Looking to the Future: What Role Can International Justice Play in Preventing Future Conflicts
Looking to the Future: What Role Can International Justice Play in Preventing Future Conflicts
Toward a Common Set of Signals from the G20 about Russia’s War in Ukraine
Toward a Common Set of Signals from the G20 about Russia’s War in Ukraine
Speech / Global

Looking to the Future: What Role Can International Justice Play in Preventing Future Conflicts

Speech by Nick Grono, Deputy President, at Wilton Park Conference "Pursuing Justice in Ongoing Conflict: Examining the Challenges", 9 December 2008.

This is the final session of our conference and, having spent a fascinating couple of days looking at the role of justice in ongoing conflicts, we now have just one hour or so to look at its role in preventing future conflicts. A big task and a short time to tackle it. But it is important we talk through the issues, because the power to prevent is one of the most important claims made on behalf of justice – and as such it needs to be examined in some detail. Looking to the future also changes the perspective on some of these very difficult issues of justice and peace.  

Now, as we have heard over the course of the last couple of days, dealing with justice issues during an ongoing conflict or in its immediate aftermath requires the balancing of a range of interests, many of which may not be readily reconcilable, at least in the short term.

The challenge for justice advocates is that when the interests being considered are defined as those most immediately impacted by an ongoing conflict, then it tends to favour an outcome that preferences conflict resolution at the expense of justice imperatives.

By this I mean that if the interests in question are those of the parties to the conflict, the victims of continuing violence and perhaps neighbouring states, then there is often a bias in favour of an outcome that produces apparently clear, defined and immediate benefits to those presently suffering from the consequences of that particular conflict. There is an understandable tendency to opt for the certainty provided by a peace deal, however repugnant some of its terms may be, on the grounds that the greater good is served by ending the violence that is causing harm now, not a hypothetical conflict that may cause suffering in the future.

That doesn’t mean justice interests are always ignored or deferred, but it does mean justice often has to force its way to the table during peace talks. Justice advocates have to argue that deals will not be sustainable without justice, against sometimes equivocal evidence or ambivalent examples, such as those of South Africa and Mozambique. They also have to argue that victims of atrocities have a right to ensure that those responsible are held to account, even at the risk of destabilising the peace.

But the perspective is different when the interests at stake are defined by future conflicts – and no less important. Just as resolving existing conflict is a critically important priority of the international community, so is preventing the outbreak of violence. Though we’ve seen a big reduction in conflict during the past 16 years, events this year in Kenya, Georgia and the DRC, to name a few, have demonstrated that war and the horrors that come with it are far from a thing of the past

With this broader set of interests – that is, those defined by future conflicts – the options and tools available to policymakers are likewise expanded.  Instead of defining the problem by reference to the immediate conflict and its willing or unwilling participants, it can be redefined to encompass a larger albeit inchoate group, which can broadly be described as those at risk of harm from future conflicts.

Seen in this way then, the potential to prevent future mass suffering requires that consideration be given – if not always acted upon – to pursuing justice outcomes even if that risks prolonging an existing conflict, because the future payoffs may significantly outweigh the risks of continued conflict.

Objectives served by justice

Defining the issue in this way requires that we examine the goals served by justice so that we can better understand the ways in which these goals may contribute to preventing conflict.

Justice serves a number of important public policy objectives. Many of these will be of primary relevance to the war-torn society and don’t impact significantly beyond the particular conflict, except perhaps to contribute to the deterrent impact of prosecutions. These objectives include: retribution, incapacitation, rehabilitation, truth telling and delegitimisation

Then there are those justice goals that resonate beyond the conflict in question and may contribute to the prevention of  future conflicts. These include the institutionalisation of human rights and rule of law norms, and deterrence.

