Are Freedom, Peace and Justice incompatible agendas?

Wars have been fought in the pursuit of freedom; peace disrupted by the pursuit of justice. The linkage between the respect for human rights and peace, justice and prosperity is explicit in the Universal Declaration of Human Rights (UDHR) where the Preamble states:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.

And later:

“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law".

Kofi Annan, as Secretary-General of the United Nations, insisted on the significance of the three pillars of the UN. He said repeatedly that there can be no security without development; no development without security; and neither security nor development without human rights.  But to what extent is this nexus, so compelling rhetorically, true in reality?

The uprisings that have rocked the Arab world since the beginning of 2011 were partly rooted in the lack of economic opportunity for millions. But they speak volumes too about the link between the deprivation of human rights and the absence of rule of law on the one hand, and recourse to rebellion against tyranny and oppression on the other.

Less clear even is the set of preventive or remedial measures that can be taken in the face of severe human rights violations, armed conflict and gross underdevelopment – the actions that would ensure citizens don’t feel the need to resort to rebellion against tyranny, as citizens in the Middle East and North Africa have done, at such risk to themselves, in recent years.  

The UDHR, in other words, remains largely aspirational. Its commitments are ultimately hostage to the competing principle of state sovereignty which places on states, almost exclusively, the responsibility for the wellbeing of their citizens, and to the weak institutional structures designed to promote and protect human rights at regional and international levels.

I would like to examine today how modern doctrines – in particular international criminal justice, the responsibility to protect and the rule of law – have contributed to the advancement of lasting peace, and how to make it more likely that they might do so in the future.

International criminal justice

The first effort at using personal criminal responsibility for war crimes, crimes against humanity and genocide after Nuremberg – the establishment of the tribunals for such crimes perpetrated in the former Yugoslavia and Rwanda – was an initiative of the Security Council.  That made it, theoretically at least, an exercise in the pursuit of peace. The Security Council’s jurisdiction came from its exclusive power as the world’s guardian of international peace and security.

That the initiative came from a quintessentially political body may explain why, right at the outset, this imaginative justice initiative was seen as a political tool at the service of, if not subservient to, the objective of securing peace.

It was, of course, depicted by those it targeted as a means to pursue political interests less noble than peace and they routinely denounced it as selective and biased.  But even for its proponents, the basic assumption was that in emphasising personal guilt, rather than collective responsibility, it would serve to prevent large scale vengeance and retaliation and contribute to national reconciliation. That it would serve as deterrence, as criminal prosecutions are always claimed to do, was also assumed. Twenty years later it behoves us to question what evidence supports these assumptions.

The Rome Statute that created the International Criminal Court (ICC) repeated this link between peace and justice. The Court was set up, in fact, to redress the lack of universality that tainted the ad-hoc Tribunals for the former Yugoslavia and for Rwanda and subsequent initiatives in Sierra Leone and Cambodia. The objective of creating a court by treaty was to eventually enlist the voluntary adherence of all UN member states and thus counter the claims of selectivity and coercion.

Like its predecessors, the ICC was anchored in the ideal of advancing peace.  Indeed the preamble of the Rome Statute states that “such grave crimes threaten the peace, security and well-being of the world”.  While the statute champions accountability, much of its language assumes that justice is – or should be – an instrument of peace.

It asserts that peace and justice are equally desirable objectives – with the added assumption that they are mutually reinforcing. But the past two decades have shown that this is often not the case. Of course, peace is unlikely to be sustainable over time without justice. But in the short term, in some instances, the initiation and unfolding of criminal prosecutions can complicate if not impede peace processes.

The scepticism over the contribution that criminal justice can make to peace was expressed very forcefully in a recent opinion piece by former South African President Thabo Mbeki and Professor Mahmood Mamdini in the International New York Times (Feb 6, 2014). The title says it all: “Courts can’t end civil wars.” One would be tempted to retort that they were never meant to.  But that would be to suggest the whole thesis could be dismissed easily; it cannot.

