Judging War Criminals - Essay Example

?Consider Minow's dilemma: "The central premise of individual responsibility portrays defendants as separate people capable of autonomous choice- when the phenomena of mass atrocities render that assumption at best problematic" (Minow, 1998: 46) The recognition of the universality of human rights is perhaps the strongest force that underlies initiatives made towards the struggle for justice after a period of mass atrocity. A fairly recent innovation, it was developed with the end in view of sweeping off the dust that has settled over past atrocities and demanding that its perpetrators face accounting in history. Perhaps most importantly, its aim is to give the victims a forum through which their story may be told before it becomes obscured by a society unwilling to confront its unpleasant and inconvenient truths. While forgetting may seem an alluring option for some, unwilling as they are to face the disquietude brought about by rousing old skeletons, there is a greater ethical and moral imperative to exhume the past if only to serve as lessons for the future. In her important book entitled “Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence”, Martha Minow looks at the range of institutional responses that have been crafted with the end in view of seeking justice for the victims of mass atrocities and demanding accountability from the perpetrators. The ethical imperative of incorporating justice into efforts towards peace in a post-conflict context is at the heart of the transitional justice project. Its premise is that war and conflict have brought about a slew of human rights and international humanitarian law violations which demand accountability from its perpetrators and reparation for its victims. Minow uses this framework in her book as she problematizes the difficulties of navigating the complex road to justice, in the complex terrain and conditions of a post-conflict situation. Minow, however, presented a crucial dilemma when she stated that "The central premise of individual responsibility portrays defendants as separate people capable of autonomous choice- when the phenomena of mass atrocities render that assumption at best problematic" (1998: 46). This is a dilemma because it articulates a conflict between the desire to prosecute individual perpetrators for war crimes and crimes against humanity, and the realization that the mass atrocities were taking place amid extraordinary conditions and assigning individual criminal responsibility to the perpetrators – even if they were the leaders or the heads of the military – does not capture the depth and breadth and magnitude of the phenomenon at hand. This paper will explore this dilemma even further, and will demonstrate that while there is persuasive value to individual criminal responsibility, it is an injustice to constrain or limit oneself to the institutional and legal mechanisms that seek accountability for individual criminal behavior without looking at the conditions that gave rise to the atrocity. To quote Franke (2001: 1), “Justice is, of course, a very complex ethical, legal, institutional and emotional problem, and its aspirations are rendered all the more difficult in transitional societies that are struggling with unstable governance, security and economic institutions.”. Certainly, there are cases where individual criminal responsibility may be very clearly gleaned. Historical accounts have it that on April 25, 1987, Slobodan Milosevic, the fallen President of Serbia, went to Kosovo Polje and was met with a crowd of fifteen thousand Serbs, including an old man who suddenly shouted to Milosevic that the ethnic Albanians were beating them. Milosevic responded by calling out to the man, “No one shall dare beat you again.” As if these remarks were not incendiary enough, he proceeded to say, “This is your land, your fields, your gardens; your memories are here”. A decade later, under Milosevic’s watch, in defense of fields, gardens and memories, Serbian forces unleashed ethnic cleansing in Kosovo -- resulting in the massacre of thousands of ethnic Albanians and the forcible displacement of around 800,000 more. The retaliation of the ethnic Albanians on the few Serbs that have been left behind still continue to this day, pointing to the cyclical nature of the violence. (Anastasijevic, 2004:105). The ethnic divides in the conflict-torn and poverty-ridden ex-Yugoslav region have cut deep and painful wounds. Milosevic’s detention in a prison cell in the Hague before he died could well be said time well-deserved. I argue however that immediately proceeding with assigning individual criminal responsibility without unpacking the assumptions and theoretical arguments that underlie the transitional justice project ignores its complexity. Dexter (2008: 60) has carved out a compelling argument on the criminalization of violence, and how the project is based on the – according to him, unfounded -- assumption that “international humanitarian law is the most appropriate mechanism with which to solve intrastate warfare.” At the heart of this argument is a keen suspicion of attempts to analyze and solve long-term and protracted violence using the analytical lens of criminal justice and the law. While impunity is central to peace (Hayner, 2008: 328), the means by which impunity is addressed need to be reflected on. Indeed, international justice is not sterile, but fraught with politics (Beigbeder: 1999, 2) and can be an arena of conflict. Transitional justice understands and analyzes injustice and violence using the lexicon of criminal justice (“perpetrator”, “liable”, “victim”, “guilt/innocence”) and violations are measured – and later punished -- using the normative standards prescribed