“True peace is not merely the absence of tension; it is the presence of justice.” -Martin Luther King Jr.
Throughout history, mass atrocities only came to an end through limited means. The scourge of large-scale torture, rape and murder was either stopped by the tireless and creative work of diplomats or came to a natural end — sadly, usually when one side wiped out the other. If criminal leaders and their governments did lose power, they were never prosecuted. Instead, they enjoyed wealthy exile under the protection of powerful allies. The survivors of such ousted regimes had to strive for peace without any redress for the crimes inflicted upon them by their own governments. This paradigm has since changed, due to the legal principles derived from Nuremberg, Tokyo, other subsequent World War II trials. Moreover, the experiences of countries that chose to prosecute their former leaders further led to the emergence of an alternate option for ending carnage and instituting peace.
The first international instance of this new option is the International Criminal Tribunal for the former Yugoslavia (ICTY), which was established prior to the end of the Yugoslav conflict of the 1990s and continues its work today. Indictments of high-ranking government and military officials were issued during that conflict, which complicated, but more so helped the diplomatic efforts to stop the violence. The ICTY drew largely from its post-World War II tribunal predecessors. Yet it also drew from the lessons learned by European and Latin American countries in the 1970s and 1980s that decided to prosecute their removed, criminal leaders in fair trials as part and parcel of their democratic transitions. Today, the International Criminal Court (ICC) — celebrating its tenth year of operation and recently its 121st State Party — is the first and only permanent international court to prosecute the international crimes of genocide, crimes against humanity, and war crimes (or atrocity crimes). By virtue of its permanence, the ICC is looked upon to address threats to and restore international peace and security.
(Photograph: Reuters/Jerry Lampen)
While diplomats usually cherish having more tools in their toolbox, the onset of international criminal justice has not been uniformly welcomed by the international diplomatic corps. Coined the “Peace vs. Justice” debate, government leaders, diplomats, lawyers, journalists and commentators argue over the international affairs topic du jour: Are criminal prosecutions or diplomatic compromises (i.e. offers amnesty or exile) better at both stopping atrocities and installing peace? The most logical conclusion to such a question is that the two should not be mutually exclusive. Traditional diplomacy and international prosecutions both have roles to play and must act in concert, either in ongoing or post-conflict settings. Accepting this basic premise of coexistence, the more pressing issue of prioritizing diplomacy and justice can be addressed. While the case-by-case circumstances of each conflict always matters, the question remains what standard playbook should the global community employ when confronted with the mass perpetration of international crimes?
With respect to this question, two New York Times op-eds firmly prioritized diplomacy above justice. Focusing on ongoing conflicts, Alex De Waal of the World Peace Foundation at Tufts University opines that aggressive regime change through humanitarian and international justice interventions makes ending slaughters more difficult. He believes that criminal tyrants and governments, for the most part, only use violence to achieve political ends, and history shows that using diplomacy to help them attain their goals are what stop mass atrocities. According to Mr. De Wall, aside from Nazis’ Germany and Hutus’ Rwanda, most conflicts plagued by criminal events are not “bottomless massacres.” He uses the current Nubu Mountain conflict in South Sudan as evidence that the international community’s failure to concentrate on diplomacy, and its “laudable” flirtation with “prosecuting the perpetrators of crime,” makes it harder to obtain workable solutions.
In even starker terms, Ian Paisley of the British Parliament — who is intimately familiar with peace efforts in his native Northern Ireland — titled his opinion piece “Peace Must Not Be the Victim of International Justice.” Citing the $1 billion price tag and “poor record” of the ICC, Mr. Paisley argues that international justice interventions are more often than not divisive in post-conflict settings. For him, the ICC should be left to deal solely with completely failed states or conflicts where diplomacy efforts are not “viable.” His conclusion is that justice must be secondary to achieving peace through reconciliation and diplomacy, “[t]he wheels of justice must be allowed to turn at their own pace, but that they must not impede the peace process.”
In response to these pieces, one only has to ask “What kind of peace does diplomacy, negotiations and the like achieve?” History overwhelming shows that “peace” obtained through diplomacy alone is usually temporary and quick to fold. The “diplomacy is paramount” mentality, furthermore, can be perilous. The countless number of broken “last-minute agreements” and violated “ceasefires” that litter history are a testament to the fact that governments often feign compromise and delay, and still manage to get everything in the end. As MLK Jr.’s quote above succinctly pinpoints, peace without accountability is hallow and fragile. The goal is not just peace as in the cessation of violence, but peace of the lasting variety. Not addressing the wrongs of criminal perpetrators provides a foothold for conflicts to resurface or new ones to spawn. Probably most important, negotiations can end violence, but it seldom fosters transition to democratic, just societies. Some, like Mr. De Waal contend that international crimes are ended by helping violent governments gain their political goals. Yet, this contention fails to take into account the typical goals of violent governments (i.e. continuation of a dictatorship) or that of the other side (i.e. democratic reform). Accordingly, the international community ends up fortifying oppressive, not just, governments. Diplomacy, while always needed, is a vestige of the past that seldom attains true and lasting peace on its own. Thus, the thinking exhibited by those that place unjustified priority on diplomacy must not be subscribed to if we are going to achieve a more just world where ending impunity and achieving enduring peace has a fighting chance
Most importantly, States cannot be rewarded for using crime and violence to obtain their political ends. Allowing this kind of State behavior encourages continual blackmail whereby governments threaten more torture and death unless their demands are met, as Libya’s Moammar Gadhafi attempted to do and Syria’s Bashar Al-Assad is currently doing. Some respond that blackmail would not happen in the first place if indictments were not hanging over the heads of governmental leaders. Yet the reprehensible fact is not the circumstances that give rise to the blackmail (i.e. an ICC indictment), but the blackmailer. In order to stop the use of violence for political goals, as well as any resort to blackmail, society must definitively conclude that all atrocity crimes must be punishable. This conclusion both delegitimizes and devalues the calculus of “violence for political gain” and its future use.
