What comes first, Peace or Justice?
By | Mar 12, 2007
What Comes First, Peace or Justice?, Nick Grono
Presentation by Nick Grono, Vice-President of the International Crisis Group, to the Program in Law and Public Affairs, Princeton University, 12 March 2007
The International Criminal Court is now investigating or prosecuting individuals involved in three of the most devastating conflicts in Africa – the conflicts being Darfur, northern Uganda, and the Congo. So I want to start today by briefly outlining some recent developments in each of these three conflicts, as these clearly demonstrate the challenges that arise when we try to reconcile prosecutions and peace processes.
Grabbing the headlines in the past fortnight has been the naming by the ICC Prosecutor, Luis Moreno- Ocampo, of two suspects in the Darfur case, one of them a government minister. This is a critically important development for the ICC. The Prosecutor has accused them of war crimes and crimes against humanity, and is seeking to have them handed over to the court for trial. Khartoum and others have claimed that this will interfere with the peace process.
The ceasefire agreement in the northern Uganda conflict lapsed twelve days ago. The very fragile peace process there is teetering on the edge of collapse. A complicating factor in the process has been that the top leadership of the LRA has been indicted by the ICC Prosecutor. There is a real risk we will see a return to conflict there, now spanning four countries – Uganda, Congo, Sudan and CAR.
And in the Congo a fortnight ago Peter Karim, the leader of the last remaining militias active in Ituri, the FNI, said that he will lay down his arms if he gets a full amnesty. “I want peace, as does the DRC government. If an amnesty was guaranteed for us, I would be willing to surrender tomorrow.” Now, as it is highly likely that an amnesty will be granted by the government, and as I suspect ICC is looking into the activities of this and other militias, it will be interesting to see how this probable confrontation plays out.
All of these developments illustrate the challenges inherent in reconciling peace and justice.
The starting point of any such discussion is to state the obvious – that both peace and justice are of fundamental importance. But the fact is that when it comes to ending conflicts they can’t always be reconciled in full, at least in the short term.
Where the tension is most apparent is usually during peace talks – as it is often at this stage, that the parties find their thoughts turning to justice and accountability issues. The reason for this is simple, if distasteful, namely that they don’t want their hard won peace to result in them being tried and imprisoned for atrocities they may have committed during the conflict.
This is why, in such situations, we often have to make hard decisions about trading off justice for peace. However much we like to think otherwise, in such situations the cost of getting a peace deal is often a degree of impunity for the perpetrators. The impunity is sometimes, though increasingly rarely explicit, but more often these days it is implicit.
It should not be surprising that such trade-offs are made. One party or another to a conflict, and usually all parties, will have committed widespread atrocities – that, unfortunately, is the real world of conflict these days.
Such atrocities include massacres of civilians, mass rape, torture, and the recruitment of child soldiers and sex slaves – the whole gamut of human depravity.
Unless one party has been utterly vanquished, peace negotiations will bring together the parties responsible for such abuses, and a deal will depend on them agreeing to end their conflict.
If you want recent examples of deals to which serial abusers are party, look at recent peace agreements – backed by the US and EU – such as the Sun-City and related agreements that formally ended the Congo conflict in 2003; the Comprehensive Peace Agreement in Sudan in 2005 and the Darfur Peace Agreement last year; and the 2001 Bonn Agreement setting up a new government for Afghanistan. None of these agreements have explicit amnesties, unlike the Lome Agreement in Sierra Leone. Some of them have token transitional justice provisions, but for they most part they are silent on accountability for past atrocities, despite the fact that some of the biggest rights abusers are party to these agreements, or were put into power by them.
So the Faustian bargain we have to consider when all other options have been exhausted is whether the benefits of a peace deal, which will likely end continuing and future atrocities, justify a degree of impunity for those responsible for past atrocities. And complicating the mix is the fact that peace without a measure of accountability is often, but not invariably, unsustainable in the long term.
When we consider peace and justice issues, it is tempting to take the easy way out by saying that no trade-off is required. That is true when you have the luxury of time, which allows the sequencing of peace and justice – for example by getting peace now, and dealing with justice many years down the track. This is what has been happening in Latin America a decade or two after transitions to democracy. But most of those transitions explicitly granted amnesty to enable handovers of power to take place, and it is only many years later are those amnesties being wound back.
These issues are as difficult as it gets in the field of conflict prevention. Tempting and understandable though it might be to take a righteous stance and insist that we don’t do deals with those responsible for atrocities, that risks condemning millions to future, avoidable, atrocities.
