The Role of International Justice Mechanisms in Fragile States

The topic I’ve been given is the role of international justice mechanisms in fragile states.

The fragile states I’m going to focus on are conflict and post-conflict states, as conflict is more often than not a pre-condition to international justice processes.

It follows that I’m going to talk quite a bit about Africa, as it is home to most of the world’s current or recently ended conflicts, and is receiving much of its international justice attention these days. Right now it hosts two international criminal tribunals, in the Special Court for Sierra Leone, and the International Criminal Tribunal for Rwanda. It is also the subject of all of the ongoing investigations and prosecutions by the International Criminal Court.

This attention is being met by some pretty trenchant criticism from certain African quarters. A number of African leaders have labelled international justice generally, and the ICC and universal jurisdiction in particular, as a Western, imperialist imposition. This opposition has manifested itself in resolutions by the African Union requiring states not to comply with universal jurisdiction warrants, or with the efforts of the ICC to arrest President Bashir.

A great deal of the criticism is transparently self-interested. The push at the recent AU summit against the ICC was led by Presidents Gaddafi and Bashir – with reports that Gaddafi in particular resorted to intimidation of member states to ensure passage of the resolution. Both fear being one day hauled up before an international criminal court, so their opposition should be viewed in that light. It’s also notable there is a divergence of views on the issue among African leaders. A number were privately unhappy, and some publicly. Botswana disassociated itself from the resolution, pointing out that “the people of Africa, including the people of Sudan, deserve to be protected from the perpetrators of such crimes”. President Zuma recently declared that Bashir would be arrested if he came to South Africa.

Leaving AU politics aside, many in Africa, and elsewhere, have strong and legitimate concerns about the effectiveness or appropriateness of international justice as applied in conflict states.

There are perhaps two principal criticisms.

The first is the hypocrisy argument. This is to the effect that international justice, as exemplified by the ICC and universal jurisdiction, is a Western tool, deployed against the global south. Much of this criticism crystallises over the Middle East – with President Bashir and others declaring that the ICC’s failure to investigate Israeli leaders over Gaza undermines its legitimacy. A related criticism is that the ICC is used by the strong against the weak, with states such as the US and Russia exempt as non-members, and protected by their veto power on the Security Council. The U.S. failure to prosecute officials allegedly responsible for torture only compounds the criticism of the selective reach of international justice.

Of course, there are deep flaws in the nascent system of international accountability. Constraints on the ICC reflect many of the constraints built into our international order – with the veto power of P5 states being used to protect themselves and close allies. However, the picture is more complex than a simple claim of hypocrisy allows. Thirty African states have signed up to the ICC – presumably in the desire to tackle impunity in Africa regardless of progress elsewhere. Three of them have explicitly invited the ICC to conduct investigations on their territory.

But, in the end, the best response to claims of hypocrisy is to extend the reach and universality of justice, not wind it back and make it more selective.

And international justice is not standing still. We’ve just seen the publication of the hard-hitting Goldstone report into events in Gaza. The ICC is also looking into whether it has jurisdiction to carry out investigations in Gaza and in Afghanistan. If it proceeds in Afghanistan, it has the power to investigate actions by Coalition forces there. Likewise it is also examining alleged Russian and Georgian atrocities committed during their war last year. And the U.S. attorney-general has announced a limited inquiry into possible abuses by CIA officials. These are small but important steps towards broader international accountability.

The second criticism is that international justice is too often an obstacle to peace. The argument is that an insistence on criminal prosecution of leaders may prevent peace deals from being made, thereby prolonging conflict and consequent suffering.

A more nuanced variant of this criticism is that justice needs to be culturally appropriate and that so-called Western-inspired retributive justice clashes with other values and traditional justice mechanisms, jeopardising reconciliation efforts, most visibly in Africa.

Richard Dowden, my fellow panellist, has forcefully and eloquently made these peace and Western justice critiques in the past. Given that he’ll have the last word on this panel, let me make some pre-emptive observations.

What do we mean by international justice?

There are a number of ways to characterise international justice. In simple terms it is cooperation between and among countries to hold accountable individuals accused of grave human rights abuses. Those abuses are defined in international treaties and conventions such as the Rome Statute and the Genocide Convention.

