Some years ago, I sat in a courtroom in the central highlands of Guatemala – a member of a legal team representing victims of a massacre committed by the Guatemalan Army and paramilitaries in March 1982. Over 170 women and children were killed in the attack. Very few men perished because most had been killed in a massacre one month earlier.
I sat beside one of the survivors. His father was killed in the first massacre, his mother and sisters in the second. Several paramilitaries had decided to abduct some of the surviving children, including him and his two-year-old brother. Unfortunately, the younger boy’s head was smashed against a rock in front of his brother. His entire family had been wiped out in one month. After the judges delivered their sentence, he turned to me and said, “They are peasants, just like me, but I suppose the law is the law.”
July 17 – International Justice Day - serves in part to commemorate the establishment of the International Criminal Court, but more importantly the renewed commitment of states to respond to the kinds of atrocities suffered in Rio Negro, Guatemala. In one sense, justice is no answer to the depth of evil and cruelty suffered by victims. It does not give back the crushed bodies of toddlers or the truncated hope of life. The struggle goes on for survivors, who are deprived of love and family breadwinners. And yet there is a profound wisdom in the simple phrase, “The law is the law.”
Some would say the law’s value lies in deterrence. This is comforting but questionable. Fritz Bauer, the prosecutor who led the Frankfurt Auschwitz trials, offered a more thoughtful view. When asked what was the point of prosecuting Auschwitz officials he said it was vital that everyone knew the dignity of being valued by the German Constitution was something real.
Many countries face real difficulties carrying out complex trials in fragile situations. The International Criminal Court provides one answer, but it is a court of last resort. The front line must always be national justice systems. So, how is justice to be made a reality for more victims?
Focusing assistance on specialised national capacities is the best way forward.
They must be able to do five things. First, map out the most serious violations and develop credible criteria for identifying those most responsible for violations. Second, to develop effective communication with survivors and society to establish transparency and good faith about the choices made and progress on investigations. Third, carry out honest and effective investigations to prove the responsibility of those behind systems of atrocities, which requires specialised training because the kinds of investigations necessary are alien to most of the world’s prosecutors and police officers.
Fourth, ensure that witnesses and officials have appropriate protection before, during, and after proceedings; and finally, ensure that judges are trained to understand the legal issues and handle the pressures that can arise in the febrile atmosphere of atrocity trials.
We know that helping to build the specialised capacity of investigators, prosecutors, judges, and defence teams to handle serious crimes is possible and cost effective. Some progress has been made with interesting, if not perfect, results in Bosnia, Colombia, Ethiopia, and Guatemala, to name a few. By insisting on specialised national capacities, international actors can shine a brighter light on the progress being made (or not made) to pursue accountability.
Citizens must see social institutions at work in their own countries: it is there that courts can reaffirm the most fundamental elements of the contract that binds a society together. It is there that having the dignity of a citizen can have its fullest meaning. From the peasant to the president, all citizens should know and understand what it means to say, “The law is the law.”
Paul Seils is vice president of the International Center for Transitional Justice.