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…
Continue reading “UNU conference on Transitional Justice”