Humanitarian aid and the International Criminal Court: Grounds for divorce (2)
“NO PEACE WITHOUT JUSTICE”
The second main argument used in support of the International Criminal Court is that there can be “no peace without justice.” This argument is summed up perfectly in this 6 March 2009 editorial in Le Monde:
“Justice and the pursuit of peace go hand in hand. There is no contradiction between them, notwithstanding those who advocate a realpolitik based on questionable reasoning. Louise Arbour, the former prosecutor for the International Criminal Tribunal for ex-Yugoslavia who, in 1999, charged Slobodan Milosevic with the crimes in Kosovo, said it often: to obey the imperative of justice is to contribute to peace, not scuttle it. (…) Nothing should be conceded to the Sudanese tyrant on the basis of gestures or promises that thus far have done nothing to change the reality of a murderous policy. Justice is not negotiable.”
The expression “no peace without justice” does not, however, reflect historical reality. All of human history gives lie to the assertion that judging war criminals is a necessary condition for peace. To take only a few recent examples, from Mozambique to Northern Ireland, from the Basque country to Angola and South Africa, it has been policies of amnesty, pardon or forgetting that have accompanied in the end of war.
The expression “no peace without justice” is therefore prescriptive. It means that only peace agreements signed by non-war criminals are worthy of being reached. Louise Arbour’s predecessor, Richard Goldstone, is every bit as explicit as his colleague: “A peace masterminded by and in order to accommodate the concerns of vicious war criminals defiant of all fundamental international law prescriptions or norms is no such effective or enduring peace.”(1)
This theory of just peace confers upon the Court the legitimacy of deciding who is and is not worthy of bringing hostilities to an end. Luis Moreno-Ocampo, Chief Prosecutor of the ICC, told the press in February, “Mr. Bashir could not be an option for [negotiations on] Darfur, or, in fact, for the South. I believe negotiators have to learn how to adjust to the reality. The court is a reality.”(2)
By maintaining that certain leaders could under no circumstances be considered political partners for peace, the Court and its supporters are in effect recommending waging war with them. ICC activists who promise the Sudanese president the same fate as Slobodan Milosevic or Charles Taylor are saying the same thing. Indeed, these two heads of state were finally brought before the courts only after international military operations helped drive them from power.(3) So a theory of peace through justice is above all a theory of just war.
In practice, the exercise of international criminal justice in wartime has a greater tendency to radicalize conflicts than to pacify them. In the case of Darfur, the prospect of ending his days behind bars if defeated will only encourage President al-Bashir to use the most radical means possible to stay in power. Reciprocally, designating the Sudanese president as an “enemy of humanity” justifies the intransigence of the armed opposition, which sees itself supported in its refusal to negotiate with an acknowledged “criminal” unsuited to sign an “effective or enduring” peace.
We should stress, however, that such radicalization is not necessarily a bad thing. One way to end conflicts and their atrocities is to lead one of the warring parties to rapid victory. Making outlaws of political leaders can help do this, as long as it’s accompanied by a military and diplomatic effort to oust them from power – in other words, to bring about regime change. That is what the ICC and its supporters in Darfur are asking for, though not in so many words. They are asking foreign governments to place police and military resources at the Court’s disposal to arrest the president of Sudan. Apprehending a leader who commands an army and a domestic security force, and who has numerous allies both within his own country and internationally, is no simple police operation.
So “no peace without justice” is not a peacemaking slogan, but a call to war. What makes it unique is that it is being proffered by a Court (and its advocates) in defense of the idea of a “republic of judges, or more precisely a republic of prosecutors,” authorized to designate which political leaders should be fought with weapons, judged, and condemned as enemies of humanity, and which can be considered respectable partners for peace. In so doing, ICC advocates are again injecting a spiritual element into war –”just” war, par excellence, since it is fought in the name of an absolute Justice – and thereby encouraging that it be taken to extremes.
“HEALING THE WOUNDS”
A gentler version of the ICC’s peacemaking function portrays it as part of the process of societal reconciliation when hostilities are over. It’s no longer a matter of containing the violence of a war in progress, but to prevent its resurgence. The International Criminal Court is seen as one possible instrument of this reparative and calming “transitional justice.”
