Nick Grono - Deputy President, International Crisis Group
Richard Dowden - Director, Royal African Society
Janet Love - Director, Legal Resources Centre, South Africa
Marta Foresti - Programme Leader, Politics and Governance, ODI
States coming out of armed conflict or repressive regimes often face a legacy of violence, mass atrocity and human rights violations. These societies face difficult choices about how to deal with this legacy, while at the same time engaging in peace-building and state-building. To do nothing sends a powerful message of impunity, and perpetuates the terrible sense of trauma, loss, injustice and exclusion felt by the victims. At the same time, activating transitional justice mechanisms through truth-telling processes or criminal justice mechanisms can put in jeopardy precarious peace-processes where the perpetrators of violence still have veto power. Moreover, transitional justice processes which do not assure certain minimum standards of due process and rule of law are likely to be quickly discredited or politicised.
Where domestic political and capacity conditions are such that impunity is likely to prevail, or that due process is not assured, the international community can step in to facilitate transitional processes. In recent years there have been major developments in terms of emerging international jurisprudence and international criminal justice mechanisms on addressing cases of mass atrocities and human rights crimes. Second, the international community has in some cases stepped in to facilitate domestic justice and truth-telling processes. But this is not without risks.
The aim of the session is to address some of these dilemmas through the following questions
· What are the challenges of reconciling transitional justice demands with peace-building and state-building realities on the ground in post-conflict states?
· How is the role of international criminal justice mechanisms shaping up in supporting transitional justice? What are the political tensions that may arise from this in fragile contexts where human rights violators continue to have veto power over the political process?
· Is there a clear the role for the international donor community in transitional justice processes?
Pilar Domingo opened the meeting by introducing the speakers and outlining some of the difficult dilemmas that arise in supporting peace-building and state-building process. These include trying to reconcile short versus longer term imperatives, such as negotiating a peace agreement and supporting robust efforts to achieve transitional justice. Identifying ways to manage and resolve the dilemmas of supporting war to peace transitions is a central theme throughout the ODI meeting series on Fragile States. This event focuses on the issue of transitional justice and how these processes can be mostly effectively supported by national and international mechanisms amongst wider efforts to build peace.
Nick Grono (Deputy President of International Crisis Group)
Nick Grono initiated his presentation by outlining two main arguments against international justice mechanisms:
The first is a claim of hypocrisy, with some African leaders and institutions amongst others, arguing that international justice mechanisms are a Western imperialist imposition. The international Criminal Court (ICC) is biased against African countries and has become a tool for the strong against the weak as both Russia and US are not members of the court and have the power to veto any potential investigation against them. Although there are some deep flaws in the current ICC, particularly the veto of the Permanent five of the Security Council, many of these criticisms are often self-interested. They come from leaders who fear potentially facing the ICC. However some African leaders have in fact come out and disassociated themselves from the AU’s calls not to cooperate with the Court in the wake of Omar Bashir’s indictment. These claims of hypocrisy should be followed by attempts to expand the universalism of these mechanisms rather than contract them, and there are signs of progress with Richard Goldstone’s investigations of war crimes in Gaza. The ICC is also starting to look into whether it has jurisdiction to investigate war crimes in Afghanistan, which could include the coalition forces.
The second argument is that international justice mechanisms can hinder the prospects of achieving peace by undermining peace agreements. A nuanced variant of this argument claims that justice needs to be more culturally appropriate and that Western models of retributive justice clashes with other values and traditional justice mechanisms, hindering processes of reconciliation.
Nick outlined what we mean by international justice. It refers to cooperation between and among countries to hold accountable human rights abuses as stated in international treaties and conventions. There are various public policy objectives such as the de-legitimisation of perpetrators and regimes, rehabilitation, retribution, truth-telling, incapacitation, norm institutionalisation and deterrence. Most of these relate to in-country processes but norm institutionalisation and deterrence have broader international significance, particularly when dealing with tensions between peace and justice.
Justice is important in fostering peace and stability, and this has come out strongly in Kenya, where the report of the Waki Commission on Post Election Violence has warned that the failure to prosecute those involved in organising the violence will lead to greater violence in the upcoming 2012 elections and Kenya is at risk of becoming a failed state.
