ICTJ in the News

August 4, 2006

The Price of Healing

All Africa

A joke used to circulate among more cynical aid workers about the international community's attitude to justice. It said that if you commit one murder you get sent to trial and prison. If you commit ten, you get sent to an insane asylum. If you commit ten thousand you get sent to Geneva for peace talks.

That joke no longer holds true in the age of international justice that now exists. In the 1990s, international criminal tribunals were set up to try those responsible for war crimes, crimes against humanity, and genocide that occurred in the former Yugoslavia, the International Criminal Court for the former Yugoslavia (ICTY), and in Rwanda, the International Criminal Court for Rwanda (ICTR). In 2002, the International Criminal Court (ICC), the first permanent war crimes tribunal, came into being, heralding the end of impunity.

An enormous amount of money is now spent on the pursuit of international justice. In his 2004 report to the Security Council, Kofi Annan, the Secretary Genera,l admitted that the two ad hoc criminal tribunals set up to try those accused of human rights violations in Rwanda and the former Yugoslavia had "a combined annual budget exceeding a quarter of a billion dollars - equivalent to more than 15 percent of the Organisation's total regular budget". The figure has since risen: the budget for the ICTY alone for 2006-2007 is over $275 million. As Carla del Ponte, the Chief Prosecutor of the ICTY admitted "Justice is not cheap". The question is whether this level of expenditure can be justified when there are so many ways that those sums of money could be otherwise spent.

Comparative costs

The cost of war in Iraq has been estimated at costing the USA up to $230 million per day, i.e. almost the annual budget of the ICTY. The cost of collecting garbage in New York alone is more than the annual UN regular budget. And in terms of the relative cost of justice, the international courts are not more expensive than some domestic trials. As Paul van Zyl, Director of Country Programmes at the International Center for Transitional Justice, told IRIN: "If you compare dollar for dollar the amount that it costs to convict the most senior people before the ICTY, with what it costs to convict for example a Mafia boss in the United States or the prosecution of Timothy McVeigh, the Oklahoma City bomber, the amounts are comparable." It is also important to remember the crimes that the people being tried are alleged to have committed: massacres, genocide, systematic rape and torture. In national courts, we expect lesser crimes to be thoroughly investigated and prosecuted. Should a different level of justice be applied externally?

As Paul van Zyl points out: "Most people would balk at the idea that you should not prosecute mafia crime lords on the basis that it is too expensive. When you look at the kind of people who are being prosecuted before the ICTY and the ICTR, they are responsible often for tens, and sometimes hundreds, of thousands of deaths."

Money well spent?

Allegations are sometimes made that the money expended on these tribunals could be better spent on infrastructure in the communities most affected. Corinne Dufka, of the nongovernmental organisation (NGO) Human Rights Watch, acknowledges that victims of decades of abusive governance or war would often prefer that the money be spent on their day-to-day needs, but adds "that should not be the indicator. There has to be big picture thinking. That includes helping people understand how important justice is for the longer term".

Justice Geoffrey Robertson, QC a human rights lawyer and formerly judge at the Sierra Leone Special Court, refutes the argument from a different angle: "the money that is being invested in global justice would simply not be made available for infrastructure or policing or even for compensation for victims". He believes that if international justice provides some closure to victims and deters others in the future, even to a limited extent, then this "is money well spent".

The reason for the size of the expenditure is that the cases that are being brought are highly complex. They often involve multiple defendants, hundreds of witnesses and wide-ranging investigations, often not conducted in the first language of the witnesses. The wheels of law are famously slow to turn, and so much more so when they are dealing with subjects of this magnitude. Yet some observers feel that perpetrators of crimes against humanity do not deserve such detailed and costly attention to due process and their rights, especially given how little they observed the human rights of others.

