Imperatives for peace and for justice often seem to collide in many conflict and post-conflict situations. The immediate inspiration for this article was the recent arrest in Northern Ireland of Sinn Fein politician Gerry Adams, in connection with the 1972 murder of Jean McConville. Coming right before European and local elections the arrest had immediate political consequences for the stability of Northern Irish institutions, the outcome of the upcoming elections and the success of the ongoing peace process in the province. It also highlighted the ongoing lack of agreement for how to handle the legacy of past killings despite sixteen years of relative calm.
This problem is especially acute in modern conflicts. Today’s wars tend to be messy civil ones, often with a bewildering kaleidoscope of armed actors. Unlike the interstate wars of the past, there is often no clear victor to a struggle, and often no clear-cut chain of command. Instead there is a usually a messy list of atrocities, at the end of which is a patched-together political settlement that sometimes holds, and sometimes does not. To return to the example I give in the opening paragraph, many sources allege Gerry Adams to have been a senior Irish Republican Army (IRA) leader, responsible for ordering bombings and murders in the 1970s and 80s. Adams however denies ever even being a member of the IRA. His detention by police investigating the McConville murder could easily have led to widespread rioting in Republican parts of Belfast. On the other hand it could also yet lead to Loyalists withdrawing from the unity government, so toxic is the issue in the Protestant community.
Recent developments outside Northern Ireland have brought the issue to a head when it was discovered that, in effect, certain IRA militants had been offered amnesty without publicising it. One was considered, but opposed even by some members of the Republican community, because it would have blocked future prosecutions of British state agents or troops for their role in civilian deaths. In order to move the peace process forwards and stop the violence, a deal instead had to be made secretly; assurances were given and the IRA duly disarmed in 2005. If that deal is now revoked the sense of betrayal in Republican districts will be palpable; it will be another example of British “treachery”. On the other hand, the victims of terrorist and state violence want justice for what they suffered. It has been argued it was a lack of justice that fed the continuing cycle of revenge attacks between the two communities long after it was clear that neither side could “win” the Troubles.
I use Northern Ireland as an example because it is familiar to me, but also because it is a useful example of my wider point. The Troubles took place inside a wealthy, capable, democratic state with a reasonable (though not perfect) human rights record. The area fought over was small and geographically isolated; the numbers of combatants were low. Many mechanisms were and are in place to dampen violence and punish perpetrators. Yet even here, with so many factors in favour of containment and a clear, capable and established judicial process, the imperatives of keeping the peace sometimes stand in the way of punishing the “guilty”. Pity then, the developing or failed state, when the stern and unbending demands of international justice meet the realities of life on the ground for the communities involved in conflict.
The recent case of Congolese warlord Bosco ”The Terminator” Ntaganda, currently being tried before the International Criminal Court (ICC), makes an illustrative example. A feared rebel militia leader, he had been amnestied and integrated back into the Congolese army. However an ICC warrant was issued for his arrest over past atrocities. When, for political reasons of his own, Congolese President Joseph Kabila signalled he was prepared to comply with the ICC, Ntaganda promptly helped form and lead a new rebel group, M23, which launched a bloody eighteen month insurgency. The Terminator handed himself into the ICC only when he became concerned he was going to be murdered by another faction within M23. The human rights records of the court’s enforcers in this glorious triumph for the rule of law, Congo’s government (who handed him over) and the main M23 backer Rwanda (who gave him up from their embassy), are predictably appalling.
The advocates of international law often argue that without punishing the perpetrators of war crimes, crimes against humanity, or acts of terrorism, the stage is set for a future return to violence; either from revenge attacks, future violence by the accused themselves, from succeeding generations. I do not argue that ignoring perpetrators can never lead to continuing violence. But the uncomfortable fact is that fulfilling the letter of the law can often lead to violence as well. Indicted government leaders especially have nothing gain by negotiating a handover of power and less to lose from violent repression if there is no way out. When confessional or ethnically divided states that have undergone a change in regime use the judicial process to pursue supporters of the former government, it is often perceived as politically motivated revenge by the losing side, not justice.
Furthermore the principles laid down in international law are inflexible; they do not recognise such devices as amnesties, statutes of limitations or sovereign immunity for getting around the thorny problem of what to do with individuals, groups or officials accused of human rights abuses. In theory it is the responsibility of all the international community to detain, try and jail the guilty. Setting aside the political protection enjoyed by certain nations or groups, in practice in the messy politics of the real world the issue is often fudged in order to get a peace deal. This does not lend itself to a clear and transparent peace process, nor to long-term political stability, since even decades afterwards agreements can come unstuck. Witness the renewed tensions in Northern Ireland.
If we imagine a spectrum with total impunity at one end and the rigid pursuit of justice at the other we can easily see that neither extreme fits well with the compromises needed to end political-motivated violence in a country. Ad hoc political solutions break down; sometimes the law itself is the obstacle. Modern international law on war crimes sprang from the flawed precedent of the Nuremburg trials, a vastly different era from today’s conflicts and insurgencies. However, just as the Allies in 1945 learnt from the failure of the pre-war Versailles treaty in their handling of the defeated Axis countries, so we today learn from the mistakes of the post-Cold War era.
It is time to integrate the example of South Africa into international procedures. The idea of restorative justice is a popular one in many countries with a history of violence and in many cases it is this form of justice which would suit our anarchic world system much better. However it has never been adopted by any of the various international bodies charged with punishing atrocities, including their overall successor the ICC. For the reasons I explained above, resentment against the ICC runs high in countries where most of its on-going cases focus. Just he process of getting an accused person to trial there often takes many years and is full of the kind of twists one reads of in political thrillers. The Court also suffers because none of the non-European Security Council members have joined. When many of the original international criminal bodies were set up twenty years ago it was a step into the unknown; now however, we have had over two decades to observe the results, and they are distinctly mixed. It is time for a fresh perspective on international justice.