War crimes

Bringing the wicked to the dock

Mar 9th 2006 | FREETOWN
From The Economist print edition

But does an international search for justice hurt or help the pursuit of peace?

Reuters

HITHERTO, the world's worst tyrants have usually managed to avoid being brought to court for their crimes. Some, of course, were killed. Hitler took his own life. But Stalin and Mao died in their beds. Pol Pot, responsible for the slaughter of 2m Cambodians in the 1970s, lived on in Cambodia until his death in 1998. Idi Amin, Uganda's brutal dictator, saw out his days in comfortable exile in Saudi Arabia; Ethiopia's Mengistu Haile Mariam continues to live in Zimbabwe. The list goes on. But with the spread of international justice over the past decade, the noose is tightening. It is now accepted that there can be no immunity for the worst violations of human rights, not even for heads of state.

Serbia's president, Slobodan Milosevic, was indicted for war crimes in 1999 and is likely to be sentenced to life imprisonment when his trial ends later this year. After ten years on the run, Ratko Mladic, the Bosnian Serb army chief held responsible for the Srebrenica massacre, is expected to be arrested any day. In Chile, Augusto Pinochet is finally facing a real possibility of trial 17 years after the end of his dictatorship. Hissène Habré, a ruthless ex-president of Chad, exiled in Senegal for the past 16 years, could soon be extradited to Brussels to face trial for crimes against humanity under Belgium's “universal jurisdiction” law. Polish prosecutors are preparing to bring charges against Wojciech Jaruzelski, their last communist leader. And Saddam Hussein, Iraq's former dictator, faces near-certain execution at the end of his trial before a special tribunal in Baghdad.

Debate has long raged about the best way to deal with gross violations of human rights. Is it more important to punish the perpetrators or to bring an end to the atrocities? Can one, in other words, secure both justice and peace, or are the two naturally antagonistic?

In the 1980s the concept of “truth and reconciliation” began to be the rage, and justice was relegated to the back burner. Truth-telling, perhaps encouraged by amnesties, appeared a good way of revealing the previously suppressed stories of the victims and (much less often) the perpetrators of the covert state-sponsored violence (death squads, “disappearances” and such like) in Latin America. Indeed, the first truth and reconciliation commission was set up not in South Africa, as many still believe, but in Chile, in 1990. Others followed in quick succession in El Salvador, Chad, Haiti, South Africa (1995), Ecuador, Nigeria, Peru, Sierra Leone, South Korea, Uruguay, Timor-Leste, Ghana, Panama, Congo, Liberia and Morocco, the first in the Arab world. Algeria, Afghanistan and Burundi are now considering following suit.

But for many, the idea that genocide, ethnic cleansing, torture and other such horrors should go unpunished became increasingly troubling. Under the principle of national sovereignty, nation states were supposed to have responsibility for enforcing their own criminal justice. But all too often they had shown themselves unwilling or incapable of prosecuting the worst culprits, either because those responsible were still in power, or because they had taken refuge in other countries and were now out of reach. Hence the turn to international justice.

In 1993, the UN's International Criminal Tribunal for ex-Yugoslavia (ICTY) in The Hague became the first international war-crimes tribunal to be set up since the Nuremberg and Tokyo trials after the second world war. It was followed a year later by the UN tribunal for Rwanda, based in Arusha, Tanzania. Like their post-war forebears, the two courts operate exclusively under international law and are staffed by foreign judges. Since then, five other war-crimes tribunals, all with more or less international input, have been—or are being—set up to deal with atrocities in Sierra Leone, Cambodia, Timor-Leste, Iraq and Afghanistan. Lebanon has now asked the UN for help in setting up a “tribunal of international character” to try the assassins of Rafik Hariri, the former Lebanese prime minister who was killed a year ago.

What man can do to man

The Special Court for Sierra Leone, set up jointly by the UN and the Sierra Leonean government in 2002, was the world's first “hybrid” court. Financed by voluntary contributions from UN members, it operates under international law but with a mixture of local and international judges. Based in Freetown, Sierra Leone's capital, it was also the first modern war-crimes tribunal to be based “in theatre” (ie, in the country where the crimes were committed). Desmond de Silva, the court's chief prosecutor, recounts his first visit to an amputee camp in the town four years ago: “I saw a little girl with no arms saying to her mother: ‘Mummy, when will my arms grow again?’ Nearby was a baby suckling at his mother's breast: neither had any arms. These were sights that said to me: do something. This is evil beyond belief.”

ReutersSaddam accounting for a life of crime

Most conflicts, especially third-world civil ones, are marked by atrocities. But the wanton cruelty of Sierra Leone's 11-year bloodbath was particularly barbaric. Although hacking off limbs became the special trademark of the Revolutionary United Front (RUF), the main rebel group, all sides were guilty. Child soldiers, some not yet in their teens, would rip open pregnant women's stomachs after taking bets on the sex of the fetus. Women's vaginas were sewn up with fishing line. Mouths were clamped shut with padlocks.