by law and the legal system. Teitel (2003: 893) provides a concise definition for transitional justice, as follows: “the view of justice associated with periods of political change, as reflected in the phenomenology of primarily legal responses that deal with the wrongdoing of repressive predecessor regimes.” Because courts can only try human beings and not institutions or systems, it is perpetrator-specific. A good description of the mechanisms involved in transitional justice is supplied by Franke, and this paper will benefit from a lengthy quotation: The template of mechanisms available to undertake transitional justice are familiar to those who work in this field: prosecutions (domestic and international); truth and reconciliation commissions; lustration (the shaming and banning of perpetrators from public office); public access to police, military and other governmental records; public apology; public memorials; reburial of victims; compensation or reparation to victims and/or their families (in the form of money, land or other resources); literary and historical writing; and blanket or individualized amnesty. In most cases, justice demands the deployment of a number of these tools, given that no one of them can adequately address and repair the injuries of the past. The problems with transitional justice however are manifold. I discuss two. First of all, assessment of violence and human rights violations using default legal responses at best conceals a wide range of other forms of violence committed but are beyond the ambit of criminal prosecution, and at worst, legitimizes these forms of violence. (“if not declared illegal, then it must be legal. If legal, then it must be right.”) For example, structural violence, defined by Prontzos (2004:300) as “deleterious conditions that derive from economic and political structures of power, created and maintained by human actions and institutions” are swept on the rug and forgotten, because transitional justice, wittingly or unwittingly, puts a premium on the kind of violence measurable through legal lenses. Likewise, gender violence, or the systematic deprivation of privilege and opportunity to women, that do not constitute “actionable wrong” in legal parlance are likewise made invisible. Distressingly, studies find that violence against women spike during a post-conflict situation. According to Chingkin and Charlesworth (2006:946): “This can occur due to post-traumatic stress, the need of men to reassert control in their homes, which had been headed by women during the war, or the sense of dislocation, powerlessness, and unemployment that combatants may face upon return.” The fact that some of these forms of ignored violence are more deeply-rooted, systematic and insidious, yet invisible from legal scrutiny, should be of concern to transitional justice scholars. So should violence deployed in the name of nationalism, where minority groups are marginalized not so much by the individual criminal responsibility of one person, but by the establishment as a whole – the “imagined community” (Anderson, 1991: 1), where homogeneity was imposed “by the objective, inescapable imperative of industrial civilization, of which the major state nationalisms were the expression and the vehicle” (Watson, 1990: 195, also Roy, 2002) and built through time via unnoticed, daily practices that naturalize nationalism through daily reproduction. (Billig, 1995: 301, also Gellner, 1983: 6). Indeed, it is the daily reproduction of hate and violence that creates “no war no peace situations” (Ginty, 2010: 147) and creates a simmering hotbed, with the threat of public disturbance always threatening to break through. Second, the pitfall of measuring atrocity is that it has the unavoidable consequence of also measuring oppression: some classes of victims are privileged over another, some narratives are more valued than others, some left forgotten. In some cases this is an unfortunate technicality -- as for instance in legal jurisdictions wherein only State agents can be liable for torture, thus disenfranchising victims of non-State actors. In the case of the Philippines, for example, the law prohibiting torture only exacts accountability from the military, a tragedy for the thousands of former cadres of the communist insurgency who were tortured by the Communist Party of the Philippines under suspicion that they were deep penetration agents of the government (Garcia, 2001: 1). To date, they still clamor for justice. But in many cases, the seemingly arbitrary denial of justice to some groups and conferment of justice to others are outcomes of asymmetrical power relations that underpin how justice is framed and dispensed. The end-result however, is the negation of the victim’s story, her narrative rendered incoherent because it does not fit into the neat institutional grids, her truths litigated and then eventually dismissed. However, there may be a way to balance both the legal aspect and the moral aspect, both the need to prosecute and the desire to come up with more long-term sustainable strategies towards lasting peace and more durable justice. This is particularly true in case described by Akhavan (2001: 7) – “conflicts (that) resulted from the deliberate incitement of ethnic hatred and violence by which ruthless demagogues and warlords elevated themselves to positions of absolute power.” In these cases, justice is not optional and exacting accountability should not be subject to debate. But what form should justice take? The innovation of truth commissions for example, as mentioned by Minow, can be helpful in balancing different social needs. Historically, truth commissions have helped create positive inroads towards reconciliation, healing and truth-seeking. In