How do these particular objectives resonate more broadly? The thinking behind norm institutionalisation is that insisting on prosecution of atrocity crimes forces states to recognise the legal and moral force of those norms and entrenches them more firmly in domestic and international legal spheres, bureaucratic and military structures, and in the minds of ordinary citizens. One example of this is the widespread recognition today  by all conflict actors that it is unacceptable to seek or grant amnesties for genocide, crimes against humanity and serious war crimes, at least when it comes to those in positions of power.

And then there is deterrence. This is perhaps key when it comes to conflict prevention. The argument is that if leaders genuinely believe that they are likely to be prosecuted if they commit atrocity crimes, with all the consequences that that may entail  (including delegitimisation, loss of power and incarceration) then this will provide a strong, though not always overwhelming, incentive against such conduct.

The flip side of deterrence is that when it comes to existing conflicts, in which atrocities have already been committed, it will likely contribute to a prolongation of conflict, as leaders threatened with prosecution will often seek to entrench themselves to ensure they don’t end up in the clutches of a criminal court. Robert Mugabe and Omar al-Bashir are two examples that come to mind.

Can international justice contribute to the prevention of future conflicts?

Of course, framing the debate to include the broader interest in preventing conflicts presupposes that justice can have this impact. But is this the case?

It is not too difficult to establish that the threat of criminal prosecution affects the calculations of warring leaders. What is difficult to establish is that it can do so to such an extent as to prevent future conflicts.

For a start, the number of cases of mass atrocity is thankfully sufficiently small, knowledge of the actors' motivations sufficiently limited and the historical threat of prosecution sufficiently murky that it is very difficult to draw any hard and fast conclusions from past cases. That said, there are plenty of examples where whatever threat of criminal prosecution there was failed to deter perpetrators of atrocity crimes, and it is difficult to point to cases of successful deterrence.

But this doesn’t prove there are none, as the problem may be the same as that which confronts conflict prevention efforts more generally, namely that it is difficult to establish something that never eventuates: in this case, that a conflict would have ensued, and atrocities would have been committed, but for the deterrence.

History is of limited benefit when considering these issues, as international institutions and norms are much stronger today than they were even ten years ago, ensuring that the risks of prosecution are greater, and hence more likely to impact on potential perpetrators’ calculations.

That being the case, perhaps the more appropriate question at this stage is what are the circumstances in which deterrence is most likely to work?

Deterrence proceeds on the assumption that actors are rational – and hence will respond to the prospect of punishment for contrary behaviour. Punishment here generally means incarceration following conviction, or delegitimisation leading to a weakening of the actor’s hold on power.

The effectiveness of deterrence largely depends on the certainty and severity of the consequences. Actors in a conflict may have different knowledge. Rebels in remote areas may have limited understanding of the threat posed by international justice. And in any event, at least in the early stages of a rebellion, the threat may be so remote as to be illusory. Government leaders, however, particularly now in Africa, are much more alive to the possibility of ICC investigation, and will likely factor that into their considerations.

Not all actors are rational when it comes to committing crimes. Individuals may act on impulse, with little consideration of the longer-term consequences. But this will rarely be the case in respect of atrocity crimes (particularly those meriting the attention of the ICC) as these are usually of a scale that requires systematic planning and implementation. Take, for example, the Sudanese government’s campaign in Darfur, which required the mobilisation of Janjaweed militias, coordinated air and military support, the supply of arms in breach of an UN arms embargo and a sophisticated diplomatic strategy to deal with the international fallout.

It is also important to understand that actors will often calculate that the benefit to be gained from crimes, or detriment avoided, outweighs the risk of punishment. Benefits for rebels include capture of the state, and for governments may include holding onto power.

Similarly, the risk of punishment may often be perceived as very low. The likelihood of prosecution is a relevant factor. To the extent rebel leaders focus on the risk, they may calculate it as being low, particularly given that there are often a multitude of such groups or factions, and few are of sufficient significance to warrant prosecutorial attention. The risk may not be much higher for government leaders, but that is changing – with Milosevic, Pinochet, Habre and Taylor all having faced prosecution, and President Bashir now in the firing line.

