By
Keith Swartzendruber
SIS 596-01
Reconciliation and Justice
11 December 2001
And Justice for All? Reconciliation and International Tribunals
Since the end of the Cold War a new ethic of human rights and accountability has begun to emerge. This is most evident in the establishment of two criminal tribunals for Rwanda and the former Yugoslavia to try those responsible for atrocities. These are the first such tribunals since the Nuremberg trials at the end of World War II. But the more recent manifestation of post war tribunals (while similar in attempting to deal with atrocities that occurred during war) is distinct in that they are seen as an integral part of peacebuilding efforts in post civil war societies rather than a bringing to justice of the losers of an interstate war.
This atmosphere has given rise to the efforts to bring about a permanent international tribunal to try cases of atrocities as a way of promoting reconciliation in post civil war societies. In Rome in 1998, a draft statute for the new International Criminal Court (ICC) was adopted. The ICC was seen as the centerpiece of a new international system of justice based on the universality of human rights. But the role of the new ICC is still taking shape. Certainty about the mission of the ICC is beginning to drift a bit as political bickering between signatories and the United States is slowing the process of constituting the ICC. The most important role that the ICC will play is in trying to bring a stable base of human rights to efforts at peacebuilding in conflict areas. Essential to responding to the needs of victims of human rights abuses will be how the ICC constructs the history of a conflict and whether it will pursue punishment or restoration of the perpetrators of atrocities. But how it will do that is still a question. In order to see how the ICC might do this we must first examine the theoretical context and then take a look at two recent examples, the tribunals for Rwanda and the former Yugoslavia.
The Theoretical Context for
Reconciliation
Perhaps most important is to first establish a common understanding of what reconciliation is. Generally described, reconciliation can be described as the resolution of a violent conflict. But reconciliation can also entail deep personal and relational transformation and can be viewed differently by the different sides in a conflict. For this discussion, reconciliation can be understood as a long process involving the resolution of conflict, the establishment of justice, and the transformation of relationships between individuals as well as groups within a post war society. Focus will be placed on how the ICC can contribute to each of these areas but is also understood that the ICC alone cannot fully and completely perform all of these functions. It is merely one tool to help this process.
In post-war reconciliation the two most important questions for the ICC will be how it constructs the history of the war and what model of justice it pursues. These two areas affect the way in which the victims of atrocities will be considered and how relations are rebuilt between former adversaries. In order to assure a secure and long-term peace, the primary focus must be on how to respond to the needs of victims in such a way that promotes reconciliation between people. This could be different in different places, meaning that the ICC must remain flexible to respond to particular situations, not a strong point of many international institutions. But the underlying theoretical approach of the ICC is essential to ensure a constructive starting point.
The first and most important part of any trial or judicial process is how the facts are gathered and how the history of the war is told. Typically in the west an objective truth is presumably obtained by the police and a prosecutor in assembling physical evidence as well as the stories of eyewitnesses. The emphasis is placed on the idea that the truth is out there to be found and that a clear determination of who committed what crime can be made. This is the science of jurisprudence. An objective system of justice searching for an objective truth to deliver an objective juridical decision on a defendant’s guilt or innocence. While establishing the facts in any case is important, it is not enough.
Instead of searching for the truth, the goal should be to assemble varying truths from a number of different sources to construct a complete history. Facts and evidence may serve a powerful role in shaping history. But even more powerful is personal experience and the stories of victims. This has become more important recently, especially as evidenced by the creation of the Truth and Reconciliation Commission in South Africa. Despite certain facts, different histories of a war often are a point of continuing conflict that must be addressed. Facts as well as both the stories of each side and their shared stories are essential to constructing a common history. It is in including these other stories that the different views of what is considered fact can be brought together.[1] Dealing with these different views is an important first step in reconciliation.
Within post-war societies, when speaking of justice there is more than just the issue of dealing with criminals. This is but a part of the overall need to create an atmosphere of cooperation and not confrontation in building a new society of peace. Given this special need, tradition models of criminal justice based on retribution are often not suitable to post-war areas. This is not to say that there is no place for punishment of the perpetrators of atrocities. Careful attention must be paid, however, to balance retribution with restoration in an appropriate manor for a particular context to achieve a stable peace.
The importance of restorative justice in post-war societies is often overlooked by outside forces that work to end a particular conflict. They instead work to bring those responsible for atrocities to justice, meaning retribution. Restorative justice is essential in every post-war situation because it seeks to enable the two parties to live in the same place without returning to the distrust and animosity that led to violence before.[2] A retributive method of justice in a post-war society can give a measure of justice, but often at the expense of long lasting peace by perpetuating a competitive atmosphere. Also, unless an outside authority viewed as legitimate by both sides is administering this justice, it will inevitably be viewed as a victor’s justice that favors one side over the other.