Justice that they themselves denied

Some question whether alleged perpetrators of atrocities should be provided with a standard of justice that they themselves denied their victims. Even Amnesty International, an NGO which investigates human rights abuses and advocates against them, argued at the time that the Rome Statute was being drafted (the statute which created the International Criminal Court), that alleged perpetrators should be denied the standard defences of duress, necessity and self-defence. Justice Geoffrey Roberston QC points out in his book "Crimes Against Humanity" that "What was truly ironic was their zeal for a court so tough that it would actually violate the basic human rights of its defendants".

Such arguments can justify much less costly alternatives. Nicholae Ceaucescu, the former dictator of Romania, was hurriedly tried and convicted before a domestic military court on 25 December 1989, before being shot, along with his wife, by a firing squad. Rounding up and summary execution was also Winston Churchill's preferred method of dealing with the Nazi commanders after World War II, though this method was overruled by the US, France and Russia.

This method of dealing with those responsible for human rights abuses has the benefit of being quick and cheap. However, it does not comply with basic legal procedures of hearing evidence and judging guilt or innocence. In societies which have been affected by conflict or brutal regimes, and which are undergoing a process of transition to stability, the establishment of a rule of law, and the following of a legal process, is of paramount importance. As Dennis McNamara, UN Special Adviser on Internal Displacement, told IRIN: "Post-conflict countries are often in the mess they are in because of a lack of a functioning legal system to protect civilians. "

If a functioning legal system is a prerequisite for law and order to prevail, it requires more than simply conducting a trial of the head of state under internationally respected legal norms. A thorough investigation of abuses is necessary in order to remove those responsible from all levels of power. The Sierra Leone Truth Commission Report emphasised this aspect of the judicial process: "One of the objectives of the Court was to break the command structure of the criminal organisation responsible for the violence." This not only makes the perpetrators publicly accountable but also serves to build a public perception of confidence in the legal system, demonstrating that the old guard are no longer in control. The very process of justice can play an important part in healing the wounds of a society and publicly underlining that a change has taken place.

A healing process

In addition to the need to establish law and order, investigations can themselves contribute to the healing process. Indeed, truth commissions - accompanied by judicial enquiry - can unearth evidence as to what occurred. This has been proven to help victims in that it provides recognition of their suffering and sometimes even helps them to find the bodies of loved ones; it also provides a testament which discourages any revisionist history. Survivors are often afraid that what they experienced will be forgotten or denied. Augustin Nkusi, a Director at the National Service for Gacaca Jurisdictions in Rwanda makes the point with respect to the ICTR: " There is a need for what happened in Rwanda to be recognised at an international level to avoid any revisionist history. It is a great testimony to what happened."

In effect, investigating, arresting and punishing individuals found guilty of abuses seems to help societies to make the transition to a peaceful existence. In that context, the cost of enforcing international justice is dwarfed by the cost of not doing so, ongoing conflict and war, and the ensuing developmental cost that conflict entails.

But justice is a slow process. The ICTY and the ICTR still rumble on. The numbers of people convicted during the 12 and 13 years respectively since the tribunals were established are not impressive. At the ICTR, 15 people have been found guilty and a further eight are appealing their convictions. At the ICTY, 42 people have been found guilty with a further 12 still appealing their convictions. Slobodan Milosevic, the former President of Serbia, died in March 2006, near the end of a three year trial, fuelling the concern that the millions of dollars expended on his trial were a waste of money.

The cruel joke of deterrence?

Aside from justice, a commonly cited justification for the costs involved in bringing criminals to the dock, is that it may deter future perpetrators, saving money in the longer term. The argument is that the prospect of accountability acts as a deterrent.

John Bolton, the US Ambassador to the UN, has countered this suggestion: "Why should anyone imagine that bewigged judges in The Hague will succeed where cold steel has failed? Holding out the prospect of ICC deterrence to the weak and vulnerable amounts to a cruel joke."