The impact this may have on leaders’ calculations was well demonstrated by Libyan President Muammar Gaddafi’s response to the handover in 2006 of Charles Taylor to the Special Court for Sierra Leone: “It sets a serious precedent. This means that every head of state could meet a similar fate”. And Robert Mugabe and LRA leader Joseph Kony have both cited the Charles Taylor precedent as the reason for their fear of international prosecution.

What then can we conclude about deterrence? Maybe the best that can be said is that the threat of prosecution and delegitimisation may influence decisions, and perhaps more so for government leaders than rebels.

But influencing is important – particularly when leaders are deciding on how to respond to a challenge to their authority. In so responding they usually have a number of policy options – they can seek to crush those rebelling against their authority; they can seek to undercut them politically (eg, by addressing some of the grievances of the rebels’ constituency); or they can seek to come to a deal with them.

In today’s world of instant global communications, large-scale atrocities can rarely be carried out in secret, so a decision to crush their opponents, which will almost invariably result in such atrocities being committed, cannot be hidden from the world’s view. If leaders knew such attention would automatically lead to investigation and prosecution, they may choose to respond differently to a challenge. It will not be decisive, but it could be an influential factor.

What can certainly be said is that successful prosecutions by the ICC,  or pursuant to universal jurisdiction, will help shift the calculus – particularly if abusive government leaders are targeted. It will increase the risk of punishment, and thereby encourage behaviour that avoids that risk.

The threat of such prosecution may also drive warring parties in future to accept other justice mechanisms, such as credible domestic trials and robust truth commissions, as being preferable to international prosecution and better adapted to local conditions.

Conclusion

So where does that leave us? The crux of my argument is that when considering the benefits and risks of pursuing justice during an ongoing conflict, consideration may need to be given to interests beyond those of the parties immediately impacted on by the conflict. That in turn may mean preferencing justice even if to do so may risk prolonging or reigniting the conflict in question.

This decision only has to be made when there is an actual, and not just potential, conflict between peace and justice – a situation a lot less common than generally believed. There is great scope these days for addressing justice interests in a way that will not derail peace processes – as we have heard over the last couple of days. These include truth commissions, domestic justice and reconciliation processes, and other mechanisms. The decision should also only be made when all options have been fully explored – the dynamics of extended peace negotiations often result in parties changing and moderating their positions in ways that give much greater scope for justice to play a role than might initially have been recognised.

However, notwithstanding all of these provisos, decisions on peace and justice priorities will still have to made by international actors during conflicts, as they have in the past. In so doing, they will be conscious of the considerations I outlined above, even if they don’t explicitly acknowledge them.

Different actors will have different mandates, and these will largely define the way in which they approach their task. The task of mediators is generally limited to the conflict before them, so the tendency is to focus on achieving a sustainable peace, without looking too far beyond the immediate conflict. But their options may be constrained by those who are doing exactly that. For instance the policy of the UN is that it should not sign on to peace agreements which exclude accountability for mass atrocities. This policy is motivated by the same thinking that preferences deterrence and the  institutionalisation of norms.

International prosecutors are, or should be, conscious of the risks that indicting a head of state or senior power-holders may entail. They will almost invariably proceed regardless – because that is their mandate, and because they share the belief that justice is essential to a sustainable peace, and necessary to build the rule of law and deter future would-be perpetrators. Hence Louise Arbour, when announcing the indictment of President Milosevic in May 1999, stated: “I am mindful of the impact that this indictment may have on the peace process in the Federal Republic of Yugoslavia”, and went on to conclude that the Tribunal’s work would make a major contribution to peace in Kosovo and the region.

