Time was, there was a nearly wall-to-wall constituency among western human-rights
advocates and other liberals for the viewpoint that any country transitioning
into democracy or out of massiveoy violent conflict should be the subject
of war-crimes trials. That was back in the mid-1990s, after the UN Security
Council had successfully set up the ad-hoc international tribunals for former-Yugoslavia
(early 1993) and Rwanda (late 1994), and people in the international h.r.
movement were well on their way to achieving their goal of establishing a
permanent International Criminal Court.
I was an enthusiastic part of that constituency. (I’ve been an Amnesty
International member for– nearly– ever, and have sat on Human Rights Watch’s
Middle East advisory committee since 1992.) But starting in late 2000, I was
one of the first people in the h.r. movement to start to raise serious questions
about whether this passion for extensive war-crimes prosecutions actually
served the human rights and interests of peole in societies trying to recover from
violent conflict.
For some of my early writings on this topic, see
this
short June 2001 piece in the London-based magazine Prospect, or
this
longer piece on the Rwanda Tribunal and the Nuremberg precedent, that ran
in Boston Review in April/May 2002.
For quite a while there, I felt that my position was extremely lonely. After
all, in the US, when I started to question the wisdom of the pro- war crimes
courts position that put me in the company of folks like the Republican
Party anti-ICC forces and assorted isolationists, “Christian Nation” freaks,
and other Manifest Destiny cheerleaders in general.
And on the “other side”, cheering on the various war crimes courts and shouting
for ever more courts and more prosecutions, were most of the people I most
admire and affiliate myself with in the world. Oh well, I thought through
the issues again and again and again, and set about trying to build and test
the empirical basis for my position by pursuing my research on three conflict-terminating
countries in Africa that all adopted very different approaches to the atrocity-response
challenge.
I was delighted last fall when Ramesh Thakur, the Vice-Rector of the United
Nations University invited me to take make a presentation at a conference
that the UNU held this past week, in New York, on the theme of “The Rule of
Law and Transitional Justice: the Way Forward?” Also speaking there
were Ralph Zacklin, the Assistant UN Secretary-General for Legal Affairs;
Bill Schabas, a distinguished Canadian legal scholar who has published widely
on the law of genocide and war crimes and has helped set up a number of UN-backed
tribunals in recent years; Gerald Gahima, the former Attorney-General of Rwanda;
and various other luminaries in the field.
Delighted, but also quite a bit trepidatious. I had thought that my view
of the lack of utility–or even, on many occasions, the disutility– of war
crimes prosecutions as a way to help conflict-terminating societies address
the legacies of recently past atrocities would be very much the position of
an “outlier” in a room largely full of people dedicated to pushing forward
the prosecutions policy.
Well, maybe I should spend more time in New York. It turned out that
my views were not so much those of an outlier. The proceedings of the
discussion were generally off the record. But I was really happy to
learn how much some of the reservations that I had been expressing are also
now shared by people whom formerly I would have identified as being much
more strongly in the pro-prosecutions camp. These included both Schabas and
Gahima. At several points, conference participants made comments that
indicated that they really do “get” a number of points I have been making
repeatedly over the past four years, such as that:
- atrocity commission is in many cases very closely associated with
the incidence of bitter political conflict; therefore, an atrocity-suppression
strategy must include finding a sustainable and rights-respecting termination
of those conflicts - in the conflict-termination process it is the politics and diplomacy
of that process that is the key to its success; therefore, any “transitional
justice” or “rule of law” strategies adopted in those circumstances should
be subordinated to, and be a part of, that politics and diplomacy; such strategies
should always be pursued within a clear and pro-peacemaking political context - it is the residents of the conflict-torn territories themselves who
should be considered as the primary “stakeholders” or “constituency” for
any TJ/RL interventions; therefore, the desires and interests of other actors
in the international community should be subordinated to the needs of the
local-level stakeholders
But let me back up a little, and describe a couple of the most interesting
other things I got out of the conference…
Firstly, the presentations made by Ralph Zacklin, Bill Schabas, and numerous
other participants gave me a much richer understanding than I’d hitherto had
of the broad history of the phenomenon of international war-crimes tribunals.
Thus far in my work I’d been concentrating mainly on the work of the
two big ad-hoc tribunals established by the Security Council, and to a lesser
extent on the ICC. But at the conference I learned a lot more about
the multiplicity of different forms of “shared-jurisdiction” tribunals that
have been established in recent years, in Sierra Leone and elsewhere. I
learned more about the latest form of UN-backed war-crimes court intervention,
which is to provide strong UN technical help to national jurisdictions to
establish their own sepcial war-crimes tribunals (in Bosnia-Herzogovina,
and elsewhere). I learned more about the joint-jurisdiction court that the UN was able to establish in Sierra Leone alongside a truth
commission, defying the view that former ICTY/ICTR Chief Prosecutor Louise
Arbour once expressed, that the work of a war-crimes court should precede
both in both time and in “jurisdiction” the work of any truth commissions…
In addition, I gained a much richer general understanding than I’d had before
of the way that the whole “transitional justice” field has developed between the time it first became an identifiable field of inquiry and
practice in the early 1990s, and today.