This is not the familiar rant against accountability institutions by those who may have good reasons to fear accountability. Rather it poses the question that many champions of international criminal justice refuse to tackle head on: are criminal trials an adequate response to politically driven mass violence? The authors then assert that “Mass violence is more a political than a criminal matter. Unlike criminal violence, political violence has a constituency and is driven by issues, not just perpetrators.”

Arguing for a model which recognises that all survivors – victims and perpetrators alike – will have to live together in peace, Mbeki and Mamdani state: “There is a time and a place for courts, as in Germany after Nazism, but it is not in the midst of conflicts or a non-functioning political system. Courts are ill-suited to inaugurating a new political order after civil wars; they can only come into the picture after such a new order is already in place”.

This is not new. It calls for the familiar sequencing of peace and justice initiatives, whereby justice is not abandoned altogether but rather substantially delayed as has been the case in many Latin American countries.

I find more troubling the following observation by Mbeki and Mamdani: “In civil wars, no one is wholly innocent and no one wholly guilty...Victims and perpetrators often trade places, and each side has a narrative of violence.” So instead of pursuing criminal trials which define and to some extent fix the identities of victims and perpetrators, the authors call for “a political process where all citizens – yesterday’s victims, perpetrators and bystanders – may face one another as today’s survivors”, as they claim was done not only in South Africa but also in Uganda and Mozambique.

I confess that I find this model difficult to envisage in a post-conflict environment like that of Rwanda in the immediate aftermath of the genocide. Yet Rwanda today is very much in the lead in the pushback against the ICC. In the end, collapsing ends and means, political objectives and criminal methods, is not persuasive. It amounts to a total repudiation of the Geneva Conventions governing the conduct of war. And as much as many claim that these conventions are outdated, the core assumption that civilians are “wholly innocent” and therefore improperly targeted, should not be so easily abandoned.

Still, this is a much more serious challenge to the future of international criminal justice, indeed of national war crimes prosecutions as well, than the current spat between the African Union and the ICC, which I’ll touch on in a moment. In essence, Mbeki and Mamdani are calling for a rejection of the entire enterprise, or at least its postponement probably for decades.

Of course, for all the examples given in that article there are contrary arguments: ICTY was created while the war was still raging in Bosnia; it was not designed to stop the conflict – nothing else had succeeded in doing so at that point – but it was launched in the hope of reducing the atrocities associated with the conflict and, eventually, distancing the perpetrators’ communities from the collective responsibility that might otherwise be visited on them by those seeking revenge. And for what it’s worth as a precedent, Milosevic surrendered in the Kosovo war just a few days after having been indicted as a war criminal by the Tribunal.

So I believe we are at a crossroads. There are essentially two ways forward. One is to segregate as much as possible the juridical from the political, which I have long advocated but which I believe is not on the immediate horizon. The other is to muddle along with the status quo which will require yielding more to the political imperatives of peace, at least in the short term, than the justice advocates of the last few decades have wanted to concede.

This doesn’t make for tidy advocacy, of course; and it’s not a message many in the human rights community like to hear. But to pretend otherwise – to pretend there is no tension between peace and justice and that “we deserve both” without explaining how – is unhelpful and, given the increasing challenges to both the institution and now the concept itself, it could prove devastating.

Better would be to recognise this increasing tension and for now design a framework for navigating the risks in each individual case that accommodates, as best possible, the goals of both peace and justice. The Rome Statute – like many of our other instruments of international justice – offers little clarity on how we should do that; hardly surprising given its implicit assumption that the goals are inherently mutually reinforcing.

The current peace talks taking place in Havana between the government of Colombia and the FARC offer a real opportunity for addressing these issues constructively. These talks present a serious chance for peace in a country plagued by a conflict which turns 60 this year. And yet the peace talks today are constrained by legal developments internationally (as Colombia is a party to the Rome Statute), and domestically (as much of the same requirements are written into Colombian legislation). These preclude blanket amnesties (or, to use President Mbeki’s language, “yesterday’s victims, perpetrators and bystanders all facing one another today as survivors”).

