International Justice

CJ354 Endicott College

Tag Archives: Peace vs. Justice

Omar al-Bashir wins Sudan Elections

In recent Presidential elections, Sudan’s President Omar al-Bashir was re-elected with 94% of votes. According to BBC news sources, “the country’s main opposition parties boycotted the election, saying they would not be free and fair” thereby leaving us to question the legitimacy of the election. This situation has prompted a close consideration of whether or not justice has a deterrent impact on international actors. Bashir’s re-election demonstrates that justice does not always serve as a deterrent factor. While some might argue that justice does not work as a deterrent factor because of the perpetrator’s inability to perform a cost benefit analysis of the situation, Bashir demonstrates otherwise. Bashir’s ICC arrest warrant proves that his desires and demand for presidency make him a rational actor. “Despite his age, stepping down is not an option for Bashir. It would mean surrendering power and the possibility of prosecution by The Hague.” Bashir’s ICC arrest warrant failed to deter Bashir’s actions, but also motivated him to run for re-election. Not only did justice fail to provide deterrence for the Sudanese perpetrator, Bashir’s re-election poses a threat to peace and security as his presidency could destabilize the current political situation. “These elections may decide something, but do not resolve anything. Indeed, they have deepened the current political crises by intensifying mistrust: mistrust among political parties, mistrust among the country’s centre and its peripheries, and mistrust between political parties and their supposed constituencies.” How should the international community respond to Bashir’s re-election? Is there such a thing as “un-doing” justice and could it help in stabilizing Sudan’s political situation? If Bashir is a rational actor, what can be done to remedy the situation?

“The Amnesty Tightrope” in Colombia

This article demonstrates the tension between peace and justice we’ve discussed in class.  Ongoing conflict in Colombia may come to an end if the two parties can agree to the terms of a peace agreement, but the crucial issue is whether or not combatants will get amnesty.  This is complicated by the fact that Colombia signed and ratified the Rome Treaty in 2002, giving the ICC jurisdiction.  If the agreement relies on impunity, there may be an issue of international law, as the ICC may prosecute despite an amnesty agreement.  The ICC has already been involved with the conflict and opened a preliminary investigation as far back as 2004.

Colombia’s President, Juan Santos, has resisted, insisting on Colombia’s “right to chart it’s own path for justice,” highlighting the tension between international justice and state sovereignty.  This is a difficult balance to strike because there is merit on both sides.  On one hand, the country in which the violence is taking place should certainly have ownership over the resolution of that conflict.  It will increase the chances that the terms of the deal are followed and that the deal is perceived as fair.  On the other hand, the role of the international community as a check on the domestic justice process is crucial.  Holding those responsible, especially the elite perpetrators in positions of power, cannot be compromised.  Prosecution is necessary not only to ensure there is justice for the victims of this conflict, but also to establish a deterrent precedent in future conflicts.

Mbeki and Mamdani Argue for Peace Over Justice

Earlier this month the New York times published an op-ed entitled “Courts Can’t End Civil Wars.” The article’s authors, Thabo Mbeki and Mahmood Mamdani, both have deeply rooted histories in situations of conflict in Africa.  They argue that today’s approach to situations of international conflict is flawed and misguided– that the conversation we’re having about international justice is broken.  Rather than focusing on “the inadequacy of court trials as a response to politically driven mass violence,” the international community has focused on how to make the court most effective.  Mbeki and Mamdani, however, feel the very fact of using a court as the solution to violence and strife, is inevitably going to be ineffecive.  You cannot use legal solutions to fix political problems, they argue.

Mbeki and Mamdani’s argument has a second dimension.  In finding a solution to situations of conflict, one should not seek “victims’ justice,” or justice centered around victims’ needs and desires, but rather peace as justice.  Because in these conflicts no party is totally innocent, all parties must be incorporated into the future political system, and into a better society.  The focus of transitional justice should be on the best way to include all into a new, fair order. The most effective way to do this, they claim, is by avoiding placing absolute blame, as takes place in a criminal trial, and rather “to think deeply about human wrongs… (and) wrestle with the problems that give rise to acts of extreme violence,” in order to permanently break a cycle of atrocity.  Essentially, Mbeki and Mamdani place themselves on the “peace” side of the Peace vs. Justice debate.

What Mbeki and Mamdani advocate  seems somewhat idealistic, but they make an important point. The nature of transitional justice has changed.  Originally, with the Nuremberg trials, transitional justice referred to the process of transition after the end of conflict, and as a way of healing a broken situation.  Now, with the presence of the ICC, criminal prosecutions are used not only after violence has ceased, but also as a method for ending said violence– the ICC essentially forces the “transition” aspect of transitional justice.  Prosecutions of past crimes versus prosecutions as a means of ending crimes, are two very different processes, and, as Mbeki and Mamdani point out, need to be treated as such.

Israel, Palestine, and Peace vs. Justice

Secretary Kerry is currently in the middle of a massive push to end the Israeli-Palestinian conflict through a negotiated two-state solution. Since July, when the current round of peace talks was announced, Israeli Prime Minister Netanyahu and Palestinian President Abbas, along with their chief negotiators, have been carefully working through core issues of the conflict such as refugees, borders, Jerusalem, security, and mutual recognition.  In the coming weeks, Secretary Kerry will likely present Israelis and Palestinians with a so-called Framework Agreement, outlining potential solutions to these issues, along with parameters for moving forward with negotiations.  Included in this agreement, as well as in a future final status agreement, will be a stipulation for an “end of claims.” This effectively means that, with the signing of a peace deal, Palestinians will agree not to pursue aims outside of the settlement negotiated, including legal accountability.

