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War Crimes Courts Are a Powerful Force for Peace and Liberty
War Crimes Courts Are a Powerful Force for Peace and Liberty
Kofi Annan’s Lessons in Global Leadership
Kofi Annan’s Lessons in Global Leadership
Op-Ed / Global

War Crimes Courts Are a Powerful Force for Peace and Liberty

Originally published in International New York Times

On Sept. 4 1998, Jean Kambanda, the former prime minister of Rwanda, pleaded guilty before an international tribunal to genocide, admitting his role in the extermination of over half a million of his own people, and was sentenced to life imprisonment.

In reviewing factors which could mitigate the severity of the sentence, the trial chamber made the observation that Mr. Kambanda's "prime motivation for pleading guilty was the profound desire to tell the truth, as the truth was the only way to restoring national unity and reconciliation in Rwanda."

I have long thought this was the single most significant event in the emerging history of the two international tribunals with which I have been associated, the International Criminal Tribunal for the Former Yugoslavia, and its sister institution for Rwanda. Although it received very little attention at the time, this extraordinary legal precedent says much about the role that international war crimes prosecutions can play in the long-term sustenance of peace.

The integrity of the criminal justice system in many countries is so well entrenched that we easily forget what it tells us about who we are and how we live. Our willingness to submit our disputes to legal process is the hallmark of our choice to live in peace with each other. It is exceedingly rare in domestic criminal law that, regardless of its outcome, a criminal trial does not suffice to "stay the hand of vengeance" - a reference to Justice Robert Jackson's opening statement at the Nuremberg war crimes trials.

In speaking the language of peace, international trials dealing with massive atrocities must not only expose and record individual guilt, but construct the collective memories upon which both victims and perpetrators, indeed whole nations, will be cleansed of their brutal past

For the criminal trial to undertake this historical reconstruction, some of the traditional assumptions and requirements of domestic criminal justice may require substantial modifications.

It is important at the outset to question whether it is realistic for a criminal prosecutor to undertake the task of an historian. Anne Michaels, the Canadian poet and novelist has remarked, in her beautiful book "Fugitive Pieces" that "History is amoral: Events occurred. But memory is moral; what we consciously remember is what our conscience remembers."

History leaves room for doubt. It strives for a reconstruction of the past informed, understood and therefore revised in light of the present and even of the future. Justice, on the other hand, binds itself to a permanent and official interpretation of facts, often followed by irreversible harsh consequences. It favors detailed reconstructions of well defined, narrowly based events, to a high standard of proof, to satisfy its own need for finality.

In his book "Mass Atrocity, Collective Memory and the Law," Mark Osiel observed that legal requirements of criminal charges can create major historical distortions. He gives as an example the requirement in the charter creating the Nuremberg tribunal that crimes against humanity be prosecuted only if they were undertaken in preparation for, and in service of aggressive war. He then says, that "this jurisdictional peculiarity required prosecutors to weave the Holocaust into a larger story that was primarily about perverted militarism."

I felt that similar tensions were present in the work of the international criminal tribunals on Yugoslavia and Rwanda. To overcome these distortions and remain true to the full purpose of international criminal trials, Mr. Osiel argues that prosecutors must take a broad view of relevance and expose as much of the context as will serve to displace a focus required solely by legal imperatives.

There is a significant historical example of a war crimes trial woven into the culture of peace.

On Dec. 9, 1946, in Nuremberg, Germany, proceedings were opened in a case against 23 defendants that was to become known as "the doctors' trial."

When it reviewed the evidence, the tribunal concluded that the human experiments which formed the basis of the charges "were performed in complete disregard of international interventions, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations."

The tribunal recognized the legitimacy and the legality of certain forms of medical experimentation on human beings and expressed the existence of a consensus that certain basic principles must be observed "to satisfy moral, ethical and legal concepts." The tribunal then enunciated the 10 principles that became known as the Nuremberg Code.

Michael Grodin, a bioethicist who co-authored a major scholarly work on the doctors' trial and the Nuremberg Code, says: "Perhaps it was the unprecedented nature of the atrocities committed by Nazi physicians that has made the Nuremberg Code the hallmark for all subsequent discourse on the ethics of human experimentation."

This is probably the most compelling case for a conception of international courts that embraces a purpose much larger than most domestic criminal trials. It is with this broad purpose in mind that the work of international judicial institutions should be evaluated. They should avoid the glorification of individual defendants to the point of writing off the entire enterprise if they are not tried and convicted, and they should also resist the pressure for the speediest disposition of the largest number of cases.

Modern international criminal prosecution efforts will continue to demonstrate that personal responsibility for war crimes and crimes against humanity can find its proper place as a measure by which to promote peace and ensure an appropriate balance between security and liberty. Liberal democracies have long been engaged in the search for that proper balance, best described by Herbert Packer in his book "The Limits of the Criminal Sanction":

"Law, including the criminal law, must in a free society be judged ultimately on the basis of its success in promoting human autonomy and the capacity for individual human growth and development. The prevention of crime is an essential aspect of the environmental protection required if autonomy is to flourish. It is, however, a negative aspect and one which, pursued with single-minded zeal, may end up creating an environment in which all are safe but none is free."

When we have to use repressive legal measures like criminal penalties, it is critical to remember, as Mr. Packer observed, that the ultimate goal of law in a free society is to liberate rather than to restrain.

The criminal sanction serves to affirm a shared preference for law-abiding conduct, which then becomes the basis upon which a community of like-minded individuals, or nations, is formed and nurtured. It relies on the appetite, and indeed the basic need for belonging.

In that context, it is truly astonishing that powerful perpetrators of atrocities have not only remained unpunished over the years, but that they have not even been ostracized. It is the "them amongst us" that must be addressed through the exposition of their crimes, because as long as they are among us, we are them.