The “diplomacy is paramount” mentality can be equally problematic in the post-conflict setting. Some like Mr. Paisley believe that true “peace [is] delivered through political negotiations and reconciliation efforts, not the imposition of international justice.” Northern Ireland and South Africa are put forward as instances where the absence of criminal justice led to lasting peace. While these examples are noteworthy, they are outliers to empirical data to the contrary. No one is arguing that the mere handing down of an indictment or two will ipso facto result in peace. Rather, facts show that the process of human rights prosecutions help establish peace. Equipped with qualitative research and quantitative statistics, Kathryn Sikkink and her researchers conclude in “The Justice Cascade: How Human Rights Prosecutions are Changing World Politics” that domestic and international prosecutions for human rights abuses and atrocities result in countries that are more respectful of human rights and the rule of law in both the short and long-term. By not postponing prosecutions and instead evoking them during the early stages of transition, Professor Sikkink shows that these countries — most prevalently in Latin America — established a firmer foundation for peaceful and just democracies to grab hold. Her data proves that replacing a culture of impunity with one of accountability causes positive ripple effects throughout society.
Whether during or after conflicts, the cost of international criminal tribunals — like the ICC’s near $1 billion price tag — are often used as evidence that international justice is just too expensive. In isolation, this bill does seem steep, yet context exposes the weakness of this critique. Former U.S. Ambassador At Large for War Crimes Issues, David Scheffer, provides such context in his book, All the Missing Souls: A Personal History of the War Crimes Tribunals. Even taking the larger price tag of $3.43 billion spent on all the international criminal tribunals to date — ICTY, ICTR (Rwanda), SCSL (Sierra Leone), ECCC (Khmer Rouge Cambodia) and the ICC — Amb. Scheffer and others explain that this figure roughly equals the cost of two U.S. Stealth Bombers, two weeks of U.S. military operations in Iraq, or 17 percent of Wall Street cash bonuses paid out in 2008. For this price, the international community got 131 convictions and the associated benefits. Yes, the ICC, like any institution, must work to become more cost-effective without compromising its work. Nevertheless, it is hard to quibble with these numbers.
The expectation of international justice is not an abstract idea, and its domestic version is ever-present to many in the developed world. As an analogy, if there is a murder or rape in Washington D.C., the local government would never consider sending an envoy to negotiate the cessation of such behavior. A prosecution is expected, and its absence would lead to outrage and social breakdown (i.e. Travyon Martin). Of course, the international arena is far more complicated and its criminal enforcement mechanism is far less developed that its domestic counterparts. The evolution of international criminal law, not to mention the limits of judicial remedies, will take considerable time to mimic a domestic, developed jurisdiction. Yet crime is crime, especially when it comes to the mass perpetration of it. It is hard to believe that the international community, as a whole, does not want international crimes to one day face justice like that of a common domestic one. Pushing for real peace means not losing sight of this vision.
Yet, do not confuse this call for international prosecutions during or after conflicts with the unrealistic “perfect justice or no justice” demands of some, as exemplified in aGuardian piece by Seumas Milne. As said by this author on several occasions, and echoed by Richard Dicker of Human Rights Watch, this critique of international criminal justice does no favors when it makes the perfect the enemy of the good. The concepts of “rule of law” and “criminal justice” only came about in modern human history, and took centuries to form. The concepts of “international crimes”, and more importantly, “individual criminal responsibility” for their commissions, are even newer having only slowly come about over the past hundred years or so. It is both whimsical and unproductive to demand that all instances of international crime face the blind application of international law overnight, when the application of international criminal law only got started, in earnest, in the early 1990s. With a mixture of time, prodding, and consistent use, international criminal law will one day be uniformly applied to the powerful and not so powerful countries alike.