Guatemala, the report of the truth commission was released in a public and emotional ceremony attended by thousands. In El Salvador, the report entitled “From Madness to Hope” was treated as a major national event. It became a Sunday night habit for most South Africans to catch the “Truth Commission Special Report” on television. Indeed, getting the truth commission and its results serves many purposes. First, it informs the public of the atrocities that have been committed, and stirs outrage that can be channeled towards a higher level of human rights consciousness. Second, it reaches out to the nameless and faceless victims with stories to tell, but without a forum through which these stories may be told. Third, it brings the perpetrators who have managed to dodge the reach of a weak judicial system to the court of public opinion. But then again truth, as theorists have posited, are contested and malleable. D’Costa (2006: 22) writes: “Telling the truth” is a necessary step for peace-building, promoting democracy, striving for social justice, and transforming society more broadly. But whose truth is being told? What kind of reconciliation is being assured by this telling? Is justice being compromised in the name of fostering peace in a post-conflict society? The formal and officially sanctioned mechanisms to “speak the truth” are often subjected to manipulation by the elite. Without investigating the historical truth claims and retrieving historical documentation, it is impossible to establish democratic development and respect for human rights in a war-torn society. In the end, the answers are never easy. There is an even greater imperative in this contemporary age to come up with appropriate mechanism to prosecute war crimes. The stakes are getting higher and modern tehnology have made it easier to detonate bombs that can decimate entire communities and peoples in the blink of an eye. Modern civilization has unfortunately not made us more civilized; quite the opposite – it has just made the means of warfare and the savage barbarism of the past more savage and more convenient by access to sophisticated technology. We have seen how leaders still have the capacity for untrammeled violence. Libya and Egypt are rich demonstrations of this. So is the Iraq War which has cost the US government millions (Stiglitz and Bilmes, 2010). Despite the murky thicket of retributive justice and assignment of individual criminal responsibility, we must maintain clarity and be illumined by Minow’s reminder to seek to work towards replacing “violence with words, and terror with forgiveness” (1999: 2) and also of navigating between “too much memory and too much forgetting.” The how is still up for debate and subject to evolving conversation. The why however should be clear for all to see. Works Cited Akhavan, P. ( 2001). “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” The American Journal of International Law. Volume 95: 1. P. 7-31. Anastasijevic, D. (2004) 'Good Policies Needed before Good Practices can Thrive in Kosovo', in N. Dimitrijevic and P. Kovacs (eds) Managing Hatred and Distrust: The Prognosis for Post-Conflict Settlement in Multiethnic Communities in the Former Yugoslavia, pp. 103-113. Hungary: Open Society Institute. Anderson, B. (1991) Imagined Communities: Reflections on the Origin and Spread of Nationalism, 2nd ed. London and New York: Verso. Beigbeder, Y. (1999). Judging War Criminals: The Politics of International Justice. New York: Saint Martin’s Press. Billig, M. (1995) Banal Nationalism. London: Sage. Chinkin, C. and H. Charlesworth (2006) "Building Women into peace: the lnternational Legal Framework," 27 Third World Quarterly (5). D’ Costa, B. (2006). “Marginalized Identity: new frontiers of research for IR?” in Feminist Methodologies for International Relations, Brooke, A. (ed). UK: Cambridge University Press. Dexter, H. (2008). “The ‘New War’ on Terror, Cosmopolitanism and the ‘Just War’ Revival.’ Government and Opposition. Vol. 43, No. 1, pp. 55-78. Franke, K. (2005). “Gendered Subjects of Transitional Justice.” Prepared for ICTJ Meeting on Gender and Transitional Justice. Available at http://www2.law.columbia.edu/faculty_franke/ICTJ%20Justice%20Paper.pdf Garcia, R.F. (2001) “To Suffer Thy Comrades”. Manila: Anvil Publishing. Gellner, E. (1983) Nations and Nationalism. Ithaca: Cornell University Press. Ginty, R. (2010) 'No War, no Peace: Why so Many Peace Processes Fail to Deliver Peace', International Politics 47(2): 145-162. Hayner, P. (2008) “Negotiating Justice: The Challenge of Addressing Past Human Rights Violations” in John Darby and Roger Mac Ginty, (eds.), Contemporary Peacemaking: Conflict, Peace Processes and Post-War Reconstruction, 2nd Edition, New York: Palgrave Macmillan. pp. 328-338. Minow, M. (1998). Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Boston: Beacon Press. Petras, J. (2003) The New Developments Politics: The Age of Empire Building and New Social Movements. Aldershot: Ashgate. Prontzos, P. (2004) “Collateral Damage: The Human Cost of Structural Violence”, in A. Jones (ed.) Genocide, War Crimes and the West: History and Complicity. London-New York: Zed Books, pp. 299-315. Stiglitz, J. and L. Blimes. (2010) “The True Cost of the Iraq War: $3 trillion and Beyond.” The Washington Post. Accessed 18 August 2011. http://www.washingtonpost.com/wp-dyn/content/article/2010/09/03/AR2010090302200.html Roy, A. (2002) “Come September”. Accessed 15 August 2011. http://oak.cats.ohiou.edu/~hartleyg/docs/comeSeptember.pdf Watson, M. (1990) Contemporary Minority Nationalism. London and New York: Routledge. Teitel, R. G. (2003) "Theoretical and International Framework: Transitional Justice in New Era," 26 Fordham International Law Journal 893-906 (4). Read More