And while I understand mediators’ insistence that all options, including full amnesty, must be on the table if we are to be able to end conflicts – that ignores the very important deterrence impact of international prosecutions, let alone fundamental moral considerations.
Let me first talk about one conflict where I’ve seen some of the consequences first hand, and then I’ll look at some of the different considerations involved in trying to reconcile these objectives.
Northern Uganda
During the last 20 years northern Uganda has been home to a vicious guerrilla war that has utterly devastated the region. A brutal rebel group known as the Lord’s Resistance Army, or LRA, led by its charismatic and murderous leader, Joseph Kony and his deputy Vincent Otti, has unleashed a reign of terror over the past two decades, abducting more than 25,000 boys and girls, and turning them into rebel soldiers, porters and sex slaves. In the past Kony’s declared objective was to rule the north in accordance with the Ten Commandments, as directed by the spirits that speak through him. More recent he has been trying to recast himself as a freedom fighter for the Acholi people of northern Uganda.
The Ugandan government has responded to the LRA’s campaign by unleashing its own devastation on the north, forcing over a million of the North’s inhabitants (predominantly Acholi) to live in camps – condemning them to a life removed from their fertile land, with little hope for a productive future. The result, according to the government’s own statistics, is that a thousand people a week on average are dying from conflict-related disease and malnutrition.
I was in northern Uganda late last year, where I saw first hand just a few of the consequences of that conflict. In Gulu, thousands of children walk miles every night to attend night commuter centres, to avoid risk of abduction. This one run by MSF.
At a center for returnee LRA abductees, run by World Vision, the staff attempt the near impossible task of reintegrating some 160 formerly abducted girls, who, once captured, were handed out to commanders, raped, and, having escaped, now bear children rejected by their own communities. The nearby School of Formerly Abducted Children houses 13 and 14 year old girls expecting the children of their rebel “husbandsâ€. There were boys at the school whose trauma was reflected in their utterly expressionless faces – they had witnessed and committed such unspeakable horrors such as cutting off the lips, ears and noses of villagers deemed insufficiently supportive of the LRA cause. Many of these children had been forced to kill their parents or siblings as the price of their own life.
At one of many camps within an hour’s drive of Gulu, some 45,000 Acholi have been living in squalid and unhygienic quarters for the last decade. Until recently – and for the last decade – the Ugandan government wouldn’t allow them to return to their nearby villages – the mother of the village spokesman who was my host had been shot and killed by the Ugandan army six months earlier when caught outside the camp bounds after curfew.
These are the real-life consequences of conflict.
Now, for the first time in a decade or so, real peace talks have been taking place – sporadically – between the LRA and the Government of Uganda. The talks are taking place in Juba, in Southern Sudan, and are being mediated by the Government of Southern Sudan. After Uganda, I traveled to Juba to meet with the LRA delegation and the Ugandan government negotiators, and the mediators at the talks
One complicating factor in these talks is that the International Criminal Court is prosecuting the leadership of the LRA. Last year the ICC issued arrest warrants against Kony and four of his top commanders. The ICC’s prosecutions played a direct role in spurring the current peace initiative. The issuing of warrants helped alter the LRA’s calculations and created an incentive for the indicted commanders to negotiate. The ICC’s intervention also complicated Khartoum’s continued support of the LRA, helping sever the LRA’s supply lines and uproot their secure safe havens. Finally, the ICC’s case focused international attention on the long overlooked crisis in northern Uganda and added renewed pressure on efforts to end the conflict.
The problem we now face is that Kony and his commanders say that they will not do a deal unless and until the ICC prosecutions are dropped. In fact, they won’t even come to Juba for negotiations for fear of arrest. So they continue to hide out in the Congo, issuing instructions by satellite phone.
And right now, the peace process is on the verge of collapse. The Ugandan army and the LRA are playing cat and mouse with each other. Both insist they wish the talks to succeed. But both refuse to negotiate in good faith. In the meantime there is a growing fear in northern Uganda that there will soon be a return to war, and killings and abductions.
So with that background, let me set out some of the public policy issues that we confront in these situations.
Prosecution by the ICC is one of the few credible threats faced by leaders of warring parties
One of the main challenges for international policy-makers in their efforts to resolve conflicts is that they often lack incentives or sanctions of sufficient credibility to influence the calculations of the warring parties.
To take Sudan as an example, the threat of prosecution has been about the only credible threat applied to Sudan’s leadership over the last few years – largely because the UN Security Council has itself been unwilling to take the tough decisions, and has instead been happy to outsource the bad cop role to the ICC.
