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2018 | Open Society Foundation; Options for Justice - A Handbook for Designing Accountability Mechanisms for Grave Crimes

This book addresses the design of accountability mechanisms for grave crimes, encompassing genocide, crimes against humanity, war crimes, and other serious forms of crime that merit international concern. While determining that the design of accountability mechanisms for grave crimes is of influence of the mechanism’s efficacy, the work seeks to distill lessons from past experiences to help guide those designing new mechanisms of criminal accountability for grave crimes After extensive examination and comparative analyses of 33 accountability mechanisms established in response to crimes in Africa, the Americas, Asia, Europe, and the Middle East in the past 25 years[1], the authors have identified nine essential elements of mechanism design. Two of them are of fundamental nature; the mechanism’s purpose and its relationship to the domestic system. Each element is elaborated on along the same lines: a brief explanation of what is being examined, experience to date, lessons and considerations, and key questions to make a determination in the subject matter.

Reparation

Reparation is a recurring topic across all elements. For instance, when it comes to determining the purpose and mandate of an accountability mechanism, one of the key questions is whether the reparation should be incorporated. For the vast majority of mechanisms examined by this handbook, holding perpetrators accountable and providing effective redress for grave crimes are their primary goals.  And if reparations to victims are incorporated in accordance with international legal standards while at the same time the domestic framework does not include provisions of reparations as part of the criminal process, there may be need for a mechanism functioning outside the domestic system. When it comes to financing accountability mechanisms, budgetary constraints tend to hinder effective investigations and prosecutions, including reparations.  Moreover, analysis shows that in many situations, funds for reparations are sparse and reparations awarded are rarely implemented.

Reparation is also recurring in the context of the examination of the 33 accountability mechanisms profiled in the annexes. For example: when analysing the Extraordinary Chambers in the Courts of Cambodia (ECCC), the work points at the fact that this mechanism exercised a novel power allowing civil parties to seek “collective and moral reparations,” which prior generations of international hybrid criminal courts did not have. Turning to European accountability mechanisms prosecuting crimes committed in the war waged in the former Yugoslavia, the work points at a report published by the Nuhanovic Foundation in 2014 outlining that, while the right to reparation is recognized under Bosnian laws, victims in Bosnia and Herzegovina meet many difficulties pursuing their claim for redress and are routinely thwarted by problems that are inherent in the post-war system of government.


[1] Falling outside the scope of this study are: inquiry and truth commissions and forms of transitional justice not of a criminal justice nature.