Features

May 13, 2008

Juan E Méndez: Fifteen Years of International Justice

The International Criminal Court continues to be a focus in discussions about transitional justice. In recent remarks at a forum sponsored by the Open Society Institute and the MacArthur Foundation, ICTJ President Juan Méndez said the ICC should be thought of primarily as an "instrument of justice." And it can contribute to peace and prevention when filling that central function.

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Fifteen Years of International Justice:

Assessing Accomplishments, Failures and Missed Opportunities - Lessons Learned

Wilton Park, April 14-15, 2008

Remarks by Juan E Méndez

I.

These have been fifteen years of remarkable achievement, but also of shaky foundations for such progress as we have accomplished. All along we have witnessed the shaping of a large consensus in the international community in support of justice, but also periodic threats imperiling that consensus and the real possibility of backtracking. In this regard, perhaps our analysis of international justice should cover a somewhat longer period, in order to understand the social practices in certain transitions that eventually led to normative developments and trends in international justice mechanisms. It is actually in the last quarter century that the most recent wave of democratization has placed an important emphasis on breaking the cycle of impunity. International efforts at justice-making were largely inspired by earlier efforts at the domestic level, in countries emerging from dictatorship or from conflict, to deal effectively and honestly with legacies of mass atrocities. Those efforts reminded us of the existence of concepts like war crimes and crimes against humanity, and of the special legal consequences that should be derived from that characterization.

We should celebrate these achievements because prior to them impunity for these crimes was the rule, indeed the expectation of both national and international actors. And this was so despite the legacy of the Nuremberg and Tokyo trials and their sequels and despite the early emphasis on criminal accountability and punishment as the international community drafted the first human rights treaties. The Genocide Convention and the four Geneva Conventions of 1948 did emphasize the obligation to investigate, prosecute and punish the most severe crimes, and the UN General Assembly clarified the meaning of the term "crimes against humanity." But the standard-setting in the 1950s and 60s abandoned that emphasis in favor of State responsibility rather than individual criminal liability. Despite references to the need for universal jurisdiction, for multi-lateral commissions of inquiry and for international tribunals, when it came to atrocity crimes the human rights canon seemed to yield to notions of national sovereignty and non-intervention in internal affairs.

II.

In the 90s there was a significant change in attitude by the international community, reflected not only in the creation of international and hybrid courts and the International Criminal Court, but also in the determination not to support "solutions" to conflict that are premised on impunity for those bearing the highest responsibility for international crimes. Still, at every turn there is a suggestion that we go back to the "business as usual" of an earlier era when all was forgiven and the standard way to move forward was to let bygones be bygones. That is why we must discuss our disappointment at some results and the real risks of push back, even as we take stock of the achievements. Perhaps we should consider whether the disappointments that we feel, and the threat of backtracking we perceive, stem from having unwittingly set the bar too high for what international justice can deliver. We may well be making claims about the worth of international justice efforts that are hard to demonstrate empirically. I want to refer particularly to two areas in which this may be the case: justice as state craft in peace-making and justice as prevention.

III.

We are certainly right in stating that a lasting peace is one that does not leave behind winners and losers, especially if the losers include victims of mass atrocities whose plight is ignored. In that sense, inserting legitimate demands for justice into peace agreements makes sense as a means to address deep-seated resentments and enmities, and especially to separate those guilty of egregious crimes from the communities they are identified with, so that the cycle of revenge is not visited on innocent descendants later on. It also makes sense to establish mechanisms of criminal accountability with emphasis on fair trial and due process, to depoliticize the adjudication of guilt and innocence. But we should acknowledge that - in some cases and at certain times, though certainly not always nor everywhere - there is a real dilemma between the interests of peace and the interests of justice. Recognizing that dilemma does not lead automatically to the assumption that peace trumps justice, but we in the human rights movement should not let ourselves be painted into the corner of the spoilers who are never happy with a peace agreement unless we see full and complete justice achieved.

Peace efforts should avoid the binary choice of peace versus justice. Between the immediate impossibility of silencing the guns, and rewarding the criminals with blanket amnesties in exchange for peace, there are a large number of more creative, more constructive paths to conflict resolution. Peace should not be conceived of as only the absence of violent conflict, just as justice cannot be seen as the punishment of all crimes and of all criminals. The spectrum of options for peace-making becomes much richer if we understand the dynamics of war and peace and of impunity and accountability in a continuum to be realized over time and with a variety of mechanisms. In that fashion, criminal prosecution of those most responsible for serious crimes must always lie at the heart of any program of peace with justice, but it cannot be the sole option. In the best case scenario, international justice efforts, even if complemented with domestic prosecutions, will only deal with the tip of the iceberg in terms of the universe of cases, and with a handful of defendants. That is why justice efforts need to be expanded to incorporate non-judicial mechanisms such as truth-telling, reparations for the victims and reform of institutions, especially by vetting them to make sure well-known perpetrators do not remain in the ranks. In some cases, where the violence has had an ethnic, religious or racial character, it will also be necessary to hold inter-communal conversations to attempt a level of societal reconciliation. Unless we try to have a comprehensive, holistic approach to justice, the resulting impunity gap will always threaten the stability of the precarious peace that may be obtained.

