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New CFR Report Calls for Prosecuting Human Rights Abuse Criminals at National Level

June 6, 2011

The detention of Bosnian Serb general Ratko Mladic by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the potential arrest warrant by the International Criminal Court (ICC) for Libyan leader Muammar al-Qaddafi have renewed interest in international legal institutions and accountability for mass atrocities. In a new Council Special Report, David A. Kaye states that while international tribunals have successfully brought dozens of war criminals to justice, their scope is limited; as a result, the United States and others must work to strengthen national courts for the prosecution of such perpetrators.

Kaye, executive director of the University of California at Los Angeles School of Law's international human rights program, emphasizes that the ICTY, the ICC, and similar organizations face substantial constraints. “Atrocities occur in places beyond their reach, and even where international courts investigate and prosecute, they lack the capacity to try all but a handful of the thousands of perpetrators of the worst crimes,” writes Kaye.

To supplement the work of these organizations, he encourages the international community to put political pressure on governments reluctant to prosecute offenders, assist in building legal frameworks, support investigations, and foster belief in the justice system among local populations.

In Justice Beyond the Hague: Supporting the Prosecution of International Crimes in National Courts, Kaye states that the United States should play a leading role in helping countries develop accountability mechanisms. To shore up these domestic justice structures, Kaye recommends the Obama administration

—issue a presidential policy directive that provides guidance to government agencies on international justice. It would outline how U.S. support for national accountability reflects a long-term investment in rule of law and stability.

—outline a diplomatic agenda to broaden assistance. The secretary of state should garner buy-in from donors, create incentives for postconflict states to establish legal systems, and utilize the leverage and capacities of regional organizations to develop accountability regimes.

—launch an international coordinating body to manage strategy, share information on donor projects, and serve as a clearinghouse for best practices based on country knowledge and experience.

—take short-and long-term steps to support national processes. Short-term projects would include identifying states that lack domestic capacity to conduct investigations and prosecutions, and develop a standby mechanism that collects evidence in these societies. Over the long term, the United States should improve outreach to nations by providing assistance for infrastructure, education, and sustainable training.

—convene a domestic justice supporters' conference with members of Congress, philanthropic donors, and NGOs.

Kaye asserts that local accountability leads to establishing security, promoting good governance, and furthering economic development in postconflict societies. He concludes the above steps “will ensure that national courts play a central role in stability and nation-building in regions of conflict, laying new foundations that are closely aligned to U.S. security and development interests.”

For full text of the report, visit www.cfr.org/beyondthehague_csr

David A. Kaye is the executive director of the UCLA School of Law's international human rights program and director of its international justice clinic. Before joining UCLA, Kaye served as an international lawyer with the U.S. State Department, serving as a legal adviser to the American embassy in The Hague, where he worked with the international criminal tribunals and acted as counsel to the United States in several cases before the International Court of Justice and the Iran-U.S. Claims Tribunal. From 1999 to 2002, Kaye was the State Department's principal staff attorney on humanitarian law and served on several U.S. delegations to international negotiations concerning the laws of war.

This report is directed by John B. Bellinger III, adjunct senior fellow for international and national security law and Matthew C. Waxman, adjunct senior fellow for law and foreign policy.

Council Special Reports (CSRs) are concise policy briefs that provide timely responses to developing crises or contribute to debates on current policy dilemmas. CSRs are written by individual authors in consultation with an advisory committee. The content of the reports is the sole responsibility of the authors.

The Council on Foreign Relations (CFR) is an independent, nonpartisan membership organization, think tank, and publisher dedicated to being a resource for its members, government officials, business executives, journalists, educators and students, civic and religious leaders, and other interested citizens in order to help them better understand the world and the foreign policy choices facing the United States and other countries.