Back in the early 1990s, the dominant type of “transition” being addressed
by TJ theorists and practicioners was of the kind that the countries of
east and central Europe were making from authoritarianism to newfound democracy.
As the new leaders of those societies came to deliberate on how to
deal with the opporessions and violations their societies had suffered in
the past, they were able to draw on and synergize with experiences that some
Latin American countries were also making. At that stage, they weren’t really
looking at centrally at prosecutions as the mainstay of their strategy, but
more at truth commissions and administration measures like vetting procedures
or lustration (open up the files on the past.)
And then came the Bosnian wars of 1991-92, and the groundbreaking step the
UNSC took in February 1993 when it created the ICTY. You can argue,
as I have, that the SC took that step mainly as the substitute for
having a workable policy toward the Bosnian conflict. (That certainly
proved to be the case when the SC created the ICTR 18 months later: when
diplomacy and peacekeeping approaches failed, they sent in large armies of
highly paid prosecutors!)
With the establishment of the ICTY, the whole field of transitional justice
was transformed almost overnight, and for the eight or nine years that followed
it was almost completely dominated by the idea that the aggressive pursuit
of war-crimes prosecutions should and now could make a massive contribution
to human wellbeing. The paradigm there was (a certain reading of) the
history of the Nuremberg Trials of 1945-46. The establishment of the
ICTY was followed fairly rapidly by that of the the SC’s second ad-hoc tribunal,
the ICTR. Meanwhile, human-rights advocates around the world made huge
gains in pursuit of the previously elusive goal of establishing a permanant
International Criminal Court. Legions of highly paid lawyers made their
way to The Hague and to the seat of the ICTR in Arusha, Tanzania. (For
my description of ICTR’s workings, go
here
.) In their wake– in the case of The Hague, if not Arusha– came waves of
international journalists and other opinion-formers. Nearly all these
participants in and professional observers of the war-crimes prosecutions
process contributed to, and actively propagated, the view that international
war-crimes prosecutions could help to build a new world where the end of
“impunity” would help reduce human suffering around the globe.
It didn’t quite work like that…
But the establishment of ICTY and ICTR proved to be a turning-point in more
ways than one. For not only was the content of the “transitional
justice” field thereafter shifted massively toward considering prosecutions
to be the or a major mechanism in the field– but also, the purview
of the field became shifted to one that started to deal more and more with
conflict and post-conflict situations rather than with transitions from authoritarianism
to democracy. In other words, the nature of the “transition” the field
dealt with changed quite radically.
In either kind of transition, offers of amnesty had always previously
been one major tool in the hands of diplomats and other negotiators. From
1993 on, it became far harder for negotiators to be able to use that tool.
The ANC and NP negotiators in South Africa only managed to squeak through
with their offers of limited, individual amnesties to major perpetrators
of past atrocities because of the enormous moral clout of Nelson Mandela
and the other negotiators.
… At present, a number of pro-prosecutions theorists and enthusiasts seem
finally to have come around to an understanding that the tool they have been
perfecting and whose use they have been vociferously advocating in all kinds
of different failed-state, conflict, and post-conflict situations may not
actually be very well suited to the task. At the same time, members of the
international community involved in other types of work– primarily, economic
and social development work– in those kinds of challenging situations have
been dealing with the issues of good governance, social and economic stabilization,
and the building of mechanisms to ensure the nonviolent resolution of local
conflicts from the ground up. Many of those types of project,
which typically are spearheaded by the UN’s massive and fairly experienced
Development Program (UNDP), have been doing much more to promote the rule
of law, and the end of a climate of impunity at the grassroots level
in conflict-wracked countries than the extremely expensive and geographically
far removed war-crimes courts have ever been able to achieve…
So I think that’s where the “next wave” of attention should rightly
go: into supporting those kinds of rule of law efforts, coupled with a lot
more dedicated capacity-building for the national governments concerned.
And that was certainly the tack being taken by a surprising number
of the other participants at the recent conference, which was good.
I could write a lot more about various themes I heard from other participants
at the conference: a warning that calls for “justice” should not always be
heard as calls for “the establishment of a criminal justice process”, and
therefore, an interrogation of the whole concept of “justice”; the need to
use a proactive, elicitive approach to finding out the preferences of the
local actors involved, and the concomitant difficulty of determining–in
many of these situations– who it is that actually “speaks for” the
relevant communities; a questoning (such as I have engaged in on a number
of occasions) of what it is, exactly, that one hopes to achieve through
enacting a punishment against someone; etc etc.
Grist for three or four more very good conferences!
But now, I have to run. So what I’ll do here is I’ll just upload the
written version of the presentation
I made at the conference. I
wrote it last Monday or so– but already, now, I would want to revise it
if I delivered it again. No matter, it is still a work in progress.
If anyone wants to quote from it, remember that it is not a final text
and please get my permission
before you do so.