There is a point of convergence in Colombia between peace and justice. But it can only be reached if advocates on both sides, as well as Colombia’s external supporters, agree to compromise and maximize the attainment of both. Proponents of a peace deal at all costs must concede that it would not be viable, not probably even upheld by the courts, unless it contained acceptable measures of accountability for atrocities perpetrated by actors on all sides of the conflict.

In turn, rather than insist that all perpetrators be prosecuted -- an unrealistic prospect in any event and a demand that would almost certainly result in either the FARC opting out of the talks or the military top brass blocking them -- justice advocates must support an approach that would focus on those most responsible for the most serious crimes. Even there, considering that some of them might be able to hold the peace process hostage to their personal interest, there must be incentives for them to come forward. Without compromising the core integrity of justice, this could include very lenient treatment in exchange for disclosing facts, expressing remorse and making some form of restitution.

Reasonable as this may sound, it is not easy to put in place. Not all seem to share my deeply held view that all good things: truth, justice, even peace itself, can be pursued with too much zeal and obtained at too high a price.  But compromise should not be confused with unjustified political interference into judicial processes, of which there are several unfortunate examples.

The most recent one is the decision by the Assembly of State Parties (ASP) to the Rome Statute to amend the “Rules of Procedure and Evidence” of the ICC to allow the judges to excuse “persons mandated to fulfil extraordinary public duties at the highest national level” from the requirement of presence during their trial.

This amendment came as a result of intense lobbying from several African heads of state in support of Uhuru Kenyatta and William Ruto, elected respectively President and Vice-President of Kenya after having been indicted by the ICC for international crimes related to the post-2007 election violence. The indicted Kenyan officials argued that their joining political forces and winning the elections testified to a desire by the people of Kenya for “reconciliation” – implying that they faced a choice between that and retribution – and that their continued presence at the helm of the government was required particularly in light of the threats to domestic peace posed by recent Al-Shabaab excursions into Kenya and the demands of the war across the border in Somalia.

While the amendment served to diffuse if not merely delay the confrontation between the Court and some states parties to the Statute, the special treatment it provides for persons in authority reintroduces the very elements of selectivity that the Court was designed to reject. Worse still, in doing so, it provides for a preferential treatment for those who are invariably the primary targets of a court which only has jurisdiction when national courts are unwilling or unable to act and which must therefore focus on those most powerful and responsible for the most serious crimes.

The two Security Council referrals to the ICC, in the case of Darfur in 2005 and Libya in 2011 reflect once again political considerations which taint the justice process– much more so, I may add, in the latter case than in the former. For Libya’s referral, the relevant Security Council resolution – Resolution 1973 – exempts from the reach of the ICC nationals of states not party to the Rome Statute, except, obviously, Libyans. This explicitly self-serving exception made by a body of which three of its five permanent members (China, Russia and the U.S.) are not party to the treaty in question and one (the U.S.) was active in the Libyan conflict is a flagrant repudiation of the Rule of Law, premised as it is on equality before the law.

This triumph of political weight could perhaps be overlooked if the justice dividends were overwhelming. But we’re far from that. With the ICC receiving no additional support – financial, political or operational – even in cases which are brought into its jurisdiction by the might of the Security Council, I believe that in the end such politically tainted referrals do more harm than good. Expected to expand the reach of accountability, they in fact undermine it. It is one thing to explain why the ICC is inactive in Syria: Syria is not a party to the Rome treaty. But it is then difficult to explain why the Court is engaged in Darfur and Libya, while neither Libya nor Sudan is party to that treaty.  The answer lies in Security Council politics, not in any principled application of sound legal principles.  Worse still, nominally empowered by the Security Council, the Court is then left exposed to the obvious observation that it is impotent to deliver on its threat of accountability.

Under the current institutional model of international criminal justice, this intermingling of judicial and political considerations is perhaps inevitable but, I believe, in the long term it is unhelpful to both.

Although some call for accountability for atrocities perpetrated in Syria and in South Sudan, to take two very current examples, since neither is a signatory to the Rome Statute the jurisdiction of the ICC could only be activated by the Security Council. The political paralysis in the Security Council may in fact be a relief to those seeking a political solution to the conflicts. In the case of Syria because accountability would undoubtedly complicate the search for an already elusive deal, and in the case of South Sudan because it could prove a red flag before the bulls who were so recently on the attack against the ICC.

