Presentation to the Wilton Park Conference “Pursuing Justice in Ongoing Conflict: Examining the Challenges”, 9 December 2008.
This is the final session of our conference and, having spent a fascinating couple of days looking at the role of justice in ongoing conflicts, we now have just one hour or so to look at its role in preventing future conflicts. A big task and a short time to tackle it. But it is important we talk through the issues, because the power to prevent is one of the most important claims made on behalf of justice – and as such it needs to be examined in some detail. Looking to the future also changes the perspective on some of these very difficult issues of justice and peace.
Now, as we have heard over the course of the last couple of days, dealing with justice issues during an ongoing conflict or in its immediate aftermath requires the balancing of a range of interests, many of which may not be readily reconcilable, at least in the short term.
The challenge for justice advocates is that when the interests being considered are defined as those most immediately impacted by an ongoing conflict, then it tends to favour an outcome that preferences conflict resolution at the expense of justice imperatives.
By this I mean that if the interests in question are those of the parties to the conflict, the victims of continuing violence and perhaps neighbouring states, then there is often a bias in favour of an outcome that produces apparently clear, defined and immediate benefits to those presently suffering from the consequences of that particular conflict. There is an understandable tendency to opt for the certainty provided by a peace deal, however repugnant some of its terms may be, on the grounds that the greater good is served by ending the violence that is causing harm now, not a hypothetical conflict that may cause suffering in the future.
That doesn’t mean justice interests are always ignored or deferred, but it does mean justice often has to force its way to the table during peace talks. Justice advocates have to argue that deals will not be sustainable without justice, against sometimes equivocal evidence or ambivalent examples, such as those of South Africa and Mozambique. They also have to argue that victims of atrocities have a right to ensure that those responsible are held to account, even at the risk of destabilising the peace.
But the perspective is different when the interests at stake are defined by future conflicts – and no less important. Just as resolving existing conflict is a critically important priority of the international community, so is preventing the outbreak of violence. Though we’ve seen a big reduction in conflict during the past 16 years, events this year in Kenya, Georgia and the DRC, to name a few, have demonstrated that war and the horrors that come with it are far from a thing of the past.
With this broader set of interests – that is, those defined by future conflicts – the options and tools available to policymakers are likewise expanded. Instead of defining the problem by reference to the immediate conflict and its willing or unwilling participants, it can be redefined to encompass a larger albeit inchoate group, which can broadly be described as those at risk of harm from future conflicts.
Seen in this way then, the potential to prevent future mass suffering requires that consideration be given – if not always acted upon – to pursuing justice outcomes even if that risks prolonging an existing conflict, because the future payoffs may significantly outweigh the risks of continued conflict.
Objectives served by justice
Defining the issue in this way requires that we examine the goals served by justice so that we can better understand the ways in which these goals may contribute to preventing conflict.
Justice serves a number of important public policy objectives. Many of these will be of primary relevance to the war-torn society and don’t impact significantly beyond the particular conflict, except perhaps to contribute to the deterrent impact of prosecutions. These objectives include: retribution, incapacitation, rehabilitation, truth telling and delegitimisation.
Then there are those justice goals that resonate beyond the conflict in question and may contribute to the prevention of future conflicts. These include the institutionalisation of human rights and rule of law norms, and deterrence.
How do these particular objectives resonate more broadly? The thinking behind norm institutionalisation is that insisting on prosecution of atrocity crimes forces states to recognise the legal and moral force of those norms and entrenches them more firmly in domestic and international legal spheres, bureaucratic and military structures, and in the minds of ordinary citizens. One example of this is the widespread recognition today by all conflict actors that it is unacceptable to seek or grant amnesties for genocide, crimes against humanity and serious war crimes, at least when it comes to those in positions of power.
And then there is deterrence. This is perhaps key when it comes to conflict prevention. The argument is that if leaders genuinely believe that they are likely to be prosecuted if they commit atrocity crimes, with all the consequences that that may entail (including delegitimisation, loss of power and incarceration) then this will provide a strong, though not always overwhelming, incentive against such conduct.
The flip side of deterrence is that when it comes to existing conflicts, in which atrocities have already been committed, it will likely contribute to a prolongation of conflict, as leaders threatened with prosecution will often seek to entrench themselves to ensure they don’t end up in the clutches of a criminal court. Robert Mugabe and Omar al-Bashir are two examples that come to mind.
Can international justice contribute to the prevention of future conflicts?
Of course, framing the debate to include the broader interest in preventing conflicts presupposes that justice can have this impact. But is this the case?