Kofi Annan’s Lessons in Global Leadership

Originally published in Project Syndicate

Sadly, principled statesmen and women who can forge bold, morally consistent responses to today's global problems are in short supply. We must therefore safeguard and promote the virtues that the former UN secretary-general embodied.

The world is facing a set of acute crises without recent parallel: a war in Europe that could escalate into a nuclear conflict, skyrocketing food prices that are hitting the poor the hardest, the COVID-19 pandemic, and the climate emergency. We need principled statesmen and women to forge bold, morally consistent responses to these and other global problems. Sadly, such leaders are in short supply.

Many politicians prefer to advocate polarizing policies, avoid hard choices, and deny the scale of the threats at hand. Others have tried to address these issues honestly. But those who favor cooperation and solidarity in dealing with global threats are on the defensive, as last year’s underwhelming United Nations Climate Change Conference in Glasgow and grossly unequal global access to COVID-19 vaccines clearly illustrate.

In times like these, we should recognize and honor those leaders who do try to tackle global challenges responsibly and constructively. Twenty-five years ago, one such figure, Kofi Annan, became UN secretary-general at another moment of global disorder, amid the political uncertainty and regional conflicts that followed the end of the Cold War. Although he could not have known it then, the UN system would soon face the traumas of 9/11 and the Iraq War.

Kofi led the UN with humanity and strategic vision. He revolutionized international development programming by launching the Millennium Development Goals (MDGs), the precursor of today’s Sustainable Development Goals. He built innovative partnerships such as the Global Fund – which brings together civil society, the private sector, and international agencies – to combat HIV/AIDS. He oversaw the dispatch of UN peacekeepers to stabilize and rebuild weak states, like Liberia, and help build new ones, like Timor-Leste. And he ushered in the idea of an international “responsibility to protect” the vulnerable from mass atrocities.

[Kofi Annan seeked] to make [the UN] more open, inclusive, and transparent.

As the UN’s administrator, Kofi cared deeply about the institution where he had spent most of his working life, seeking to make it more open, inclusive, and transparent. He was also the first secretary-general to develop a link between the UN and the private sector, and strongly supported civil society.

Moreover, he urged the major powers to reform the Security Council to reflect post-Cold War realities. He would not have been surprised by the Council’s current inaction over Ukraine, although it would not have deterred him from doing all he could to halt the conflict.

As a public figure, Kofi enjoyed a level of global recognition and respect that most national leaders he worked with could only envy. This was partly because he had a decency and instinctive respect for others that struck all those who met him. He brought out the best in his colleagues and could laugh with them – and at himself – even in moments of high pressure. He connected easily with young people, inspiring them and giving them hope. While UN officials respectfully referred to “Mr. Annan,” to many, including us, he was simply “Kofi.”

In addition to his personal qualities, Kofi grounded his leadership in certain basic principles. One of these was a deep respect for the rules and institutions of the post-war international order, reflected in the UN Charter, which he saw as undergirding peace and security.

This does not mean that he was always cautious. Although he could be pragmatic when necessary, he also took risks. In 1998, he traveled to Baghdad to meet with Iraqi President Saddam Hussein in an effort to avert war in the Middle East, and he supported the establishment of the International Criminal Court, despite fierce opposition from successive US administrations.

[Kofi Annan] was dogged in his pursuit of peace, even where … the chances of success were slim.

To be sure, Kofi knew that not all of his diplomatic gambles would pay off. He was dogged in his pursuit of peace, even where – as with the Israeli-Palestinian conflict – the chances of success were slim. After stepping down as secretary-general at the end of 2006, he continued to work as a peacemaker in countries ranging from Kenya and Syria to Myanmar. He was sometimes frustrated, but he continued the demanding work of building relationships with mistrustful political actors until his death, in 2018.

Kofi was driven by a fundamental concern for the dignity and welfare of all people, especially the most vulnerable. This informed his advocacy for not only the MDGs but also fair elections and democratic institutions. He cast himself as a global advocate for the common good, arguing that countries shared a “common destiny” and that “we can master it only if we face it together.”

It is easy to admire Kofi’s virtues in retrospect, but it is more difficult than ever for leaders to replicate them in the present. In an era of populism and division, those who champion solidarity and unity – within or between countries – are often drowned out in public discourse. It is therefore vital to speak up more loudly on their behalf.

For this reason, our organizations – the Kofi Annan Foundation, the International Crisis Group, the International Peace Institute, and the Open Society Foundations – have joined forces to launch a new initiative to celebrate leaders who reflect Kofi’s qualities. Later this year, and in each succeeding year, we will invite a national leader or inspiring international figure to give a lecture in New York on the values of international cooperation. We will select the speakers based on their commitment to human rights, international solidarity, and the defense of the international system that characterized Kofi’s life and work.

“I have always believed that on important issues, the leaders must lead,” Kofi said in 2014. “Where the leaders fail to lead, and people are really concerned about it, the people will take the lead and make the leaders follow.” Now more than ever, we must safeguard, celebrate, and promote the virtues he embodied.

For more information about the Kofi Annan Lecture series see here.

Contributors

Nane Annan
Wife of the late Kofi Annan, nutrition advocate, artist, and former lawyer
President & CEO
EroComfort
Susana Malcorra
Co-Chairs Crisis Group, former foreign minister of Argentina
Mark Malloch-Brown
Member of Crisis Group's Executive Committee, former deputy United Nations secretary-general, co-chair of the UN Foundation, and President of the Open Society Foundations
Zeid Ra'ad Al Hussein
Former UN high commissioner for human rights, President of the International Peace Institute