The fact that the Lord's Resistance Army (LRA) in Northern Uganda is still forcing children into becoming soldiers, and making sex slaves of others, despite the issue of warrants by the ICC for the arrest of the top five leaders, seems to validate Bolton's point. As does the continuing genocide in Darfu, western Sudan, where ICC investigations are ongoing.

Paul van Zyl told IRIN that it was "important not to overstate the deterrence argument. Human rights advocates can afford to be honest and say that in some contexts it will deter and in some contexts if you manage to incarcerate some perpetrators that will have an effect".

Referring to Joseph Kony, the leader of the LRA and Slobodan Milosevic, he went on: "You also have to bear in mind the kind of people who international tribunals go after. People who are inclined to commit genocide and other atrocious crimes are not the most deterrable kinds of people."

Alternatives

Having funded both the ICTR and the ICTY, the cost of justice is a concern that the UN is aware of. As Kofi Annan pointed out in 2004, "Partly in reaction to the high costs of the original tribunals, the financial mechanisms of the mixed tribunals for Sierra Leone and for Cambodia have been based entirely on voluntary contributions." That is to say, money which individual donor countries have given.

However, the problem with voluntary contributions is that they may not always be forthcoming and that politics is often brought into play.

The Khmer Rouge trials are an example of a process that has suffered under what Kofi Annan termed "the vagaries of voluntary financing". Cambodia was meant to provide $13 million of the proposed budget of $56.3 million, but has so far been unable to do so. When Japan came forward in June 2005 to provide the shortfall, cynical commentators suggested that this was part of Japan's bid for a permanent seat on the Security Council. Whether or not that is true, the spectre of politics which consistently plagues the quest for international justice, again entered the debate. The US, by contrast, has been criticised for its failure to provide any funding for the trials, despite its involvement in that region at the time. Comparison has been drawn between its enthusiasm for the Iraqi Special Tribunal, which was set up to try Saddam Hussein and his accomplices and has received $128 million from the US, and its attitude to the Khmer Rouge trials. There have however been suggestions recen tly from Ambassador Pierre Prosper, from State's Office of War Crimes Issues, that the US might contribute financially to the Khmer Rouge Tribunal if it shows itself to be "independent" and up to "international standards".

Justice on the cheap

The first hybrid tribunal to be set up was in Dili, East Timor. In 1999, in the lead up to and aftermath of a referendum on the independence of East Timor from Indonesia, there was widespread killing, rape and destruction in the region. The UN Security Council authorised the establishment of the UN Transitional Authority for East Timor (UNTAET) on 25 October 1999. UNTAET then promulgated a law in 2000 giving the Dili District Court authority to investigate genocide, war crimes, crimes against humanity, sexual offences and torture which occurred in East Timor between 1 January 1999 and 25 October 1999.

Though there is less information on this topic than other tribunals with an international dimension, the trials conducted there have not been widely held to be a success. Two major criticisms have emerged. Firstly there has been a failure to prosecute any of the "big fish" responsible for orchestrating the violence: those prosecuted have been middle or low-ranking perpetarors. Secondly, the attempts to attain justice have been frustrated by a crippling lack of funds.

The annual budget for the Dili District Court in 2001 was, according to David Cohen, author of a report entitled 'Seeking Justice on the Cheap', a mere $6.3 million. Of this, $6 million was allocated to the prosecution and only $300,000 to the tribunal itself, most of which was spent on the salaries of the international judges. According to the report, there were no law clerks, administrators, researchers or even qualified translators. At the time he reported there was not even a functioning Appeals Chamber. This meant that proceedings were often chaotic and sometimes fell short of what might be called internationally accepted standards. There was no mechanism for producing transcripts, without which an appeal process is almost impossible. As Mr Cohen points out: "Without an official record of the trial how can defence counsel make a case and how can the Appeal Chamber review it?"

The defence were even worse served in terms of budget. Unlike the prosecution there was no money for them to cover the expenses of bringing witnesses to trail. As a result in the first fourteen cases heard, not one witness for the defence was called.

