Transitional Justice, Peace and Accountability

Outreach and the Role of International Courts after Conflict

Jessica Lincoln

• Publisher: Routledge
• Year: 2011
• Print ISBN: 9780415598392
• eBook ISBN: 9781136728006
• Edition: 1
• Topic: History
• Subtopic: African History
• Index: History

The book looks at the outreach and communication strategies employed by internationalised courts to try to understand the wider impact of international justice.

This book critically examines the role of outreach within international justice focusing specifically on the role of outreach at the Special Court for Sierra Leone (SCSL). It contributes to understanding of the relationship between international courts and the affected populations; an area currently underexplored and little understood. The assumption that justice brings peace underpins much of the thinking, and indeed action, of international justice, yet little is known if this is actually the case. Significant questions surrounding the link between peace and justice remain: do trials deter would-be war criminals; is justice possible for the most heinous crimes; can international justice replace local justice? This book explores these questions in relation to recent developments in international justice that have both informed and shaped the creation of the hybrid tribunal in Sierra Leone. Through empirical analysis, Transitional Justice, Peace and Accountability, answers these questions and provides an insight into individual and community perceptions of international justice.

This book will be of much interest to students of transitional justice, war crimes, peace and conflict studies, human rights, international law, and IR in general.

Part I

Historical background and political context

1 International justice

From Nuremberg to Sierra Leone

Introduction

This chapter explains the origins of the SCSL, positioning it within the legacy of international jurisprudence. It highlights the shortcomings and tensions embedded in international justice from the outset, which have persisted and shaped the development of the SCSL. It starts with a discussion on the development of international justice from the post-Second World War trials at Nuremberg and Tokyo. It considers the politicisation of these trials, and the principle of ending impunity for the worst crimes resulting from them. The subsequent creation of the ad hoc tribunals for the former Yugoslavia and for Rwanda in the 1990s saw the beginning of an international judicial response to conflict and mass atrocity become the norm.¹ As noted by McEvoy (2007), ‘[T]ransitional justice has emerged from its historically exceptionalist origins to become something which is normal, institutionalised and mainstreamed.’

The post-Second World War trials set the precedent for the international prosecution of war crimes, crimes against humanity and crimes against peace. However, it was not until the latter half of the twentieth century that discourse on law in post-conflict or transitional settings became firmly entrenched in the international peace and security agenda (Teital, 2003; UN Doc. S/2004/616). The further establishment of the Rome Statute in 1998 for the creation of a permanent International Criminal Court firmly established the international demand to end impunity for war crimes and human rights abuses. But can justice satisfy the demands for justice after violent conflict? Will the narrow application of law, through a judicial institution, fulfil the need for justice in this environment? Is limited justice more damaging than no justice at all? These questions perhaps need to be reconsidered, to ask: what contribution can justice make to peace in this setting, and, within this, how are the basic principles of international law communicated to ensure widespread understanding that justice is indeed contributing to peace?

The chapter begins with a discussion of the historical developments in international justice. It then moves on to investigate how this field has evolved by considering key transitional justice debates and the central arguments on peace through justice, peace and justice, and peace versus justice. The chapter ends with analysis of post-conflict justice in Sierra Leone to situate international judicial intervention with recent post-conflict peace-building efforts and understand the assumptions underpinning the Court, and appreciate the expectations made of it for Sierra Leone.

The origins of international judicial intervention

The current system of international justice has its origins in the Second World War military tribunals from 1945 to 1949. The Nuremberg and Tokyo Trials laid down the legal and conceptual framework for successive developments in international criminal justice, eventually leading to the creation of a permanent international court half a century later: ‘The Nuremberg Tribunals established the principle that there were such things as crimes against humanity, systematic crimes against civilians that can occur inside a country but that might be tried anywhere else’ (Gutman and Rieff, 1999). The Nuremberg principles established a protocol for the treatment and prosecution of war criminals, preparing the way for the creation of the Genocide Convention in 1948, the Universal Declaration of Human Rights in 1948, the Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against Humanity in 1968, and the Geneva Convention on the Laws and Customs of War in 1949 and its supplementary protocols in 1977. The trials also stood as a stark reminder that such crimes would not be committed with impunity.