Members of the UN Security Council will have a range of considerations in mind when they confront justice issues. In particular, the ICC prosecutions in the Darfur situation are likely to present the Council with ongoing challenges. But, given the opposition of a number of UN Security Council members to the likely prosecution of President Bashir for atrocity crimes, it is worth recalling that it was the Security Council that referred Darfur to the ICC, in 2005. This was in line with a report by the UN Commission of Inquiry that attributed responsibility for atrocities to the Sudanese government. The sub-Saharan African states on the Council at that time, Benin and Tanzania, voted in favour of the referral. (The other African member, Algeria, abstained.) Those supporting the referral could hardly have then been surprised when the Prosecutor decided to proceed against the senior leadership of Sudan. In effect, states were willing to make a decision, the likely consequence of which was to give primacy to justice during an ongoing conflict.

The issue is likely to come back before the Security Council if it is asked to defer ICC prosecutions under Article 16. Some will believe that peace must necessarily precede justice. Others will be mindful of their commitment to support the institution of the ICC, and its mission as set out in the preamble of the Rome Statute, to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”.

Domestic actors will have an equally diverse range of interests. Many will argue that an end to conflict and all the associated suffering must trump retributive justice. Many others will demand full accountability immediately, both in the interests of sustained peace in their own country, and elsewhere. Our discussions over the last couple of days have amply illustrated the diverging domestic views.

As for the future, there is a slow but steady move towards the strengthening of international justice norms and institutions. The advent of the ICC, a permanent tribunal with the power to initiate its own prosecutions, together with growing recognition of universal jurisdiction, increase the odds of prosecution, and hence the potential deterrent impact of international justice. In this they will support, and be supported by, the emerging Responsibility to Protect norm.

Over the longer term this may – and it’s a big may – reduce future conflict.  But we probably won’t be able to credibly make that assessment for a number of years. And there is going to be a lot of turbulence on the way. The ICC is still weak, and largely restricted to pursuing justice in ongoing conflicts. It is exposed to all of the downsides of such a situation (including delayed prosecutions, claimed threats to peace processes, ambivalent international support etc.) without yet being able to identify many successes. Those who see their power threatened by a world more observant of international justice norms are mounting a vigorous campaign against the ICC, universal jurisdiction and R2P.

Despite all these provisos and qualifications, such a world holds out the promise of being more peaceful than one in which mass atrocities can be committed with relative impunity. We need to strengthen those norms and institutions that will make this a reality. This in turn will drive present and future combatants to accept that justice is an inevitable element of peace processes, and focus on accommodating justice instead of simply excluding it. In this way we can advance the prospects of peace and justice for current and future conflicts.

Thank you.

Members of the police stand in front of banners of the G20 summit near a venue for the G20 Finance Ministers Meeting in Nusa Dua on Indonesia's resort island of Bali, on July 14, 2022. Sonny Tumbelaka/Pool via REUTERS
Commentary / Global

Toward a Common Set of Signals from the G20 about Russia’s War in Ukraine

The G20 countries’ positions on the war in Ukraine contrast starkly, yet the conflict raises issues of global concern – economic shocks and nuclear risks – that the leaders cannot pass over in silence.

When the Group of Twenty (G20) leaders gather in Bali, Indonesia, on 15 November, one head of state who belongs to the Group will be notable by his absence. Russian President Vladimir Putin has decided not to attend the event. This news will be a relief for Western participants, who hardly want to share photo opportunities with Putin while he pursues his war in Ukraine. The Kremlin’s foreign minister, Sergei Lavrov, will be in Bali, but he may not be relishing the prospect. Lavrov walked out of a G20 foreign ministers’ meeting in July after his Western counterparts accused Russia of sparking the global food price crisis by invading its grain-producing neighbour.

Putin’s absence will not relieve the leaders who go to Bali of the challenge of how to address the war. The G20 is primarily an economic coordination mechanism, which was thrust into the limelight during the global financial crisis in 2008. Unlike the G7, which brings together like-minded Western countries with shared political interests, the G20 encompasses geopolitical rivals – the U.S. and China foremost among them – that are not apt to adopt strong common positions on international affairs. Yet Russia’s assault on Ukraine raises issues of global concern, including the widespread food and energy price shocks and the risks of nuclear weapons use, that the world’s most powerful politicians cannot pass over in silence.