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This agreement to an “end of claims” has important and interesting implications for international justice and for the Peace vs. Justice debate.  The number one Palestinian demand since 1967 has been an end to the occupation– indeed, when Palestinians have spoken of bringing Israel to the International Criminal Court, it is in the context of ending occupation, and not necessarily out of a desire for accountability. Legal accountability, for them, seems to be a means to an end.  Additionally, 60% of Palestinians and Israelis have expressed support for a two-state solution should one be reached, which indicates a willingness to live side by side in peace. Both factors indicate a clear favoring of peace above all else.  Because Israel is not a state party to the Rome Statute, and the UNSC would not recommend investigation, a future Palestinian state is the only remaining possibility for an international justice process.  There must, therefore, be an enormous level of trust between the two parties that if a Palestinian state is created, there will truly be an “end of claims,” and clear consensus that peace is most important.  This suggests that a sort of “peace as justice,” might be possible. The fact that we are currently in the middle of negotiations, and issues like dividing Jerusalem and mutual recognition seem far more contentious than the “end of claims” issue, means that whatever agreement is reached, will be perceived as yielding justice for the Palestinians.  For those involved in conflict, the definition of justice is not so narrow– when peace is made and demands are met, not much else matters.

“These demands may range from claims that impunity is a necessary sacrifice to achieve peace, to the belief that without justice no meaningful peace can be reached.” (Mallinder, 2007)

In framing the two ends of the peace vs. justice spectrum, Mallinder (2007) illuminates an interesting aspect of the debate.  Essentially every single article we’ve read on peace vs. justice has framed the debate in this same way, utilizing “impunity” as an antonym to “justice.”  In class we touched on the dilemma that there are different conceptualizations of justice within the field, but the literature quite consistently uses these two as opposites.

“Never forget that justice is what love looks like in public,” wrote Cornel West.  It seems that by seeking punishment, retributive justice only harms rather than helps and is thus an injustice in and of itself.

¿La paz o la justicia para Colombia?

Last week saw the unfolding of two seemingly unrelated—yet intrinsically linked—events in the field of international justice: First, the commencement of formal peace negotiations between the Colombian government and leadership of the FARC guerillas; and second, the opening of the ICC’s eleventh Session of the Assembly of States Parties. While approximately 4,800 miles separate Havana from The Hague, the topics of discussion at ICC facilities in the Netherlands will have some bearing on the talks taking place in Cuba.

As asserted by Paul Seils, vice president of the International Center for Transitional Justice, this preliminary step towards ceasing violence and embracing peace in Colombia brings to light the multifaceted nature of the long-standing conflict—and the immense challenges that will accompany such a process. That being said, a successful transition to a state of relative peace in Colombia could have far-reaching positive implications for Latin America as a whole. Nevertheless, attempting to resolve such a structurally embedded conflict (in terms of the many strata of Colombian government and society that are involved, openly or otherwise) calls attention to the ever-present tension between peace and justice. Seils makes note of the unique definition of peace in the case of Colombia—the centerpiece of which is “establishing a credible state where the rule of law applies to all”—and this further tangles the web of attempting to attain peace while providing justice (both of which as a means of stability for the war-ravaged nation). How can stability and faith in the rule of law be restored without some sort of judicial proceedings?  At the same time, however, how will the threat of prosecution (on the international and/or the domestic level)—for those on all sides of conflict—factor into (and perhaps hinder) peace negotiations?

Meanwhile, this tension between peace and justice is on the agenda for discussion at the ICC’s Session of the Assembly of States Parties. It will be interesting to see what stance relatively new Chief Prosecutor Fatou Bensouda takes (especially in comparison to that of her predecessor, the somewhat controversial Luis Moreno-Ocampo) and how that will affect the situation in Colombia and similar situations elsewhere in the world. While justice in Colombia, for example, may very well be pursued (if pursued at all) through means other than the ICC, her opinion (as a leading figure in the field of international justice) and actions as a result of that will most likely come to have bearings on the pursuit of transitional justice in all forums.

A Legal Route to Indicting Assad?

Eight months ago, Secretary of State Hillary Clinton insinuated that Bashar al-Assad is a war criminal; however, the US was reluctant to indict him, preferring to keep Assad’s exit route open as a mean to peace. But, as I said, that was eight months ago and this is now. Tens of thousands of Syrians have been killed in the conflict so far and the great powers remain in a diplomatic stalemate, with the US and the Gulf States backing the Syrian opposition, and Russia, China, and Iran backing or at least obstructing efforts to take action against the current regime. Indicting Assad has been dismissed as impossible by some because of Russia’s and China’s power to veto a Security Council referral to the ICC – a necessary proceeding considering the fact that Syria is not a State Party to the Rome Statute. But unlike Libya, Syria is a signatory to the Statute, which carries with it an obligation, as outlined in the Vienna Convention of the Law of Treaties (Article 18), “to refrain from acts which would defeat the object and purpose of a treaty.” Despite the fact that such a legal case would likely be destroyed in the political maelstrom that would follow and may even damage “the developing bond between the Court and UN Security Council as co-defenders of justice and peace” if it survived the onslaught, it does point to the fact that the veto power of two great powers does not necessarily need to make impunity an unalterable fact of life in the case of Syria.

If the legal route doesn’t seem tenable, there is more pressure to be put on China by the Gulf States on whom it is dependent for energy. Without China, Russia, now standing alone, might yield. You could also play diplomatic football with Russia and grant it leadership over a Security Council measure to indict Assad. Perhaps good press and widespread international recognition would prove convincing enough. It may be a historically unprecedented move, but going with the legal option I proposed, if all else fails and if it really is possible, would at the very least draw more attention to Russia’s and China’s obstinance and place even more pressure on them. In the meantime, immobility is not an option for those who do not wish to see the cause of international justice and the credibility of its institutions undermined.