It is not too difficult to establish that the threat of criminal prosecution affects the calculations of warring leaders. What is difficult to establish is that it can do so to such an extent as to prevent future conflicts.
For a start, the number of cases of mass atrocity is thankfully sufficiently small, knowledge of the actors’ motivations sufficiently limited and the historical threat of prosecution sufficiently murky that it is very difficult to draw any hard and fast conclusions from past cases. That said, there are plenty of examples where whatever threat of criminal prosecution there was failed to deter perpetrators of atrocity crimes, and it is difficult to point to cases of successful deterrence.
But this doesn’t prove there are none, as the problem may be the same as that which confronts conflict prevention efforts more generally, namely that it is difficult to establish something that never eventuates: in this case, that a conflict would have ensued, and atrocities would have been committed, but for the deterrence.
History is of limited benefit when considering these issues, as international institutions and norms are much stronger today than they were even ten years ago, ensuring that the risks of prosecution are greater, and hence more likely to impact on potential perpetrators’ calculations.
That being the case, perhaps the more appropriate question at this stage is what are the circumstances in which deterrence is most likely to work?
Deterrence proceeds on the assumption that actors are rational – and hence will respond to the prospect of punishment for contrary behaviour. Punishment here generally means incarceration following conviction, or delegitimisation leading to a weakening of the actor’s hold on power.
The effectiveness of deterrence largely depends on the certainty and severity of the consequences. Actors in a conflict may have different knowledge. Rebels in remote areas may have limited understanding of the threat posed by international justice. And in any event, at least in the early stages of a rebellion, the threat may be so remote as to be illusory. Government leaders, however, particularly now in Africa, are much more alive to the possibility of ICC investigation, and will likely factor that into their considerations.
Not all actors are rational when it comes to committing crimes. Individuals may act on impulse, with little consideration of the longer-term consequences. But this will rarely be the case in respect of atrocity crimes (particularly those meriting the attention of the ICC) as these are usually of a scale that requires systematic planning and implementation. Take, for example, the Sudanese government’s campaign in Darfur, which required the mobilisation of Janjaweed militias, coordinated air and military support, the supply of arms in breach of an UN arms embargo and a sophisticated diplomatic strategy to deal with the international fallout.
It is also important to understand that actors will often calculate that the benefit to be gained from crimes, or detriment avoided, outweighs the risk of punishment. Benefits for rebels include capture of the state, and for governments may include holding onto power.
Similarly, the risk of punishment may often be perceived as very low. The likelihood of prosecution is a relevant factor. To the extent rebel leaders focus on the risk, they may calculate it as being low, particularly given that there are often a multitude of such groups or factions, and few are of sufficient significance to warrant prosecutorial attention. The risk may not be much higher for government leaders, but that is changing – with Milosevic, Pinochet, Habre and Taylor all having faced prosecution, and President Bashir now in the firing line.
The impact this may have on leaders’ calculations was well demonstrated by Libyan President Muammar Gaddafi’s response to the handover in 2006 of Charles Taylor to the Special Court for Sierra Leone: “It sets a serious precedent. This means that every head of state could meet a similar fate”. And Robert Mugabe and LRA leader Joseph Kony have both cited the Charles Taylor precedent as the reason for their fear of international prosecution.
What then can we conclude about deterrence? Maybe the best that can be said is that the threat of prosecution and delegitimisation may influence decisions, and perhaps more so for government leaders than rebels.
But influencing is important – particularly when leaders are deciding on how to respond to a challenge to their authority. In so responding they usually have a number of policy options – they can seek to crush those rebelling against their authority; they can seek to undercut them politically (eg, by addressing some of the grievances of the rebels’ constituency); or they can seek to come to a deal with them.
In today’s world of instant global communications, large-scale atrocities can rarely be carried out in secret, so a decision to crush their opponents, which will almost invariably result in such atrocities being committed, cannot be hidden from the world’s view. If leaders knew such attention would automatically lead to investigation and prosecution, they may choose to respond differently to a challenge. It will not be decisive, but it could be an influential factor.
What can certainly be said is that successful prosecutions by the ICC, or pursuant to universal jurisdiction, will help shift the calculus – particularly if abusive government leaders are targeted. It will increase the risk of punishment, and thereby encourage behaviour that avoids that risk.
The threat of such prosecution may also drive warring parties in future to accept other justice mechanisms, such as credible domestic trials and robust truth commissions, as being preferable to international prosecution and better adapted to local conditions.