The conditions that would allow a society broken by mass violence to rebuild an internal democratic order is a topic for a vast debate. Suffice it to emphasize here, though, that the functions attributed to the ICC by transitional justice often resemble a form of collective psychotherapy (judicial “catharsis”) or exorcism (naming the evil and rooting it out of society).(5)
More modestly, it is sometimes asked to symbolically condemn a small number of criminals in order to reaffirm a few founding principles of the political body as moral community. While the idea makes some sense, only local courts are potentially capable of doing it successfully – that’s the whole point of “show trials.” On the other hand, as Martti Koskenniemi points out, “When trials are conducted by a foreign prosecutor, and before foreign judges, no moral community is being affirmed beyond the elusive and self-congratulatory “˜international community.'”(6) Studies on how trials brought by the ad hoc tribunals for Rwanda, Yugoslavia and Sierra Leone have been received by the societies in question often reveal their incomprehension of, or even hostility to, the international legal proceedings.
In the case of Rwanda for example, an ICG report concluded in 2001 that “For the majority of Rwandans, the ICTR is a useless institution, an expedient mechanism for the international community to absolve itself of its responsibilities for the genocide and its tolerance of the crimes of the RPF [Rwandan Patriotic Front]. The Rwandan government complains of the squandering of money and resources while 130 000 prisoners fill its jails and its courts have tried more than 4000 suspects; the survivors of the genocide find the tribunal distant and indifferent to their lot, and the victims of the crimes of the RPF denounce it as an instrument of the Kigali regime, seeing the ICTR as a symbol of victor’s justice.” (7)
As a matter of facts, what advocates of the International Criminal Court aspire to, above all, is the creation of a universal moral and judicial community. When MSF joined the Coalition for the International Criminal Court in 1998, the intention was to construct a supranational legal system independent of the arbitrary discretion of states.(8) Extraterritorial, relying directly on the victims and the NGOs, the ICC envisioned by MSF would subject states to the rule of law. Having signed international commitments regarding fundamental human rights, they would have to respect them. The Court would ensure that by punishing leaders who violated international law. The ICC thus envisioned would be the primary institution of a world government ensuring “a more just international public order,” making humanitarian law and human rights enforceable. This vision is reminiscent of the legalist utopia of late 19th century international jurists, who saw the State as a temporary step on the path to the complete emancipation of the individual within a global federation subject to the rule of law.(9)
The ICC statutes adopted in Rome on 17 July 1998 did not meet those expectations. The Court’s jurisdiction is not universal. It may initiate proceedings only when crimes have been committed within the territory of a State party to the Rome Statute (108 out of 192), or when those charged are nationals of one of these States. In other cases, the court can launch investigations only on condition of express Security Council resolution in accordance with Chapter VII of the United Nations Charter. That’s the procedure that was used to refer the Darfur situation to the ICC. Indeed, Sudan did not ratify the Rome Statute, and told the UN that it did not consider itself bound by its provisions. The Court’s jurisdiction was therefore imposed on it by the Security Council. There is little chance that this will ever happen to the United States, Israel, China or Russia.
The Security Council also has the power to suspend ongoing proceedings for a period of one year, renewable indefinitely. Finally, when it comes to arresting and handing criminals over, obtaining officials’ testimony or investigative means, the Court is totally dependent on the goodwill of national governments. In short, contrary to the wishes expressed by numerous NGOs, the ICC is not above nations, but remains captive to the power relationships that define the international stage.
ICC advocates regard this as a temporary flaw that will disappear with the progressive establishment of a world order based on respect for law and justice. In the west, legal systems have extended their jurisdiction by stages and by the progressive unification of territories and society. In addition, perfect equality before the law is an unattainable ideal, including in liberal democracies, where the rich and powerful are less likely to incur the wrath of the legal system than are the poor and weak. And while the ICC’s jurisdiction is limited for now to weak states, as Human Rights Watch puts it, “justice should not be denied where it can be achieved simply because it is politically impossible to ensure justice for all.”(10)
Nevertheless, the selectivity of international prosecution is inconsistent with the very idea of justice. The law’s strength resides in the way it applies to everyone equally, and that of the justice system in the impartiality of its judgments. To the Sudanese government, understandably, and to a majority of Arab and African countries, there is a flagrant contradiction between the principle of justice touted by the ICC and the reality of the political power relationships that shape its field of action. Or as President al-Bashir ask, “Where was international justice during the invasions of Iraq and Afghanistan, the bombing of Gaza, and the crimes committed in the prisons of Guantanamo and Abu Ghraib?” (11)
President al-Bashir’s posturing as a nationalist hero of the Sudanese people he has massacred, pillaged and despised for twenty years is not fooling anyone, any more than the “anti-imperialist” solidarity shown him by certain heads of state who fear above all being called to account for their own base actions. The hostility from some Arab and African quarters to the charges against Sudan’s president is nonetheless real, and is less a reflection of “collective solidarity” than a disagreement with the purpose and priorities of the International Criminal Court. Where liberal internationalists see the seed of universal justice, some portion of the intellectual and public opinion in poor countries (that is, two thirds of humanity) sees an irresponsible and contemptuous justice system at the bidding of the dominant powers.
