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The future of international criminal justice

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By: Henry Redwood

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In December 2015 the International Criminal Tribunal for Rwanda (ICTR) delivered its final verdict with the “Butare” appeals judgement.  The trial had found that 6 defendants, including a mother and son, were responsible for the death, rape and suffering of tens of thousands people throughout Butare prefecture during the Rwandan genocide in 1994.  The case brought the Tribunal’s mandate to an end; a tribunal that had secured 75 sentences, cost the “international community” over $2 billion, and received much criticism along the way. By reflecting on how the Tribunal developed over its 21 year existence, this brief comment explores what the ICTR might tell us what we can expect for international criminal justice (ICJ) and the possible problems with the current ICJ project.

The ICTR was created within an international context filled with both hope and desperation. The end of the Cold War had ushered in a hope for peace in the world and that an “international community” (IC) might now genuinely be possible. In the early 1990s, however, the IC witnessed (and was complicit in) widespread violence, including in Rwanda and the former Yugoslavia. The response to these two conflicts was to create two ad hoc tribunals to bring to account those responsible for the violence. This decision was partly due to: i) the expectation that the resurrection of the “Nuremberg model” could assist these states transition to peaceful democracies as it had done after WW2; ii) the UN’s need to do something after standing by during the violence; and iii) because this was seen as the least costly response. These tribunals were quickly overloaded with expectations as they were also caught-up in the post-Cold War rhetoric of “humanitarianism” and the promises of the new ‘transitional justice’ (TJ) project, driven by the seeming success of TJ mechanisms (such as truth commissions) in Latin America.[1] As a result, these tribunals were believed to be able to do more than just deliver retributive justice, but were held to be able to “draw a line” under the past by uncovering the truth, and reconciling countries by offering a space where victims could tell their stories.[2]

As time went on these claims were increasingly questioned. Not only were other TJ mechanisms seen as being better positioned to achieve the goals of truth and reconciliation, but the rising costs and slow progress of the tribunals meant that critics increasingly questioned whether these tribunals could have any positive impact on transitioning societies at all.[3] These criticisms led to a shift in the way in which the ICTR understood its purpose and, indeed, how it ended up functioning. Whilst the early trials at the ICTR (see Akayesu) had greater concern for establishing a broad narrative of the violence that occurred in Rwanda and providing space for victims to testify, increasingly the tribunal became focused solely with producing trials that were quick and efficient (see Gatete).[4] The result was technocratic trials that were short and to the point. These trials increasingly were concerned with simply securing a verdict, rather than writing history or providing space for the witnesses to speak and with these changes Agamben’s claim that law is purely about the moment of judgement rather than any deeper notion of justice seemed increasingly to ring true.[5]

Over time, then, there was a move away from the initial ideas about the potential of ICJ, and with this also a re-articulation of what “justice” in international courts might look like (from a broader more inclusive conception of restorative justice to an increasingly legalistic and retributive one). This resulted in growing tension between the hopes and desires of those directly effected by the violence with the priorities of the legal apparatus. This was particularly visible in the ICTR’s relationship with its witnesses (often directly effected by the initial violence), who overtime became utilised simply to secure verdicts with little consideration of how the process might effect them or what they might have wanted from it.[6] This more technocratic approach to prosecutions, and the problems associated with it, has continued at the ICC, as victim parties’ requests are continually ignored by the court as it searches for quick and efficient trials.[7]

It might be argued that the ICJ is not cut out for the extra-judicial goals that were associated with international trials in the early 1990s. Indeed perhaps the types of trials that the ICTR was delivering at the end of its existence and that the ICC is producing now are more in line with what we should hope and expect ICJ to achieve. However, advocates of ICJ continue to make claims of the truth finding and reconciling potential of these courts when they need to legitimise the existence of the ICJ project, and as a result courts are too regularly seen as unproblematic sites of “truth telling” and societal rebuilding.[8] Besides the tensions that can arise from this as discussed above, there are two additional problems with this.

First, this continues to propagate the myth that it is possible to uncover the truth and that this can assist in reconciling societies, and prevents the recognition of the power-laden quality of all TJ mechanisms, and the truths they construct. If we accept this, then we are in a better position to understand what systems of power produce these mechanisms, and are therefore reproduced by them, and what effects this might have on those that encounter these mechanisms.