Another problem with using retributive justice in a post-war society is whom do you prosecute? In a situation like Rwanda or Yugoslavia, there can be tens of thousands of combatants on both sides. Also, the line between civilian and soldier continues to blur as citizens participate more in violence. In Rwanda the government has dealt with this problem by jailing up to 130,000 people in the wake of years of ethnic violence and genocide.[3] Surely this is not a good answer. In Yugoslavia, prosecutions have been limited to a select few officers who ordered killings. But what about those who did the killings? How are these people reintegrated into society? In situations of mass violence, retribution proves to be an incomplete answer.
John Paul Lederach perhaps best describes the necessary balance between retribution and restoration. He describes reconciliation as the meeting place of truth, mercy, justice, and peace.[4] Reconciliation is the place where these things dance together in tension and in compliment to one another. The nature of the dance as well shows the need for flexibility to change as the context changes. Each one of these four is necessary to work toward reconciliation. One of these dominating over the other can only serve to ensure that violence will continue or return later. There is a place for accountability as well as forgiveness in every post-war society as they try to move toward reconciliation. But even justice for Lederach is described as the restoration of relationships while acknowledging and rectifying what wrecked the relationship to begin with.[5] In order to create a long lasting peace, truth, mercy, and justice must balance and work with one another. It is not truth and justice versus mercy and peace.[6] Rather justice with mercy built on truth can create a strong, long lasting peace.
How can international institutions possibly come even close to this model of reconciliation as they try to establish peace in post-war societies? It is impossible to envision any one institution being able to serve so many roles. What this model of reconciliation shows rather is the international tribunal is but one tool. But it is perhaps the most important tool as it is at the forefront of the international response to resolve a conflict within which a number of different actors will work. In their work, tribunals must keep a broader vision of reconciliation in mind as they work at one aspect of peacebuilding. Whether the International Criminal Tribunals for Rwanda and the former Yugoslavia have done this and how this might happen with the ICC are the subject of the rest of this paper.
Since the end of the Cold War and the international paralysis that came with it a new movement of humanitarianism has emerged. Conventions passed decades before on genocide and human rights that were unenforceable have become the backbone for a new international criminal justice system to deal with age-old problems. The most obvious manifestations of this are the tribunals created over the past decade to try war criminals. The International Criminal Tribunal for the former Yugoslavia (ICTY) was the first such body created since the Nuremberg trials at the end of World War II. The International Criminal Tribunal for Rwanda (ICTR) used the precedent of ICTY to begin its work in the Great Lakes region of Africa trying those responsible for the 1994 genocide there. Out of the impetus created by both of these tribunals came the International Criminal Court, an attempt at making permanent what had to that point been ad-hoc.
The one main accomplishment of all three tribunals to this point is to collect evidence to piece together a history and context for the commission of war crimes. The mere acknowledgement that these crimes occurred is an important first step toward reconciliation. Emphasis is placed on finding Truth so that facts can be established and those responsible can be brought to justice. This investigation is conducted by a prosecutor, who assembles physical evidence and witness and victim accounts of what happened.
But in searching for Truth, the tribunals ignore the ones they are seeking justice for. While guilt may be established for some, inattention to the narratives of the sides of the conflict means that no reconciliation between stories occurs and there is no common history to move from. The distance of the tribunals from the conflicts they were established for means that stories that are told in testimony still might not be heard by society. Victims then may have an international platform to some extent, but their neighbors may never know their story. Transmission of information from trials is important for public education and the formation of a public record. The way ICTR and ICTY have worked has separated them from the very populations they seek to serve.[7]
Given the problem of distance of tribunals, domestic courts become more important in the role of collecting information and disseminating it effectively to the public. In the Rome Statute, the ICC is complimentary to domestic courts. A balance is struck in that the ICC provides a safety net in which to catch the “big fish” that a domestic court may not be able to handle. This balance allows for a better dissemination of information from domestic courts and aids in producing a common history, although still incomplete. ICTR and ICTY were established as superseding domestic courts in both the former Yugoslavia and Rwanda. In Rwanda, however, the domestic courts are still taking on prosecution of all of those who actually committed war crimes while the tribunal seeks out and prosecutes those responsible for giving the orders. This may in the long run prove to be a good balance from the perspective of creating a more complete story. But emphasis is still placed on finding Truth rather than truths, which can lead to some stories being left out.