The post-Second World War trials saw the indictment of key individuals for the crimes of conspiracy to wage aggressive war, waging aggressive war, war crimes, and crimes against humanity. It was declared under Article 7 of the Nuremberg Charter that: ‘The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment’. The first Major War Crimes Trial at Nuremberg included some of the key officials in the Nazi apparatus, including Ernest Kaltenbrunner, the highest surviving SS leader; Joachim von Ribbentrop, Nazi Minister of Foreign Affairs; and Hermann Goering, Commander-in-Chief of the Luftwaffe; of the twenty-one defendants prosecuted only three were acquitted,² while the rest were sentenced to death by hanging or to serve lengthy prison terms.

Article 8 of the Nuremberg Charter declared: ‘The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires’. This set the precedent for the application of individual criminal responsibility in the later ad hoc Tribunals Statutes: Article 7(1) for the ICTY, and Article 6(1) for the ICTR and ICC.³ The Allied Powers also wanted expedient justice, meaning only those in the top echelons of power would stand trial, although many of the most senior leaders were missing from the trials as they had either committed suicide or absconded. Over 100 people were eventually prosecuted.

Karl Jaspers (1947) believed that the decision to hold individuals responsible meant that ‘for us Germans, the advantages … are its distinction between the definite crimes of the leaders and its very failure to condemn the people as a whole’. The individualisation of responsibility for war crimes remains central to present day prosecutions of war criminals, and a controversial aspect of international justice (Bass, 2002; Fletcher and Weinstein, 2002; Neuffer, 2003). The question still stands as to whether punishment of the few is sufficient justice for the many. Such questions continue to dominate discussions on post-conflict justice, particularly where the line between victim and combatant is blurred. Recent conflicts have increasingly occurred within, rather than between, states. They have also witnessed communities and sometimes neighbours fighting each other, as happened in the former Yugoslavia and Rwanda, where ethnic tensions were exploited with violent consequences. This means that establishing responsibility presents significant challenges to identifying the ‘guilty’ and has the potential to disrupt a peace process where claims for legitimacy or self-defence can be argued and/or justified. Here, calls for reconciliation have often been made alongside or in place of justice – for example, as seen in Liberia with the creation of the TRC.⁴ This presents similar difficulties in terms of who to reconcile with, and whether reconciliation is a desirable end-state for all. Germany, after the Second World War, was physically divided between east and west, but also divided as to its responsibility and acknowledgement of the crimes committed. Many Germans saw themselves as victims of the regime and its failures, not as criminals, or complicit in crimes of the state (Maier, 1988).

Law and politics

The contribution to international jurisprudence from the post-Second World War trials was highly significant, yet the trials themselves have been heavily criticised, particularly for the sense of ‘victor’s justice’, the ‘dubious law applied’, and the lack of provision for tu quoque – the ‘so-did-you’ defence (Taylor, 1993). The trials have also been deeply criticised for the ex post facto law applied – i.e., whether ‘crimes against peace’ and ‘crimes against humanity’ were indeed crimes at the time they were committed (Futumura, 2005). The legal bases of the trials were a controversial part of the process. The London Charter of 1945 established the tribunals’ jurisdiction over crimes against peace, war crimes and crimes against humanity. Prior to this there was no consensus under international law for the definition of these crimes. Thus, an obvious reproach was that these crimes could not be tried retroactively (Martens, 2005). The fact that they were remains a notable point for discussion on the inherently political nature of international war crimes trials.

