Another Hurdle for International Criminal Justice

It has always been a struggle to hold accountable those who participate in genocide, crimes against humanity and war crimes. The power of sovereignty together with centuries of impunity is a formidable foe. Thankfully, the last 70 years has seen the tide turn in favor of international criminal justice, albeit slightly. Although many mass criminals still escape justice and selective prosecutions do exist, temporary international criminal tribunals for the former Yugoslavia, Rwanda, Sierra Leone, East Timor, and Cambodia have resulted in victories for atrocity accountability, despite their imperfections. The biggest victory of them all is the International Criminal Court (ICC), the world's only permanent international criminal tribunal which began operations in 2002 and has potential jurisdiction over atrocities anywhere in the world.

Genocidaires, violent despots and war criminals continually fight the movement of atrocity accountability. Surprisingly, some well-intentioned bureaucrats, diplomats, academics and human rights advocates also impede the progress of international criminal justice. This motley group has become another hurdle for the cause of justice and in some ways the more difficult one to overcome.

Politician and diplomat Thabo Mbeki and Columbia University professor Mahmood Mamdani argued in the New York Times recently that criminal courts cannot help resolve ongoing or post-conflict situations because the underlying issue is typically "political." They believe that most conflicts are rooted in "political violence", not "criminal violence"; thus they cannot be properly addressed by "criminal courts." Courts, in their minds, "demonize the other side," which makes peace harder to achieve. They conclude that international or domestic courts investigating and prosecuting atrocities are of limited utility to peace, as demonstrated by the fact the U.S. did not use courts during or after its own civil war.

In fact, justice and peace are not antithetical to one another. The two are and should be mutually reinforcing, particularly when they are appropriately sequenced and coordinated. What this precisely means depends so much on the circumstances; yet whether during a conflict or after it has abated, justice must occur. It cannot and should not be dispensable.

As Dr. Martin Luther King once said, "True peace is not merely the absence of tension; it is the presence of justice." Lasting peace is incredibly hard to achieve without appropriately addressing atrocity crimes with some kind of accountability. This is particularly true in large-scale atrocities of catastrophic impact, such as the mass crimes committed in Central African Republic, Sudan, Kenya, Democratic Republic of Congo, Mali, Cote d'Ivoire, Uganda and Libya -- all situations in which the ICC is currently involved.

While too early to tell the ultimate effect of the ICC on each of these countries, history suggest it will be a positive. For instance, criminal prosecutions helped secure peace in the former Yugoslavia and Sierra Leone in the midst of those conflicts. Further, some indicate that ICC prosecutions of Kenya's post-2007 election violence helped make the 2013 election relatively peaceful in a country known for election violence.

Many commentators like Mbeki and Mamdani point out that South Africa's successful transition from its violent apartheid past was done without courts. While true, one must remember that for every successful South Africa situation, there are many more where political compromises and negotiated transitions failed in the short and long-term. History is littered with situations where ceasefires and peace deals descended back into violence and death, back into peace negotiations, as so on. This historical, deadly cycle exists because violence -- whether criminal or political in nature -- did not result in hard consequences. At times, justice may make achieving peace harder, but evidence suggests that it certainly makes the peace achieved better and more resilient.

In developed national jurisdictions everywhere, most, if not all, mass violence is confronted with the rule of law. If a fascist or leftist crime syndicate organized violent unrest in Paris and it was not confronted by the law, but instead negotiations seeking a cessation of the rampage, the message to French people would be that the commission of violence can end in a deal, not a jail cell. At the international level, if those who promote and organize atrocities on both side of a conflict are not subject to accountability, the message of impunity to the citizens of that country undermines the establishment of a peaceful and well-functioning society. Future economic development, as an example, is undercut if contracts are not perceived to be binding, but something bribery can accommodate.

Justice on its own is not a cure-all for all violent crises. It is just one component of many that must and should be used to help end conflicts, instill real peace, and build a productive society. It is essential that all communities -- including international law, foreign policy, diplomacy, academia and human rights -- better understand the importance of justice and work together with this understanding. Confronting atrocity criminals is hard enough.