ICTY was established in 1993 by the Security Council in the belief that it would put an end to crimes that were occurring in Bosnia and contribute to the restoration and maintenance of peace.[9] Europeans remembered the horror of the Holocaust and wanted to try and keep it from happening again. This along with pressure from non-governmental international human rights organizations and the proof uncovered by the Commission of Experts established by the Security Council created the necessary support for the establishment of ICTY.[10] It quickly became obvious, however, that political considerations would outweigh the optimistic focus on human rights in ICTY’s creation. It was thought that arrests by NATO of war crime suspects could worsen tensions and increase violence.[11] In addition, some of those accused of atrocities were the same people involved in negotiations that eventually brought about the Dayton Peace Accords. Despite these political limitations, did ICTY contribute to or hinder reconciliation within Bosnia?
ICTY has had mixed success in working to bring war criminals to justice. The most recent success is the extradition of former Serbian President Slobodan Milosevic and the beginning of his war crimes trial. Despite this most encouraging development, that heads of state could be held responsible for there policies in a court, the Balkans remain a hotbed of tension today. ICTY has failed in a number of respects to contribute to reconciliation in the former Yugoslavia. Two of the most common critiques include ICTY’s lack of an enforcement mechanism and a lack of support from the body that established it, the Security Council, which hurt its legitimacy and credibility.[12]
A primary problem immediately following the establishment of ICTY was finding defendants for it to prosecute. ICTY was established prior to the Dayton Accords. As a result war was still raging throughout Bosnia. This made the apprehension of suspects difficult if not impossible. Once NATO troops moved in to secure the post Dayton peace, ICTY often called for them to actively pursue individuals indicted by the court. By 1999, of 75 people indicted, only nine were in custody and being held in The Hague and only two criminal convictions had been handed down.[13] Since then, the extradition and beginning of the trial for Slobodan Milosevic has redeemed the perceived effectiveness of ICTY. But this only happened when Milosevic was driven from power by a non-violent popular uprising. NATO forces had absolutely nothing to do with it. To date as well, two of the most notorious suspects of the Bosnian War, Ratko Mladic and Radovan Karadzic, remain at large and NATO has not indicated that it has any intention of arresting either anytime soon.
As with any new structure, the main hurdle for ICTY was gaining and maintaining legitimacy. Much of this was out of the hands of ICTY itself as political considerations often weakened the work of the court. But not everything can be explained away by politics. At the beginning of proceedings at The Hague, many of the architects of the slaughter in Bosnia were noticeably absent. It is arguable that the need for peace negotiations and therefore someone to negotiate with created this problem. But even within ICTY itself, there was a lack of will to go after the decision makers. Slobodan Milosevic, who is now on trial, at first was not even considered a suspect. In prosecutor Richard Goldstone’s mind, “that Milosevic may have approved of the criminal conduct of Karadzic and Mladic did not make him guilty of a war crime.”[14] This goes directly against the findings of the Commission of Experts whose report paved the way for the establishment of ICTY. In their report from 10 February 1993, the Commission addressed the issue of command responsibility.
Superiors are moreover individually responsible for a war crime or crime against humanity committed by a subordinate if they knew or had information which should have enabled them to conclude in the circumstances at the time that the subordinate was committing or was going to commit such an act and they did not take all feasible measures within their power to prevent or repress the act.[15]
Without a prosecutor willing to carry out his mandate, it is no wonder the court was viewed as weak at its inception.
Another fundamental reason the court lacked legitimacy and authority early on was the lack of support from the Security Council, specifically the European powers and the U.S. who also were acting under the auspices of NATO and the Contact Group in Bosnia. In a statement to the Security Council following the unanimous vote on resolution 827 establishing the court, then UN Ambassador Madeline Albright stated that war criminals should feel threatened because even though they may not be arrested they could still be indicted. Then they would be international pariahs. It is obvious that the U.S. had absolutely no confidence in ICTY’s ability to conduct trials and no intension of helping to arrest war criminals, as she said governments had an obligation to do two sentences later.[16] It was obvious that governments, especially those involve in trying to resolve the conflict, were going to ignore ICTY if it was more politically expedient.
It is hard to consider theoretical critiques of ICTY when it is plain to see that politics have rendered it relatively useless. The arrest and trial of Slobodan Milosevic is a positive development, but only the first after eight years. It is arguable that it may be too soon to truly know the outcome of ICTY. One main reason for establishing ICTY, preventing further human rights abuses, obviously was not successful. Atrocities continued for at least two years in Bosnia after ICTY’s establishment and in 1999 atrocities were repeated in Kosovo. But the greater effects of retributive justice on reconciliation, what ever they might be or might have been, has been neutralized by politics and a poor organization.
