A fifth proactive general transitional justice option reviewed in this chapter is prosecution, which its proponents argue promotes stability, the rule of law, and accountability, as well as contributes to deterring future atrocities.75 Prosecution advocates also contend that due process resulting in legitimate convictions and stern sentences appropriately punish atrocity perpetrators. Yet this option may be relatively expensive and slow, as well as legally and politically risky. It may also be counterproductive, by facilitating martyrdom and perpetuating a cycle of vengeance if a defendant’s supporters sense injustice. Furthermore, prosecution may involve politicized or frivolous charges, and it may result in the release of genuine atrocity perpetrators through acquittals, which can lead to embarrassment and, more critically, recidivism.76
Prosecution can further objectives beyond the most obvious: achieving justice by trying, convicting, and punishing suspected criminals. For example, states may use prosecution to establish an accurate record of an atrocity, which can contribute to full and truthful documentation of history. However, some commentators believe that these secondary purposes may dilute the main focus of prosecution: trial and punishment. As political philosopher Hannah Arendt said in her reflections on Israel’s unilateral prosecution of Nazi Adolf Eichmann:
The purpose of a trial is to render justice, and nothing else; even the noblest of ulterior purposes—“the making of a record of the Hitler regime which would withstand the test of history,” as Robert G. Storey, executive trial counsel at Nuremberg, formulated the supposed higher aims of the Nuremberg Trials—can only detract from law’s main business: to weigh the charges brought against the accused, to render judgment, and to mete out due punishment.77
Prosecution of suspected atrocity perpetrators, which vary in form and function, can be conducted by the UN or other entities. Prosecution not administered under the UN aegis can be conducted either unilaterally or multilaterally. In either case, prosecution may follow from the controversial assertion of “universal jurisdiction,” in which a prosecuting entity claims that some crimes are so heinous that they are considered hostis humani generis (an enemy of all mankind) and therefore fall within the jurisdiction of any state or institution. Under universal jurisdiction, suspected atrocity perpetrators can be prosecuted anytime, anywhere in the world.78 Some scholars argue that the USG has invoked universal jurisdiction in certain unilateral military commissions.79
If prosecutions are unilateral, they may occur under the auspices of an intervening state, the successor regime, or a third-party state. Such unilateral prosecution can be administered either by a civilian court or a military tribunal.80 In turn, a unilateral prosecution may be conducted through either the domestic judiciary or a special tribunal, which may be permanent or ad hoc.81 A famous example of a unilateral prosecution of atrocities was the post-World War I (WWI) German trials held at Leipzig, at which only 6 suspects were convicted out of the 896 accused.82 Another notable unilateral prosecution was the court-martial of only one U.S. soldier, Lieutenant William Calley, Jr., for the American massacre of civilians in the village of My Lai, Vietnam, in 1968.83 The USG has chosen to prosecute suspected terrorists either in U.S. federal courts or military tribunals. The first such case before a U.S. military tribunal since the end of WWII commenced in 2004 against a Yemeni, Salim Ahmed Hamdan, who was accused of conspiring to commit acts of terrorism.84
Yet another prominent unilateral prosecution of suspected atrocity perpetrators concerns Iraq. In 2003, the Iraqi Coalition Provisional Authority (ICPA), the transitional government of Iraq created and led by the USG from April 2003 to June 2004, established the IST. The following year, the ICPA transferred power to an interim domestic government, which, in 2005, converted the IST into the Supreme Iraqi Criminal Tribunal (SICT).85 This tribunal is dedicated to trying any Iraqi national or resident accused of committing genocide, crimes against humanity, or war crimes, or of violating certain stipulated Iraqi laws, including those that proscribe “manipulating] the judiciary,” “the wastage of national resources,” “the squandering of public assets and funds,” “the abuse of position,” and “the pursuit of policies that may lead to the threat of war or the use of the armed forces against an Arab country.”86 The temporal jurisdiction of the tribunal was established to run from July 17, 1968, when the Ba’ath Party seized power, until May 1, 2003, when the war against Iraq officially ended.87 The tribunal, which tried, convicted, and executed Saddam and also prosecuted and punished other members of his Ba’ath Party, was therefore designed as a unilateral prosecution conducted outside the aegis of the UN through an ad hoc special tribunal established by the successor regime as a civilian court. Consequently, it serves as an example of a purely domestic criminal tribunal—albeit one with significant international involvement and assistance (especially from the USG).
Unilateral prosecution also occurs through civil proceedings in the United States. The Alien Tort Statute (ATS) of 1789 states that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”88 The Torture Victim Protection Act (TVPA) of 1991 permits U.S. courts to hold liable “[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation subjects an individual to” torture or extrajudicial killing.89 Perhaps the most famous and influential case brought under the ATS or TVPA against a suspected atrocity perpetrator concerned crimes allegedly committed by the Bosnian-Serb leader Radovan Karadzic in the Balkans.90
If non-UN prosecutions are multilateral, either a civilian court or a military tribunal may preside over the trial. Either option may be bilateral or multilateral (perhaps involving the successor regime as one of the administering parties), may be established by treaty or executive agreement, and may be either ad hoc or permanent. Multilateral courts date back to at least 1474, when an ad hoc tribunal comprised of judges from four neighboring jurisdictions tried Peter von Hagenbach for crimes he allegedly committed during his occupation of Breisach.91 Although a commission of inquiry recommended after WWI the establishment of an ad hoc ICT to prosecute war crimes and crimes against humanity allegedly committed during the war, the Allies deferred to Germany, allowing it to conduct the aforementioned sham trials at Leipzig.92 Two examples of ad hoc multilateral military tribunals established by executive agreement are the IMT and the IMTFE. The ICC is the first permanent multilateral court established outside the UN through a treaty,93 which occurred in 1998, although calls for the creation of a permanent ICT date back to at least the 1872 proposal by Gustav Moynier, a founder of the International Committee of the Red Cross.94
If prosecutions are conducted through the UN, there are at least six venue options: (1) a permanent international criminal court,95 (2) a hybrid UN/successor regime ad hoc tribunal, (3) an ad hoc ICT established through multilateral treaty, (4) an ad hoc ICT established through the UNGA, (5) an ad hoc ICT established through the Chapter VI powers of the UNSC, and (6) an ad hoc ICT established through the Chapter VII powers of the UNSC. Although all of these options have been considered, only the second and sixth have been implemented.96 Five examples of the second option are the SCSL, the ECCC, the Serious Crimes Panels of the District Court of Dili in East Timor, the “Regulation 64” Panels in the Courts of Kosovo, and the STL.97
Examples of options six are the ICTY and the ICTR. This option manifests in three variations. A prosecution pursuant to the UNSC’s Chapter VII powers could occur through: (1) a UN ad hoc ICT completely separate from any existing UN ad hoc ICT (what I call the “ICT-Separate” option, as in the case of the ICTY when it was established in 199398), (2) the expansion of an existing UN ad hoc ICT to include jurisdiction over another atrocity (what I call the “ICT-Expanded” option), or (3) a UN ad hoc ICT that shares some bureaucracy, such as an appeals chamber and/or chief prosecutor, with an existing UN ad hoc ICT (what I call the “ICT-Tied” option, as in the cases of the ICTR99 and the ICTY after the ICTR was established in 1994).