Peace v. justice: contradictory or complementary.

Author:Al Hussein, Zeid Ra'ad Zeid
Position:Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law


It is with great pleasure that I join you today to share some thoughts on what remains the dilemma bedeviling our age, as countries continue to attempt the transition from conflict to peace. Naturally, I speak this afternoon from what is purely a personal perspective.

Almost exactly eleven years ago, on April 24, 1995, Richard Goldstone, then the Chief Prosecutor at the International Criminal Tribunal for the former Yugoslavia (ICTY) announced that he was investigating Radovan Karadzic, Ratko Mladic, and Mico Stanisic for genocide and crimes against humanity. Mindful of the conditions then prevailing in Bosnia and Herzegovina, which only appeared to worsen by the day and threaten what remained of a cessation of hostilities agreement brokered three months earlier, we, the UN officials on the ground at the time, were alive to the significance of Goldstone's statement.

By April 1995, negotiating with the Bosnian Serbs was for us a familiar, often bitter, experience. For the previous three years we had met, discussed, and pleaded with them, often in humiliating circumstances, to agree to a whole host of measures, some technical, others marked by a sense of great urgency. Yet in almost all these instances, our every turn at negotiation would be followed by a string of broken agreements, and then acts of sheer wickedness, all of which combined to create in us a sense of the deepest frustration. And certainly prior to April 24, the day of the Goldstone announcement, it was only normal for us to assume we would continue to mount further efforts at "good offices" to keep some oxygen at least flowing into a collapsing agreement.

And so, the news from The Hague on the 24th, raising with it the likelihood of sensational indictments radiating out of the tribunal in the near term, was to us a dramatic moment. Quite aside from the implications it carried for a world grown accustomed to impunity accruing for principal actors, it also brought with it a possible suspension of all direct contact and negotiations with both Karadzic and Mladic--which, for many in the United Nations, was rather unbelievable. How on earth, some asked, were we going to see an end to this conflict, if there were to be no further negotiations with the Bosnian Serb leadership? Goldstone was forcing us to think differently.

What ensued were three months of lively discussion in house, and out of house, on the very subject I, together with my distinguished colleagues, are hoping to explore with you today: "Peace versus Justice: Contradictory or Complementary?" Specifically, I have been asked by our organizers to address the question of who owns post-conflict justice. Does the international community's interest in showing no impunity to transgressors trump the local community's interest in negotiating a political settlement? And are these interests reconcilable?

The argument I will endeavor to make is that if inducements are absolutely necessary, and must be offered, to 1) rein into a political settlement those suspected of beating the greatest responsibility for the gravest crimes, so that 2) we can end the long-standing suffering of a local population, then that inducement should not come in the form of an amnesty, which would only cripple our attempts to eliminate impunity. Rather, the international community should invite the leading individuals concerned to submit themselves to a proper investigation and, if need be, a fair trial. Only then could circumstances become more favorable to the defendants, as new possibilities may emerge subject to the discretion of the prosecutor, which may ultimately lead to reduced sentences. But none of this could be possible unless a peace agreement is arrived at first.

This sort of argument, which is not new, is still--in my view--the most rational approach, offering the best balance between the two demands, and one that will gather strength as our impatience with impunity grows and the number of accessions to the Rome Statute increases, with universal jurisdiction continuing to be controversial politically for many. For the lesser categories of offenders, below "those beating the greatest responsibility," other inducements could of course become possible, subject to the wishes of the victims themselves, political realities, and the relevant provisions and articles of the Rome Statute. However, in view of the axiom that it is leaders who wage war and make peace, and given that it is leaders who are often the principal authors of these grave crimes, I will tend to concentrate on them and less so on the other categories.

In all of this, I will touch on the truth and reconciliation commissions and why I do not believe them to be sufficient. I will also be arguing that all societies recovering from the traumas of war must reckon with the past, and while this is the longer term work of historians, and ministries of education, it should first find anchor in unassailable "pockets of truth" revealed by cases prosecuted soon after the end of the conflict.

Turning to the specific questions posed by the organizers, these questions have in themselves framed the context clearly. They refer to a particular space in time--in the transition from conflict to peace. The conflict could be of an international character. However, given the subject-matter, it is more than likely that conflicts of a non-international character will for the most part occupy our attention. It is also worth adding that virtually no conflict of this sort actually exists in its strictest sense: that is to say, to my knowledge there is no conflict devoid of involvement by third parties, be those parties states, neighboring or otherwise, or international criminal organizations, funneling weapons, fuel or supplies to one side or the other. All conflicts tend to have either overt regional or international involvement, or subtle traces of third-party involvement of this nature, or anything and everything in between.

The period in time under our analysis is therefore one of post-conflict: that is, there would have to exist some form of formal or informal ceasefire or better still, a cessation of hostilities (i.e., the separation of the parties, joint commissions, etc.) but not yet a peace settlement. It also presupposes--given that we are speaking of a condition of post-conflict--that some form of contact between the parties has already occurred to settle on, or affirm, a ceasefire and then possibly a cessation of hostilities. It further assumes the existence of a condition where there is no clear outcome to the conflict, militarily or politically, nor where one party is in a position to dictate terms completely and unreservedly to another.

That initial point of contact--that dialogue between the parties, direct or otherwise, which beckons calm--could be the consequence of growing war fatigue, the increasing military weakness of one side relative to the strength of the other (although not to the extent that it can triumph completely), the choking off of military/logistical support by third parties, or by weather conditions, or through the involvement of an international community determined to see a political settlement, or by virtue of the interest shown by the International Criminal Court (ICC) or an ad hoc tribunal.

Whatever the origins of that initial contact, which subsequently clears the way for a ceasefire or a condition we define as "post-conflict," the challenge then confronting the parties, the international community, or a third party mediator, is how do they preserve it, hold on to that contact, how do they strengthen and enliven it, lest it be lost and the sides revert to another round of hostilities, and possibly the commission of further crimes. The means by which the parties can most easily lock a peace process into place, is if the party exercising sovereignty offers to its adversaries an amnesty for crimes thought to have been committed during the course of the conflict. Those crimes may not always rise to the threshold of crimes against humanity or genocide, but they may still include acts of treason. And so the inducement provided by an amnesty and presented to a rebel army, drawing it in, and persuading its leadership to settle accounts finally and peacefully with a government, is clear and requires no further elucidation.

Moreover, with the end of bloody conflict, a wounded nation must, it is often said, find rest. This must be induced in itself a form of deep sleep, to tranquilize those most uncomfortable, most painful, and inconvenient memories. And this can be accomplished through a simple and official burial of facts, under layers of silence. So all and every effort on the part of a transitional government focuses instead on binding the citizenry in the fulfillment of a common aim: that of building peace and concentrating on what lies ahead. Is that not, after all, the overall experience of post-war Europe?


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