So where does that leave us? The crux of my argument is that when considering the benefits and risks of pursuing justice during an ongoing conflict, consideration may need to be given to interests beyond those of the parties immediately impacted on by the conflict. That in turn may mean preferencing justice even if to do so may risk prolonging or reigniting the conflict in question.
This decision only has to be made when there is an actual, and not just potential, conflict between peace and justice – a situation a lot less common than generally believed. There is great scope these days for addressing justice interests in a way that will not derail peace processes – as we have heard over the last couple of days. These include truth commissions, domestic justice and reconciliation processes, and other mechanisms. The decision should also only be made when all options have been fully explored – the dynamics of extended peace negotiations often result in parties changing and moderating their positions in ways that give much greater scope for justice to play a role than might initially have been recognised.
However, notwithstanding all of these provisos, decisions on peace and justice priorities will still have to made by international actors during conflicts, as they have in the past. In so doing, they will be conscious of the considerations I outlined above, even if they don’t explicitly acknowledge them.
Different actors will have different mandates, and these will largely define the way in which they approach their task. The task of mediators is generally limited to the conflict before them, so the tendency is to focus on achieving a sustainable peace, without looking too far beyond the immediate conflict. But their options may be constrained by those who are doing exactly that. For instance the policy of the UN is that it should not sign on to peace agreements which exclude accountability for mass atrocities. This policy is motivated by the same thinking that preferences deterrence and the institutionalisation of norms.
International prosecutors are, or should be, conscious of the risks that indicting a head of state or senior power-holders may entail. They will almost invariably proceed regardless – because that is their mandate, and because they share the belief that justice is essential to a sustainable peace, and necessary to build the rule of law and deter future would-be perpetrators. Hence Louise Arbour, when announcing the indictment of President Milosevic in May 1999, stated: “I am mindful of the impact that this indictment may have on the peace process in the Federal Republic of Yugoslavia”, and went on to conclude that the Tribunal’s work would make a major contribution to peace in Kosovo and the region.
Members of the UN Security Council will have a range of considerations in mind when they confront justice issues. In particular, the ICC prosecutions in the Darfur situation are likely to present the Council with ongoing challenges. But, given the opposition of a number of UN Security Council members to the likely prosecution of President Bashir for atrocity crimes, it is worth recalling that it was the Security Council that referred Darfur to the ICC, in 2005. This was in line with a report by the UN Commission of Inquiry that attributed responsibility for atrocities to the Sudanese government. The sub-Saharan African states on the Council at that time, Benin and Tanzania, voted in favour of the referral. (The other African member, Algeria, abstained.) Those supporting the referral could hardly have then been surprised when the Prosecutor decided to proceed against the senior leadership of Sudan. In effect, states were willing to make a decision, the likely consequence of which was to give primacy to justice during an ongoing conflict.
The issue is likely to come back before the Security Council if it is asked to defer ICC prosecutions under Article 16. Some will believe that peace must necessarily precede justice. Others will be mindful of their commitment to support the institution of the ICC, and its mission as set out in the preamble of the Rome Statute, to “put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”.
Domestic actors will have an equally diverse range of interests. Many will argue that an end to conflict and all the associated suffering must trump retributive justice. Many others will demand full accountability immediately, both in the interests of sustained peace in their own country, and elsewhere. Our discussions over the last couple of days have amply illustrated the diverging domestic views.
As for the future, there is a slow but steady move towards the strengthening of international justice norms and institutions. The advent of the ICC, a permanent tribunal with the power to initiate its own prosecutions, together with growing recognition of universal jurisdiction, increase the odds of prosecution, and hence the potential deterrent impact of international justice. In this they will support, and be supported by, the emerging Responsibility to Protect norm.
Over the longer term this may – and it’s a big may – reduce future conflict. But we probably won’t be able to credibly make that assessment for a number of years. And there is going to be a lot of turbulence on the way. The ICC is still weak, and largely restricted to pursuing justice in ongoing conflicts. It is exposed to all of the downsides of such a situation (including delayed prosecutions, claimed threats to peace processes, ambivalent international support etc.) without yet being able to identify many successes. Those who see their power threatened by a world more observant of international justice norms are mounting a vigorous campaign against the ICC, universal jurisdiction and R2P.
Despite all these provisos and qualifications, such a world holds out the promise of being more peaceful than one in which mass atrocities can be committed with relative impunity. We need to strengthen those norms and institutions that will make this a reality. This in turn will drive present and future combatants to accept that justice is an inevitable element of peace processes, and focus on accommodating justice instead of simply excluding it. In this way we can advance the prospects of peace and justice for current and future conflicts.