The G20 meeting is, therefore, an opportunity for leaders to signal common positions about the war. Their primary focus should be on concrete commitments by the G20 countries to help poorer ones navigate economic turmoil. But the powers present in Bali could also use the occasion to underscore that they all expect Russia to refrain from nuclear use, in word as well as deed. Ideally, they would be as clear as possible that if Moscow does cross the nuclear threshold, it will face consequences not only from the West, but globally. A joint statement condemning Russia’s prosecution of the war or setting out potential peace terms will likely be impossible, given G20 members’ widely divergent positions on the war. But if G20 members can find common ground on economic issues and the nuclear taboo, the Bali summit will be a worthwhile diplomatic endeavour.

Diverse Ukraine Policies

The G20 members’ positions on the war differ starkly. The U.S. and most of its allies in the Group have imposed sanctions on Moscow and voted to condemn the invasion in the UN General Assembly. Most of the other members have at least condemned Russia’s aggression and illegal efforts to annex Ukrainian territory at the UN, but not resorted to sanctions (see map). Yet three weighty non-Western G20 members – China, India and South Africa – have not only declined to place sanctions on Russia but also abstained in UN votes on the war.

This map shows which G20 members have sanctioned Russia, and which voted to condemn its illegal "annexations" in Ukraine at the UN in October.

Various non-Western members of the G20 have at times tried to establish a diplomatic role in the war, although the results have mainly been negligible. South Africa attempted to take a lead at the UN in March by tabling a General Assembly resolution on humanitarian assistance to Ukraine. Western and Ukrainian diplomats rejected the draft out of hand because it made no reference to Moscow’s responsibility for the war (in contrast to an alternative UN text worked up by France and Mexico), although South African officials insisted to Crisis Group that theirs was a good-faith initiative to bolster multilateral cooperation.

Indonesian President Joko Widodo visited both Kyiv and Moscow over the summer, promising to facilitate communication between the warring capitals. Many observers suspected that his main concern was to make sure that the war would not stop the G20 summit from going ahead. Indonesia has raised the possibility of Ukrainian President Volodymyr Zelenskyy attending the summit, although Kyiv has indicated he will most likely only intervene via video link.

Other G20 members have also dipped their toes in Ukraine diplomacy. Mexico surprised and confused UN officials at September’s high-level UN General Assembly week by tabling a proposal for the Pope, the UN secretary-general and Indian Prime Minister Narendra Modi to lead a ceasefire effort. This idea has not taken off to date. There has also been a sporadic flow of speculation among Western commentators that India – which has increased trade with Russia since the February assault – could eventually prove a useful facilitator of Russian-Ukrainian diplomacy, and Modi urged President Putin to take a “path to peace” at September’s Shanghai Cooperation Organisation summit.

In contrast to these fledgling and tentative peace efforts, Türkiye’s President Recep Tayyip Erdoğan has emerged as one of the main diplomatic actors in the crisis. Türkiye hosted early, fruitless Russian-Ukrainian peace talks, but had success when it worked with the UN over the summer to broker the Black Sea grain deal. This deal permitted Ukraine to export its harvest by sea without Russian military interference. Türkiye and another G20 member, Saudi Arabia, also facilitated a sizeable prisoner swap – involving some 215 Ukrainians and 55 Russians – in September. Behind closed doors, G20 participants will surely probe Erdoğan as to whether his frequent interlocutor Putin is ready to compromise. But there is no sign in advance of the Bali summit that Ankara sees a breakthrough coming.

 

For the U.S. and Ukraine’s other allies, Beijing’s view of the war has been a constant source of anxiety.

But, however much attention Erdoğan garners in Bali, leaders may focus even more closely on what China’s President Xi Jinping has to say. For the U.S. and Ukraine’s other allies, Beijing’s view of the war has been a constant source of anxiety since February. In recent months, Western observers believe they have seen increasing signs of frustration in China with the course of the conflict. Beijing has indicated its concern that Moscow’s nuclear sabre-rattling, bad enough in itself, might be more than dangerous talk. This concern was heightened by the Kremlin’s vague, erroneous intimations that Ukraine, not Russia, wants to raise the nuclear stakes with a “dirty bomb”. Xi articulated these issues most clearly in a joint statement with German Chancellor Olaf Scholz opposing the “threat or use of nuclear weapons” in Ukraine.

