By Janet Anderson
After several weeks focusing on the highs and lows at the International Criminal Court, it’s good to take some time away from The Hague.
Why? Two pieces I’ve read recently have made me think about what justice really means in places like Sri Lanka, Uganda, Colombia, Cambodia and the Central African Republic.
Both articles are highly critical of some of the ways current international justice systems and expectations work. Not the usual 'why doesn’t the ICC put this or that Western leader on trial?', but rather useful critiques, which point out where the courts, planned courts and other post-conflict justice processes all need improvement.
The first article
is by Heather Ryan, who has long been monitoring the E-Triple-C, as the Cambodia Tribunal dealing with crimes by former Khmer Rouge leaders, is also known. The court itself is a very interesting point, hearing details about alleged genocide against ethnic Vietnamese by the former regime.
But as Ryan points out, the ECCC itself is maybe the worst possible model for a future hybrid international/national court you could have.
"The ECCC is not a model for other hybrid tribunals to replicate. It has been plagued by political interference, inefficiency and financial difficulties."
She acknowledges the often difficult circumstances which have lead to the development of these hybrid institutions:
“By definition, [they] take place in less than ideal circumstances for ensuring independent and credible accountability.”
But also that the demand for them is there: “they can help bridge the gap between purely domestic tribunals and the purely international ICC”.
That said, Ryan goes on in a second post
to detail what would be needed in both Sri Lanka and the CAR – where hybrid tribunals are being mooted – to stop them from going the way of ECCC. And it’s a formidable list, which, when you read through, makes you realise how often our response to the demand for justice is just ‘set something up’ and how much more is needed – funding, political will, training, commitment to international standards – to make it truly work.
The other piece
I recently read was from Phil Clark. He had a real go at the big NGOs of the justice and human rights world, describing their positions as “absolutist” and “having a tin ear” to local justice concerns in Colombia and Uganda. For Colombia, that’s in the context of a recently formulated and still fragile peace agreement between rebels and the government, which has involved intense negotiations on what kind of investigation/punishment might be acceptable to deal with the massive human rights violations people have suffered during the war. The compromise achieved is apparently not good enough for the likes of Amnesty International and Human Rights Watch, says Clark, and endangers peace negotiations.
"These organisations’ calls for “non-negotiable” criminal prosecutions of all actors suspected of committing serious crimes belie the complex and fragile nature of peace negotiations. Convincing powerful actors who have waged decades-long conflicts – with both sides committing atrocities – to lay down their arms requires patience, flexibility and a willingness to compromise. This includes having all justice options on the table at the outset. Without such an assurance, one or both parties are likely to walk away and resume hostilities."
Phil Clark also looks back at what happened with Uganda. LRA leaders were already targeted by the International Criminal Court. Peace talks were eventually scuppered, with the rebels returning to fight. He says that UN mediators at those talks felt pressured because the human rights organisations:
"produced a steady stream of (often highly emotive) communiqués insisting that Uganda had an international obligation to arrest and transfer the LRA commanders to The Hague and that any attempt to deploy the national amnesty, or any other domestic transitional justice mechanism that did not amount to full-blown prosecutions, would violate international law".
So, I’m wondering whether we do have agreement worldwide on what constitutes best practice in post-conflict justice? Whether local realities – often messy, compromised – trump international standards? Whether we risk leaving the ICC stuck up alone on a rather high, unapproachable mountain conducting trials while there’s little enthusiasm and not enough money for other kinds of approaches?
Cartoon by Emanuele del Rosso/Justice Hub