The Nuremberg and Tokyo Trials were the Allied Powers’ response to prosecuting key commanders for starting a war of aggression. However, secondary to this was the prosecution for the crime of the Holocaust. The support for the tribunals at this time was driven by international outrage at the inhumanity of the Nazi regime against its own citizenry and surrounding populations. Pictures emerging from the concentration camps did not allow for international condemnation with inaction. The Nuremberg Trials saw Nazi leaders tried and punished, but primarily for wreaking havoc and destruction to such an enormous degree, with the persecution of Jews and minorities a secondary element to trial proceedings.⁵ The Tokyo Trials were also viewed as heavily politicised in their indictments and judgements, specifically for the focus on ‘crimes against peace’ and for the immunity given to the Emperor. Despite the overall acceptance by the Japanese people of the trial on the grounds that ‘might is right’ and the reality that there was little choice for the vanquished but to accept whatever the victor did, the decisions were not universally accepted (Futumura, 2005). Although regarded as heroes during the war, the ‘sudden’ defeat and misery that followed caused anger towards their leaders among the Japanese people, who had been informed that Japan was on the winning side. The reaction to the former leaders by the Japanese people soon after the war was based on feelings of betrayal for this deception. The Tokyo Trial was able to take advantage of this Japanese mood while at the same time re-enforcing it, leaving a legacy of indifference and apathy towards the trials. The trial attempted to individualise war crimes and guilt while presenting an authoritative record of history, which only served to reinforce feelings of victory over a defeated people (Futumura, 2005).

Similar claims about the politicisation of trials and of their legal basis were made by former Yugoslav President Slobodan Milosevic regarding the ICTY, and by Saddam Hussein regarding the tribunal in Iraq.⁶ It is difficult to remove the inherently political nature of internationalised trials and the sense of ‘victor’s justice’ that can affect the trial process: ‘Slobodan Milosevic maintained to his death, and his followers continue to maintain, that the wars in the former Yugoslavia were not about ethnic cleansing and destroying Muslims or Croats but about defending a Serbia under attack’ (Sriram, 2007). The creation of a permanent International Criminal Court in The Hague aimed to depoliticise international prosecutions: the ICC has had jurisdiction over war crimes, crimes against humanity, and genocide since the signing of the Rome Statute in 2002 – but only over those states who have ratified the Agreement.⁷ The fact that the ICC can issue indictments but has no authority to arrest suspects and relies on states themselves to detain individuals has meant that the process is tied with internal state politics and wrangling. This is not always a negative aspect, with the eventual arrest of Charles Taylor and his trial at the Special Court for Sierra Leone highlighting the potential benefits of political manoeuvring and bargaining. Similarly, the ICC can only investigate cases put forward by states or by the Security Council, meaning that it is difficult to disentangle political motivations (or perceptions of such), from the judicial process.

The politicisation of the Tokyo and Nuremberg Trials, therefore, is a reminder that ‘while the perceived legacy of Nuremberg was taken to demonstrate the merits of international justice in the aftermath of war, it is by no means settled that this received wisdom is correct’ (Kerr, 2004a). However, Richard Dicker and Elise Keppler (2004) highlight that the ‘imperfect remedy’ offered by the current system of international criminal justice is a ‘vitally necessary alternative to impunity’. The creation of the ad hoc tribunals in the 1990s re-ignited a drive towards international justice that had not existed since Nuremberg and Tokyo. However, Dicker and Keppler draw attention to the tendency to misunderstand the short-term impact of Nuremberg, which they see as being conflated over the years. The immediate reaction of many Germans was that these were ‘political show trials’ for the benefit of international audiences. The sense of justice established by the victors in the conflict served to undermine the trials’ legitimacy in the eyes of many German people. It has taken a new generation of Germans to ask questions about the prior regime based on an acknowledgement of the documentation created at Nuremberg: ‘The IMT’s record has provided an invaluable and incontrovertible reference point of past crimes’. However, the authors also point to the idealised perception of the trials, acknowledging their highly controversial impact at the time they were conducted. Their immediate impact was much more limited than was the longer-term acceptance of what had taken place during the War. Therefore, perhaps one of the greatest achievements of the post-Second World War trials, which resonates today, was establishing a dialogue on justice, asking questions on responsibility and the guilt of those indicted, and indeed those who were not prosecuted, and what contribution this model of justice made to peace in Germany and Japan after the Second World War.

This is central to the debate on whether justice does strengthen peace after conflict. As Sriram (2007) observes in her discussion of the inherent risks (political or otherwise) involved with establishing transitional justice regimes after conflict, these same challenges, namely appropriateness/relevance, are presented to liberal peace-building strategies, and are tied to the overall acceptability of the process and whether such efforts will undermine peace and cause further instability. As discussed further below, transitional justice efforts have so far been dominated by Western calls for accountability based on a legalism. Although this does not diminish trials as post-conflict judicial mechanisms, it does highlight potential tensions in creating legitimate judicial institutions where politics may overshadow the process, as seen at the Milosevic and Iraqi trials, as well as at the SCSL with the CDF trials (Kelsall, 2006), discussed in detail in Chapter 3.