But unfortunately this is a stick that loses much of its deterrent power when actually applied. Threat of future prosecution can be a strong deterrent, but the incentives change completely when prosecutions actually begin. The incentive for government officials the subject of prosecution then is to do all they can to stay in power to ensure they don’t end up in the clutches of the ICC.
This will be President Bashir’s tactic in Sudan, and Mugabe has made it clear to associates that the key motivation for him staying in power – and why he will do so till he dies or is removed – is the fear of facing an international tribunal in future. Bashir and Mugabe are acutely conscious of the Charles Taylor precedent – good and bad. Charles Taylor did an asylum deal with Obasanjo and, to his mind at least, Obasanjo reneged on the deal – handing him over to the Special Court.
The ICC must secure convictions to ensure its credibility, and requires strong international support to do so
The ICC will need to secure convictions to ensure its credibility as a deterrent to future perpetrators. This is going to be a challenge. In Darfur and Uganda it is going to find it extremely difficult to get actually get hold of those it is prosecuting. And there will always be the risk of its prosecutions being trumped by peace processes.
In Uganda, the Ugandan army hasn’t be able to defeat the LRA for the last 20 years or so. And the LRA is now, by all accounts, dispersed in northern Uganda, southern Sudan, Congo and Central African Republic.
And in Darfur the Prosecutor, despite taking a conciliatory approach by seeking summonses instead of arrest warrants is not going to get any cooperation from Khartoum. If that wasn’t clear before, the response of the Sudanese interior minister to the ICC application doesn’t leave much room for misinterpretation.
The interior minister was reported immediately after the Prosecutor named his suspects as threatening to “cut the throat of any international official or person who tries to jail a Sudanese official in order to present him to the international justiceâ€. And President Bashir declared last week “”The government will not hand over any citizen for trial outside the country.”
That being the case, the ICC is going to need strong international support to progress Darfur prosecutions. It does not have its own police force. It relies on the governments in those countries in which it is investigating to provide it with the assistance it needs. It depends on these governments to provide it with access, to protect its investigators and witnesses, and to arrest suspects.
None of this is going to happen in Sudan, to the contrary. As a last result the Prosecutor can seek the intervention of the UN Security Council, which referred Darfur to the ICC in the first place. But, in light of the Security Council’s efforts on Darfur to date, this is going to be little comfort. To date the international community has long displayed an utter lack of political will in dealing with Khartoum. One hopes, without much optimism, that when if and when prosecutions commence, the international community will be shamed into providing more substantive assistance and pressure.
Impunity should always be a last resort
The crux of the whole peace versus justice debate is what should be done when a prospective peace deal is made conditional on a halt to international criminal prosecutions.
In these circumstances the overriding policy issue is whether the important but uncertain prospect of deterring future perpetrators and reducing future conflicts takes precedence over more certain benefits of an immediate end to an ongoing conflict.
The first point that needs to be acknowledged is such deals often fail to produce peace. Failed amnesty agreements brokered with the likes of Foday Sankoh in Sierra Leone and Jonas Savimbi in Angola, and their violent aftermath, demonstrate the potential costs of impunity.
But deals have been done in the past that have offered limited or full immunity from prosecution, and have helped bring an end to conflict and instability. One obvious example is the one made with Charles Taylor to get him out of Liberia and bring an end to the conflict there. In mid-2003, rebel groups were advancing on Monrovia, shelling the city and attempting to starve it into submission. Taylor declared his intention to stay and fight the rebels – but Nigeria’s offer of asylum ensured Taylor fled Liberia in July. His departure enabled the deployment of West African peacekeepers, bringing a degree of peace to the country, and saving many lives. Certainly that was the view of Nigeria’s President Obasanjo, who claimed, ‘By giving this one man asylum I have saved thousands of lives. What more does the international community want?’
In a different context, in South Africa, outgoing leaders were given amnesty as part of a truth and reconciliation process in an effort to bring 34 years of apartheid to an end. The likely alternative was many more years of conflict.
In Mozambique, after sixteen years of civil war ended in 1992, the Parliament adopted a general amnesty for all fighters pursuant to which reconciliation processes took clear precedence over accountability. Since then Mozambique has become one of Africa’s most successful states.
The way things are going in Uganda, we won’t confront this dilemma anytime soon – unfortunately, as the alternative there is a return to war. But I’ve argued elsewhere that if such a judgement has to be made – and it should only be considered if major peace benefits are very likely to result, and genuine accountability and reconciliation mechanisms are put in place – then it should be made by the UN Security Council. The Security Council has a peace and security mandate, and is expressly authorised by the ICC’s statute to put prosecutions on hold for a twelve month renewable period. This provision was adopted in the negotiations as a compromise between those, lead by South Africa, arguing for specific recognition of amnesty in the statute, and those arguing that there can be no immunity for atrocity crimes.
