UNMIK head Bernard
Kouchner decided to resolve the problem of applicable law by making the
applicable law in UN-administered Kosovo the same as the law that was
applicable before the NATO air campaign began. He issued UNMIK Regu-
lation One, which stated that “the laws applicable in the territory of Kosovo
prior to 24 March 1999 shall continue to apply in Kosovo,” insofar as those
pre-March 1999 laws did not con¬‚ict with internationally recognized human
4 S.C. Res. 1244, UN Doc. S/RES/1244 (June 10, 1999).
317
CREATING RULE OF LAW CULTURES


rights standards, the UNMIK mandate under UNSC Resolution 1244, or any
other UNMIK regulation.5
This seemingly ef¬cient solution back¬red badly. To Kosovo™s 1.5 million
ethnic Albanians, the applicable laws in Kosovo before the bombing cam-
paign began were “Serb laws,” a key symbol of Serbian oppression against
the Albanians. To the policymakers at UNMIK, the fact that the pre-1999
laws had been promulgated by Serbs seemed purely academic “ but to many
Kosovars, after ten years of Serb oppression, an ethnic cleansing campaign,
and an armed struggle, the idea that the UN would issue a decree requiring
the Kosovar Albanians to continue to live under “Serb law” was profoundly
insulting. It made no difference that UNMIK Regulation 1 said that human
rights standards would trump the laws on the books in the event of a con-
¬‚ict. Nearly all of the ¬fty-¬ve people sworn in by UNMIK to serve as judges
and prosecutors in UNMIK™s new “emergency judicial system” declared that
they would not apply “Serb law.”
A crisis ensued, complete with angry editorials and dozens of stormy meet-
ings in Pristina, UN headquarters, the State Department, and other sites.
UNMIK refused to rescind Regulation 1. At the same time, because most
prosecutors and judges refused to accept Regulation 1, few judicial proceed-
ings began in Kosovo™s makeshift courts. Most Kosovar judges insisted that
the applicable law should by right be the laws in force before 1989, because
these laws were passed with the approval of the Albanian-dominated Kosovo
parliamentarians before the Serbs ended Kosovo™s autonomy.
The controversy ended in defeat for UNMIK. Six months after issuing
Regulation 1, UNMIK (without of¬cial comment) made a full about-face in
the form of UNMIK Regulation 24.6 This new regulation declared that the
law applicable in Kosovo would henceforth be the law in force on March 22,
1989, immediately prior to the ending of Kosovar autonomy. Regulation 24
in fact permitted Kosovar judges to pick and choose whatever law they liked
best: when the pre-1989 laws failed to cover a given situation, Regulation
24 gave judges the freedom to apply any nondiscriminatory legal provision
applicable in Kosovo after March 22, 1999. And, of course, all law applied
had to be consistent with international human rights standards “ although
Regulation 24, like Regulation 1, neglected to identify sections of the law
inconsistent with human rights standards or lay out the procedures to be
followed in the event of perceived con¬‚ict between a provision of the law
and human rights standards.
This was not a trivial oversight. Ironically, the pre-1989 laws so dear
to the Kosovar Albanian community were far less consistent with modern
5 UNMIK Regulation 1, reprinted in U.S. Department of State: Kosovo Judicial Assessment,
by Rosa Ehrenreich & William Spencer (2000), Appendix. Much of what follows is drawn
from personal experiences in Kosovo in 1999 and 2000.
6 UNMIK Regulation 24, reprinted in Ehrenreich & Spencer, supra note 5.
318 CAN MIGHT MAKE RIGHTS?


