small number of perpetrators and the conduct of lengthy and expensive trials may raise
questions of relevance and whether this is a good use of resources. Also, the prosecution
of popular leaders in post-conflict settings, as a result of a commitment to even-handed
prosecutions, may require proactive justification. These problems may be alleviated by a
clear message on prosecutorial strategy, justified through the overall objectives of prosecutions discussed above.
• Comprehensive outreach throughout the proceedings. Strategic planning on outreach
should accompany every phase of the trial and should not focus solely on investigations
and indictments. It should also seek to explain the role of the defence and other developments in the proceedings. Outreach should be representative of the court itself, and
should be carried out in ways that equally represents the perspectives of the prosecution,
defence and the court itself (although there may be more onus on the prosecutor to explain his or her actions).
• Partnerships with the media and civil society. With the necessary precautions, partnerships
can be used to expand and strengthen an outreach strategy network. Interaction with the
media should be proactive and may require capacity-building and special information sessions, particularly in contexts where the media lack strength or independence. The same
applies to civil society: outreach should be a two-way communication with civil society
and the public, and should allow for interaction and feedback.
• Adequate funding. Outreach should be adequately funded from the core budget. It must
seek to incorporate solutions to logistical and linguistic challenges posed by resource-poor
or post-conflict environments, such as high illiteracy rates. In many situations, radio may
be the most effective way to reach remote populations.
C. The appropriate technical approach: understanding system crimes
One of the key approaches adopted by ICTY and ICTR has been the development of investigative techniques in dealing with “system” crimes (defined as genocide, crimes against humanity
and war crimes if committed on a large scale).27 Critics of the Tribunals often overlook this
crucial contribution. The challenges of investigating system crimes and some suggested approaches are elaborated below. Especially in domestic settings, these are crucial issues, as the
lack of expertise and experience in such matters are key contributors to impunity.
27
The presumption behind system crimes is that they are generally of such a scale that they require a degree of organization
to perpetrate. This is not to say that the prosecution must show that all acts of genocide, crimes against humanity or war
crimes were carried out by an organization or pursuant to a policy. Most often, this organization will be the apparatus of
the State. The term “system” crime was first used by the Dutch jurist B.V.A. Röling, who was a judge on the International
Military Tribunal for the Far East (Tokyo Tribunal) after the Second World War. Pertinent examples are found in the trials
conducted under Control Council Law No. 10, such as the Medical case, the Einsatzgruppen case, the Justice case, the High
Command case, etc. These cases are documented in Trials of War Criminals before the Nuremberg Military Tribunals Under
Control Council Law No. 10, Nuremberg, October 1946–April 1949 (Washington, D.C., United States Government Printing
Office, 1949).
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