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Dilemmas in Transitional Justice: National or International Trials?
In my opinion, the aspect of the transitional justice that raises the most serious dilemmas is which type of trials to have - national or international? Choosing the type of trial to have is a huge decision and one that cannot be taken lightly because, amongst other reasons, trials have a huge impact on the rebuilding of a country. They are also in the public eye, so public trust in the new government may rest heavily upon how the public views the prosecution of wrongdoers. To decide which type of trial is more suitable to the situation, one must weigh up the pros and cons of each.
National trials have the clear advantage that they are closer to the victims. Not only does this mean that witnesses have less distance to travel, but it also means that there can be more feeling of national ownership of the trial. If the new government is in charge of the trials and all goes well, then the public will no doubt have more trust and faith in the new leadership. Furthermore, aside from having to follow international law, having national trials means that state sovereignty is left alone - this is one of the main reasons that states prefer national trials to international trials. However, is this a good thing? National trials could be too political and too biased. That said, international trials are often also criticised for being too political. Perhaps the main disadvantage of national trials is that they are held at the cost of the state and they are unavoidably expensive. If there are a lot of perpetrators then this only exacerbates things as the state may not have enough funds, resources and lawyers to hold national trials: “Even a wealthy country would find it impossible to accord full trials to one percent of its population" (Alvarez).
So perhaps international trials are a better option. They are impartial; they have greater legitimacy, and; they allow for greater accountability. Furthermore, they do not significantly detract from state sovereignty because of the malleability of sovereignty - in some ways they may even add to sovereignty; however, are international trials really independent? How much influence does the United Nations Security Council have? We can see from examples such as the Nuremburg trials and the Tokyo trials that “[i]t is wrong to presume that any entity created by the United Nations is bound to have greater credibility with either the international community or the victims … than a national court" (Alvarez). There are many potential factors that may detract from the credibility of an international trial, including the imposition of victors’ justice, or attempted Westernisation or other political motives. Perhaps the most important question to ask is whether victims really trust them. It can be a real problem if they don’t, for example, “Rwanda's new Tutsi-led government voted within the Security Council against establishing the Rwanda tribunal, in part because they resented the international community's insistence that the death penalty not be available, and that trials be conducted outside Rwanda" (Alvarez). This is something that would have to be established and analysed on a case-by-case basis. Robert Cryer even goes so far as to say that International Criminal trials of individuals “are anticlimactic, as evil is banal, and ‘[f]lashy show trials of certain individuals . . . allow the rest of us to pretend that we are not ourselves in some way responsible’.". There may be some truth in this as some perpetrators may be used as scapegoats, while many perpetrators are ‘let off the hook’ so to speak. This would detract from the overall goal of transitional justice, which is to rebuild a nation built on trust and justice. However, clearly a country cannot try everyone who was involved in the conflict in some way, so a balance needs to be struck.
Clearly there are disadvantages with both. Of course, each circumstance needs to be carefully considered on a case-to case basis, but there is another option - maybe a hybrid tribunal would be a better option in some situations. This could be seen as the ‘best of both worlds’. They combine both national and international laws and personnel. They can be overseen by both the national authorities and the international community, thus retaining legitimacy, authority and state sovereignty. The biggest downfall is that they are expensive to set up, yet they are only temporary. However, the training and experience that the national lawyers will gain from it could be invaluable.