We are justified, in any case, in asserting that the threat of prosecution (as long as it is a credible threat) does push the actors toward the bargaining table, and keeps them there. The problem is that once justice is part of the mix it cannot be treated as a bargaining chip or as a tool to be turned on or off according to the vagaries of the peace process. In addition, justice is a part of the mixed bag of measures and policies that can lead to conflict resolution, but in almost every case it cannot be the only one. Mediators, conflict resolution specialists, the parties to the conflict, the victims and civil society in general will have to come up with the combination of measures and their implementation in the order most appropriate to the context, and to put justice in the appropriately central part of the stage as the process moves along.

IV.

In the 1948 Genocide Convention, punishment and prevention are the twin objectives of the treaty and also clear obligations that State parties acquire when they ratify. That is why they pledge to criminalize not only genocide and various genocidal acts, but also conspiracy, instigation and incitement. The Geneva Conventions of the same year also require punishment of grave breaches as a means to discourage them. These instruments, however, lack any serious mechanism of implementation of such norms, leaving it largely to State parties to organize them within their own legal systems, and to make their own judiciaries available to cases occurring elsewhere if that is the way they interpret their obligations related to universal jurisdiction. The insight that punishment has a preventive effect is not wrong, although it will always be difficult to establish a clear link between this act of justice and its deterrent effect over that criminal act that did not happen. For all we know, penalty does not have a deterrent effect, but there is deterrence in the likelihood of punishment. That is why we will be in a better position to claim the deterrent effect of international and domestic justice for human rights crimes once the system is better settled and its results more reliably expected.

In my two visits to Darfur (2004 and 2005) as Special Advisor to the UN Secretary-General on the Prevention of Genocide, I became acutely aware of the relationship between accountability and prevention, albeit in a negative sense. In fact, the prevalence of impunity for the crimes already committed against the civilian population of Darfur has a paralyzing effect over any other measure the international community can take to prevent further deterioration. The criminals are still around and bearing their arms, their supporters in the Sudanese government are still ready to unleash the janjaweed and to provide them with logistical and combat support. In that context, international observers are hard put to conduct serious monitoring on the ground, and armed peace-keeping contingents cannot distinguish between people armed in self-defense and militias that use their weapons to commit atrocities. Likewise, the presence and activity of the criminals seriously impairs the delivery of relief assistance, and makes it all the more difficult to reach a cease-fire, let alone a comprehensive peace accord. Equally important, the prevalence of impunity makes it impossible for internally displaced populations to make their own decisions about return to their villages, engagement in conversations with others and more generally taking responsibility for their own fate. Millions of persons who are totally dependent on others for even the most basic needs and decisions only make peace-keeping, humanitarian assistance and peace negotiations more difficult. In all four of these aspects of prevention we need the active, engaged participation of the victims and their community representatives

Criminal prosecution is an essential ingredient of any preventive effort, but should never be contemplated as the only response by the international community. In the early 90s, the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY) was seen by some as the token gesture by an international community that could not manage a more robust response to the genocidal campaigns in the Balkans. To the credit of the ICTY, its impartiality and independence - as well as the continuation of the atrocities - soon prompted the international community to adopt other actions, albeit never enough and never on time. In fact, criminal accountability can serve to prevent future atrocities only if it is seen as a piece of a larger puzzle than needs to be coordinated with effective armed protection of civilian populations, with distribution of humanitarian assistance, and with genuine, comprehensive efforts at peace-making. At the same time, we must make sure that we do not let the parties to the conflict condition their consent to any one of these four components (protection, relief, accountability and peace) to progress on any other. If each aspect is contingent on another, the result is a formula for failure in each one of them. All four must be pursued aggressively, in coordinated fashion and in good faith.

V.

For these reasons, I think the ICC and other international justice mechanisms must first and foremost be considered as instruments of justice, and only secondarily as instruments of peace or instruments of prevention. In doing so, we will be upholding the value of justice as a value worth pursuing in and of itself, for the benefit of the victims and their families, and for the contribution that justice makes to the establishment of the rule of law. We should reiterate that victims have a right to see justice done, and explain that this does not mean that they have a veto power over arrangements necessary to arrive at peace. The victims do not have a right to a specific form of penalty to be imposed on their victimizers, but they do have a right to a process by which blame is adjudicated in a fair trial. They also have a right to a process of truth-seeking and disclosure, as well as to reparations that recognize their inherent worth as victims but also as citizens. They and society at large have a right to an institutional reform that guarantees that, in the future, the organs of the State through which power is exercised will no longer be the instruments of repression.

