It must be acknowledged that international law, both customary and humanitarian, is undergoing significant changes with regard to crimes committed during armed conflicts.Â Thus it is difficult to assert that international legal measures for dealing with crimes against humanity should be assessed primarily in terms of successful prosecutions given that there is a paucity of empirical evidence to substantiate claims about how well criminal trials actually achieve the goals ascribed to them (Souare, 2009:377-381). More research needs to be done on the subject but I would suggest that decisions to prosecute should be tailored to the specific context and that in some cases an adherence to international legal fundamentalism may be counterproductive. Successful prosecutions may in some cases not be the best method for dealing with crimes against humanity. An investigation of the International Criminal Court shall be the focus of this essay. The decision to create a permanent international criminal tribunal or court dates back to the late 1940s but did not come into force until 2002. It has the power to exercise jurisdiction over genocide, crimes against humanity and since June 2010, the crime of aggression (Allen, 2010). However, since its inception, it has yet to clarify its role. There are currently a number of debates as to what its role could be. The ICC is wrestling with the central question that has confronted previous international justice institutions: what, and for whom, is international justice ultimately for? Is it intended to fulfill a moral obligation to prosecute those chiefly responsible for the most serious crimes? Is it to deter future criminality? Should it help to improve the material conditions of victims and affected communities? And how far should it attempt to contribute to wider social goals such as peace and reconciliation? (Clark and Waddell,2007). As the ICC has yet to define which of these goals should take precedence, it remains unclear as to whether crimes against humanity should be assessed primarily in terms of successful prosecutions. On the ground these issues become more complex. For the purposes of this essay I will be engaging with three of the debates and discuss how successful prosecutions may impact upon them. Firstly, can it deter future criminality by ending impunity? Secondly, can it contribute to peace and reconciliation? Lastly, can it be universally applied given its western origins? In the end, difficult choices have to be made about how to balance the decision to prosecute with the acute importance of peace, accountability, deterrence and the strengthening of the institution of the ICC (O’Brien and Grono, 2007).
Deterring future criminals by ending culture of impunity?
There are a number of arguments for how successful prosecutions can impact upon deterring future criminality and ending the culture of impunity. Primarily, by not prosecuting, it may not only compound a dangerous sense of impunity among the violent but may also strongly encourage violence on the part of the as yet not violent (Keen, 2008:174). In addition, amnesty provisions constitute an acceptance of impunity and can be regarded as condoning the crimes committed by those amnesties (Souare, 2009:375). Therefore, successful prosecution should show that violence has consequences and should act as a disincentive. In the case of Uganda, only by enforcing ICC arrest warrants against the indicted leaders of the Lord’s Resistance Army (LRA) would the international community send them and generally other warlords around the world a powerful signal that would dissuade them from committing such grave crimes in the future (Ssenyonjo in Souare, 2009:377).Â However, the evidence remains mixed.
With reference to ending the culture of impunity this goal is fundamentally flawed. It assumes that a culture of impunity exists. There is no impunity. Had Joseph Kony of the LRA been captured by the Ugandan army before the ICC had been brought into Uganda, he would most likely have been killed (Ku and Nzelibe,2006). Hence, the idea that this is ending impunity does not stand up to scrutiny. If successfully prosecuted by the ICC, he would face a life sentence in an air-conditioned, European prison. This is likely to send the wrong signal, as Kony would arguably be relatively less punished, to victims in Uganda, who believe the ICC will bring them justice and end the culture of impunity. Nevertheless, there is evidence to suggest that the ICC prosecutions have to some extent deterred future criminality in northern Uganda. Rather than making civilians more vulnerable, northern Uganda is safer and life is slowly improving (O’Brien and Grono,2007). Despite this gain, their future safety is likely to rely on successful peace talks. It is clear that the ICC and the prosecutions will remain a very real stumbling block to achieving an end to the conflict.
Contribution to peace and reconciliation?
There are historical precedents for prosecutions contributing to peace and reconciliation. For example, while the key remaining Nazi leaders were executed at the Nuremberg trials, the leaders of the Western Allies pursued a policy that aimed broadly at rehabilitating West Germany while radically refashioning it as a country committed to the norms of tolerance and democracy (Cobban,2009). Some also argue that only prosecution can provide a guarantee of durable peace by dealing with the discontent felt by victims of violence (Souare,2009: 377). Hence, it is arguable that successful prosecutions can engender peace under the right circumstances.
However, I would argue that it is unlikely that this could happen without huge commitments, following prosecution, to develop norms of tolerance and democracy, which are unlikely to be welcome in divided states such as Uganda and Sudan. Furthermore, in weak states, international prosecution is likely to have a number of destabilizing effects, notably the perpetuation of conflict. Alex de Waal has argued that the ICC’s overzealous pursuit of President Omar al-Bashir of Sudan could ruin years of diplomatic progress resulting in massive human cost (de Waal, 2009). Additionally by pursuing a rigorously interpreted ‘duty to prosecute’ deep seated social and political cleavages can all too easily perpetuate, keeping in place a situation in which fundamental human rights continue to be denied and threatened on a massive scale (Cobban,2009). The court may actually have the unintended effect of reminding victims exactly why they hate the perpetrators, exacerbating the crisis. Prosecutions that lead to a socially divisive peace settlement are unlikely to be resilient without massive repression. This has arguably occurred in Rwanda where President Kagame has pursued policies of broad collective punishment of Rwandan Hutus (ibid). This has done little to engender reconciliation between Hutus and Tutsis. Furthermore, international prosecutorial measures can make it less likely for perpetrators of human rights abuses to consider a peace settlement when the reward is a prison cell.