international human rights norms than the post-1989 “Serb law” they had
so vehemently rejected. The pre-1989 laws were designed in the communist
era, before the fall of the Berlin Wall and the advent of greater openness in
Yugoslavia.7 Not only did the pre-1989 laws fail to conform to international
human rights standards in numerous ways, but the property and civil law
regime they created also re¬‚ected a very different set of assumptions about
how social life should be organized than those most Kosovars held a decade
later. On their face, the post-1989 “Serb laws” appeared an improvement on
their predecessors. It was primarily the implementation of these post-1989
laws that had been discriminatory and oppressive.8
This is a small example of how a well-intentioned but overly formalistic
approach to law foundered when it came up against powerful local cultural
understandings. Although this dispute seems trivial in many ways, its con-
sequences were major. If UNMIK read the Kosovar Albanian rejection of
Regulation 1 as irrational and obstructionist, the Kosovar Albanian com-
munity read UNMIK™s initial refusal to take their objections seriously as
evidence that the international community had insuf¬cient respect for their
history, fears, and aspirations. Furthermore, UNMIK™s ultimate reversal on
the question of applying the pre-1989 laws suggested to the Kosovars that
law UNMIK-style was a matter of arbitrary decrees that could be issued and
reversed by an unaccountable appointed bureaucracy.
The dispute over Regulation 1 was a small part of a larger problem that
plagued efforts to foster the rule of law in Kosovo. As Chapter 4 noted, the
¬nal status of Kosovo was not determined by Resolution 1244. In part as
a result, UNMIK™s policymakers could never entirely decide whether their
ultimate goal was to promote self-determination or to promote and ensure
human rights. For that matter, UNMIK did not truly confront the question
of whether a commitment to human rights requires a commitment to demo-
cratic decision-making, what truly constitutes democratic decision-making
in a society with no obviously legitimate representatives, or how to resolve
crises in which majoritarian democracy seemed likely to trample on minority
and individual rights.9 These are complex issues without easy answers, but
UNMIK™s early failure to confront them at all was particularly damaging
given that UNMIK™s whole raison d™etre in Kosovo involved protecting the
Kosovars™ right to self-determination and promoting human rights. Indeed,
NATO went to war in Kosovo with the stated aim of protecting the Kosovars
from Serb domination and human rights abuses.

7 For a readable history of Yugoslavia, see generally Tim Judah, The Serbs: History, Myth
and the Destruction of Yugoslavia (2000).
8 See generally Ehrenreich & Spencer, supra note 5.
9 Cf. Owen Fiss, The Autonomy of Law, in SELA 2000, Seminario en Latinoamerica de
Teroia Constitucional y Politica: The Rule of Law (June 8“11, 2000) (discussing the
inherent con¬‚ict between justice and autonomy, despite the tendency of human rights dis-
course to con¬‚ate the two).
319
CREATING RULE OF LAW CULTURES


In the ¬rst years after the intervention, UNMIK proved unable to come
up with any coherent mechanism for addressing these sometimes con¬‚icting
imperatives. In the early days of the UN administration, UNMIK established
a variety of consultative bodies designed to include the Kosovars in decisions
about the all-important project of reestablishing the rule of law. Including
prominent Kosovar lawyers, academics, and political ¬gures, these bodies
were meant to help appoint judges, revitalize legal education, and produce
legal codes. But time and time again, this consultative process foundered, as
quarrels broke out over substantive issues and over who should serve on the
advisory bodies (no clear criteria existed, and the different ethnic groups and
political parties clashed both with UNMIK and with each other over how to
divvy up the seats) and what language the proceedings should be conducted
in. (The Serbs insisted on Serbian and the Albanians on Albanian. Because
the UN personnel generally spoke neither, this forced meetings to include
multiple translators, leading to further inef¬ciency and misunderstanding.)
The consultative process also faltered on more substantive issues: not
infrequently, for instance, Albanian participants would express the view that
there should be no Serb judges, as all Serbs were complicit in war crimes,
or that the property code should give Serbian property to Albanians, since
it had been stolen from them in the ¬rst place, even if decades or centuries
before, or that revenge killings of Serbs by Albanians should be treated more
leniently than other kinds of killings.
Such disputes did not bode well for the due process of law that UNMIK
hoped to see emerge, and UNMIK frequently responded by dismissing its
advisory councils in frustration and making key decisions itself. In other
words, when a majoritarian form of self-determination came up against
human rights, self-determination lost. This may be appropriate, but the
sequence of events leading to those decisions hardly looked like due process.
In essence, UNMIK wanted the decision-making process to be as participa-
tory and democratic as possible, but when the Kosovar participants came
up with suggestions or demands that UNMIK found unpalatable, UNMIK
simply dismissed them and made the decisions on its own. Unsurprisingly,
this did little to enhance UNMIK™s reputation with the Kosovars, as they saw
UNMIK as increasingly arbitrary and unaccountable in its rule. Ultimately,
the advisory councils became semipermanent battlegrounds, frequently dis-
solved by UNMIK, just as frequently boycotted by one or more Kosovar or
Serb groups, and nearly always locked in angry paralysis.
UNMIK™s credibility was also damaged by its own dif¬culty in abid-
ing by the international human rights standards it sought to impose on
Kosovo. In Regulation 1, UNMIK effectively incorporated international
human rights standards into Kosovo™s law, and this was af¬rmed in Reg-
ulation 24. Although UNMIK™s regulations never speci¬ed precisely how
to identify a norm of international human rights law, UNMIK legal advis-
ers, other international actors, and Kosovars all took “international human
320 CAN MIGHT MAKE RIGHTS?