As we discuss the experience with international justice, we should bear in mind that the ICC and international and hybrid courts are only necessary because many States are unwilling or unable to live up to their responsibilities arising out of legacies of mass atrocities. In that sense, we should recall that the purpose of international tribunals is not only to substitute for that absence of will or capacity in the territorial State, but also to generate the conditions for that will and capacity to be restored in the future. In doing so, we should spend some time and energy thinking of ways in which we can make that objective a reality, including by studying the few examples in which States have tried in good faith to confront recent mass atrocities with the judicial and non-judicial capacities at their disposal. Peru, Chile and Argentina are in that path today, and their example should lead us also to understand the challenges and mistakes that will, inevitably, be made along the way and help correct them. They also seek to learn from the experience of the international and hybrid tribunals, especially in the techniques that have been developed to prosecute "system crimes" and cases with multiple victims, multiple incidents and multiple defendants. In Colombia, the Constitutional Court has followed the international law standards that have emerged over the past quarter century to establish limits on the impunity that may be granted to paramilitary leaders in exchange for their demobilization. But those efforts require and deserve support and encouragement, and there is relatively little interest in them outside their own countries.

There are ongoing efforts to use prosecutorial tactics to dismantle death squads and secret, unlawful intelligence operations in Guatemala, with support from the United Nations. In Lebanon, the UN has agreed to create an international investigatory commission and a Special Tribunal (STL). These two cases signal a trend for the UN to become involved not only in prosecution and trials but also in criminal investigations, a challenging task for which the UN has no existing capacity or experience. In addition, the IIIC and STL raise serious problems of legitimacy in the selection of cases (mass murders versus targeted political assassinations) as well as on the perception that the prosecutions may be used to undermine certain regional actors.

That is why we insist on the need to be carefully tuned to the justice agenda of domestic actors and civil society, including but not limited to victims' groups. We will find that the desire for justice is indeed universal, and so are the standards by which it is achieved; but success depends greatly in domestic legitimacy and ownership, and that requires on-going consultation conducted in the spirit of mutual learning. In trying to improve domestic capacities, it is important that the international tribunals devote efforts to outreach, especially focused on time lines and limitations of their mandate, so as to be able to manage expectations in the community. Tribunals also need to engage in consistent planning for the legacies that they will leave behind when their job is done. There have been encouraging improvements recently in the way the tribunals have recognized these needs, but we should be reminded that the task of explaining the role of international justice to the communities to be served is one in which we all share responsibilities. In this vein, ICTJ was pleased to cooperate recently with the Office of the High Commissioner for Human Rights in producing a "tool book" for managing the legacy of hybrid courts. The legacy of the tribunals requires proper dissemination and analysis of their jurisprudence, but also concerted efforts to create the conditions under which their work will be absorbed and incorporated into the legal and political culture of each Nation where they operate. Beyond that, there is also a real need for all tribunals, temporary as well as permanent, to conduct careful planning and advance decision-making as to how and by whom residual issues will be taken up after they conclude their tasks.

There is also much work that needs to be done to ensure that the international community supports the tribunals for their contributions to justice for justice's sake, and not for their instrumental value to other policy objectives. International cooperation with the tribunals must increase, not only in financial terms, but perhaps more importantly in the realm of enhancing their effectiveness as tools of justice. States that are interested in justice must join forces in facilitating investigations and the execution of arrest warrants and other judicial decisions, and should be ready to exercise political and diplomatic muscle in obtaining cooperation in those matters from recalcitrant States. Equally important is to refrain from actions that, though directed at other purposes, have the effect of undermining the effectiveness and credibility of international tribunals. An example of this is the delivery of humanitarian assistance directly into the hands of the LRA leadership, as a means to encourage engagement in the Juba peace talks. It had the effect of emboldening that leadership to defy the ICC arrest warrants and demand more concessions to impunity at the bargaining table. Of course, the international community must be encouraged to support peace efforts, including by providing incentives to the parties to the conflict to sit down and talk; but at the very least those measures should not work at cross-purposes with justice and, hopefully, they should be carefully coordinated so that they actually promote peace with justice.

By making a more modest claim (that domestic and international justice efforts can achieve justice for the victims and that that result is, by itself, worthy of strong support) we can actually discuss the conditions under which justice also serves other equally high purposes like peace and prevention.