These notes are from the Cross-Purposes? International Law and Political Settlements conference at the University of Western Ontario, on Jun. 9-10, 2007, with some editorial content added by Omar Ha-Redeye.
From Left: Joseph Rikhof, Valerie Oosterveld, Joanna Quinn, Joanna Harrington, Patricia Marchak, Daryl Robinson, Mark Drumbl, Audrey Boctor
Mark Drumbl: Bosnia v. Serbia Litigation: What it Means for Transitional Justice
Mark Drumbl, of the Washington and Lee University School of Law, discussed transitional justice in the former Yugoslavia.
Although Nuremberg effectively prosecuted individuals for their crimes, the notion of collective liability was first established with the Yugoslavian case and could potentially be used as an effective tool of justice.
The Feb. 26, 2007 ruling of Bosnia and Herzegovina v. Serbia and Montenegro in the International Court of Justice did conclude that the Srebrenica massacre was genocide dolus speciali, or with specific intent, to kill Bosniak Muslims.
But it also concluded that Serbia as a state:
- was not directly responsible for the genocide as a whole
- was responsible for not preventing events such as Srebenica
- had breached the genocide convention by failing to fully cooperate
Serbian leaders “should have made the best effort within their power to try and prevent the tragic events then taking shape.”
This was the first time a state had been held in breach of the Genocide Convention. However, the remedy was only through this declaration, and there was no imposition of financial damages.
There has been some discussion on the appropriateness of the collective liability approach. It does seem to meet some utilitarian needs of dissuading and encouraging citizens to act.
However, the ruling relied heavily on criminal proceedings, and as such, the evidence was not fully robust. The Serbian government could hardly be expected to be forthcoming about evidence against them. The result was a tension between law, politics and any form of political settlement.
BH agent, Sakib Softic, is recorded as saying both parties,
should accept the judgment in its entirety, and not only in parts favorable to them.
Although the approach was innovative, it left all parties slightly satisfied, and nobody fully satisfied. There is talk of accomplishing a lawyers’ justice, and not a people’s justice, especially with the lack of financial compensation.
But perhaps the duty to prevent genocide could have broader dissuasive effects – can Canadian troops in Afghanistan, given their history in Somalia, also assume some form of responsibility?
Drumbl has a new book available that discusses these issues in more depth.
Valery Perry: Limits to Sovereignty in Statebuilding & Post-War Transition: Bosnia and Herzegovina’s Case of Managed Democracy
Valery Perry has lived and worked in Bosnia-Herzegovina since 1999 and spoke of her experiences and personal insights into the region.
Many Serbs understood the ICJ ruling to indicate that they were not guilty of genocide, which has hampered reform efforts and has provided backing for the separation of Republika Srpska.
The implications of the Dayton Accord are that many of the same entities in the war are still fighting, but now it is just politically, especially over power sharing. Conflicts occur over following the letter vs. the spirit of the law.
She questioned the assumption that democracy automatically leads to stability, because the politicians themselves are not always interested in power sharing. Soon after the conflict, many of the ethnic leaders themselves were running for office.
And although politicians are expected to honour the Dayton, they are elected to represent the national agenda of specific ethnic groups. With the 10 year review of Dayton coinciding with elections many politicians have returned to ethnic rhetoric, and voting continues to be based on ethnicity.
She concluded by saying that you cannot have mass atrocities without mass complicity, and this only occurs when violence is normalized.
Patricia Marchak: Extraordinary Chambers in the Courts of Cambodia (ECCC) to Prosecute Crimes Committed by the Khmer Riuge (KR) During Democratic Kampuchea (DK)
Patricia Marchack commented on how the Khmer Rouge killed about 1/3 of the population in Cambodia in 1975-79.
She explained how devastated such countries are after these kinds of conflicts, and how difficult they are to rebuild, especially the police forces and court system.
What complicates it further is that the politicians often overlap with the entities targeted by redress initiatives. Nor do tribunals fully reflect the complexities of the populations they serve.
There are challenges in training Cambodian lawyers, because they do not want to be influenced by outsiders and their perspectives of international law.
To avoid these complexities, some experts recommend a completely independent international tribunal.