In both cases the arguments advanced by President Mbeki may prevail. Until the creation of the ICC these arguments had in fact for the most part prevailed, if only by default. Very few countries had launched criminal prosecutions for mass atrocities committed on their territory at times of conflict, and even fewer without international assistance.  Only time will tell whether true, sustainable, national reconciliation is more achievable when “survivors”– victims, perpetrators and bystanders alike – are left to move forward without any reckoning for the past, than when criminal prosecutions are used to stamp political violence as criminal. A very different path was taken in Rwanda than in South Africa for instance. It’s too early to tell whether either society is truly reconciled.

Finally, I should add that peace is not the only interest that is currently putting international criminal justice under attack. In parallel to the emergence of the ICC, several states, most predominantly Spain and Belgium, have acted under the principle of universal jurisdiction for international crimes to assert their jurisdiction over foreign nationals for crimes committed outside their territory. Belgium retreated considerably some years ago and Spain is now also in the process of doing so, ostensibly under pressure from China after a Spanish magistrate issued international arrest warrants against Chinese former president Jiang Zemin and former Prime Minister Li Peng on matters related to Tibet. This followed similar initiatives against other high profile foreigners, most notably, charges against Augusto Pinochet which had legal ramifications in the UK and eventually in Chile.

It is not only the economic consequences of aggravating Chinese authorities that are persuading Spanish lawmakers to back off. Diplomatic and political complications more broadly are fuelling the pushback. So the resistance to the entire accountability enterprise launched some 20 years ago is at an all time high.

The responsibility to protect

Let me now turn to the Responsibility to Protect, or R2P, as a recent articulation of human rights and humanitarian imperatives in the face of impending mass atrocities. Embraced by the United Nations General Assembly in 2005, the doctrine was first articulated by the International Commission on Intervention and State Sovereignty, which itself had been launched as a response to the NATO-led intervention in Kosovo in 1999, which was conducted without Security Council approval.

This history is important to understand the utility of the doctrine and, to some extent, its current shortcomings. It asserts that states have a responsibility to protect people under their jurisdiction from genocide, war crimes and crimes against humanity, and if a state proves unwilling or unable to discharge that duty, responsibility shifts to the international community.

R2P envisages the use of force to prevent atrocities only as a last measure, to be used when all others fail, and then only with Security Council backing. But in reality the controversy around R2P has focused mostly on the use of force.

Few object in principle to the idea of preventing mass atrocities through development, diplomacy, advocacy, mediation, capacity building and the like. But many such initiatives cannot really be characterized as efforts in preventing atrocities. In fact to do so could be counterproductive: even the weakest and most vulnerable state will resist early assistance extended under the label “prevention of genocide”. It’s readily apparent too that for all the rhetoric about “early warning”, the earlier the warning the higher the wall of state sovereignty and the quicker it will be erected. In turn, the weaker the state and the more imminent the danger to civilians, the easier -- still not easy, but easier – it is to make external intervention possible.

So it’s the sharp end of R2P – how and when to mobilise support for military action to prevent atrocities – that is the crucible of the doctrine and of its limits, which the crises in Libya and Syria have amply demonstrated.

The doctrine was instrumentalised by NATO in Libya as an act of war to effect a change of regime. NATO used its Security Council mandate to protect civilians to oust President Qadhafi leading to outcries that a humanitarian doctrine was used essentially for political ends. While its difficult to contemplate how Libyan civilians could have been protected from their murderous leader without his removal from office, the fact that his demise was not explicitly made part of the request for the Security Council mandate gives some plausibility to the claim of deception and has certainly aggravated the suspicion in many parts of the world that the West cannot be trusted with such doctrines. What is clear is that R2P has so far been of little help in coming to the rescue of the more than 100,000 civilians since killed in Syria.