International justice mechanisms also connect with domestic processes, which are deemed more credible and legitimate. In fact, the Rome Statute through the concept of complementarity recognises that prime responsibility for bringing perpetrators to account lies with the state and that the ICC should only intervene when domestic mechanisms are unable or unwilling to bring about justice. A contentious issue is that restorative justice processes do not meet the requirements of concept of complementarity as the ICC is based on retributive processes. This has led to criticism by proponents of African views of justice that claim that most Africans prefer reconciliation and forgiveness over prosecution, however, these views are often propagated by elites and do not necessarily reflect wider views of most African citizens.
Although justice can foster peace, there are also some tensions between peace and justice, particularly during peace talks. There is a Faustian dilemma, around whether justice issues should be included in peace agreements in order to avoid impunity and a set a deterrent to those that might commit future atrocities or whether, for the sake of a peace agreement, a degree of impunity if justified. There is no straight answer; but there are a few issues that can help resolve this dilemma. Firstly, the dilemma is often more purported than real. For example, in Sudan, there is no real peace process underway. Secondly, the ability to give amnesty to the worst perpetrators is increasingly constrained as there is a growing international norm opposing such action. Thirdly, there are mechanisms in place to ensure the interests of peace are taken into account when there is a clash with justice. Article 16 of the Rome statute allows the Security Council to put investigations on hold for 12 months if necessary. Fourthly, a key policy objective of international justice is to deter future possible crimes and there are signals that it does work as a deterrent but there are also indications that other factors influence whether atrocities are carried out. However, if peace always trumps justice, the deterrent effect will become negligible.
Janet Love (Director, Legal Resources Centre)
Janet Love discussed the South African experience of justice and its relation to democratic transition, suggesting that the perceived success of justice process was contingent on the transition rather than vice versa. She dismissed the idea that the Truth and Reconciliation Commission (TRC) represents a ‘miracle’. Although it did partially achieve some of its objectives in terms of reconciliation and a full disclosure of what transpired, there were some difficulties, such as the fact that evidence has emerged that some of the disclosures were not full versions of the events that took place. There are also ongoing significant gaps in information around the fate of many ‘disappeared’ individuals. In terms of truth exposure, the TRC was partial, although the truth that did come out was critical for the nation to recognise its past.
The justice system still has responsibility to take actions against cases even where there has been reconciliation between victims and perpetrators. Yet, this has been problematic due to the lengthy legal processes of the court and the time that accused parties have had to disguise and fabricate evidence. There is still therefore a sense of ongoing impunity to some extent in South Africa. There have been similar concerns with the ability to administer justice through the courts in other countries such as Rwanda.
Another problem outlined by Love was the fact that actions pursued in support of the racial hegemony of whites are treated equally with actions taken in pursuit of democracy. Also, the closure of the TRC should have been followed by restitution processes but these have not been implemented to its fullest extent and there have been huge delays.
Although, the TRC did enable a level of truth, discourse and dialogue and some reconciliation, it also led to a sense of a deferral of justice for many. There is an illusion that the TRC led us on a path towards racial harmony but the reality is very difficult and democratic transition will take decades. There are many deep divisions in South Africa and are often manifested in social and economic inequities.
The impact of the TRC on the notion of justice has been mixed, and if we look at what drove the transition in South Africa and its fragility is the creation of justice system and constitution. The development of the constitution was a participative and transformative process. With it came a renewed confidence in the judicial process. This was a central component of democratic transition, as the constitution places the judiciary at the heart of the process of transforming South Africa from an undemocratic past to a more prosperous future. The new mechanisms of checks and balances have driven the transition but at the same time, there is a sense of unfulfilled expectations and fragility .
Janet Love finalised by stating that the international community has understood its role in supporting justice as dealing with criminal issues and retribution and not in promoting human rights. There is a need to ensure that the way we understand the notion of achieving a social order without poverty and depravation is embedded in a development discourse that is linked to governance and fulfilment of rights.
