Impunity Has No Place in Peace and Justice Debate

In their debate hosted by the Economist, Richard Dicker and Jack Snyder have touched on critical issues that frame the peace and justice debate. In my view, however, the peace and justice debate should focus more concretely on the central issues that will affect the lives of victims and affected societies, rather than solely seeking to resolve geopolitical or national power dynamics.

09/15/2011

In their debate hosted by the Economist, Richard Dicker and Jack Snyder have touched on critical issues that frame the peace and justice debate: the importance of responding to local circumstances in determining when and how to seek justice, and how and why the international community should engage with instances of genocide, crimes against humanity and war crimes. In my view, however, the peace and justice debate should focus more concretely on the central issues that will affect the lives of victims and affected societies, rather than solely seeking to resolve geopolitical or national power dynamics.

My experience in wrestling with these issues in a variety of contexts including the former Yugoslavia, the Middle East and Cambodia, is that in the medium or long-term it is clear that accountability as well as other transitional justice measures (e.g., truth telling, reparations for victims, institutional reforms) are essential to peaceful societies. Such societies are not built on impunity, much less on leaving in place those who have committed massive crimes—peaceful societies are not constructed on the shoulders of war criminals.

The recurrence of violence in many fragile states is significantly due to the lack of checks and balances necessary in the development of peaceful societies: justice and the rule of law are the central elements in those checks and balances. Thus, in the longer term I would argue that justice is the sine qua non of a society striving to overcome legacies of mass atrocity and repression and achieve a lasting peace. While examples are sometimes given to the contrary, these do not stand up to scrutiny.

Nonetheless, there are often serious tensions between peace and justice in the short-term, during or in the immediate aftermath of conflict, and resolving this tension calls for debate and reflection, posing difficult questions that advocates of justice, including myself, rightly must tackle. Indeed, the new normative framework that has emerged in recent decades, and is at the heart of the ICC Statute, makes it clear that amnesty will not shield from justice those who have committed serious crimes. (I will leave aside for another day the important issue of some mediators, including some that do not adhere to these widely accepted principles.) The new reality creates serious issues for mediators, who in earlier times might have eased out leaders or groups with offers of amnesty or asylum.

Moreover, a mediator’s room for maneuver has been further constrained by the advent of the international prosecutor, particularly the ICC Prosecutor, who can seek a warrant at a point that can wreck a negotiation.

Thus, in practice, much of the tension between the pursuits of justice and peace plays out in the dynamic between an international prosecutor and mediator. There is no going back to the status quo ante; the principle of no immunity for serious crimes as well as the Rome Statute system are, rightly, here to stay and provide significant long-term benefits. However, we need to explore ways that help alleviate the short-term tensions.

Given the critically important role that international prosecutors play, it is imperative that the ICC Prosecutor in particular fully understands the political and diplomatic contexts in which the Court operates, and is appropriately engaged in those contexts to ensure that the pursuit of justice is as far as possible compatible with the pursuit of peace. This is an important consideration in the run up to the selection of the new ICC Prosecutor. While mediators are adjusting to a new reality and reduced scope of maneuver, international prosecutors need to understand the impact of their actions: they must be grounded in the law, but they can use their discretion wisely.

The Rome System is about a change of mindset in the international community. The 117 States Parties have committed to the pursuit of justice regardless of the position held by the perpetrator of serious crimes. For some time that will pose extremely difficult dilemmas in the short-term resolution of conflicts. In the longer term it will lead to would-be perpetrators thinking twice about murdering civilians in order to save their skin.

In my view, the discussion should therefore focus not on whether justice is essential to lasting peace, but rather it should grapple with the practical consequences of a welcome new reality where, in law, there is no room for impunity.

Follow the debate on the Economist website.