Audrey Boctor: Impact of the ICTR in Rwanda
Audrey Boctor of Columbia Law School has shared that Rwandan civilians actually resisted the efforts of the International Criminal Tribunal for Rwanda (ICTR).Many of them wanted the death penalty enacted, and wanted proceedings to occur domestically.
As a result, there is a disconnect between national interests in Rwanda and the interests of the international community. Other complicating factors include issues around planners and organizers, the existence of intentional murders, complicity of parties involved, and numerous property offenses.
Interestingly, the Rwandan cabinet did propose an amendment to abolish the death penalty. Some speculate this to be a purely top-down pressure approach, but it could also be due to lack of use of these measures, which had not been implemented since the 80’s.
Furthermore, this political party actually came to power on a platform of repealing the death penalty.
A debate does exist over the utility of the death penalty after genocides. It does not seem to act as a deterrent.
It’s also irreversible, and does not meet the goal of rehabilitation. It’s difficult to look back on other cases and determine the role that the death penalty has played.
Joseph Rikhof: Fewer Places to Hide? The impact of domestic war crimes prosecutions on international impunity
Joseph Rikhof, law faculty at the University of Ottawa, discussed the effects of prosecution.
Romeo Dallaire said that importance of prosecution is not just in convictions, but also as a deterrent.
Augusto Pinochet, former Indonesian president, decided not to visit Switzerland due to concerns over prosecution, so prosecution can have a deterrent effect in some situations.
Victims of war crimes, such as Srebenica survivors, often see the role that lawyers play as that of advocates.
Experts are still discussing how The Hague impacts mental health. The potential impact can be significant if people are punished, but if it takes a long time the delays can lead to disappointment.
One of the newer developments is the classification of terrorism as a war crime. This has led to language changes and changes in statutes to encompass this shift.
Ethiopia is an example of a country that has a special war crimes prosecutor, which convicted former rule, Mengistu Haile Mariam. This would have been impossible a decade ago.
There is however the danger of universal law meaning that western courts act as saviors, and potentially play the role the colonialism previously did.
Joanna Quinn: Getting to Peace? Negotiating with the LRA in Northern Uganda
- Joanna Quinn is the Co-Chair of the Nationalism and Ethnic Conflict Research Group at the University of Western Ontario.
She discussed the ongoing peace talks in Uganada, and began by providing some background to the conflict.
Milton Obote was in power for most of the time following the 1961 independence from Britain.
He was followed by Idi Amin, under whose rule between 300-500,0000 people were killed.
Obote came to power again in 1979, but was involved in a war in the Luwero triangle with Yoweri Museveni in which 3 million people died. Museveni himself came to power in 1986, and has ruled Uganada to this day.
However, Museveni also found himself in a conflict from 1984 with Joseph Kony, who lead the Lord ’s Resistance Army (LRA). This dispute displaced 1.8 million people, nearly 80% of the population of northern Uganda.
Even though the war is officially over, there are about 200,000 soldiers still active, and 1,000 people are dying every week.
After signing the Rome Statute in 1999 there was a split among the factions involved. The Lord’s Resistance Movement (LRM) is the political wing of of the LRA movement. They have little or no combat experience, are not extensively involved with the LRA.
The role of the International Criminal Court (ICC) is actually seen as a stumbling block to the Juba talks between Uganda and the LRA.
There is little incentive for the LRA to negotiate with threats of the ICC hanging over their head. The ICC and the International Bar Association have both insisted that Uganda arrest Kony and others for their involvement in the conflict according to the Rome Statute.
Valerie Oosterveld: International Criminal Justice, Peace and Politics: Making Gender Matter
Valerie Oosterveld, of the Faculty of Law and the University of Western Ontario, started by asking if international courts are gender sensitive and if there are links between peace agreements and international justice.
There is a need for a broader range of gender crimes that encompass more than just rape. Institutions need to include more female staff and judge, with experts in gender prosecution.
The safety, comfort and dignity of victims should also be taken into account. Should women come forward to tell their stories in front of tribunals? It does allow direct accusation of those involved, but might not be appropriate for all circumstances.
