III. POLICY CONSIDERATIONS IN RELATION TO
INTERNATIONAL JUSTICE
A. Which form should an international intervention take?
1. Relevant factors
In certain situations, it will be impossible to rely purely on domestic authorities to take domestic
prosecutions forward. In fact, throughout history, domestic trials of system crimes have been
very rare, not least because State authorities themselves are often implicated in these crimes.
The following are possible “models” or forms which such assistance has taken in the past:
• International tribunals. The conflicts in the former Yugoslavia and Rwanda led to the establishments of two ad hoc Tribunals through resolutions of the Security Council.83 Both
have been functioning for about a decade, one in The Hague (Netherlands) and the other
in Arusha (United Republic of Tanzania). Both have grown to large institutions and have
indicted close to 100 persons. By the end of 2004, ICTY had tried about 50 individuals,
whereas ICTR had tried about 23. Although their achievements are undeniable, the Tribunals have been criticized in some quarters for excessive bureaucracy and inefficiency, and
for the length of trials.
• Extraterritorial or universal jurisdiction. Prosecutions can also take place within a third jurisdiction, under the principle of “universal jurisdiction.” Certain States, such as Germany,
Belgium and the Netherlands, now require a nexus between their jurisdiction and the
crime committed. Trials pursuant to universal jurisdiction suffer the same weaknesses as
purely international trials, e.g., a lack of connectedness with victim populations, and hence
have a limited impact on restoring trust in the rule of law. They are also more susceptible
to politicization. But in certain situations, these may provide the only opportunity to take
accountability forward, and may serve to catalyse domestic developments (as was the case
83
See Security Council resolutions 808 (1993) and 955 (1994), respectively.
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