Thus successful prosecutions arguably will not contribute to peace and reconciliation. It should therefore not be viewed as the primary mechanism of dealing with crimes against humanity. Evidence from South Africa suggests that a more inclusive approach in the form of truth and reconciliation commissions may be more likely to foster a peace settlement. Keen (2008:182) argues that by holding back from certain types of prosecution and offering amnesties in return for truth telling, South Africa was able to avoid civil war. From here, it has been able to build a relatively socially inclusive polity without the need for prosecutions. Therefore, international prosecutors must consider the implications of indicting war criminals. An end to violence and future violence must be the goal of international involvement. Prosecutions are likely to act as a limitation on peace negotiations (Allen, 2005:117). This is currently a sticking point in Uganda’s peace process. Proponents of this position argue that the pursuit of justice should be up to a limit where it will not hamper the peace process or endanger national reconciliation (Souare, 2009:377). This makes international prosecutorial measures for dealing with crimes against humanity deeply problematic.
Furthermore, international prosecutorial measures ignore the need for an intentional and successful politics of peacemaking (Cobban, 2009). By changing the focus from inclusive peace-building that aims for a new beginning to an exclusive, polarized peace, rooted in past atrocities, it is less likely that a peace will be durable. In contrast, in specific contexts, amnesties can be offered in order to bring about peace. This has arguably worked in South Africa and Mozambique. This goes strongly against the idea that crimes against humanity should be dealt primarily with prosecutions. The context is paramount and an adherence to dogma rather than strongly engaging with the specific issues is an unwise strategy. Evidence from South Africa and Mozambique show the benefits of truth and reconciliation methods.Â These were successful as they approached the peace process through socially inclusive negotiations, which clearly showed that an amnesty approach might be the least worst solution (Brett, 2009:203) in pursuing peace.
Universal application given its western origins?
There are arguments to suggest that international legal measures for dealing with crimes against humanity should be assessed through local justice mechanisms with the ICC facilitating such an approach rather than through prosecutions. For example, Branch has argued that international law must be guided by those it is claiming to serve, and by their vision of what is just and prudent (Branch, 2004). Accordingly, the ICC’s role in Uganda has been attacked as an effort to impose a partial and compromised ‘Western’ form of ‘justice’, one which sets aside or ignores local mechanisms for conflict resolution, social reconciliation and the allocation of accountability (Allen, 2005). Prosecutions are seen to be counterproductive in a culture, which supposedly prioritises forgiveness and reconciliation over punitive justice. I would disagree with this supposition, which is currently being supported by, among others, the LRA, the very people who would stand to lose from international prosecutions. The view that there is a specific mechanism of forgiveness, to which all the tribes in the north subscribe, is dangerously romantic. Moreover, many victims are evidently keen on the ICC prosecution but are simply concerned with the negative ramifications that may flow from such arrests (ibid).
Despite the fact that this court is based in the west, the values it espouses are arguably universal â€“ victims throughout the world tend to want perpetrators to be punished. Certainly many Africans have not had much choice about the role of justice in their lives (Allen 2007) but this does not mean that prosecution should not be considered when pursuing justice for the victims. There certainly does seem to be support among victims for some kind of accountability for those who have abused them (Allen, 2005:167). However, each situation must be taken in context. The lack of a functioning state to enforce prosecutions is likely to make prosecution of powerful perpetrators very difficult. Therefore although successful prosecutions would theoretically bring justice to victims, in practice it might be very difficult to secure this.
Throughout this essay I have endeavoured to demonstrate the problems with dealing with crimes against humanity assessed primarily in terms of successful prosecution. With regard to ending a culture of impunity I dispute the existence of such a culture but do acknowledge that prosecutions can sometimes deter future criminality. In the case of promoting peace and reconciliation, it is arguable that successful prosecutions will not necessarily lead to peace and that other mechanisms should be explored such as truth and reconciliation commissions, which worked very well in South Africa. These were successful as they approached the peace process through socially inclusive negotiations, which clearly showed that an amnesty approach may be the least worst solution (Brett, 2009:203) in pursuing peace. Additionally, regarding the charge that international legal measures for dealing with crimes against humanity should be assessed through local justice mechanisms, which favour forgiveness I strongly argue that the desire to punish perpetrators of violence is universal. Allen’s research certainly shows that there is support among the victims for some kind of accountability (2005:167). However, I do acknowledge that it may be difficult to pursue prosecutions given the complexities on the ground. Finally, it is clear that more research needs to be done on the subject but I would suggest that the decision to prosecute should be tailored to the specific context and that in some cases an adherence to international legal fundamentalism may be counterproductive.
Felix baden-Powell graduated from the University of Edinburgh with an MA(Hons.) in Politics and is now at LSE studying Development Management.
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