The current system is still too flawed to treat victims well. It’s too narrow, and doesn’t quite understand the effect of testifying.
Conflicts are often characterized by the brutality of sex crimes, so rape can often be accompanied with a great deal of violence. Rape violates the personal autonomy of a woman, it goes beyond just her dignity.
Oosterveld also proposed a new crime against humanity for forced marriages, which is also seen in many war-torn areas.
She concluded that unfortunately we still see an inconsistent approach towards dealing with gender crimes.
Oosterveld is the author of a textbook on international law published by Irwin Law.
Darryl Robinson: New Contexts, New Models – International Prosecutors in Pre-Transitional Justice Situations
Daryl Robinson, who teaches international human rights at the University of Toronto, proposed a new model for prosecutors in international law.
He stated that we currently make laws based on past experiences, and apply this into the future. We are therefore necessarily retrospective in its perspective and prospective in application
However we do frequently operate on a lot of wrong assumptions, including how long we should wait before establishing a court, how many people should join, and the context of the operations.
States have previously acted with impunity or under transitional justice for decades. A permanent ICC is often ongoing while the conflict continues.
Instead, there is a need for pre-transitional justice. But the problem is that perpetrators are still protected by armies.
Current Models
Two current models of prosecution exist – the realist and the formalist.
The realist gets out if it gets complicated. It’s not really a prosecutor because it doesn’t uphold the law But this model is often favoured by critics of the ICC.
The formalist prosecutor behaves like a Western national prosecutor. They assert the supremacy of law, issue orders, castigate failures, issue press releases. Any considerations lead to politicization.
Robinson suggests a new model is need as an alternative to these two, that of a sensitive prosecutor using a theory of inclusiveness.
A New Model
The current challenge is that there is too narrow a perspective among agencies involved. Everyone is following their own mandate and specialization.
This myopic approach is actually required by the Geneva Conventions to avoid jurisdictional issues. And although this creates expert organizations that assertively interpret mandates, it also produces conflicting obligations and efforts.
Robinson states there is a need for an inclusive necessity, a a symphony vs. a cacophony. He cited the turtle shrimp case as an example of conflicting interests of different entities resulting in a less than optimal outcome.
He also claims that to date we have been using Western model, and proposed we look to other sources of inspiration; a mystical (Eastern) route. When we cling to our own beliefs
, we see rest of world as complex. If we relax our own fixations we will be able to work less and yet create more change.
The Eastern Daoist philosophy is detached and at one with all. They serve with humility, and see the mystery in life.
Some examples are “overcoming by yielding.” Or how the truth often sounds paradoxical.
Stiff and unyielding is the discipline of death, not of life, which is gentle and flexible. Stiffness only creates grudging, sullen cooperation.
The Daoist Prosecutor
A prosecutor exemplifying the Daoist thought would speak to everyone. They would manage their activities to minimize their effects on others and perceive cooperation as organic, steadily growing their partnerships.
Challenges with this approach will likely are when organizations exceed their legal mandate, or when flashy confrontations occur.
One example of such flashy confrontation is the situation in Darfur.
The situation in Darfur is very complex, and some limited forms of cooperation were occurring. But these results were not broadcast or publicized well, in part because the optics of the conflict made for better coverage.
Everyone then assumed that because they had not heard anything that nothing was going on.
Contrasting the Daoist Approach
The Daoist only uses tough measures after everything else has been tried.
Weapons are not a wise man’s tools. Force leads to loss of strength. War is conducted like a funeral.
The Daoist also masks their brightness, for the person who makes is show is not bright.
Peace and justice, and the renunciation of wisdom is the goal.
The conflict in Uganda is one of a conflict between peace and justice. There is no incentive for the LRA to create peace before an investigation, and instead warrants were issues for their leaders.
The ICC did get cooperation between the states of Uganda, Sudan, and Congo. When the rebel forces and equipment began to degrade, it led to a negotiation between the parties. Only the warrants stand in the way of peace now.
The formalist would still state, “I don’t care, let justice be done though the world may perish.†The Daoist is more detached, and would renounce wisdom and not hold onto ideas.