If we got an implementable peace deal in Uganda, then the ICC prosecutions should be put on hold to give the millions in northern Uganda a chance to enjoy the peace they have thirsted after for twenty years, and for alternative justice and accountability mechanisms to be tested and implemented.
But even if one accepts that as a way forward in Uganda – and many won’t – that begs the question of what about Darfur. What happens if the murderous regime in Khartoum offers a peace deal conditional on impunity?
We may have to confront these issues sooner than we expect. The Sudanese State Minister for Foreign Affairs was reported on Al-Jazeera TV as saying that the Government of Sudan has received an offer from the U.S. to halt the ICC proceedings in return for the government’s consent to deploy UN troops to Darfur.
Its impossible to know if this is true or not, but I understand that the US has been looking at the issue of applying article 16 – one year deferrals – in the Darfur case.
So what should we do if this issue arises? In my view different considerations apply in Darfur’s case from those in Uganda.
Darfur is an horrific conflict, but different in nature from Uganda. Perpetrated by a murderous regime that has a history of atrocities and destabilisation. The twenty year civil war with south claimed some 2 million lives. Actively destabilising Chad and CAR – and has in the past supplied and armed the LRA. It is pursuing political objectives in Darfur – seeking to wipe out rebels there, and civilians who provide them support and cover (willingly or not) because it doesn’t want to share power or wealth with the west. As Moreno-Ocampo has observed in the past about such crimes – “they are not passion crimes. These people think in costâ€.
Khartoum, and some in the international community, will assert that senior government leaders should be given amnesties, so that they can proceed to implement whatever peace agreement is on the table at the time.
Such claims will have to be treated very sceptically. This is a regime that has repeatedly made agreements, and then torn them up when it suited its purposes. Until significant costs are threatened Khartoum has no incentive to stop its current campaign of atrocities – let alone agree to the deployment of a UN force, disarm the janjaweed militias, and protect civilians in Darfur.
If in the future there is a real prospect of peace then the UN Security Council may be in the invidious position of having to decide whether to put a temporary halt on the investigations. But in light of Khartoum’s duplicitous and murderous conduct in the past, the presumption should be very much against any halt to prosecutions, on the very practical grounds that Khartoum, by its conduct in Darfur and in implementing the Comprehensive Peace Agreement with southern Sudan, has displayed absolutely no integrity or willingness to abide by its commitments. Instead of undermining the institution of the ICC, and the powerful threat of accountability, the opportunity should be seized to remind the world that there are real consequences, however belatedly realised, for those responsible for atrocities that shock the conscience of mankind.
And I also think that when one is considering the issue of impunity – however limited – one has to look at weigh up a range of factors, included in them, deterrence and state culpability and the risk of future conflict.
Prosecutions of Kony and LRA commanders – however meritorious – are unlikely to have much of a deterrent effect on future rebel leaders, particularly those possessed by spirits, or whose calculations are based on factors that it is very difficult to influence rationally. Most rebellions fail. Few rebel leaders starting their rebellion will worry about the unlikely consequence of being held accountable for their acts many years down the track – they are more concerned about surviving and winning their struggle. And that’s likely to be the case until it becomes apparent they may succeed, or win a place at peace talks.
But when it comes to Darfur, we need to bear in mind that prosecution of government leaders or officials sends a real chill down the spine of those in power considering state sponsored atrocity campaigns. In such situations leaders have an option of conducting brutal counter-insurgency campaigns, or pursuing peace processes. The realistic threat of prosecution would be one factor that may shift the scales in favour of the latter, by raising the cost of the former. We know that the Milosevic and Taylor and Habre examples have resonated among leaders responsible for atrocities elsewhere. Its one of the reasons why we won’t see Mugabe stepping down from power anytime soon.
The successful prosecution of Sudanese officials responsible for the states campaign of atrocities would send a very powerful message around the world, and may go some way to preventing future Darfurs. Also, it is certain that any Darfur peace deal that left the NCP regime in power would not prevent this government restarting the conflict if and when it suited its purposes – as it is doing in Central Sudan now in breach of the CPA. Hence, when dealing with Khartoum, the likely outcome is no peace and no justice.
So there you have it – a quick run through some of the policy considerations, without any clear answers. These are not easy decisions, and often the choices we have to make are distasteful ones – but we don’t do any favours to the causes of peace or justice by pretending that such choices don’t have to made when it come to ending a conflict. Lets just hope that we make the right choices when have the option.
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