The failure in Dili to achieve a credible examination of the events of 1999 or a credible prosecution was exacerbated by the concurrent proceedings in Jakarta, Indonesia. The Indonesian Human Rights Commission had found evidence that high level Indonesians had been funding and instigating the atrocities in East Timor. Cases were brought before the courts, but few of the major players were convicted. Furthermore, the Indonesians refused to hand over any indicted persons to the Dili courts. A UN Commission of Experts sent in to examine the Indonesian proceedings, reported to Kofi Annan in 2005 that they had fundamental concerns and suggested that several of the trials should be re-opened. Kofi Annan has so far failed to respond to the report.

An open letter to Kofi Annan of 24 March 2006, written by a coalition of human rights organisations stated that "the demand for justice and accountability remains a fundamental issue in the lives of many East Timorese and a potential obstacle to building a democratic society based upon respect for the rule of law and authentic reconciliation between individuals, families, communities and nations."

The budget of the UNTAET-sponsored court in East Timor is dwarfed by the amounts spent on other tribunals. The Sierra Leone Special Court has an annual budget of approximately $100 million. As mentioned, the ICTY biennial budget now exceeds $250 million. If justice is to be equally applied in all instances, and if defendants are to be provided with a credible attempt to defend themselves, then perhaps it is true that assessed contributions remain necessary, and that "the vagaries of voluntary financing" cannot be relied upon.

Money talks

The effect of finance on international justice extends beyond the courtroom: it can also have a role in actually bringing those most responsible for human rights abuses to the court.

The arrest of Slobodan Milosevic in April 2001 and his extradition to the ICTY is widely believed to have come as a result of financial pressure exerted upon Serbia by the US. Janes' Intelligence Review, an intelligence gathering service, reported that the US Congress had threatened to block a $100 million aid package to Serbia if Milosevic was not handed over.

The European Union has also been using the language of finance and commerce to apply pressure to the Serbian authorities to hand over another suspected war criminal, Ratko Mladic. On 3 May 2006, it called a halt to talks on Serbia's proposed accession to the European Union. The Chief Prosecutor at the ICTY, Carla del Ponte said: "The obvious conclusion I can draw is that I was misled when I was told at the end of March that the arrest of Mladic was a matter of days or weeks."

The EU Enlargement Commissioner Olli Rehn confirmed the suspension of negotiations, saying: "I must say that it is disappointing that Belgrade has been unable to locate, arrest and transfer Ratko Mladic to The Hague The Commission is ready to resume negotiations as soon as Serbia accedes full co-operation."

Few proponents of human rights are disturbed at this use of finance to draw out suspected criminals. Alison Smith, of the NGO No Peace Without Justice, is sanguine on the matter:

"We take the view that if it gets them there, then that's the important thing. It does not sully justice, it helps it along. If one motive for their handover is to get aid, then that's just the way it is."

Justice at any price

On a BBC website which posed the question: "Do you believe justice is worth pursuing at any price?", Blessing Ruzengwe of Zimbabwe had this to say: "Where there is poverty there is no justice. You have to address poverty first." Another person added: "Justice is a luxury for Africans."

The headline figures of a quarter of a billion dollars expended every two years on just one international tribunal while people go starving fuel this perception. But can justice ever be considered a luxury or is it a prerequisite for a civilised and ordered society? If Churchill had had his way and money had not been spent on the Nuremberg trials, international law would not have the concept of individual accountability for acts committed supposedly on behalf of the state. That would mean that those who ran the concentration camps and gassed prisoners would not have been legally liable for their actions; and that those who ran Interahamwe death squads in Rwanda could claim they were just following orders. Spending money on justice is spending money on infrastructure: not the infrastructure of roads, but the building blocks of a society where human rights violators are made accountable. As Corinne Dufka, of the NGO Human Rights Watch, points out: "Justice is an essential pilla r of a stable democracy."