This contrast exists because European law is still very Kantian in its structure. Commonwealth countries however seem to have more of a Utilitarian emphasis.
The Big Question
The question that stands as the divide between the different approaches is the goal of international criminal justice. Is it social transformation or transitional justice?
The formalists would respond to the negative, and claim the goal is to punish individuals who committed crimes.
No clear consensus has emerged over this issue, but it remains the underlying question between the different goals that various entities aspire to for international justice.
Cross Purposes? International Law and Political Settlements – A Roundtable Discussion with All Speakers
A panel of all the previous speakers collectively discussed the challenges with amnesty for war criminals.
The problem with the so-called hacienda model, where war criminals go into exile, is that eventually everyone wants to come home.
We return to the big question of what is the objective of international law. Is it transitional, with the goal of becoming a Western model of democracy? Or is it reconciliation, using the values of the people involved, instead of imposing our own?
How do we deal with tyrants? Threatening them just makes them fight on harder. But creating a tradition of grating impunity can encourage massive crimes.
Should we be developing incentive structures? A dichotomy exists between an economic model and conventional wisdom.
Amy Chua’s book World on Fire was introduced, which states that democracy often creates mass violence through ethnicization of politics. Market dominant minorities become targets of group violence, such as the Tutsis in Rwanda.
Chua, a professor of law at Yale University, states,
In the numerous countries around the world that have pervasive poverty and a market-dominant minority, democracy and markets — at least in the form in which they are currently being promoted — can proceed only in deep tension with each other. In such conditions, the combined pursuit of free markets and democratization has repeatedly catalyzed ethnic conflict in highly predictable ways. This has been the sobering lesson of globalization in the last twenty years.
We also need to start evaluating the cost/benefit of dictators. Iraq now has sectarian violence that simply did not exist before the invasion.
In a joint article in the Washington Post with Jed Rubenfeld, also of Yale Law, Chua says,
Given the conditions that exist today in Iraq — conditions created by colonialism, autocracy and brutality, not to mention the historical schism between Shiite and Sunni Muslims — rushed national elections could very well produce renewed ethnic radicalism and violence …an anti-American government determined to oust U.S. firms from Iraq’s oil fields. Any of these results would create, at best, an awkward moment for the Bush administration. Combined, they could be catastrophic for American interests, for the Middle East and for Iraq.
Nor is universal jurisdiction quite as robust as we normally assume. There is the complexity of individual situations that should be considered, and state sovereignty cannot always be easily dismissed.
Legalistic thinking tends to propose universal solutions for all problems. There is a distinction between international law, and inter-national law. But are there some universals? Perhaps the freedom from great evil?
Some form of accountability is needed. The method most often used (or imposed) is a Western proceduralized legalism, operating under the assumptions of infallibility and that it is the best method available. There is a need for a more pluralized process instead.
The panel asked, “What are the links between group violence, democratization, role of international criminal law?â€
They then concluded by saying that the law exists because states believe in what is in their best interests.
These notes are from the Cross-Purposes? International Law and Political Settlements conference at the University of Western Ontario, on Jun. 9-10, 2007, with some editorial content added by Omar Ha-Redeye.
Resources
Empire and Tolerance: The Rise and Fall of World Dominant Powers
April 9, 2007
Amy Chua, John M. Duff, Jr. Professor of Law
Yale Law School Professor Amy Chua gives her inaugural lecture as the John M. Duff Professor. Professor Chua, an expert on international business and globalization, gives a historical overview of world-dominant powers and discusses the possibility-and desirability-of an American Empire.
“My lecture will be about history’s hyperpowers—a surprisingly rare phenomenon—and a remarkable pattern I’ve found that connects each and every one of them,†said Chua. “To be a little cryptic about it, let me just say that the secret to global dominance is tolerance. In my talk, I’ll offer examples from the Achaemenid Persian Empire founded in 550 B.C. to the Great Mongol Empire of the 13th century to the British Empire in its Victorian heyday. I’ll conclude by discussing the implications of my thesis for the 21st century, specifically addressing the debate about the possibility—and the desirability—of an American Empire.â€
Listen to this lecture on a podcast:
Duration: 56 minutes. Download in MP3 (53 MB).