Moses Chrispus Okello, who is head of the Research and Advocacy Dept. at Kampala's excellent Refugee Law Project, voiced some hard-hitting criticisms of the ICC in the presentation he gave at the international conference recently held in Nuremberg on the interactions between peace and justice.
He said this (please note that the italics and bolding in what follows are in the RLP version of the text, while the underlines are mine):
At times it seems as though no amount of stocktaking could ever come to terms with the magnitude of what has happened – but should that stop us from trying?
We at the Refugee Law Project think not. Yet, ever since the International Criminal Court seized itself of the situation in northern Uganda, many within the international and local communities have been complicit in shifting attention away from the true scale of what has been done to people and the range of actors involved, focusing instead on the infinitely more manageable task of prosecuting a handful of individuals from only one of the many parties to the conflict – and in the process ensuring the institutional interests of a fledgling global governance mechanism, the ICC.
Sadly, the proponents of the ICC have made their case in a way which has resulted in the creation of a false opposition between peace and justice.
They have pitted those of us who, on the basis of many years of on-going interaction with the many stakeholders in the conflict, argue that peace should always come first, and justice later, against a largely external set of actors who claim in a somewhat selfrighteous manner that peace will be the eventual outcome of justice.
We in the former category have been accused of condoning impunity - yet we could equally argue that justice along the lines pursued by the ICC also condones impunity, not least that of the government actors.
In ordinary circumstances, it would appear quite natural that peace and justice go hand-in-hand, following the argument that peace and justice are inseparable and one is a subcomponent of the other.
But this argument does not hold in a situation such as northern Uganda, where conflict is on-going and where the simultaneous pursuit of peace and justice only delays a peaceful resolution of the conflict (as we see in the current Juba peace talks) and contributes, in a very real and visible sense, to the continued internment of people in squalid camps for the internally displaced.
In the case of Uganda, the ICC indictments issued against the five top commanders of the Lords Resistance Army are always cited as evidence that the "peace with justice" position is tenable, based upon the claim that the threat of these indictments brought the LRA to the negotiating table.
While it may be the case that the carrot-and-stick threat of the indictments led the LRA to the negotiating table, this is merely speculation informed by opportunism. This is, after all, not the first time in the history of the conflict that the LRA and the government have attempted to talk peace. There were peace talks in 1994 and again in 2004. These talks were frustrated by the same government which referred the situation in northern Uganda to the ICC.
On the other hand, the rationale for a "peace first, justice later" position is quite simple: It is a matter of sequencing. And, sequencing should be distinguished from prioritization. If the preferred sequencing is peace followed by justice, this in no way signals that justice is a lower priority than peace – quite the opposite, in fact.
Whichever way you look at it, trying to ensure that the environment is conducive for a comprehensive pursuit of justice (i.e., that a peace deal has been struck, civilian authorities are back in place, clan structures responsible for traditional justice have re-grouped after decades of forcible dispersal, people are no longer living hand to mouth and are therefore better able to pursue justice for themselves) is definitive proof that you want real justice to be done. Rushing in a fashion which jeopardises the whole enterprise, on the other hand, must raise serious questions about the underlying objectives of those who claim to be pursuing justice and peace simultaneously.
...Many human rights activists seem unable to approach grave human rights violations without yielding to a retributive impulse; what else would justify developing sophisticated international tribunals, with their sometimes perplexing rules for the administration of justice, and attempting to apply these rules to all situations regardless of contextual specificities?
Rarely – if ever – have we invested in developing restorative mechanisms for addressing grave human rights violations, ostensibly because they are "incapable" of meeting the due process standards retributivists have invested so much in entrenching.
But what does this bode for the meaning of justice, which is central to the dilemma confronting Ugandans today?
In a 2004 report on "The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies,” the Secretary General of the United Nations referred to justice as "an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs.
Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant [emphasis added]."
...It is ... intriguing that in the pursuit of both peace and justice, we consciously adopt retributivists' conceptions of justice, as embodied in the mandate of institutions such as the ICC.
Not that the latter is per se problematic. What is discouraging, however, is the failure to think outside such institutional frameworks. I wonder whether you have ever considered the injustice created by institutions such as the ICTY, the ICTR, and now the ICC?
Have we ever considered the impunity created by such actors and the role of others (such as donors) in supporting impunity?
Have we considered that retributivist conceptualisations of justice, with their focus on the visible leaders who ordered gross abuses to be committed, in fact enable international actors to conceal their role in fuelling conflict? What impunity!
Could it be the case that George Bush and Tony Blair - who both supported the Ugandan military while the latter decimated people - are as culpable for crimes committed in northern Uganda as Joseph Kony?