Richard Dowden (Director, Royal African Society)
Richard Dowden responded to the presentations arguing that the understanding of justice in Africa is different to Western understandings, with African culture favouring non-retributive justice. There is a lack of personal bitterness among African culture and although there is a danger of generalising, personal experience has shown that it is in fact a significant component in African understandings of justice. This contrasts with the revenge killings that took place in France after the Second World War and to Ireland, where there is a legacy of bitterness after the war.
Politically driven depravation and a colonial legacy that is contrary to a sense of nationhood, have driven many of the wars in Africa, and the level and seriousness of these issues indicate that there is in fact not enough violence in Africa. In the aftermath of war, there is a surprising lack of bitterness of among different groups and individuals. In this regard, South Africa is in fact a miracle, and the four year constitution building process is unprecedented and drove the transition process. In Mozambique, Rwanda, Angola and Sierra Leone, many of those involved in the wars and have a history of committing crimes have been pardoned and many hold significant positions in government. These processes contradict Western understandings of justice and although they are not a model of democracy, they have brought about certain levels of reconciliation and stability and it is unlikely that many of these wars will reignite.
Dowden recognised that the argument that international justice mechanisms simply represent Western Imperialism is an easy way out, but at the same time, the ICC has sought to gain early wins by investigating African cases and avoided more contentious issues related to crimes committed in other parts of the world. This has important consequences for peace. For example, in Sudan, the decision to indict President Omar Bashir was a huge risk and although he did not pull out of the peace process, there may be long term implications. Similarly in Northern Uganda, ICC investigations hindered the peace process with the Lord’s Resistance Army.
African countries are old societies within a new state, but often without a sense of nationhood. Therefore, they require new forms of democracy that are accountable and participatory, in which no one is excluded. Western democratic systems based on first past the post, multi-party, winner takes tend to divide African societies vertically and subsequently aggravates ethnic tensions by excluding large groups and individuals.
Pilar Domingo opened the discussion highlighting some key points from the presentations. She emphasised the importance justice mechanisms have in driving peaceful transition and the deterrent effect that justice mechanisms can have and their potential in preventing violent conflict. Domestic mechanisms are also crucial, with the TRC in South Africa, despite some of its limitations, has supported wider processes of state-building and democratisation. The complexity of justice mechanisms and the multiple layers of justice that exist highlight the need to broaden our understanding of the concept and if appropriate seek alternative mechanisms that are not of a retributive nature.
The main issues that emerged from the discussion were:
Trade-offs between peace and justice
Although trade-offs between peace and justice are often inevitable, there are controversies between the extent to which these trade-offs occur and whether amnesties should be given for the sake of peace. In Northern Ireland, peace only took place once the extremists were included in the peace negotiations and this has some lessons for places such as Afghanistan. However, these deals also need to be representative and include the interests and opinions of the population. This could mean non-retributive justice mechanisms, such as those that took place in Mozambique, but the importance is to ensure that the mechanisms used are able to address the critical issues and tensions that emerge in conflict and post-conflict contexts.
International Criminal Court
There were some concerns that the timing of the ICC could hinder peace processes. For example, the fact that the court is seeking to investigate those accused of organising violence in Kenya, just a year and half after the events took place, could damage attempts to recovery from the conflict. Yet the fact that the Waki Commission highlighted the need to ensure justice mechanisms were put in place to prevent future violence indicates that immediate action is in fact necessary. Timing should however, be context specific and in other cases the timing may be inappropriate, but the Rome Statute does have measures to take this into account.
Restorative versus Retributive Justice
The fact that in current conflicts the distinction between victims and perpetrators is sometimes difficult to make was raised, with implications about the type of justice mechanisms pursued. Although making this distinction is sometimes difficult, it is more useful to view victims and perpetrators of a conflict along a continuum with different degrees of responsibility. The difficult cases such as adducted child soldiers that later go on to commit crimes, can be resolved through accountable processes that determine responsibility and the appropriate form of justice.In Sudan, there is a range of justice mechanisms and the ICC is one among them. It is not the solution to all justice related issues but should be part of a broader process that also includes restorative justice mechanisms. Traditional authority and law can be part of these mechanisms and they have often played a significant role in supporting transitional justice and peace. However, traditional law has often been politicised and captured with elites. Therefore, in South Africa, traditional law is part of the constitution but as long as it does not contradict its bill of rights.