One problem here, less acute than in the case of international criminal justice, but real nonetheless, is that R2P operates again in the grey zone between law and politics. The doctrine, to some extent, overlaps with the requirement to prevent genocide, a legal norm explicit in the widely ratified 1948 Genocide Convention and reflecting customary international law binding on all States.  The reluctance of some to use the term genocide during the unfolding slaughter in Rwanda, the controversy about its use in Darfur, and now the occasional emergence of the term in Syria and in the Central African Republic (CAR), may reflect an understanding not only that genocide is the ultimate crime, but that the obligation to prevent is real, even possibly justiciable.

Not so, at least not yet so, in the case of the other mass atrocities contemplated by R2P, hence the dilution of the responsibility to a mere political one, however compelling morally it is in the eyes of many. Not only that, it is a political responsibility which invariably is assigned only to the offending state.  It is not coincidence, I suggest, that in its resolutions on Libya, the Security Council only spoke of Libya’s responsibility to protect its people.  Although the 2005 General Assembly was clear that this responsibility fell to other states in extremis, that was not explicitly embraced by NATO and its backers.  In short, we are left adrift between a legal obligation that often will not speak its name, and a political one that obeys different imperatives.

The ostensible irrelevance of R2P in the face of the massive civilian casualties in Syria may not be fatal.  Some could even argue that the doctrine still works, even there. It calls, after all, for the application of a proportionality test before launching a military intervention. Applied to Syria, this test would recognise that the many arguments against military strikes might lead to the conclusion that the external use of force could serve to escalate rather than mitigate the conflict and therefore do more harm than good.

Surprisingly perhaps, the strong call for humanitarian access in Syria is not advocated as an R2P imperative. Hard as humanitarian access is to achieve through Security Council engagement, the chances of success of that effort would probably not be enhanced today by reliance on the doctrine. In short, for now, R2P, like justice, is on the defensive.

Where does all this leave us?

Quite apart from the numerous rationales advanced in their support, international criminal justice and R2P share a common root in Article 1 of the UDHR:

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

It is, I believe, that ‘spirit of brotherhood’ that calls for the protection of victims of mass atrocities, ideally in a preventive way, but ultimately through accountability and redress. It might be wise to distance these doctrines, which are grounded in human rights, from international politics and further anchor their roots in law. For instance, in the case of R2P, an additional protocol to the Genocide Convention to include crimes against humanity could potentially be a game changer.

Not that this provides any guarantee of their implementation. But it should alleviate their erosion from political processes that were never designed to implement fundamental individual rights. The one body that purports to have this function, the United Nations Human Rights Council, is structurally just as unsuited as the Security Council to advance legal norms segregated from political considerations, and has more than amply demonstrated its inability to overcome that flaw. It is a body of states, where state interests are traded: to expect anything else of it is not grounded in reality.

The Security Council, the pre-eminent institutional forum in cases of deadly conflicts, was mandated neither to champion fundamental human rights nor be guided by the spirit of brotherhood evoked earlier. The veto of the five permanent members was explicitly given to them so that they could protect their national interests, not so that they could advance any kind of international public interest.  Recent commentary suggesting otherwise has great moral appeal but, again, is not grounded in either political realities or institutional history. And the current pressure to reform the Council by increasing its membership is unlikely to affect that.

The Rule of Law

Finally, let me turn to the doctrine that I believe holds the most promise for conflict prevention: the Rule of Law. At this point both greater doctrinal clarity and institutional capacity in the UN system would be required for the Rule of Law to deliver on its promise. Promotion of the Rule of Law has become the new mantra in international affairs both in development projects and in the prevention of conflicts. But what is contemplated is often an impoverished version of the Rule of Law, used as a substitute for law enforcement, which in turn can easily be manipulated to strengthen the repressive capacity of the state.

Properly understood, the Rule of Law carries a much more ambitious agenda. To understand it one must understand first the role of law in free, democratic and peaceful societies.

One could conceive of the law as merely the instrument for the orderly exercise of power. Even in that limited sense it can have some virtues: it is explicit, predictable, capable of compliance, and so on. One step above that, one may view the law as the neutral regulator of social conduct: everyone being subjected to the law, and equality of treatment in the application of the law, even if not necessarily in its content, bring a measure of fairness into the regulation of human affairs, and remove some arbitrariness.