Lastly, while we could debate this forever (and, in particular, the irony that some of the most ardent supporters of retributive justice and the ICC preach their secular gospel from a country which sees itself as somehow exempted from international justice mechanisms), I think the greatest justice one can deliver to a people living in conflict is to enable them to enjoy some sort of peace, and then to enable them to have a say in how they think justice should be done – AND TO WHOM!
Thank you very much.
By the way, last Thursday (July 5) Uganda's Internal Affairs Minister Ruhakana Rugunda told reporters on 4 July that the Ugandan penal code would have to be changed to include in it a provision to use Mato Oput, a system of "traditional" justice practised by the Acholi community of northern Uganda, whose incorporation into the national legal system should help Ugandans of all political stripes convince the ICC that their justice system indeed can hold the LRA in a nationally acceptable way (and therefore, the IUCC can drop its cases.)
Rugunda said,
Those who confess to war crimes under the Mato Oput mechanism will be required to ask for forgiveness and pay reparations.
And here we have the response from some of those western-based rights activists whom Okello was writing about... Today, Human Rights Watch issued a statement saying,
And honestly, can anyone envision any kind of a workable peace process between Israel and Palestine or Israel and Lebanon if every perpetrator of a grave human-rights or IHL violation in those theaters would have to face trials and punishments as part of that process?
So why should matters be so different in Uganda? Is there just a teeny-weeny bit of colonialist thinking seeping in here?
Concordis International, which is "a small British organisation working to help individuals and groups in conflict situations to seek out paths towards lasting peace", recently published (in PDF form) a 24-page account of a consultation they recently held on a number of the different conflicts that have roiled the vast country of Sudan in recent years. The publication is titled Promoting Sustainable Peace in Sudan through Post-Conflict Justice and Reconciliation. It addresses post-conflict challenges in South Sudan, East Sudan, and Darfur.
(Before I proceed to give you more details of this latest Concordis paper, I'd like to quickly note this excellent publication titled Peace by Piece: Addressing Sudan's conflicts, that was co-produced last year by Concordis and the London-based organization Conciliation Resources. Its 23 different articles constitute is a true treasure-trove of information and analysis for anyone interested in war and peace issues in Sudan.)
Participants in the consultation whose contributions are summarized in the most recent Concordis paper include Andrew Rigby of Coventry University, Phil Clark of the University of Ulster, Micah Laila (the Assistant Bishop of Juba-- denomination unstated, but in the context probably Anglican?), Adam Azzain of the University of Khartoum, and a few others.
Here are the Executive Summary, and later the Recommendations, of their consultation. Please note I have added numbers to the 'bulleted point' in both texts, to facilitate discussion):
This Concordis Paper is based on the content of a consultation held in the UK in March 2007, the goal of which was to consider Sudanese approaches to peace-building through post-conflict justice and reconciliation. In other states in Africa - South Africa and Rwanda among others - transitional justice mechanisms have played a central role in post-conflict reconstruction. Participants considered the examples of numerous ‘experiments’ of this nature to inform their discussion about the Sudanese context. In turn, the lessons learnt from African and international experiences fed into their reflections and conclusions about the most appropriate approaches to the pursuit of justice and reconciliation in Sudan.
Some of the consultation’s central conclusions are outlined below:
1. Though not all of Sudan is yet ‘post-conflict’, it is timely to consider ways of dealing with the past in order to respond to the present and prepare for the future.
2. Ultimately, national reconciliation can only be achieved when the root causes of Sudan’s conflicts are addressed in an holistic and just manner, particularly in terms of addressing inequalities in the distribution of wealth and power.
3. Given the complexity of Sudan’s conflicts, a package of complementary and co-ordinated transitional justice measures at different levels of society is needed.
4. At a national level, processes of justice and reconciliation should be developed through an inclusive national consensus, so that they enjoy ownership and trust across the diverse groups making up Sudanese society.
5. Sudan’s religious and cultural traditions emphasise forgiveness. Community conflict resolution practices administered by traditional authorities and religious leaders have many strengths and should be encouraged by the government.
6. Truth-telling about the past and creating a national record are important to reduce temptations for revenge and promote the rule of law.
7. Unconditional amnesty could encourage a culture of impunity and is unlikely to be acceptable under current international human rights conventions.
8. Accountability - meaning both retributive, restorative and redistributive justice - is fundamental to the achievement of broad-based reconciliation and peace.
9. Transitional justice processes should recognise the disproportionate burden of suffering borne by women in past and current conflicts.
In general, the authors of this summary seem to want to "have it all"-- in terms of sustainable peace and retributive justice and full truth-telling , and give little recognition of the fact that in every single real-life situation of "transitional" justice, trade-offs need to be made among these goals... And they therefore give little indication of the criteria according to which such tough choices should be made.
