icon caret Arrow Down Arrow Left Arrow Right Arrow Up Line Camera icon set icon set Ellipsis icon set Facebook Favorite Globe Hamburger List Mail Map Marker Map Microphone Minus PDF Play Print RSS Search Share Trash Crisiswatch Alerts and Trends Box - 1080/761 Copy Twitter Video Camera  copyview Whatsapp Youtube
War Crimes Courts Are a Powerful Force for Peace and Liberty
War Crimes Courts Are a Powerful Force for Peace and Liberty
Explaining the UN Secretary-General’s Cautious Crisis Diplomacy
Explaining the UN Secretary-General’s Cautious Crisis Diplomacy
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.

UN Secretary General Antonio Guterres removes his facemask upon arriving at a press conference on 29 April 2021 at the end of a 5+1 Meeting on Cyprus in Geneva. Fabrice COFFRINI / AFP

Explaining the UN Secretary-General’s Cautious Crisis Diplomacy

Facing intractable conflicts and great-power frictions, UN Secretary-General António Guterres has found it hard to deliver on his promised “surge in diplomacy for peace”. As he applies for a second term, it is worth contemplating why and how he can still leave his mark.

UN Secretary-General António Guterres will make his case for a second five-year term to the UN General Assembly on 7 May. It will largely be a formality. Guterres faces no serious rival for the post, and he is on good terms with all the UN Security Council’s permanent members, although Russia says it is still thinking over his renewal. It is a good moment to reflect on his approach to UN conflict management to date and the challenges he will face in the future.

When Guterres became Secretary-General in 2017, he promised a “surge in diplomacy for peace”. He has found it difficult to deliver, as the UN has been at the centre of few successful peacemaking endeavours during his term to date. Guterres is not entirely empty-handed: after numerous false starts, UN officials have engineered a surprisingly productive ceasefire and political process in Libya. UN envoys have also scored some lower-profile successes, like brokering an end to the 2019-2020 electoral crisis in Bolivia. Nonetheless, as Guterres admitted in a vision statement outlining his plans for a second term starting in 2022, he has found addressing most conflicts on the UN agenda to be “a Sisyphean task”.

Officials working on long-running UN mediation processes elsewhere... say the Secretary-General engages with their work only sporadically and is wary of risking political capital on them.

Although Guterres came into office emphasising the importance of crisis diplomacy, he has generally taken a cautious approach to it. He has, for example, faced criticism inside and outside the UN for refusing to push for a mediating role in Venezuela. In dealing with crises in Africa, such as the war in Ethiopia’s Tigray, he has argued that other actors – such as the African Union (AU) – should take the diplomatic lead. Officials working on long-running UN mediation processes elsewhere, including the Middle East, say the Secretary-General engages with their work only sporadically and is wary of risking political capital on them.

There is hardly reason to suggest that Guterres lacks interest in these topics or the aptitude for engaging them. Indeed, diplomats and UN officials regularly comment on the Secretary-General’s capacity to analyse crises with great acuity even in cases, like last year's war over Nagorno-Karabakh, where the UN has little purchase. They also note that he frequently works the phone with leaders at the centre of emerging crises, although this approach has not always yielded good results. For instance, following conversations with Ethiopian leader Abiy Ahmed over the Tigray war, Guterres appears to have painted far too rosy a picture of what is an appalling humanitarian situation and been too trusting of Abiy to take the right steps to ameliorate it. 

But there are also counter-examples: the Secretary-General has taken an unusually outspoken stance in condemning the 1 February coup in Myanmar. He previously took a firm public line regarding the Rohingya crisis earlier in his term, angering the generals in Naypyitaw.

Guterres’ Caution Explained

In general, though, Guterres’ approach to conflict diplomacy is low-key. Based on conversations with UN officials and Turtle Bay diplomats, there are five broad reasons why.

One is that, on those occasions when the Secretary-General has attempted to take a more prominent role, it has sometimes backfired. In 2017, he made a personal push to bring talks on the reunification of Cyprus to a successful conclusion, but the process failed, leaving him “visibly despondent”. In 2019, he travelled to Libya to promote new peace plans only to find himself in the middle of an escalating war, as rebels launched an assault on Tripoli. These experiences left Guterres wary of making similar personal interventions elsewhere.

The second reason for his approach is his reading of the geopolitical scene. Guterres appears sceptical that he can persuade the Security Council to act in a more unified way – and conscious that its division limits his influence. He may well be right. The permanent members of the Security Council, split over conflicts such as those in Ukraine and Syria, have rarely offered him strong and concerted backing for peace efforts. The Trump administration’s disdain for UN diplomacy made that unity that much more elusive. U.S. officials, for example, cautioned against the organisation taking a greater role in Venezuela as it tried to ratchet up pressure on President Nicolás Maduro. The Security Council was slow to support the Secretary-General’s otherwise widely praised call for a global ceasefire in response to the COVID-19 pandemic in early 2020, due to bickering between China and the U.S. over the origins of the virus.

Guterres has lamented the “dysfunctional” state of great-power relations but does not seem to think he can do much to bring them together.

Guterres has lamented the “dysfunctional” state of great-power relations but does not seem to think he can do much to bring them together. In this belief he is probably justified, as few Secretaries-General have managed to emulate Dag Hammarskjöld’s success in managing great-power tensions during the 1956 Suez crisis.

The third explanation for Guterres’ caution is that he genuinely believes that other actors can and should have a more prominent role in peacemaking. This idea is partly a matter of pragmatism. Faced with the recent post-electoral crisis in Bolivia, for example, the UN combined forces with the Catholic Church and European Union to maximise international leverage in calling for new polls.