International justice – like robust domestic justice – serves a range of important public policy goals such as delegitimisation of perpetrators or regimes, retribution, incapacitation, rehabilitation, truth telling, norm institutionalization and deterrence.

Most of these goals impact primarily on the war-torn society and don’t resonate much beyond the particular conflict. But two of them – norm institutionalization and deterrence – are of broader significance and may contribute to the prevention of future conflicts elsewhere in the world. I’ll come back to this point later, because it goes to the heart of one of the justice dilemmas, namely if and when justice should take priority over peace.

How does justice contribute to peace?

Peace is not just the absence of raging conflict. It is also a sense of security restored. From this perspective, justice is not an obstacle to peace, it is integral to it. It occurs when an equilibrium is re-established between victims and perpetrators, with any desire for revenge being channelled through legitimate institutions.

Lest this sounds too philosophical, or ethereal, let me give a practical example from Kenya. Following the announcement of the contested presidential election results on 30 December 2007 giving a second term to Mwai Kibaki, Kenya went through its worst political crisis since independence.

Six weeks after proclamation of the contested results, protest riots, repression by security forces and revenge killings by supporters of both camps resulted in over 1,000 deaths and more than 300,000 internally displaced persons (IDPs). The loss for the economy was $1.5 billion in two months.

This violence shattered Kenya’s reputation for stability. The grisly images of a church compound with as many as 30 people inside torched by vigilantes in southern Eldoret and of Nairobi slums on fire illustrated the fragility of a national fabric in which the disparity between rich and poor remains one of the world’s biggest.

That was two years ago. The next presidential elections are scheduled for 2012, and already we are seeing the sides preparing for a contested outcome and consequent violence. The fear of many analysts is that violence next time around will even greater than the last election. There is a real concern that Kenya could fracture if that is the case.

Following the violence, the Kenya government established the Waki Commission, named after the Kenyan judge who headed it up, to investigate what happened, and make recommendations on how to prevent a recurrence.

The Commission concluded:

• The main perpetrators of systemic violence have never been prosecuted. Currently Kenya is at a critical juncture. Violence is endemic, out of control, is used routinely to resolve political differences, and threatens the future of the nation.
• Kenya needs to decide if it wishes to let violence, corruption, and powerless institutions prevail or to introduce fundamental change. Simply put, the individuals and institutions who have benefited in the short term from the chaos and violence need to give up the methods they have used or Kenya could become a failed state.

How does international justice relate to domestic justice mechanisms?

There is a growing recognition that credible domestic prosecutions are generally preferable to international justice prosecutions. Such prosecutions will often have greater domestic legitimacy, and allow justice to be done and seen to be done where the offences were committed, not at a tribunal on the other side of the world.

This is reflected in the Rome Statute by the concept of complementarity – which is a fancy way of saying that the primary responsibility to prosecute crimes rests with the state and not any international mechanism. This is one of the key innovations of the ICC. It is premised on respect for a state’s sovereign right and responsibility to prosecute its offenders.

So, in Uganda, we have seen the proposal by the Ugandan government, with apparent agreement of the LRA rebels, to set up a special chamber of the Ugandan High Court. A key motivation here was to demonstrate that Uganda was willing and able to try senior LRA rebels, in preference to ICC prosecution.

In Sudan, we have seen repeated assurances by the Sudanese government that it has the capability to try Sudanese perpetrators, though it patently hasn’t done so to date. And of course, there is no prospect of Sudan putting President Bashir on trial. Of greater interest here is the Mbeki panel, established by the AU, which will be reporting shortly, and which is expected to recommend the establishment of a hybrid court, comprising Sudanese as well as Arab and African judges, to try serious crimes committed in Sudan. It is highly likely that this recommendation is being made with one eye on the ICC.

In Kenya, politicians have been debating whether to set up an independent tribunal to try those responsible for last year’s post election violence. This was the key recommendation of the Waki Commission. The incentive has been the threat of ICC intervention if no action is taken, though it appears that has not been incentive enough. The ICC’s engagement appears to have received broad support from ordinary Kenyans.

These are all judicial mechanisms. A more difficult question is whether other justice processes of a restorative and not retributive nature – such as reconciliation ceremonies – would meet the requirements of the Rome Statute. It is unlikely they would, as the statute focuses on investigation and prosecution – and these are essentially retributive processes. This is where proponents of an African justice approach take issue with the Court.

