by Monica Martinez, IDLO Rule of Law specialist
As the world marks International Criminal Justice Day (17 July), one timely reminder may help dispel growing controversy: under the Rome Statute, the primary duty to prosecute war crimes does not lie with the International Criminal Court (ICC). It lies with the jurisdictions where these crimes were committed, i.e. with sovereign states.
Fears are often voiced that living up to this obligation may have a destabilizing effect on fragile post-conflict countries; that promoting justice domestically may compromise peace.
The reality is that most of these fears are misplaced. When conducted in accordance with international fair trial standards, in-country trials are the better option. They unite, rather than divide, communities in awareness and atonement. Rooting the proceedings locally gives them legitimacy. Proximity dispels the suspicion that court cases may be either tainted by cultural or linguistic imperialism, or highly politicized. Justice actors have easier access to evidence. And daily visibility of the process fosters engagement; it consolidates perceptions that justice has been served.
That said, the reluctance to prosecute domestically cannot be entirely dismissed or rationalized away. Some of it has an objective basis. We must accept that some countries are too low on infrastructure, expertise, or even basic security – particularly when it comes to high-stakes cases. In some jurisdictions, everything is in short supply: skilled police forces, forensic specialists, witness protection schemes, legal staff, adequate court premises, the ability to collect and store evidence.
From this perspective, enabling countries to conduct their own trials becomes a matter of capacity building – in other words, something for development practitioners to address as part of wider reform programs, with far-reaching implications for national reconciliation, social cohesion, economic progress and long-term peace.