rights” to include, at a minimum, the core rights at the heart of the Univer-
sal Declaration of Human Rights, the International Covenant on Civil and
Political Rights (ICCPR), the European Charter, and decisions of the Euro-
pean Court of Human Rights (because Kosovo was, after all, part of Europe,
and the EU and the Organization for Security and Co-operation both had
major roles in Kosovo under the UNMIK umbrella). Under each of these
overlapping regimes, core rights include (among others) the rights to equal
protection, due process, fair and expeditious judicial proceedings, freedom
from arbitrary detention, adequate detention conditions, and representation
by counsel.10
The police, prison, and judicial systems initially established by UNMIK
were unable to comply with those standards, however, or even with the
generally less stringent standards that had been laid out in pre-1989 or
post-1989 Kosovo, Serbian, and Yugoslavian law. An international civil-
ian police force for Kosovo got up and running only slowly. In the ¬rst
post-intervention years, in some regions of Kosovo, UN civilian police from
around the world apprehended suspects and investigated crimes, using their
own diverse home-country procedures. In other regions, Kosovars who had
gone through a basic training course at a UN police school patrolled the
streets. In some areas, NATO soldiers acted as the police. In still other areas,
all three shared de facto responsibility for policing. These various policing
agents spoke different languages and applied widely varying methods and
standards for stopping, questioning, and detaining suspects.11
Detention facilities in Kosovo were equally variable. Most prewar prisons
were damaged by bombs or arson, and some detainees ended up in police
holding cells or in NATO tents behind barbed wire. Few are held in facilities
that were purpose-built for long-term detention, which means that many
detainees had no health care facilities, no exercise areas, no private visitation
areas (or set standards for determining when to allow access for visitors), and
no access to legal materials. Few facilities allowed full separation of men from
women, juveniles from adults, or pretrial detainees from convicted criminals.
There were few adequately trained prison and detention facility guards, and
detention facility of¬cials were in several well-publicized cases unable to
prevent ethnic violence among detainees or escapes by well-organized groups
of prisoners assisted by outsiders.
Court resources varied as well. Most courts used Kosovar judges
appointed by the UN or by the ¬‚edgling Kosovar government. Some courts
made partial use of international judges (who were paid more than ten times
as much as local counterparts and given far better resources and security,

10 For a basic introductory text on core international human rights principles and regimes, see
generally Thomas Buergenthal, International Human Rights in a Nutshell (2002).
11 See generally Ehrenreich & Spencer, supra note 5.
321
CREATING RULE OF LAW CULTURES

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