Monday, 8 August 2011

Is international or domestic justice blossoming?

I came across an article "International Justice System Blossoms" written by the president of the International Center for Transitional Justice, in the Opinion section of Al Jazeera, hailing the calls of justice across the globe from Cairo to Washington, from Bogota to Kinshasa, from Srebrenica to Colombo. Indeed, we have witnessed in the first part of 2011, 30-year-old dictatorships crumble like dust in a domino-effect across the Arab world that is now being hailed as the Arab Spring.

As Naomi Roht-Arriaza put it: "It has almost become routine. After the shooting stops, or the dictator is deposed, there is the talk of reckoning."

One of the main points of the article is that political and military leaders responsible for gross atrocities are no longer safe from the hands of justice. Impunities will no longer be traded for the sake of peace.

The Ben Ali's and Hosni Mubarak's will have their day of reckoning. In fact, since the arrest of Milosevic, the stage has been set 'for the ICC to issue arrest warrants for Omar al-Bashir and Muammar Gaddafi.'

The author blames regional organisations such as the African Union and Arab League for protecting the leaders mentioned above indicted by the ICC.

In terms of recommendations the author points that trials in Tunisia and Egypt must respect due process and follow the example of former Yugoslavia where trials targeted those 'bearing most responsibility.' Moreover, trials are not enough and other measures are required. 'It is essential the past to be confronted, the truth be told' - it is safe to assume that the author is referring to truth and reconciliation commissions. He also lists reform of the police and military - often referred to as security sector reform (SSR) by practitioners.

The ICC, the author maintains, is there to 'investigate and prosecute a relatively small number of perpetrators.' It exists as a 'backstop to domestic systems lacking capacity or the necessary political will to prosecute the most serious crimes.'

Finally, the article ends on an almost sentimental note - that international justice may arrive late but is inevitable. Bangladesh will apparently address crimes committed during its war of independence from Pakistan. And 'the mothers of Srebrenica waited almost seventeen years for the arrest of Ratko Mladic' and he was recently arrested.

All in all, the author concludes that international justice system blossoms. Like a righteous flower. 

It was quite relevant to read this article as I am currently reading international justice for my dissertation and, I can use this article as a platform to apply what I have read so far. It was also good to see the mention of the trials of reckoning within the context of Arab Spring even though a lot of the transitional justice literature I am reading seems to be discussing transitional justice carried out in societies which experienced collective violence over extended periods of time rather than swift revolutions.

The author is clearly excited about corrupt and evil dictatorships being taken to task amid calls for justice. The title of the article refers to international justice although whatsoever has been achieved in Tunisia and Egypt should rather be called domestic justice.

The author states that 'the demands for justice are today a driving force of social change and popular revolutions'. It made me question and think about whether these revolutions are firstly motivated by justice and change later and, would think that it was rather that the call for change came first and justice followed.

The author greatly emphasises criminal trials as part and parcel of international justice however, from all that I gather from the literature I have read, academics are not even sure of what international justice is and neither what the actual impact is.

International justice can refer to any of the following implemented either stand-alone, in combination of more than one option or all of them together: truth and reconciliation commissions, amnesties, criminal trials, the International Criminal Court in the Hague, hybrid courts, and traditional methods to reconciliation. I guess as long as a 'deeply divided' and very sick society takes any of these bitter but necessary medicines, it will get over the violence and bloodshed it underwent.

Essentially, the critical literature points out that somehow transitional justice - particularly its two main embodiments of truth commissions and trials - has become unquestioned, is implemented based on faith rather than fact and is largely without a sound theoretical framework. The results it claims to achieve such as peace, reconciliation, healing, and consolidation of democracy and rule of law are not necessarily linked to the implementation of trials nor truth commissions. In short, concepts are conflated.

The author of this article tries to make a heroic case for trials however, some academics are not convinced that trials are necessary to consolidate peace and rule of law, satisfy victims or deter future intellectual authors of violence.

There was also a piece I read that explored the impact that transitional justice has on social repair. It asserted that given the collective nature of the violence that grips many states in the post-Cold War context, trials do not challenge bystanders and inaction, communal violence and collective responsibility.

Nevertheless, given the author's conviction that justice can only be achieved by taking to task individuals with the most responsibility, will Western leaders such as Blair and Bush be taken to task for deaths and suffering caused by the Western invasion of Afghanistan and Iraq? And where were the ICC arrest warrants for Mubarak, the head of Egypt, purportedly the highest recipient of American foreign aid after Israel? In short, can international justice be effective if it is selective?

Criticisms of the truth and reconciliation process in South Africa essentially make it out to be a hollow process which not only did not make significant economic reparations to victims but failed to even create a truth record of structural violence and socio-economic inequalities. And, going by this article's stress on trials, would the transitional justice process in SA be considered a failure because of the lack of such trials?

Following in this vein, my dissertation is going to explore this very contradictory translation of transitional justice in the two ill-fated states of Liberia and Sierra Leone, two states with remarkably similar histories and intertwined conflicts. One state implemented both trials and truth commission while the other merely opted for a truth commission. What is even more astounding is that one state has chosen to charge and prosecute the other's former president.

The perpetrators of Sierra Leone's civil war have been indicted and are undergoing trial, most notably Liberia's ex-president Charles Taylor. Not only have Sierra Leoneans prosecuted Sierra Leoneans for war crimes but also the Liberian, ex-president. Sierra Leone has by doing so made an effort towards preventing future war entrepreneurs from rising up and plunging the country into chaos and violence. Liberia on the other hand has not taken this punitive justice route. In fact, Taylor was handed over to the UN to be taken to Sierra Leone when was tried to flee Nigeria where he was in exile. Besides being responsible for taking the war to Sierra Leone was he also not responsible for the civil war atrocities that took place in Liberia? Are those crimes not important? Is Liberia not interested in prosecuting its war criminals? What does the international community have to say for this? How does the court in the Hague reconcile such a contradiction? Do they realise they are judging a trial of a warlord who is responsible for war in two neighbouring countries but yet are prosecuting crimes in only one state? That too of a country that was not ruled by Taylor but where he allegedly exported war. How does the state reconcile this? How do the people reconcile this? According to advocates of trials, then, Liberia is not on the right path to peace building by not holding its war criminals to account. It is not preventing future atrocities. Not only is Charles Taylor, their own former president, being tried for another country's civil war crimes, but other warlords like Prince Johnson are serving in the Senate. Is this transitional justice?

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