Back to the Middle Ages? Response to Thabo Mbeki and Mahmood Mamdani’s op-ed: “Court’s Can’t End Civil Wars” – Anonymous
True, courts can’t end civil wars, but international criminal courts were created to make sure that certain forms of extreme violence are outlawed and that the perpetrators of crimes against humanity, war crimes and genocide are punished. The idea of the ICC was that to create a consensus about this in the international community and to mobilize resources to make sure that punishment against these crimes becomes a reality, irrespective of the status or political role of the perpetrators.
Sadly, it is also true that this consensus has been put into question by the campaign of certain African governments against the ICC, and this is partly because the international community has not always followed through on its promise, which was the combination of the ICC and R2P. And it is also true, and deplorable, that international justice has too often been the justice of the victors.
The examples Thabo Mbeki and Mahmood Mamdani give are pertinent and problematic. Pertinent because these examples – Mozambique, South Africa, Uganda – were successful and impressive cases of peacemaking; and problematic because they deferred justice forever and left the victims under the impression that their grievances are ignored and that there is only one way to achieve redress – by taking up arms. The long war in northern Uganda was an expression of this, and perhaps the renewed violence in Mozambique as well; and South Africa is among the countries with the highest homicide rates in the world. Violence, if unpunished, tends to perpetuate itself.
What is even more problematic is that Thabo Mbeki and Mahmood Mamdani condone the fact that the peace process in South Africa “decriminalized the perpetrators and incorporated them into the political order” (para. 9), and they seem to insinuate that this should also happen in cases of extreme violence like South Sudan, Congo, or Kenya.
Dealing with justice in conflict management is a very delicate issue. One has to strike a balance between seeking agreement with the key stakeholders – who often include war criminals – and administrating justice. Trying to do the latter at the wrong moment can lead to a continuation of violence and cause more harm to civilians.
In this respect, I agree with Thabo Mbeki and Mahmood Mamdani that the priority should always be to end (civil) war and to achieve peace. Justice has to take into account not only past victims, but also consider the possibility of future victims, and peacemakers have a responsibility to do everything to protect the latter. The harm done to past victims is done. Harm to potential future victims can still be avoided, and that should be the first priority of all efforts of conflict management.
Where I strongly disagree is when the authors say: “Unlike criminal violence, political violence has a constituency and is driven by issues, not just perpetrators.” This statement implies that political violence is not criminal because it has a constituency. Hitler, arguably, had a constituency, and so did the perpetrators of the Rwandan genocide. Should they have been included in an post-war political arrangement? Most people would disagree, and here is why:
Modern societies condone the killing of human beings only in one context: self-defence, whether individual or collective. But with the Geneva Conventions, violence against civilians in war situations is been considered criminal. Until the R2P resolution, there was a silent indifference towards intra-state violence under the principle of non-intervention. But since the Rwandan genocide and the ethnic cleansing in the Balkans, the international community has come to realize that certain forms of extreme violence are crimes against humanity and hence, humanity as a whole has a responsibility to prevent them. Prevention includes the punishment of perpetrators, hence the creation of the war crimes tribunals for Rwanda and ex-Yugoslavia, and subsequently the ICC.
With the Geneva Conventions, the creation of the ICC and the R2P resolution, the international community has declared certain crimes unpardonable. Those who commit them are beyond the pale, in the original sense of this expression. Bringing them back into the realm of civilization under the guise of the primacy of peace over justice amounts to undermining international human rights and reversing two centuries of struggle to establish them.
Determining what acts are crimes against humanity, who is responsible for them, and finding the right moment to arrest the perpetrators, may be very difficult. It requires great diplomatic skills and fine judgment. And in an international context where some African leaders decide to protect their peers from international justice and attack the ICC instead, this dilemma can lead to desperate proposals for the sake of realpolitik.
But it is still the wrong answer to a very real problem. The international community has to stand by its commitments to protect civilians from extreme violence and to punish those who commit them, whatever the circumstances. Failing to do so means disposing of basic international human rights law, condoning acts of violence in civil strive that would be considered war crimes in an international conflict, and going back to the Middle Ages. Anything goes, even massacring women and children of the other ethnic group, as long as you reserve your seat at the negotiating table.
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While criminalization of war crimes and holding to account those individuals who are most responsible for commissioning those crimes is an important first step in changing norms and discouraging abuse, I struggle with the idea that to commit such crimes is to go “back to the Middle Ages.”
Crimes against humanity are a relatively new invention in a practical sense. While theories of Just War may be centuries old, brutal violence against civilians, including politicized violence like ethnic cleansing, is as old as warfare itself. The opening chapter of C.V. Wedgewood’s “The Thirty Years War” is shockingly familiar in this regard.
Remember, too, that crimes against humanity are usually carried out in the context of a strategy. While I think it’s fair to say that there are many who deviate (Hitler and Pol Pot leap to mind) and that, on an individual scape, crimes against humanity are often also crimes of base opportunism, they are frequently strategic.
This is because they are highly effective, whether we are talking about reprisal raids against Indian villages in the Old Northwest shortly after the American Revolution, the Union Army’s March to the Sea in 1864, or the apparently successful genocide in Darfur. Washington’s goal in destroying Indian encampments was to inflict unacceptable losses on a once and future adversary. Sherman’s destruction of the Southern countryside was rooted in his correct assumption that the enemy’s will to resist could be eroded by material loss. Genocide was a tactic employed in the Darfur region to drive the Fur and other “non-Arab” tribes from their land.
In fact, spectacular violence, including violence against the populace for whom wars are ostensibly fought in the first place, is in some ways consistent with the very notion of war. Since 1990, the international community appears to have invested heavily in the notion that war is the byproduct less of structural factors in certain societies than of bad men — an oligarchical theory of war, call it. Thus one sometimes heard calls for the U.S. to bomb Syria without much considering of whether Assad’s death would have really given regime stalwarts and allied tribes a reason to lay down their arms. (I argue that it would not have done so, although it is interesting to consider whether Assad and others like him would revert so readily to violence if they were given golden parachutes.)
The result is to seduce the international community, “What if somebody threw a war and nobody came?” But honestly, it is hard to conceive of war without civilian loss, especially when war is not yet fully automated and does not involve large-scale maneuver of conventional forces. Indeed, trying to lessen the burdens of war may be unwise: as Luttwalk has pointed out, war involves winners and losers, and the losers must agree that they have lost.
It is clear to me that the international community is unprepared to intervene where civilians are most at risk. It is also clear to me that the international community has a tendency to freeze conflicts in such manner that civilians keep suffering even as the combatants stall. The DRC and Sudan both provide heartbreaking examples. One unconventional solution might be to choose and back one side over another — to try to force a speedy, if one-sided, conclusion where a “hurting stalemate” is clearly not encouraging movement toward peace, stability, or, ultimately, justice.