Children were forced to batter their parents to death and then eat their brains. One man was skinned alive before having his flesh picked off and eaten. Another had his heart torn out and stuffed into the mouth of his 87-year-old mother. Thousands were burned alive in their homes. In all, some 50,000-200,000 people were killed (there is no accurate count) and three-quarters of the country's 6m inhabitants were forced to flee their homes. Should such crimes really be forgiven and forgotten?

Charles Taylor, Liberia's ex-president and a notorious warlord, is regarded as one of the greatest villains of the piece. Accused of arming the RUF rebels in exchange for “blood” diamonds, he was indicted three years ago by Sierra Leone's court, but managed to flee into exile in Nigeria after the collapse of his own regime a few months later. Since then, he has been living undisturbed in a seaside villa, courtesy of President Olusegun Obasanjo. The Nigerian leader granted him asylum as part of a peace deal brokered by Nigeria, Britain and the United States. But prosecutors claim that Mr Taylor has broken the conditions of that deal by continuing to meddle in politics, in Liberia and wider afield. Both America's Congress and the European Parliament have demanded his transfer to the Special Court.

But Mr Obasanjo has said he will not hand Mr Taylor over unless requested to do so by a democratically elected Liberian government. In November, Ellen Johnson-Sirleaf was elected Liberia's new president. She may not yet have made the request; in any case, Mr Obasanjo has made no move. African leaders tend to watch each other's backs for fear that it could be their own turn next. But the pressure is building up. In November, the UN Security Council told its peacekeepers in Liberia to arrest and transfer Mr Taylor to the Special Court if he sets foot in the country. And the United States, hitherto reluctant to upset a valuable ally, has begun to speak out. “We think Obasanjo has an international responsibility and we fully expect him to carry it out,” Condoleezza Rice, the secretary of state, recently told reporters.

If the Special Court does get Mr Taylor, it would be a tremendous coup both for it and for international justice. Mandated to try only “those with the greatest responsibility” for the atrocities, the court has indicted just 13 people (compared with the 162 indicted by the ICTY). The trials of nine of them—three from each of the two main rebel groups and three from the pro-government Civil Defence Force (CDF), in a demonstration of even-handedness—are already well under way. But the four chief culprits are either still at large, like Mr Taylor, or dead, like Foday Sankoh, dreaded leader of the RUF rebels. Their absence has led some critics to question the continued existence of a tribunal which many Sierra Leoneans see as irrelevant to their lives.

The court's decision to try Chief Samuel Hinga Norman, the former CDF leader, has provoked particular anger. Many Sierra Leoneans regard the former government minister, who helped oust a savage rebel junta in 1998, as a national hero. “Surely there has to be a difference between a group of thugs and killers who go round butchering people mindlessly, for no particular reason, and people trying to defend their lives, their homes and their children,” protested Peter Penfold, who was British high commissioner to Sierra Leone in 1997-2000. Mr Norman should never have been indicted, Mr Penfold told the court last month. To such objections, which recur whenever an admired national leader is prosecuted, Mr de Silva is wont to reply: “You can fight on the same side as the angels and nevertheless commit crimes against humanity.” Hence, again, the need for international courts.

Sierra Leone's court is in many ways regarded as a model, with its two-to-one mix of foreign and local judges, ambitious “outreach” (public relations) and victim-protection programmes, tight timetable—it expects to complete its work in under five years as opposed to the Yugoslav tribunal's 17 years—and relatively low budget, less than $30m a year, a quarter of the ICTY's. Admittedly, the competition is not exactly fierce.

The Yugoslav and Rwandan tribunals, while doing good work, are regarded as slow, costly and remote, while the special tribunals in Cambodia, with its majority of local judges, and in Iraq, where Mr Hussein's trial before an all-Iraqi bench keeps threatening to collapse in chaos, are regarded by many as counter-examples, lacking both impartiality and competence. With results so mixed, it is perhaps not surprising that people have begun questioning the need to finance such tribunals.

The court they love to hate

The International Criminal Court (ICC) is the world's first permanent war-crimes tribunal. It is also the first not to have any direct UN involvement and has faced strong opposition from America. Set up in The Hague in 2002, alongside the ICTY and the UN's International Court of Justice (the much older body which rules on disputes between states), it is designed to provide a fairer, cheaper, and more effective way of dealing with the most serious violations of international humanitarian law.

Last October, it issued its first indictments—against Joseph Kony and four members of his savage Lord's Resistance Army in northern Uganda. More indictments are expected soon relating to the slaughter in Congo, where war has claimed 4m lives since 1998. The court has also been mandated by the Security Council to investigate the current horrors in Darfur, in western Sudan, and continues to keep watch on developments in five other violence-racked countries, including Côte d'Ivoire and the Central African Republic.