Second, these ideas of “truth telling” and “reconciliation” are also fed to donors and those effected by the violence, and lead to unsustainable expectations being created about what these trials can achieve, which only adds to the tension noted above.[9] Suggesting that ICJ can do everything other TJ mechanisms can do and more, then, prevents a more pluralist understanding of TJ from developing. Within a pluralist approach to TJ a wider variety of responses to violence are seen as viable, and a wider array of types of violence (beyond only violations of international criminal law) are seen as needing redress. If this occurs, there is the greater chance that more appropriate TJ mechanisms will be used to meet the needs of populations in the wake of violence. Perhaps more importantly still, those responsible for deciding what responses are needed in the aftermath of violence might start listening more to those that lived through the violence, and move past the currently legalistic understanding of post-conflict recovery that still holds criminal trials as the only  “just” response to atrocity.

 

 

Henry Redwood is a third year PhD student in the War Studies department and Senior Editor at Strife. His work engages with critical theory to explore how international courts construct truths and the normative underpinnings these project. Alongside his research Henry has previously worked at the International Criminal Tribunal for Rwanda, and a number of (I)NGOs working in Rwanda. You can follow him on Twitter: @hred44

 

 

 

Notes:

[1] P. Hazan, Judging War, Judging History: Behind Truth and Reconciliation, (Stanford; Stanford University Press, 2010), p. 16, p. 18, and p. 42; Ruti Teitel, Transitional Justice, (Oxford: Oxford University Press, 2000), p. 72, pp. 74-75

[2] Richard Goldstone, ‘Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals’, Journal of International Law and Politics, 28 (1995), pp. 485-504

[3] Martha Minow, ‘Making History or Making Peace: When Prosecutions Should Give Way to Truth Commissions and Peace Negotiations’, Journal of Human Rights, 7:2 (2008), 174-185.

[4] See ICTR Completion Strategy Reports to the UNSC, found here.

[5] Elizabeth Dauphinee, ‘War Crimes and the Ruin of Law’, Millennium-Journal of International Studies 37:1 (2008), p. 54

[6] See a report on this by REDRESS, here.

[7] Mariana Pena and Gaelle Carayon, ‘Is the ICC Making the Most of Victim Participation?’, The Journal of Transitional Justice, 7 (2013), p. 530

[8] See speeches made by the ICTR Prosecutor, here.

[9] Eric Stover, ‘Witnesses and the Promise of Justice’, in E. Stover and H. M. Weinstein (eds), My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, (Cambridge: Cambridge University Press, 2004), 104-120

 

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Transitional justice: Reflections on the state of the field

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By: Henry Redwood

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Image Credit: Shuttershock

 

In 1992 Ruti Teitel coined the phrase “Transitional Justice” (TJ) to capture a new project sweeping through Latin America, where mechanisms like Truth Commissions were being used to usher in peaceful democracies after decades of violence.[1] The 1990s saw a proliferation of these types of responses to mass atrocity (increasingly known as “TJ tools”), with ad hoc criminal tribunals created for Rwanda and Yugoslavia, lustration proceedings in the former Soviet States, and the opening of archives in East Germany. Underpinning these mechanisms was the belief that states needed to “draw a line” under the past if they were to transition from war torn, divided or authoritarian societies to peaceful and reconciled communities. Within a matter of years the TJ industry was booming, and by 2010 approximately 848 TJ mechanisms had been used across 161 different countries, and over 2400 scholarly articles and books had been written on TJ.[2] Throughout all of this, TJ has been concerned with its relevance and its “uniqueness” as a discipline, leading to attempts to demarcate a space for it as a distinct field of academic enquiry. It now has its own journal and even an international “HQ” with the International Centre for Transitional Justice (ICTJ) on Wall Street, of all places. This short piece offers a series of thoughts on the state of the field, and also on the possible consequences of this attempt to demarcate a specific space that could be considered “unique”.

TJ has constantly tried to adapt and evolve in order to maintain its relevance over its 25 year existence, visible in the many internal “turns” it has witnessed: the impact turn; [3] the cultural turn;[4] and the latest the “local” turn. [5] The idea of “re-invention” is true, however, only to a certain extent as the broader parameters of the field and the logics that underpin it have been surprisingly resilient in the face of change, criticism and failure. What has perhaps defined this process more is its reactionary nature which has left many of the underlining assumptions of the field unquestioned: what TJ is about, who it concerns, what violence it addresses, how TJ might lead to “peace” in the long run, and indeed what is “peace”?