My own views on these matters have been articulated in my recent book on the topic-- and also in these two earlier posts on TJ Forum: on 'justice and accountability', and on the value of truth-telling.
So here are the Recommendations voiced in this Concordis paper:
1. An inclusive institutional mechanism be established to agree an historical record of all acts of political violence since 1 January 1956. This ‘national framework for truth, justice and reconciliation’ would give Sudan’s many different communities the opportunity to air and manage their grievances, agree a shared history and pave the way for a full process of justice and reconciliation.
2. Ongoing rule of law reform (including for example greater emphasis on training and community policing) be part of an inclusive and effective process of transitional justice.
3. There should be a mechanism for amnesty for all individuals who have committed crimes in the context of war or with political objectives with the exception of those directly responsible for gross violations of human rights. Amnesty should only be considered once information relating to the crime in question has been fully disclosed.
4. The importance of individual compensation and collective reparation be recognised, and reparation be linked to a deliberate attempt on the part of the Sudanese government to address socio-economic exclusion through a fair and equitable distribution of resources and rapid development of neglected areas of the country.
5. Reconciliation processes take into account the disproportionate suffering of women and children.
6. At local levels, traditional community healing and dispute resolution systems should be recognised and empowered by government to deal effectively and impartially with current inter and intra-group conflicts and disputes across the country.
7. The role of women and of religious and traditional leaders in local-level peace-building should also be proactively supported by local, regional and national governments.
8. The provisions of Sudan’s peace agreements for regional and national processes of reconciliation be honoured, fully supported, and, within regional constraints, implemented as a matter of urgency.
Similarly, the very tight restrictions that Rec. 3 places on the providing of amnesty seems fairly misplaced to me. The way I read Rec. 3 is that "those directly responsible for gross violations of human rights" (they do not say in whose estimation this is the case, note) should not have any eligibility for amnesties. And those who committed lesser crimes "in the context of war" would win the amnesties only after "full disclosure" (again, they do not say in whose estimation this has happened) of the crime in question.
The temporal priority this plan gives to the proposed TJ&R process, and its specific exclusion of perpetrators of "grave" HR violations from any consideration for amnesty, make it very different from-- and in my view, far less workable or constructive than-- the South African TRC process.
The rest of the Recommendations here seem generally helpful.
I had an opinion piece in in last Thursday's Christian Science Monitor on the trial of Charles Taylor by the Special Court for Sierra Leone. (The article is also here.) This trial is being conducted not in the SCSL's own seat in Freetown, but in one of the ICC's unused courtrooms in The Hague.
In the piece I write the following text... Be aware, though, that I's inserted he mark-ups, formating, and hyperlinks in what follows into the version of this post that I earlier puiblished on my home blog, Just World News:
As it is, though, don't all these courts-- and especially the ICC-- look worryingly like European-dominated institutions that seek to haul over the coals some naughty Africans while completely ignoring the role that people of European heritage have played for centuries, and all too often continue to play, in fomenting, enabling, and conniving in the commission of atrocious violence in Africa?
Then, regarding the expense of the SCSL, I did try to do find out the size of its global budget. The best estimate I could come up with, from combining the figures in various annual reports and doing one needed act of interpolation (for FY2003-04), was that for its whole duration, 2002-2009, SCSL will have budgets totaling about $200 million... and that, to try a total of 11 indictees. Which would be a per-case processing cost of around $18 million. This would be a considerable improvement over the ICTR, whose per-case costs were at one point running at about $43 million... But the figure still looks outrageous and excessive.
(Per-case processing costs for the many, often very complex amnesty applications processed by South Africa's TRC came to just under $4,300-- see my Amnesty After Atrocity book, p.193.)
You might also want to take into consideration that in 2004 the GDP per capita in PPP$ for Sierra Leone's 5.3 million war-battered people was $561, while for Liberians it was literally unmeasurable because of the lengthy perpetuation of post-civil war impoverishment and social breakdown in the country. (In the Netherlands, meanwhile, it was a very comfortable $31,789.) In 2004, Sierra Leone received a total of $359.7 million of overseas aid.
In another note on the expenses of the Charles Taylor trial as such, AP reported on Friday that SCSL acting registrar Herman von Hebel had told reporters that the court had decided to allot Taylor a budget of some $100,000 per month to conduct his defense.
Tha report added:
... Taylor is entitled to receive the money because the court has ruled he is indigent, meaning he cannot pay for his own defense, despite prosecutors and U.N. experts suggesting he has millions of dollars stashed in bank accounts around the world.
"We believe there are tens of millions," said prosecutor Stephen Rapp.
... Investigators are working to track down Taylor's alleged loot. If it is found and can be linked directly to him, the court has the power to make him pay back money he has been given to fund his defense.
Taylor's new defense team is expected to be in place in time for his trial's scheduled resumption on Aug. 20.