Despite the increased occurrence and continuing importance of international justice in the international peace and security agenda, there is still little systematic empirical evidence to support the assertion that justice does in fact bring peace. The relative merits and drawbacks of judicial approaches have been the subject of intense debate, although this has largely concentrated on the legal and jurisprudential impacts of war crimes prosecutions. Where it has addressed political issues, it has focused on the role of politics in the international criminal justice process (Chuter, 2003; Kerr, 2004b; Maogoto, 2004). Key issues surrounding the relationship between justice and peace remain under-explored.

Few studies offer empirical research examining the impact of transitional justice. Fletcher and Weinstein (2002) similarly highlight that ‘there have been virtually no studies that have systematically attempted to examine or measure the contribution of trials to reconciliation and social reconstruction’. Stover and Weinstein’s (2004) edited study of individual beliefs on the past and for the future in Rwanda and the former Yugoslavia is an exception to this, offering insightful and extensive investigation in this area. Stover and Weinstein’s findings suggest that international or local trials have little relevance to actual reconciliation. Although the authors recognise that trials are essential to combating impunity, they acknowledge that their strengths and limitations need to be recognised. They promote a more conciliatory model of social ‘justice’ that does not concentrate solely on trials as a means of establishing peace, but instead incorporates justice, democracy, economic prosperity and transformation, along with reconciliation to achieve social reconstruction. This holistic approach to peace building sees justice as one aspect that informs a larger process with each factor interacting to affect change. Thus, peace is achieved with justice along with multiple other social, economic and political factors. James Gibson’s (2004) extensive work evaluating the truth and reconciliation process in South Africa also offers a comprehensive analysis of how the truth-telling process affected reconciliation throughout South African society. Although he does not view the SA TRC as a perfect process, he does draw valid conclusions regarding the value of proceedings in establishing the truth, the importance of public acknowledgement of this truth, and the role public apologies have had on the South African peace process.

Advocacy groups have similarly produced various large-scale attitudinal studies towards transitional justice, such as the International Centre for Transitional Justice (ICTJ) comprehensive studies in Iraq (ICTJ, 2004) and Northern Uganda (ICTJ, 2005), as well as the Sierra Leonean civil society organisation Campaign for Good Governance’s opinion poll on the SCSL and TRC conducted in 2002. These reports similarly call for a coordinated transitional justice approach that includes justice, reconciliation, reconstruction and reparations. Inclusion of nationals within the process is also viewed as essential to leaving a legacy of human rights, strengthening the rule of law, and instituting change from within. Outreach and evaluation of previous judicial methods remain pivotal to this success (Interview 77).

Criticisms have been levied against the ad hoc tribunals for their lack of connection with their respective populations (Peskin, 2005a). With neither tribunal being based near its geographical focus, a lack of visibility risked undermining their legitimacy. Operating at a distance, outreach was crucial to raising awareness of the principles and processes of the tribunals. Without this knowledge, the link between peace and justice was undermined and the process risked being politicised if certain groups felt that they were being targeted over others (Muna, 1997–98). After years of proceedings, outreach at the ad hoc tribunals was only established in 2003–04 (Interview 70). Many Rwandans and people within the former Yugoslavia felt a frustrating sense of disconnection with the tribunals and outcomes, as many were unaware of the day-to-day events and had little access to the Courts themselves (Interviews 6, 7). Subsequent domestic methods to address war crimes issues, such as the war crimes courts in Bosnia and Herzegovina and the Gacaca hearings in Rwanda, were hindered by insufficient funds, adding to the frustration over lack of access to justice. The length of time the trials took to complete also led to criticisms centred on the relevance of their work in comparison to other pressing socio-economic f...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface and acknowledgements
• Acronyms
• Introduction
• PART I. Historical background and political context
• PART II. Establishment of the Special Court for Sierra Leone
• PART III. Outreach and legacy
• Notes
• Bibliography and sources
• Index