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Don’t Decriminalize War CrimesFebruary 17, 2014 - 9:56am | admin
By: Matthew T. Simpson and Ahmed H. Adam
In a February 5, 2014 New York Times op-ed, former South African PresidentThabo Mbeki and Professor Mahmood Mamdani of Columbia Universitychastised the international community for efforts to bring war criminals inAfrica before criminal courts. For those concerned with the peaceful resolutionof the conflicts in Darfur, South Kordofan, Blue Nile, and South Sudan, thisidea is both dangerous and untimely.
Mbeki and Mamdani argue that prosecuting war crimes impedes efforts toresolve conflicts, ultimately prolonging them. Further, they spin a fiction inwhich the prosecution of war criminals is mutually exclusive of all other effortsto resolve a conflict. Most disturbingly, they fail to acknowledge the value ofjustice and the consequences of impunity. Courts and other justice mechanismsserve an essential role in establishing a sustainable peace in post-conflictsocieties, while impunity perpetuates the status quo and is a disincentive to thepeaceful resolution of a conflict.
Mbeki and Mamdani imply that judicial mechanisms in a peace process are usedprimarily to “inaugurate a new political order.” Such a simplistic view ofconflict resolution and reconciliation efforts denies the role and utility of themany constituent parts of a holistic peace process.
Any genuine effort to address the root causes of a conflict requires acomprehensive approach and multiple mechanisms in order to allow theaffected populations to rebuild and renew their lives. Accountability forperpetrators of the most serious crimes can be sought in conjunction withmyriad other methods for achieving sustainable peace. It is not one or theother.
Indeed, in 2009, Mbeki himself, then the Head of the African Union Panel onDarfur (AUPD), recognized the vital role of transitional justice mechanisms inresolving conflicts. Mbeki’s AUPD formally proposed the establishment of
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“hybrid Criminal Courts [to exercise] jurisdiction over individuals who appear
to bear particular responsibility for the gravest crimes committed during the
conflict in Darfur.” Ultimately, Mbeki’s proposal failed to win over either party
to the negotiations, an unsurprising result given Sudanese President Omar
Bashir’s overt distaste for any transitional justice mechanism, even one crafted
heavily in his favor. Regardless, it is curious for Mbeki to now denounce a
justice mechanism that was once the cornerstone of his own peace proposal.
In their attack on the International Criminal Court (ICC) and other
international justice efforts, Mbeki and Mamdani rhetorically blur the line
between perpetrator and victim. While it is true that “victims and perpetrators
often trade places, and each side has a narrative of violence,” their conclusion
that “there can be no permanent assigning of victim and perpetrator identities”
is nothing less than an assault on the very concept of international law.
The moment President Bashir designed, implemented, and coordinated the
systematic rape, torture and murder of Darfurians, he “permanently assigned”
himself as a perpetrator of international crimes. And he permanently assigned
as victims those his soldiers and proxies raped, tortured, and killed.
Sensitive to the reality that perpetrators and victims may appear on either side
of a conflict, the ICC and other justice mechanisms implement a sophisticated,
non-discriminatory approach to prosecution, exercising jurisdiction over a
conflict as a whole. Indeed, in the case of Darfur, the ICC has sought to
prosecute perpetrators on both sides – indicting Darfuri leaders as well as
President Bashir and other Government officials. If President Bashir claims his
innocence, then he should submit to the jurisdiction of the ICC and prove it to a
fair and impartial proceeding.
Mbeki and Mamdani suggest that “mass violence is more a political than a
criminal matter.” But should the political motivations of those authorizing,
condoning or ordering mass violence absolve them from criminal responsibility
for their actions? Politically motivated murder is no less murder for any other
motive, and should be punished accordingly.
While a state may understandably forgive certain crimes against itself in an
effort to move society and political reengagement forward, there remains a
moral obligation to the victims of grave crimes against persons – such as
murder, torture, and rape – to hold the perpetrators accountable for their
actions.
There is no room for war criminals in democratic societies. Rather than
lamenting, as Mbeki and Mamdani do, that those “found guilty and punished as
perpetrators are denied a life in the new political order,” we find comfort in
knowing that those guilty of heinous crimes will be excluded from future nation
building.
By denying a role for courts of international justice, Mbeki and Mamdani
ignore the benefits that judicial processes add to the success and sustainability
of peace efforts. Prosecuting war crimes serves as a deterrent to new
violations, upholds the rule of law, builds public trust, and generates a credible
historic record of human rights violations. Indeed, the indictment of Slobodan
Milosevic by the International Criminal Tribunal for former Yugoslavia served
to strengthen the resolve of the NATO partners and provided a legitimate basis
for the peace builders to call for regime-change. In that case, international
justice paved the way for the removal of a war criminal from office and
accelerated the peaceful and democratic transition of the state.
Judicial mechanisms also afford victims a cathartic opportunity to voice their
experience and decry their malefactor. As such, their establishment is often a
key negotiating priority of the victims of the conflict. During the most recent
Darfur peace negotiations, for instance, the representatives of the Darfurian
refugees and internally displaced persons led the demand for accountability
mechanisms. Despite the Sudanese Government’s efforts to exclude justice
matters from the broader negotiations, the Darfurian representatives insisted
upon their inclusion, adamant that justice for the victims was an essential
component of a lasting peace.
In the shadow of past tragedies and faced with those in our present time,
impunity for war crimes cannot be tolerated for any reason. Rather than
undermining established law and international judicial mechanisms such as the
ICC, Mamdani and Mbeki’s theorizing on approaches to conflict resolution
would be better served by embracing comprehensive initiatives for sustainable
peace.
When conflict is prolonged over decades and generations, many on all sides
must bear the pain of the victim and the shame of the perpetrator.
Nevertheless, this complex reality does not relieve us of the moral obligation to
seek justice for the victims of heinous crimes and end the impunity of
perpetrators. We can, and must, do better.
*****
*****
Matthew T. Simpson, Esq. is a Canadian, U.S.-based attorney, who served as
the Principal Legal Advisor to the Darfur Delegation at the United
Nations/African Union – sponsored Darfur Peace Negotiations.
Ahmed Hussain Adam is a Visiting Scholar and Co-Chair of the Two Sudans
Project at Columbia University’s Institute for the Study of Human Rights in
the New York. He is the author of the forthcoming book, titled: Darfur
Betrayed: An Insider Perspective.
[Photo courtesy of Al Jazeera English]
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