Yet in dealing with Africa in particular, Guterres also frames empowering regional players as a matter of principle. He has a deep personal network among leaders in Africa, nurtured as UN High Commissioner for Refugees from 2005 and 2015, and has prioritised both improving UN ties with the AU and encouraging the latter to play the more prominent role in regional diplomacy. In a number of situations, such as talks on the future of Sudan after the ouster of President Omar al-Bashir in 2019, he has argued that the AU or other African organisations should take the political lead, with the UN deliberately in a supporting role. This stance irritates some UN officials, who believe he is downgrading his own organisation, but Guterres has also called for the UN to provide more funding to AU and other African stabilisation operations.

This focus on building up African capacities appears to be linked to a fourth factor affecting Guterres’ thinking, which is a lack of faith in the strengths of some of the UN’s own crisis management tools, in particular blue helmet peacekeeping. In contrast to some earlier Secretaries-General, such as Kofi Annan, Guterres has not been a keen advocate for sending large-scale UN missions to manage crises. He has frequently signalled doubts about the effectiveness of these deployments – a disposition that helped keep him on the right side of the Trump administration, which wanted to cut down peacekeeping costs. In 2018, he warned the Security Council that these missions were insufficiently resourced and weighed down by “Christmas tree” mandates (long lists of tasks and priorities beyond their capabilities). Having rejigged UN headquarters structures to improve planning and oversight of security matters, Guterres launched an initiative, “Action for Peacekeeping”, to address the flaws in these operations. This effort has resulted in incremental improvements to UN missions but failed to assuage the Secretary-General’s deeper frustrations with them.

UN officials note that Guterres has stimulated the organisation’s thinking about alternatives to peacekeeping. He has pressed UN development officials, often rather oblivious to conflict risks, to focus more attention on crisis prevention, and promoted closer cooperation with the World Bank on conflicted-affected countries (picking up an initiative launched by his predecessor Ban Ki-moon). These new priorities are evident in Sudan, where the UN has established a political mission in Khartoum with a primary focus on assisting the transitional authorities as they deal with economic challenges on the pathway to civilian rule.

The last explanation that tends to be offered for Guterres’ restrained approach to crisis management is that he is investing his political capital in other areas. He has increasingly focused on climate change and, against the backdrop of the pandemic, both COVID-19 and its social and economic consequences. While his statements on these themes sometimes put him at odds with the Trump administration, they chime nicely with the new team in the White House, and it may be appealing for the Secretary-General to keep his focus on these issues.

Another area that the Secretary-General has prioritised has been technology policy, and he has taken useful steps to push the UN to think more about how artificial intelligence, robotics and other innovations will change the future of both war and peacemaking. Some of his interventions in this sphere to date have been declaratory – he has, for example, called for a ban on lethal autonomous weapons systems – and the UN system has a lot of work to do to think how to respond operationally to these challenges. Nonetheless, he has helped stir discussion.

While Guterres has faced criticisms for his caution in dealing with many conflicts, it is arguable that he is simply reflecting the realities of global politics.

While Guterres has faced criticisms for his caution in dealing with many conflicts, it is arguable that he is simply reflecting the realities of global politics. The short post-Cold War moment in which the U.S. and other powers frequently turned to the UN to manage security problems has been fading into memory for some time.

Whether or not one is sympathetic to the above explanations for the Secretary-General’s restrained approach, his second term is still likely to bring peacemaking and peacebuilding challenges, and more pressure on Guterres to be visibly engaged in addressing them. The Biden administration has already prodded the UN to be more active, throwing its weight behind UN mediation in Yemen and asking it to organise a regional conference on the future of Afghanistan. The new U.S. permanent representative in New York, Linda Thomas-Greenfield, has pushed for more UN action on the Tigray crisis and the Myanmar coup. If the Trump administration placed constraints on the Secretary-General, its successor may create incentives for him to be more active, sometimes in ways that could create frictions with China and Russia, which generally prefer the UN to keep out of what they consider to be internal affairs.

Five More Years of the Grind

Looking ahead, it is easy to identify some crisis areas that are likely to remain headaches for Guterres. One is Afghanistan, where the imminent U.S. troop withdrawal will leave the UN’s civilian mission in the country to work with the beleaguered Afghan government in an increasingly insecure environment. The UN will also have to consider how to wind up some of its remaining large-scale peace operations, including its largest one, in the Democratic Republic of Congo (DRC). The Security Council has signalled that it would like to see the Congo mission, which has been in place for two decades and still involves 17,000 personnel, end in the next few years. But managing this process will be a mammoth task in both technical and political terms, with a risk of new violence disrupting it. The transition will involve coordination between the peacekeepers and the UN agencies that will stay on in DRC, as well as a good deal of politicking with the country’s neighbours – such as Rwanda and Uganda – to manage regional security concerns.

In the Middle East, Guterres will continue to face a divided Security Council over Syria, with Russia wanting the UN to wrap up some of its humanitarian operations (which have involved delivering aid to rebel-held areas without government consent) and focus on reconstruction instead. The U.S. and its allies are still unwilling to endorse such as shift while President Bashar al-Assad remains in office. Western powers were furious when UN development officials recently put together a plan for assisting Syria in the years ahead that, in their view, was far too conciliatory to the authorities in Damascus. Secretary of State Antony Blinken told the Security Council in March that the U.S. will advocate a new expansion of the aid deliveries Russia hopes to shut down. Guterres will have to walk a fine line to find ways to alleviate suffering in Syria without hitting roadblocks thrown up by big powers aligned with different sides of the conflict.

These challenges and other crises – especially those that involve knocking heads together within the UN and placating permanent Security Council members – will require the Secretary-General’s personal attention. In the end, UN crisis management is sometimes less about surges of diplomacy than tending to long, gruelling political processes. When António Guterres secures his second term, he can look forward to five more years of that grind.