I’ve written more than one post about the dodgy kinds of evidence that seem to be popping up in war crimes tribunals. As an economist-cum-political-scientist I am almost wholly ignorant of war crimes protocols and proceedings. Fortunately I can lift intelligent responses from my comments section, such as this one by Casey Kuhlman:
International Criminal Tribunals do not have the restrictive rules of evidence that Anglo-American citizens are used to. There are various reasons for this that have nothing to do with the substance of what you wrote, but there are two interconnected reasons that do respond to what you have written.
(1) Part of the reason for the existence of Tribunals is to fulfill a narrative function in a way that trials in a domestic setting often do not. To the extent that we think national reconciliation is a good thing following conflict, Tribunals are able to assist that by helping to tell the story of what happened to the country. There are a few effects of the narrative function that may be important: victims are able to figure out what happened to them, and by individualizing guilt, collective guilt is displaced and reintegration into society for the “rest” is much easier.
(2) The rights of victims are important. Most courts embrace the cathartic effect of being able to tell one’s story. The only reason that prosecutions of war criminals are pursued is because of the victims. Victims’ rights advocates heartily embrace this and argue that victim’s are as much a stakeholder in the adjudicative process as anyone.
…The legal answer to your question posed implicitly in both posts is that there is a preference for admission of evidence as long as the evidence (testimony, documents or media) is relevant to the case (which even children’s drawings may be to establish what happened in their particular village) and probative (helping to establish the truth or falsity of a matter).
Ok. I see the point. I would question, however, whether it makes sense (a) to confuse the functions of a trial and a truth and reconciliation commission, and (b) whether such truth-telling activities are the product of local demand or the boilerplate post-conflict solution proferred by the international community.
On this latter point, I am reminded of one of my favorite pieces on the subject by Rosalind Shaw. A couple of her main points, based on the truth-telling process in Sierra Leone:
After an eleven-year civil war that became internationally notorious for mutilation, sexual violence, and the targeting of children, a Truth and Reconciliation Commission (TRC) began its public hearings in April 2003. Increasingly, truth commissions are regarded as a standard part of conflict resolution “first aid kits.”
Despite pressure from local NGOs and human rights activists for a TRC, there was little popular support for bringing such a commission to Sierra Leone, since most ordinary people preferred a “forgive and forget” approach.
2 Responses
First, I should preface my comments with the banal observation that anyone smart enough to read your blog already knows, anytime you boilerplate solutions you are not going to get optimal results.
South Africa, I feel, has set a dangerous precedent for the rest of the world. They seemed to follow the idea of many Latin American countries and granted a blanket amnesty in return for full “confessions.” It worked. But it also provided the continent with a shining city of impunity on the hill.
TRCs & Tribunals (which I use colloquially and to mean Courts of Law which try war crimes, crimes against humanity and genocide) present peace negotiators with a ven diagram of policy trade-offs. Sometimes what comes out of the negotiations is that both will be instituted (Sierra Leone, Liberia) and sometimes only one or the other will be emplaced.
Which one is chosen must depend on the situation on the ground, and take into account the rights of the victims, the rights of those who may be victims if the fighting continues, the rights of the international community to a modicum of deterrence, the rights of neighboring states to be free from the spillover effects of the conflict.
In Sierra Leone, you are right, the TRC was largely ignored. But I don’t think that that was a factor of the impotence of the institution. People there paid little attention to what was going on at the Special Court also. To a human, everyone I spoke with while there told me that they were pleased that the international community was paying attention to their little country but really just were looking for a way to get their kids to school.
In my mind the efficiency of the moneys spent on atrocities prosecution is an understudied niche.
Great post Chris.
Just wondering does this mean you would only support Truth Commisions or trials with the support of the locals?
I’ve been struggling with best practice approaches to post-conflict societies, whether tribunals or commissions are the way to go. Tribunals like the ICTR often are such an international affair that it seems to be more about defending/developing/advancing international law than about victims rights or reconciliation. While it’s important to establish these international norms against human rights abuse, I wonder if the lack of local ownership/identification means it is less meaningful and thus less able to end division and conflict.
I just finished writing an essay defending the South African TRC but aren’t wholly convinced that the truth for amnesty swap was the best option.