However, until that day, the emerging prevalence and proven importance of prosecutions must find a suitable role within the evolving, yet still Westphalian international order. Diplomacy, as a result, must evolve. Traditional diplomacy is misguided, and a new form of diplomacy that embraces this changing international dynamic is a must. In order to get to the even-handed justice that some lament the ICC for not achieving yet, a critical first step is not to sacrifice international justice efforts for negotiated deals that prevent accountability. What this means for diplomacy during the commission of atrocity crimes, or thereafter, is that prosecutions are no longer just an option. In most instances, the international rule of law dictates that some crimes have to be prosecuted no matter how the conflict ends. In other situations, diplomats must threaten prosecutions if the conflict does not stop immediately. Aside from complete slaughters where prosecutions are non-negotiable, diplomats must confront every bloody conflict at its early stages with the ultimatum that a failure to cease violence and accept democratic transition (or exile) will result in criminal investigations and prosecutions.
Supreme Constitutional Court (SCC) Chair Farouk Sultan’s nearly interminable announcement of the outcome of Egypt’s presidential election tested his nation’s patience. Twitter commentary on his speech’s almost mind-numbing detail, while hilarious, masked an underlying nervousness that this was but an effort to wear everyone down preparing the ground for the announcement that the winner was, in fact, General Ahmed Shafik. The speech was an over-wrought defense of the work of the Court. It was also a testy rebuttal of earlier attacks delivered by the Muslim Brotherhood. And it was boring. At one point, I thought that decades from now, we might forget who won the election, but we would never forget Farouk Sultan’s speech.
In hindsight, I believe there might have been a logic to Sultan’s endless detail. This was, after all, Egypt’s first truly democratically contested presidential election. And so his report of incorrect counts, faulty ballots, etc, could be seen as a reminder of the fact that in a democracy elections are always messy affairs. As the old adage goes “elections are like sausage-making. You don’t want to see how they’re made, but they taste delicious.” We don’t see the mess in a landslide, but in close contests, the errors born of petty (and not so petty) corruption and human error become all too evident — remember Florida’s “hanging chads” in 2000, or Ohio’s Diebold machine malfunctions in 2004.
This was, by any measure, a close contest. Here, too, the SCC’s report was a useful reminder of the deep, nationwide divisions in the Egyptian electorate. In the end, one-half of eligible Egyptians voted, and little more than one-half of them chose Mohammed Morsi to lead them. And it is important to note that not all of Morsi’s votes came from supporters of the Brotherhood — many came from those who were quite simply voting against Shafik and the military. So too, many of those who voted for Shafik, were in fact casting a vote against the Brotherhood.
Even those wary of a Muslim Brotherhood win, must acknowledge that history has been made in this openly competitive contest. President-elect Morsi will now occupy the seat once held by Nasser, Sadat, and Mubarak — but with a difference. If this is to work, there can be no new Pharaoh, nor will the Generals be able to exercise unfettered control — by themselves, or through a surrogate. Morsi now has a mandate to govern. But he would be wise to proceed with caution.
There are two essential components to making a democracy work — both involving a recognition of the reality of divisions in society. The losing side, despite their bitter disappointment, must accept the legitimacy of the outcome, and the winning side must accept the reality and legitimate rights of the losing side.
These are the hard tests of democracy and real challenges lay ahead. If we look closely at this election, and indeed everything that has transpired since February of 2011, we can see that Egypt’s nascent democracy is still a work in progress. There are clearly two poles in the contest for power–and an emergent third pole in the making.
On the one side there is the Muslim Brotherhood, a powerful national movement, an effective provider of services, and a now proven vote-getter. On the other side is the Supreme Council for the Armed Forces (SCAF) and the elements of Egyptian society they represent. They too have demonstrated that they have supporters and have the capacity to organize. The revolutionary youth remain a potent force, but have recognized their electoral limitations and have embarked on a five-year organizing plan.
In any case, the shape of Egypt’s new democracy will be determined by the interplay between these poles — with no one group being able to claim it represents all Egyptians, or even all those who voted for them in the last election (democracy being a fickle mistress). It is advisable, therefore, that both sides approach this next stage with a degree of humility and that neither side over-reach — as they unfortunately have in the recent past.
The Muslim Brotherhood set off alarm bells when they tried to exercise too much control, too soon, in Parliament and in the selection of the body that was to write the new Constitution. They then compounded their over-reach when they broke their earlier pledge not to field a presidential candidate and were seen as trying to control everything. This was seen as a step too far. One party control can be a problem in an established and divided democracy, like the United States. How much more so, in an emergent democracy.
For its part, the SCAF created deep concern when, in reaction to the Brotherhood’s over-reach, they suspended Parliament and then issued the Supplementary Constitutional Decrees stripping the powers of the presidency and establishing their role as final arbiters of the Constitution.
At this point after the election, the two main established poles of power in Egypt are what they have been all along — the Brotherhood and the SCAF. The military will seek to maintain as much control as they can, while President Morsi will make a determined effort to wrest as much control as he can. The two groupings will continue to test each other, and the interplay will determine whether or not Egypt moves forward. The test of wills that will now occur will shape the future of Egypt’s democracy.
But the real test for the new President and the SCAF will be their ability to perform. The public will have limited patience with their contest for power. At the end of the day our polls show that a majority of Egyptians could care less about which group rules. Uppermost on their minds are jobs, improved health care, better education and a government that can deliver services without corruption. This is the real work of democracy, and, in this context, the election and its outcome mark not the end of a process, but its beginning.