Diplomats from the African Union – whose troops are deployed in Darfur, and which is in charge of peace negotiations in collaboration with the UN – are among the most critical. They justifiably point out that the charges against al-Bashir have helped radicalize the positions of both sides, and destroyed any prospects for peace. Many share the criticisms aimed in 2005 against the ICC by anthropologist and human rights activist in Uganda Adam Branch, who accused the Court of being an obstacle to the signing of a peace accord between LRA rebels and the Ugandan government:
“Whether as the subject for risky medical procedures, unconventional weapons, or aggressive economic restructuring, Africa has for over a century been the unwilling, and often unwitting, subject of experimentation by the West, the place where scientists, strategists, and technocrats can try untried techniques without being accountable to those experimented upon. The most recent experiment is not being carried out by shadowy CIA operatives or ruthless scientists, but by the organisation that is supposed to usher in a new regime of accountability, an end to impunity, and a global rule of law: the International Criminal Court.”(12)
If the hope for justice is universal, adherence to the ICC is not – and neither is its jurisdiction. The three main arguments supporting the involvement of humanitarian organizations on the ICC’s behalf are therefore weak. The Court may have its virtues, but they aren’t those attributed to it by the dominant discourse of aid actors. At this stage in its history, the ICC’s ability to prevent, enlighten, pacify, reconcile and be truly universal is extremely open to doubt.
On the other hand, the ICC is a new international actor for regulating conflicts – a half-political, half-judicial hybrid. And though it has no police or military capacity, it possesses the not-insignificant symbolic power to declare high-ranking political leaders enemies of (democratic, liberal) humanity. The emergence of this new actor – shaped by international power relationships, yet endowed with real independence – is likely to produce unanticipated political consequences. These may, in individual cases, help thwart mass crimes, in the same way that peacekeeping operations do.
Nevertheless, NGOs’ infatuation with punitive justice and, more generally, the use of force – like military intervention in the name of the “responsibility to protect” – is puzzling. Foreign military intervention and the punishment of criminals are not necessarily the best ways to contain the violence of war. While politics of aid and mediation have many limitations, they also have their virtues. The job of humanitarian organizations, to my mind, is to foster the latter, and not to advocate for a global moral order based on judicial punishment and just war.
Fabrice Weissman is Research director at the Centre de Réflexion sur l’Action et les Savoirs Humanitaires (CRASH/MSF).
(1) Goldstone, R. (1998) Bringing war criminals to justice during an ongoing war. In J. Moore (eds), Hard Choices, Moral Dilemmas in Humanitarian Intervention. Rowman and Littlefield Publishers.
(2) Ocampo, L. M. (2009) Prosecuting Sudan. In Foreign Policy. February. http://www.foreignpolicy.com/story/cms.php?story_id=4698 accessed on May 15, 2009.
(3) see Jézéquel, J.H. (2004) Liberia: Orchestrated Chaos. In Weissman, F. (eds) In the Shadow of “˜Just Wars’: Violence, Politics and Humanitarian Action. C. Hurst & Co., London.
(4) Hazan, P. (2007) Juger la guerre, juger l’histoire. Presses Universitaires de France, Paris p. 205.
(5) Hazan, P. (2007). p. 45ff.
(6) Koskenniemi, M. (2002). p. 11.
(7) International Crisis Group (2001) International Criminal Tribunal for Rwanda: Justice Delayed. Africa Report n°30, 7 June. p. iii.
(8) Coppens, T. and Saulnier, F. (1998).
(9) Koskenniemi, M. (2002).
(10) Human Rights Watch (2009) Darfur and the ICC, Myths versus reality. Press Release, 9 march.
(11) AFP (2009) Beshir rallies Sudanese ahead of warrant decision. 2 march.
(12) Branch, A. (2005) The ICC should stop its African experimental investigations now. The Monitor, Kampala. 13 January.