ICTR was established by the Security Council a little more that a year after the creation of ICTY. Its establishment was made much easier by that fact. Much of the statute for ICTY was merely lifted and changed slightly for the context in writing the statute establishing ICTR. It is logical then that many of the same points above could be made with respect to ICTR as well. But one important difference in the political climate between the former Yugoslavia and Rwanda is that those charged with crimes in Rwanda were driven from power before being indicted. This made prosecution much easier.[17] But it also created a dilemma as well. Rwanda itself has conducted trials for those who carried out attacks while ICTR has dealt with those ordering the attacks.
Another important difference between ICTY and ICTR is the cultural context. The former Yugoslavia is in the western world and so models of retributive justice are very familiar. In Rwanda, however, there is less emphasis on individual retribution and more on community justice. Within the Rwandan domestic court system, they have begun to look for other ways of overcoming the mountainous backlog that still looms. One possible answer is gacaca, a community based system of justice. In gacaca, community leaders judge whether or not crimes have been committed in a particular community. Perpetrators would then have to perform some kind of community service, or ubuhake, that used to be ordered routinely by a village chief to complete communal tasks.[18]
This has met mostly positive but still mixed response from Rwandan people. The main idea behind gacaca is that everyone must live side by side in the long haul so it is necessary to restore relationships beyond only retribution for crimes. Some say however that genocide has destroyed any basis for those relationships and has destroyed community. Still however many support the use of gacaca as a more effective means of finding out what happened if those who committed the crimes are given the responsibility to tell the truth.[19] Until they move to this system however, domestic trials will continue with, most importantly, more executions carried out against those found guilty. This disconnect between ICTR and Rwanda threatens to make the work done for reconciliation by ICTR fruitless.
Despite the many critiques of both ICTY and ICTR, they have been positive developments in bringing human rights to more people in more places. The trial of political elites for their decisions has brought a bit more order to an atmosphere of impunity in which many of these leaders believed they were operating. The best outcome of both these tribunals, besides what limited success they have had in their respective contexts, is the precedent they established for the creation of the ICC. It is arguable that the creation of the ICC is as important as the creation of the United Nations back in 1945.[20] The ICC represents a step forward in the efforts to create ways of dealing with war crimes that are effective and foster a culture of accountability and peace. But as with any international organization, there are both positives and negatives.
The first and perhaps most important positive attribute of the ICC is that it is more devoid of politics than its predecessors. The shape and mission of the ad hoc tribunals were at the mercy of the five permanent members of the Security Council that established them. The ICC, while still a political instrument, was constructed by a broad base of governments that strove to create an independent court. While it still is subject to some control by the Security Council, the independence of the ICC lends it a legitimacy that the other tribunals did not enjoy. This independence could as well make it a more effective and organized institution, based on both passed experience and less political meddling.
While the ICC may be a major step in creating an accountability mechanism for those who violate human rights, there are still many criticism of the ICC. Part of the reason for this is that the ICC was created in a large collaborative process. When 185 countries plus hundreds of non-governmental organizations and other international organizations are trying to put in their contribution, the process necessarily produces the lowest common denominator. What was agreed to at Rome was not the best possible model for the ICC, but the most agreeable model. As a result, many have criticized the nascent court.
One critique of the court is that it does not have enough power. Within the statute there are still escape clauses that allow even states parties to opt out of certain provisions of the ICC when they deem it necessary.[21] The concept of complimentarity, different from the supreme jurisdiction of ICTY and ICTR, also weakens the ability of the ICC to hear cases that might be claimed by domestic courts, rightly or wrongly. Because the ICC statute was a negotiated document agreed to by states, sovereignty plays a major role in defining the limits of the court. Despite this limits, some states, such as the U.S., still did not support the final draft statute.
Another weakness cited is once again the lack of an enforcement mechanism. There is no police force established to make arrests. The ICC will be at the mercy of states to make arrests and turn over suspect to the court for trial. In addition, the prosecution of political leaders for war crimes, as has been demonstrated in the past, will require the overthrow of a government.[22] This means that the most important aspect of the ICC, the responsibility to try those responsible for decisions and policies, will be limited.