Understood this way -- that is mostly in procedural terms -- the Rule of Law is nothing more than rule by law. As such it requires that laws be properly enacted, in a non-arbitrary way, and that they be governed by a series of rules, some constitutional, some administrative, that validate the legal process.  Laws must be public, non-retroactive, intelligible, and capable of compliance; they must adhere to the principle that no one is above the law, and must be of general application. There are disputes as to some procedural requirements but, broadly speaking, they are designed to ensure the primacy of law over force or human arbitrariness.

But both these views fail to embrace the full capacity of the Rule of Law, beyond its formal and procedural advantages over unruliness and arbitrariness. Utilised to its full capacity, the Rule of Law regulates conduct in a way that maximises individual liberty. This may be seen as a paradox, as laws are often perceived as restricting freedom, particularly in legal systems that rest on the assumption that everything is permitted unless it’s prohibited by law.

But if content is inserted into the Rule of Law the paradox disappears. This understanding of the role of law in society was first expressed by the French cleric and philosopher Lacordaire who said:

“Between the strong and the weak, between the rich and the poor, between the master and the slave, it is freedom that oppresses, and the law that sets free.”

In other words, the role of law in a free and democratic society is to liberate, not to restrain.

This requires inserting content into the Rule of Law: people should be governed by just laws, justly enacted and justly enforced. This required content is reflected in international human rights instruments, conventions that most states have ratified and should be implementing in any event.

I don’t want to suggest that we could dispense with law enforcement institutions, or even with the use of overwhelming force, in some circumstances, in the enforcement of the law. But for the most part demonstrably just laws have a better chance of generating voluntary compliance by a large segment of the population, freeing capacity to address deviance in proper ways. At the other extreme, profoundly unjust laws are either barely enforceable, so great is the scale of non-compliance, or else have to be enforced by increasingly drastic measures, thereby, in time, aggravating the disrespect that they attract and forcing escalation in repression.

In a democracy, laws designed to maximise greater freedom for all require special treatment for the most vulnerable. It cannot be assumed that their interests will be properly reflected in majority rule governments. In a system that fully embraces the substantive Rule of Law, legal protection will typically then be extended to vulnerable minorities through the courts, particularly if the political system is not sufficiently inclusive to ensure their protection through the legislatures. The Rule of Law therefore engages all branches of governance, not just the executive, too often the centre of power to whom the legislatures may be subservient, or the legislatures who may express the tyranny of the majority.

In other words, a state cannot claim to be operating under the Rule of Law merely because it has a strong and competent security and law enforcement sector if the laws themselves discriminate and oppress and if there is no redress from unjust laws, or from laws unjustly applied.

Despite the growing interest in the promotion of the Rule of Law internationally, legal theory is not about to replace inter-state politics, and the sacred principle of state sovereignty will make difficult the promotion of a substantive vision of the Rule of Law. Yet a richer understanding of it would go a long way towards preventing conflicts by focusing, as it should do, on justice and equality rather than on repression. It would make the Rule of Law a more effective conflict prevention tool.

Putting in place just, non-discriminatory laws, and enforcing them, is among the most important of long-term conflict prevention measures. Such laws would prevent the emergence of the unresolved grievances often at the heart of conflict or at least facilitate their peaceful resolution.  This is again a tall agenda where law intersects with politics. The Rule of Law may serve to set people free, but in doing so it must constrain power and those with power are usually, and not surprisingly, reluctant to see it curtailed.

Conclusion

Let me then return to my opening remarks.  The Universal Declaration of Human Rights asserts that the foundation of freedom, peace and justice lies in the recognition of the inherent dignity and equal rights of all members of the human family, and that those rights must be protected under the rule of law.

The international human rights agenda has been under siege for some time, ironically often in the name of human rights values such as cultural identity and religious freedom. When human rights violations become cause and effect of deadly conflict anywhere, they mortgage our conscience, if not our security.  In the rush to provide relief we should not lose sight of the integrity of the tools at our disposal. Today I’m afraid they are under siege and in a state of considerable disarray.

Thank you.