As such, as a field we rarely properly reflect on why our gaze is always on the Global South and never “internally” at issues at or in our own borders (the ICTJ map of places where it works is almost solely focused on the Global South). We rarely hear it being asked, then, how we might apply TJ in relation to post-crisis societies such as New Orleans after hurricane Katrina or in the face of mass police brutality against black bodies in the US, or how TJ might help to heal a divided country like Britain in the wake of “Brexit”. The failure to ask these questions propagates not only the legitimacy of the Global North intervening in the Global South to help “solve” their problems without reflecting on their complicity in the violence, but it also means that the model of the Western state (as a peaceful neo-liberal society) remains the unspoken and assumed goal of TJ processes (as “exceptional” violence, rather than systemic everyday violence, remains the point from which transition begins).

Similarly, for decades now we constantly call for the same mechanisms to be used in the wake of violence under the same notions of the power of “truth” and the catharsis of “speaking out” even whilst we hold suspicion that these are little more than (often Western-centric) aspirational dreams. Here, we consistently refuse to acknowledge that in practice all that we seem to do, at best, is treat the “symptoms” of violence and never address its cause: structural inequality, patriarchy, militarisation, securitisation, capitalism etc.[6] Without doing this, without challenging the very principles on which societies function and are reproduced (and the conditions whereby violence is both possible and legitimate), these mechanisms seem too often to have a tendency to re-ingrain and re-produce these structures that allow violence to occur rather than undermine them. Indeed it seems like TJ is often less about a transition to than it is a transition back to.

Equally, we seem to allow, both through our advocacy of these mechanisms and in our own academic writing, for potentially harmful “realities” to be reproduced. For instance, the problematic distinction between victims and perpetrators remains central to most TJ projects despite all that is known about the harm that this can cause.[7] What all of this suggests is that TJ has struggled to account for the broader mechanisms of power relations that it is part of. It has struggled to see how it might, as David Kennedy has recently argued, be complicit in violence. This has even been the case in some of the more recent work that emphasises the importance of the “local”. Here, whilst on the surface the turn to the “local” is a response to the Western hegemony that dominated the field in its early years (and in many respects still does), the “local” is too often seemingly praised for its natural (othering) value, still as something that is allowed to exist (“we” must prioritise the local) and continues to ignore the problematic power dynamics that local responses to mass violence seem to continue to produce.[8]

This is, of course, more than just about TJ operating as a field. But some of this has, I think, been down to this search for “uniqueness”. This has in part led to the notion that sometimes appears in TJ that bringing new ideas in “from the outside” means that the ideas are new.  At times, this also led to a failure to turn outwards to learn lessons from elsewhere that were learnt decades earlier. The need to demarcate a terrain of enquiry and policy has also led to the reproduction of the problematic ideas underpinning some parts – though not all – of the field. In response to why not look at Brexit, structural violence or patriarchy, the answer is too often that if we expand TJ too much it becomes meaningless as a field or policy area.[9] This might be true, to an extent, as all enquiries have to make decisions over what not to study, and analysis inevitably results in (arbitrary) categorisations. But it might be worth considering the harm that is caused by the current divisions around what is TJ, where can this be applied, to what and by what means, by who and what social orderings this re-creates before we continue to press on with advocating and analysing TJ.

 

Henry Redwood is a PhD candidate in the War Studies department and senior editor at Strife. His work engages critical theory to explore how international courts construct truths and the normative underpinnings these project. Alongside his research Henry has previously worked at the International Criminal Tribunal for Rwanda, and a number of (I)NGOs working in Rwanda. You can follow Henry on Twitter @hred44. 

 

Notes:

[1] Pierre Hazan, Judging War, Judging History, (Stanford: Stanford University Press, 2010) p. 8

[2] Patricia Olsen et al, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy, (Washington: United States Institute of Peace, 2010), p. 2 and p. 39

[3] See Eric Stover and Harvey Weinstein , ‘Introduction’, My Neighbour, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, Stover and Weinstein (eds), (Cambridge: Cambridge University Press, 2004)

[4] Tim Kelsall, Culture under Cross-Examination: International Justice and the Special Court for Sierra Leone, (Cambridge: Cambridge University Press, 2009)

[5] Alexander Hinton (ed.) Transitional justice: Global mechanisms and local realities after genocide and mass violence, (Piscataway: Rutgers University Press, 2010)

[6] See Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections’, Third World Quarterly, 29:2 (2008), 275-289

[7] Kierran McEvoy, K., and Kirsten McConnachie, ‘Victims and Transitional Justice: Voice, Agency and Blame’, Social and Legal Studies, 22:4 (2013), 489 – 513

[8] Susanne. Thompson and Rosemary Nagy, “Law, Power and Justice: What Legalism Fails to Address in the Functioning of Rwanda’s Gacaca Courts”, The International Journal of Transitional Justice, Vol. 5, 2011, pp. 12-15

[9] Nagy, ‘Transitional Justice’, p. 277