Criminal Justice

In contexts of mass atrocities and large-scale human rights violations, criminal justice cannot be addressed using the same approach, and limited resources, of the ordinary justice mechanisms. Pursuing criminal accountability in these situations often requires strategic prosecutions, specific methodologies of investigation, a variety of special processes, and a combination of approaches, both retributive and restorative. These initiatives must ultimately respond to the interest of justice and victims’ rights, help rebuild a society’s social and institutional fabric, and advance lasting and sustainable peace.

Men sitting in rows of seats at the Nuremberg Trials.

(Archive image)

The investigation and prosecution of international crimes—including genocide, crimes against humanity, and war crimes—is a fundamental component of transitional justice. It has roots in international criminal tribunals for the former Yugoslavia and Rwanda.

Investigations and trials of powerful leaders (whether political or military) help strengthen the rule of law and send a strong signal that such crimes will not be tolerated in a society that respects rights.

Trials remain a key demand of victims. When conducted in ways that reflect victims’ needs and expectations, they can play a vital role in restoring their dignity, delivering justice, and rebuilding trust in state institutions.

But prosecutions cannot achieve justice in isolation. The large-scale nature of such crimes means that they often cannot be processed through the ordinary criminal justice system—generating an “impunity gap.” Effective prosecution strategies for large-scale crimes often focus on the planners and organizers of crimes, rather than those of lower rank or responsibility.

Implementing prosecution strategies with other initiatives—such as reparations programs, institutional reform, and truth-seeking initiatives—can help close the impunity gap by addressing crimes with large numbers of victims and perpetrators.

Domestic Prosecutions

Prosecutions for international crimes have more potential for impact when they are held domestically, within the society where the crimes occurred. However, societies emerging from conflict or in transition may lack the political will to prosecute these crimes, and legal systems may be in disarray.

Even sophisticated legal systems—which mainly deal with ordinary crimes—may lack the capacity to effectively address such crimes, despite advances in international efforts to coordinate around the documentation, investigation, and prosecution of international crimes under principles of universal jurisdiction such as most notably those in connection with prosecution of Augusto Pinochet and in response to the mass atrocities perpetrated in Syria. The application of universal jurisdiction principles—which allow for the exercise of jurisdiction over an accused regardless of where the alleged crime was committed or the accused’s nationality or residence—has led to the conviction, for instance, of exiled dictator of Chad, Hissène Habré, on torture charges. 

International Prosecutions 

These problems may sometimes require other types of international approaches that draw on best practices from elsewhere—for instance through the international criminal tribunals mentioned above or “hybrid” courts or tribunals, composed of international and domestic justice actors. Such courts have been created in Sierra Leone, Bosnia, Timor-Leste and Cambodia

International Criminal Court

In 2002, the Rome Statute established the International Criminal Court (ICC). The ICC investigates and prosecutes individuals responsible for genocide, war crimes, and crimes against humanity committed since July 1, 2002—in cases where countries are unwilling or unable to do so.

Under the Rome Statute’s “complementarity” principle, domestic courts still have the duty to deliver justice. As such, the ICC remains a court of last resort. In recent years, domestic courts have increasingly taken up this role.

ICTJ’s Approach

ICTJ fights against impunity and in support of the rule of law within domestic jurisdictions and at the international level. This work often begins with support for civil society’s efforts to document war crimes and crimes against humanity while they are still happening, for instance in Syria and Afghanistan. And it continues as societies negotiate and then transition to peace and implement complex mechanisms of accountability such as the Special Jurisdiction for Peace in Colombia. We provide expert assistance, analysis, and advice to governments, civil society, and actors or institutions in the justice sector on diverse questions including amnesties, prosecutorial strategy, amendments to criminal codes, the selection of judges and prosecutors, and modalities of criminal liability. 

We also share lessons learned and best practices from criminal justice initiatives worldwide including in international settings such as the Assembly of State Parties to the Rome Statute. For instance, we have partnered with states parties and international organizations including the International Bar Association and the International Nuremberg Principles Academy to present findings and recommendations on hybrid tribunals, policies guiding decisions to prosecute, and universal jurisdiction for crimes in Syria. 

In countries including Argentina, Colombia, Guatemala, and Tunisia, we have provided trainings to judges and prosecutors as they prepare to conduct criminal proceedings against former military and political leaders.

In all our work, we endeavor to ensure that victims are supported in their efforts to access and participate in the formal justice system while guaranteeing the due process rights of the accused. We bring civil society and victims together with court officials to promote victim participation and help build public trust in court processes, such as those in Uganda’s International Crimes Division. 

At the policy level, we prepare materials on the rule of law, including tools on prosecution initiatives, briefs for the Office of the UN High Commissioner for Human Rights, and manuals like the handbook on complementarity.