Only the traumatized society can decide

The Globe and Mail (web exclusive)

July 15, 2008

Advocates of the International Criminal Court applauded Monday as Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court, formally sought an arrest warrant for Sudanese President Omar Hassan al-Bashir on charges of genocide and crimes against humanity in Darfur. Critics of the court warned of overreach and serious collateral damage.

On balance, the ICC represents a welcome advance in global governance. But it comes with four possible downsides.

First, the logics of peace and justice can collide. Peace is forward-looking, problem-solving and integrative, requiring reconciliation between past enemies. Justice is backward-looking, finger-pointing and retributive, demanding trial and punishment of the perpetrators of past crimes.

The African Union has expressed its "strong conviction that the search for justice should be pursued in a way that does not impede or jeopardize efforts aimed at promoting lasting peace," and Sudan's ambassador to the United Nations has warned that laying charges against Mr. Bashir will destroy international efforts to reach a settlement in Darfur. Senior UN officials fret about the impact on the 9,000-strong hybrid UN-AU peacekeeping force. Nine peacekeepers died in an attack on July 9. What will happen to the two-thirds of Darfurians who are reliant on international humanitarian assistance?

Second, rule-of-law standards are not always scrupulously observed with regard to the collection and presentation of evidence, the right to cross-examination of witnesses and other procedures meant to ensure fair trials. Human-rights law gives primacy to protecting the rights of the arrested and the accused over the requirements of the prosecution. But in international criminal trials, impelled by the momentum of international accountability, the balance has shifted in favour of conviction. Because the top United Nations body is the Security Council, dominated by its permanent five members, it simply cannot ensure that the process of trial and prosecution is always credible, that it meets international standards on the independence and impartiality of prosecutors and judges, that it treats all people as equals before the law, that it respects the rights of defendants as well as victims.

Third, unlike a domestic prosecutor, who functions within a well-established structure of governance, the ICC is not embedded in a broader system of democratic policy-making. Why should it have authority over a constitutionally legitimated democracy, such as Australia, Britain, Canada, India or the United States? Can it fairly claim jurisdiction over a non-democracy, such as China, Russia or Sudan? Friday, the African Union formally reiterated its concern about "the misuse of indictments against African leaders." Until presidents, prime ministers and generals from major Western countries are also indicted, convicted and punished, the ICC will remain suspect as the vehicle for dispensing biased justice of the strong against the weak. Not everyone accepts the self-serving dichotomy of the virtuous West and the evil rest.

Fourth, international criminal justice precludes alternative modes of healing and restitution with a view to reconciliation that puts the traumas of the past firmly in the past. Determining the fate of defeated leaders is primarily a political question, not a judicial one. Truth commissions in Chile and South Africa took victim-centred approaches, helped to establish a historical record and contributed to memorializing defining epochs in a nation's history. A criminal trial is not always the best instrument for collective memory and communal healing - it can cause more damage and solidify the very social cleavages that led to genocide and ethnic cleansing in the first place. The purely criminal approach to transitional justice traps and suspends communities in the prism of past hatreds.

Proponents of tough international criminal justice norms and action insist that Mr. Bashir has never been committed to a political settlement, that he is a master of the deny-cheat-evade strategy beloved of all tyrants, that he responds only to tough action. Previous indictments of leaders such as Slobodan Milosevic in Serbia and Charles Taylor of Liberia have ultimately contributed to reaching and consolidating peace. Can the Security Council use the three-month waiting period, while the judges consider the prosecutor's request, to negotiate a settlement while Mr. Bashir is under international pressure from the ICC?

The point is not to deny that the choice may be painful, that the government and people may be divided, that the public policy that results may be flawed and wrong. Rather, the point is that these are profoundly political choices, not simple legal ones, that may involve complex tradeoffs. For that very reason, the choice is one that only the country concerned can make.

Only the traumatized society can make the delicate decisions and painful choices among justice, political order and reconciliation. These societies suffered as victims in the past; they will have to bear the consequences tomorrow of choices made today.

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.

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