Points of Agreement

While G20 members have, therefore, no shortage of opinions about Russia’s war in Ukraine, it is difficult to see how they could reconcile their divergent views in Bali. It is hard, for example, to square Mexico’s advocacy for an early ceasefire (which Brazil and Argentina also advocated for at the UN in September) with Western powers’ worries that Moscow could use a pause in hostilities to consolidate control over parts of Ukraine even as it rearms and repositions for the next phase of conflict.

Rather than focus on the specifics of how to end the war, G20 leaders may be better advised to identify broad areas of agreement about how to contain the war and its fallout. The most obvious would be for those G20 leaders who are in Bali to endorse the Xi-Scholz condemnation of nuclear threats and nuclear use. Alternatively, or additionally, they could reiterate the basic principle that a “nuclear war cannot be won and must never be fought”, which the five nuclear weapons states (the UK, China, France, Russia and the U.S.) affirmed in a statement to the UN in January. Such a declaration might be complicated by the G20’s incompatible positions on non-proliferation issues (Brazil, for example, has lobbied for the Treaty on the Prohibition of Nuclear Weapons, whereas India is not even a member of the Non-Proliferation Treaty). Given Russia’s recurrent allusions to nuclear use in Ukraine, however, the leaders should at least be able to agree they are opposed to nuclear threats and nuclear war.

The goal of such a declaration, however minimal or vague, would be to signal to Moscow that it will face global diplomatic and other penalties, rather than just consequences from the West, if its nuclear rhetoric turns to action in any way. Russia has shown some interest in how its moves in Ukraine – such as its agreement to the Black Sea grain deal – are seen in the non-Western world. G20 leaders are not likely to spell out in concrete terms what steps they would take if Russia does cross the nuclear threshold – indeed, it might be better they do not try to be too explicit, as doing so might only highlight their differences. But some sort of common signalling, especially one that by definition has both U.S. and Chinese buy-in, could help strengthen the nuclear taboo.

G20 members can offer common support to efforts to reduce the global economic damage the conflict is doing.

Turning to the war’s impact, G20 members can offer common support to efforts to reduce the global economic damage the conflict is doing. They could start by making a statement in support of the Black Sea grain deal (which is up for renewal by Russia and Ukraine on 19 November) and calling for this deal, which now has to be reaffirmed every 120 days, to continue indefinitely until hostilities cease. Such a statement would be a fillip not only for President Erdoğan, but also for UN officials working on implementing the agreement, which Russia threatened to quit in October after a Ukrainian attack on its navy.

More broadly, G20 leaders can use the Bali summit to help prop up the teetering global economy, much as their predecessors did in 2008-2009. Potential priorities include pushing multilateral development banks to boost lending to poor countries to handle economic challenges that could foment political instability. In 2021, G20 members committed to support liquidity in the global economy by making available to poor countries $100 billion in International Monetary Fund Special Drawing Rights (a reserve asset that Crisis Group discussed in detail in a briefing prior to the 2022 G7 meeting). They have been slow to follow through with this pledge, and they need to pick up the pace as the international economic picture gets bleaker.

Given its origins and membership, the G20 has greater credibility as an economic crisis management mechanism than as a security forum. Its actions on the global economy will carry more weight than its members’ political statements about Ukraine. Yet the last year has made it clear that global economic affairs cannot be insulated from security shocks, and big powers must tend to both. At the same time, Russia’s nuclear menacing amid the conflict it is waging in Ukraine is simply too big an issue to ignore. The Bali summit is an opportunity for the leading Western and non-Western powers to at least articulate their shared interest in not letting the war escalate out of all control.

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