Yet the ICC's reach is limited. Under its statutes, it cannot bring a prosecution unless the accused's country of origin is “genuinely unable or unwilling” to do so. This is a potential minefield: Sudan, for example, insists it is perfectly capable and willing to try those responsible for Darfur and is refusing to co-operate with the court. It may not prosecute crimes committed before its inception in 2002. And it has jurisdiction only over nationals of countries which have ratified its statutes—100 have done so to date—or over those whose crimes were committed in a country which has. The exception to this rule is if the Security Council refers the matter to the ICC, as in the case of Sudan, a non-member. The ICC is further hampered by the refusal of many of the world's worst human-rights violators to sign up to it. Zimbabwe, Cuba, Uzbekistan, North Korea, Syria, Belarus and Saudi Arabia are all non-members. So are the United States, China and Russia, all three veto-wielding permanent members of the Security Council and thus able to block any Security Council referrals.

Imperfect justice

The purpose and value of the ICC and the other ad hoc war-crimes tribunals are now, in their turn, coming under scrutiny. Critics complain that they are selective and politicised, deliver only partial justice and perpetuate the bitterness, thus preventing social and ethnic reconstruction. All too often, suggests Dominic McGoldrick, professor of public international law at Liverpool University in Britain, they are seen as an attempt by the West to impose its own concept of justice and morality on the third world.

AFPForgiveness in the offing, with the archbishop's blessing

Others, however, argue that ending impunity is vital, not only to reduce the victims' anger and resentment, which might otherwise fuel a never-ending cycle of reprisals and counter-reprisals, but also to deter further atrocities. Without justice, says Paul van Zyl of the New York-based International Centre for Transitional Justice, you may be able to bring a temporary stop to the killing, but there can be no sustainable peace.

Does deterrence work? It is easy to point to the apparent failures. Despite Nuremberg, genocide has continued. The creation of the ICTY failed to prevent the massacres in Srebrenica and Kosovo. The indictment of Mr Kony and his henchmen has not stopped the Ugandan killings. And since the referral of Darfur to the ICC, the violence there has got even worse. But to be effective, deterrence has to be credible. It works only when the potential culprits have a reasonable expectation of being apprehended and punished. It is too early to judge what effect the ICC and the other tribunals will have, says Mr van Zyl, but he adds that there is no doubt “that there is a growing trend in the world toward justice for the top dogs.” He believes Mr Taylor's capture would send a very strong signal to other potential tyrants.

But what about the lower-level perpetrators—the middle-ranking officers who simply follow orders out of fear for their own lives, or the child soldiers, dragged from their homes, brutalised and forced to commit atrocities often under the influence of drugs or alcohol? Should they, too, be held accountable? Here some kind of truth-telling mechanism, backed up by traditional methods of mediation and reconciliation, might be appropriate, argues Kenneth Roth, head of Human Rights Watch, another New York-based lobby. Aimed only at the worst culprits, international justice is at best a blunt instrument. But he is adamant that blanket amnesties are generally counter-productive, except (a big exception) when used as a temporary expedient to bring warring parties to the negotiating table, with the possibility of being “undone” once peace is restored.

In Sierra Leone, Mr Roth points out, the amnesty negotiated as part of the 1999 Lomé peace agreement with the rebels did not prevent the resumption of atrocities a few months later and was therefore annulled. In war-torn northern Uganda, a five-year-old government amnesty, while successful in bringing thousands of middle- and low-ranking rebels in from the bush, has failed to get Mr Kony and his pals to lay down their arms.

Prosecution is by no means necessarily an impediment to peace, Mr Roth insists; the absence of any amnesty provision in the Dayton peace agreement on Bosnia, for example, did not stop Mr Milosevic from signing up to it (because he never dreamt that he, himself, would be prosecuted). Nor did it prevent Afghanistan's warring parties from reaching a peace agreement in Bonn. Furthermore, he says, the amnesties that have been introduced in the past are beginning to be unpicked in the courts, as in Chile in 2003, or annulled outright, as in Argentina the same year. It is now generally accepted that, under international law, amnesties can never apply to gross violations of humanitarian law.

Truth, reconciliation and punishment

Even South Africa's lauded truth and reconciliation process, presided over by Archbishop Desmond Tutu, provided no automatic amnesty. Under the slogan “revealing is healing”, perpetrators were invited to confess to crimes committed under the three decades of apartheid, and apply for an amnesty. But if their misdeeds were deemed too heinous, amnesty could be denied. More than 7,000 applications were accepted, but 5,400 were turned down. In addition, those who refused to confess remained liable to prosecution. For a long time, it looked as if no charges would ever be brought. But now South Africa has announced that it is ready to prosecute five people (no names yet given), with 15 more likely to follow.

Reconciliation and punitive justice are both necessary in the view of Messrs Roth and van Zyl. Far from being antagonistic, the two approaches complement one another. Much depends on local circumstances. Sometimes, as in South Africa, it is better to start with truth and reconciliation, and prosecute later. At other times, as in Iraq, prosecution comes first, and truth and reconciliation may follow when or if the violence ends. Sierra Leone is the only country that has set up a truth and reconciliation commission and a war-crimes court at the same time. Locals grumble, but the wounded little country's bold experiment could set a trend.

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