In struggling to reconstitute itself following the Cold War, the international community has begun to grab a hold of human rights as the central concept for resolving conflicts around which international relations will be based in the future. The movement toward greater accountability within international humanitarian law has been gradual but pronounced. Each subsequent developmental step; from the Geneva Conventions, to Nuremberg, to ICTY and ICTR, and finally today to the ICC, has increased the prospects for reconciliation in post war societies because of the increased attention to the human rights abuses in those societies. This is not to say that our development process is over. But rather that politics and state centrism is slowly beginning to fall away in the interests of new humane order. The primary challenge that remains, however, is continuing to develop the international justice system so that it moves beyond an imperfect and sometimes unhelpful model of retributive justice to include restorative justice as well.
As I described earlier, justice must learn to dance with truth and mercy to achieve peace and reconciliation. The missing element is restorative justice.
While the overwhelming support for western models of justice constructed to bring the powerful to account for their actions is a positive thing, equally negative is the lack of support for peacebuilding activities within post-war societies. Much of this work is left to poorly funded non-governmental organizations that may have the expertise to do some good, but lack the resources to achieve the broad societal changes that may be necessary. In different cultural contexts, the ICC may have no affect whatsoever to on the ground peacebuilding. In Rwanda it is the move to the gacaca system by a strained and almost broken domestic justice system that may prevent more violence, not distant and disconnected ICTR. New commissions set up in Bosnia along the lines of South Africa’s TRC will do more to heal communities on a micro level than the ICTY hundreds of miles away in The Hague.
The international community’s work for justice is not yet finished. While the establishment of the ICC is indeed a good accomplishment, it is not a panacea. In order to continue to improve the work of reconciliation, a new focus on restorative justice and peacebuilding must come forth. States must support efforts at community reconciliation in such a way that utilizes the resources of the international community but also searches the context for tools to be used in bringing peace to divided societies. What this would look like is still uncertain. But a conversation must begin to develop the will necessary to create peacebuilding mechanisms that contribute not only to pursuing justice in terms of legal principles, but also in terms of fostering reconciliation.
[1] Forsberg, Tuomas. “The Philosophy and Practice of Dealing with the Past: Some Conceptual and Normative Issues.” Burying the Past: Making Peace and Doing Justice after Civil Conflict. Nigel Biggar, ed. Washington, DC: Georgetown University Press, 2001, p. 63.
[2] Estrada-Hollenbeck, Mica. “The Attainment of Justice Through Restoration, Not Litigation.” Reconciliation, Justice, and Coexistence: Theory and Practice. Mohammed Abu-Nimer, ed. Lanham, MD: Lexington Books, 2001, p. 75.
[3] Bass, Gary Johnathan. Stay the Hand of Vengeance. Princeton: Princeton University Press, 2000, 307.
[4] Lederach, John Paul. The Journey Toward Reconciliation. Scottdale, PA: Herald Press, 1999, p. 59.
[5] Ibid., p. 57.
[6] Ibid., p. 60.
[7] Minow, Martha. Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Boston: Beacon Press, 1998, 126.
[8] Ibid., 49.
[9] S/RES/827, 25 May 1993.
[10] Goldstone, Richard. For Humanity: Reflections of a War Crime Investigator. New Haven: Yale University Press, 2000, 78-9.
[11] Beigbeder, Yves. Judging War Criminals. New York: St. Martin’s, 1999, 162-3.
[12] Ibid., 160-162.
[13] Ibid., 160.
[14] Goldstone, 107.
[15] S/25274, 10 February 1993.
[16] S/PV.3217, 25 May 1993.
[17] Scharf, Michael. “Responding to Rwanda: Accountability Mechanisms in the Aftermath of Genocide.” Journal of International Affairs. Vol 52 no 2, Spring 1999, 631.
[18] Lambourne, Wendy. The Pursuit of Justice and Reconciliation: Responding to Genocide in Cambodia and Rwanda. Paper delivered at International Studies Association 40th Annual Convention, Feb. 16-20, 1999, Washington, DC, 37.
[19] Ibid., 24-37
[20] Popovsky, Vesselin. “The International Criminal Court: A Synthesis of Retributive and Restorative Justice. International Relations. Vol 15 no 3, December 2000, 4.
[21] Economides, Spyros. “The International Criminal Court.” Ethics and Foreign Policy. Karen E. Smith and Margot Light, eds. Cambridge: Cambridge University Press, 2001, 120.
[22] MacPherson, Bryan. “Building an MacPherson, Bryan. “Building and International Criminal Court for the 21st Century.” Connecticut Journal of International Law. Vol 13 no 1, 24.
[23] Ibid., 25
[24] Mendez, Juan E. ‘’National Reconciliation, Transnational Justice, and the International Criminal Court.’’ Ethics and Internaotinal Affairs. Vol 15 no 1, 2001, 28.