The International Criminal Court became operational in July. Washington heaped insult on injury when it vetoed a routine extension of the United Nations’ peacekeeping mission in Bosnia in the same month because of the failure to get a blanket and permanent immunity from prosecution of its peacekeepers by the ICC. Stung by fierce criticism from even its diehard European allies, the United States softened its position slightly, and won a 12-month exemption (which can be renewed) for the peacekeepers of all countries that had not ratified the ICC statute.
The vote in the Security Council on this was unanimous — remarkable because the rest of the world seemed to be as appalled as they were strongly opposed. The Canadians in particular argued that the outcome was a sad day for the U.N.: The damage was not just to the integrity of the court but also to the integrity of treaty negotiations and the credibility of the Security Council itself.
Lloyd Axworthy, who as Canada’s foreign minister had been a powerful voice in the campaign to establish the ICC, has cautioned that “the compromise acquiesces to the Security Council’s questionable right to amend by interpretation a treaty arrived at in open discussion by representatives of more than 100 nation states in a founding convention.”
What Washington has not argued, but would be on firmer ground in asserting, is that international criminal justice, including the ICC, may do more damage and solidify the very social cleavages that led to the crimes of genocide, ethnic cleansing and crimes against humanity. The U.S. cannot argue this, though, because of its own role in establishing the ad hoc ICTs (international criminal tribunals).
The question of determining the fate of government leaders of defeated regimes is primarily a political, not a judicial, question. Criminal law, however effective, cannot replace public and foreign policies. The legal clarity of judicial verdicts sits uncomfortably with the nuanced morality of confronting and overcoming, through a principled mix of justice and high politics, a jointly troubled past. Criminal trial is not always the best instrument for communal healing.
In Rwanda, the ICT route took away from the Rwandan people and government the right to decide whether, how and who to prosecute for alleged mass crimes, and what punishment to inflict on those found guilty. Ironically, the international community was strongly motivated to go down the ICT route by guilt over its failure to halt, or significantly mitigate the consequences of, the terrible genocide of 1994. Moreover, the sense of guilt is stronger precisely because this was a failure of will, of civic courage at the highest levels of political responsibility and moral consequence — not a failure of capacity to act.
The international criminal justice system also takes away from domestic authorities the options of alternative modes of healing and restitution with a view to reconciliation that puts the traumas of the past firmly in the past. In South Africa, this was successfully done by means of the Truth and Reconciliation Commission chaired by Nobel Peace Prize laureate Archbishop Desmond Tutu.
In Mozambique, it was equally successfully done through communal healing techniques. In the peace agreement signed a decade ago after 17 years of bitter civil war, all participants were given complete amnesty for acts committed during the war. As warriors, victims, exiles and the displaced came home, communities reverted to traditional healing rituals designed to take the violence out of the individual person and facilitate reintegration into the community. Their belief is that all those affected by the violence — perpetrators and victims alike — need to be purified from its effects.
In Rwanda, the traditional gacaca system of people’s courts has arguably been more productive and efficient, whereas the ICT track has been slow, hesitant, time-consuming, money-intensive and with not that much to show for it all at the end of the day.
These are all deliberate efforts through social and political channels to escape cycles of retributive violence coming out of decades of tumultuous political conflicts congealed around communal identity, as the purely juridical approach to transitional justice traps and suspends communities in the prism of past hatreds. They fall in the tradition of “restorative justice” systems rather than retributive justice systems. Their record of bringing closure to legacies of systematic savagery in deeply conflicted societies is superior to that of institutions of international criminal justice; the latter’s closure is more authoritative but also more partial and premature.
There are many such examples around the world in widely different societies. What they have in common is an essentially communitarian vision of the proper relationship between the individual and society. To the extent that human beings are social animals, each person’s individual identity is the product of a complex social construction of communal identity, and cannot be isolated from that. Therefore, if society is privileged over the individual, then restoring social harmony is more important than punishing individual wrongdoers.
Against this, though, it has been argued that only universal liability can arrest and reverse the drift to ad hoc universalism — from Nuremberg and Tokyo to the Yugoslavia and Rwanda tribunals. After all, the U.S. has maintained excellent relations with Germany and Japan as major allies despite the Nuremberg and Tokyo tribunals; indeed, some would argue because of them. The case of Augosto Pinochet in Chile shows that without criminal accountability, wounds do not heal and can be easily reopened. Only when justice is seen to have been done can true healing begin.
We cannot deny that the choice may be a painful one, that the government and the people may be divided on the issue and that the resulting public policy may turn out to be flawed. The point is that these are profoundly political choices that may involve complex tradeoffs, not primarily and simply legal decisions.
For that reason, the choice is one that only the country concerned can make, not the least because it is the country that paid the price in the past and will have to live with the immediate and long-term consequences of the decisions made.
Three years after Indonesian-backed militias laid waste to his country, East Timor’s President-elect Xanana Gusmao declared that justice for the perpetrators of the violence would be subordinated to development and social justice. “We fought, we suffered, we died for what?” he asked. “To try other people, or to receive the benefits of independence?”
In any case, the choice of a justice system may not be as dichotomous as posited: A society may choose to begin with one but move to bring closure with the other, as is starting to happen in some Latin American countries with respect to their legacies of “dirty wars.”
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