I don’t have the experience or authority to state with any confidence what form of justice Africans desire. I do suspect that too often however, what is asserted as an African view of justice is in fact that of the elites who perhaps have the most to fear from accountability. And not just in Africa, but also in places as diverse as Afghanistan, Timor-Leste and Sri Lanka. Maybe the countless victims of mass violence in Africa and elsewhere would prefer forgiveness over prosecution, though all too often I believe it is asserted for them without their views necessarily being taken into account.

Is it possible to have peace and justice in conflict situations?

Regardless of the benefits of international justice, the crux of this debate is whether we can have both simultaneously when it comes to ending conflict. And what to do if we can’t.

It’s usually during peace talks that the parties to a conflict begin focusing on justice and accountability issues. The reason for this is simple, if distasteful, namely that they don’t want their hard-won peace to result in them being tried and imprisoned for atrocities they may have committed during the conflict.

This is why, in such situations, we often are faced with hard decisions about trading off justice for peace. The Faustian bargain we have to consider if all other options have been exhausted is whether the benefits of a peace deal, which will likely end continuing and future atrocities, justify a degree of impunity for those responsible for past atrocities.

And I’m not going to give you a clear-cut answer, because I don’t think there is one. But I’ll end with some points to consider.

First, the issue arises less commonly than might be expected. For a start, there often is no peace in place, or in prospect, to be derailed by an insistence on accountability. So, in Sudan, despite vehement claims that the ICC is an obstacle to peace, the Sudanese leadership has not demonstrated any real willingness to pursue peace in preference to its brutal counterinsurgency campaign, beyond largely token gestures. The peace and justice debate would be much more acute in Sudan if the NCP was able to demonstrate a real willingness to achieve a peaceful solution to the country’s conflicts.

Second, perpetrators’ ability to demand explicit impunity, in the form of an amnesty for past crimes, is increasingly constrained – at least for the worst perpetrators. There is an emerging international norm that amnesty can’t be granted to those most responsible for genocide, crimes against humanity and serious war crimes. This is reflected in UN practice, and means that such an amnesty is rarely on the table, at least where there is a degree of international participation in peace talks.

And even where amnesty or safe haven may be on offer, its value to the perpetrator is increasingly being undercut by this emerging norm. Hence, Liberia’s Charles Taylor, who was given safe haven by Nigeria, is now on trial in The Hague because of the intense international pressure that was brought to bear on Nigeria’s President Obasanjo to hand him over for trial.

Third, there are mechanisms and processes in place to ensure that the interests of peace can be taken into account if there is a genuine clash with justice.

For example, when it comes to the ICC, the Rome Statute has a specific provision, article 16, allowing the Security Council to defer investigations and prosecutions for renewable 12-month periods, pursuant to a chapter VII resolution. There are no criteria guiding exercise of this power, so presumably the Council is at liberty to intervene provided it is acting under its charter mandate to maintain or restore international peace and security. This is the main exception to the ICC’s independence that I flagged earlier. Much as justice advocates may deplore the fact, it appears that the Security Council can act to put a prosecution on hold in the interests of peace, regardless of the impact on justice.

A final consideration I want to mention is that of deterrence. A key policy objective of international justice is to deter future atrocity crimes in states where they have been committed previously and elsewhere. The argument is that if leaders genuinely believe that they are likely to be prosecuted if they commit such 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 Waki Commission certainly had deterrence in mind with its recommendations – stating that “The eradication of impunity will therefore, not only blow off the cover for persons who break the law of the land but also deter others who may contemplate similar deeds in future”.

The challenge with deterrence is to establish that it works. It is not too difficult to establish that the threat of criminal prosecution affects the calculations of warring leaders. It’s more difficult to establish is that it can do so to such an extent as to prevent future conflicts. 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. But what can be said is that if peace deals regularly trump justice, then the deterrent impact of international justice will likely be negligible.

International justice is slowly expanding its reach. Among other things, that means we will be required more often to address tensions between justice objectives and peace or reconciliation efforts. Often the tension is more purported than real. But where there is a real tension, then the best approach lies in a clear-headed understanding of the objectives that all are seeking to achieve – namely a reduction in human suffering and a more peaceful and secure world – and working out how to most effectively achieve them in the short and longer term with the range of tools at our disposal.