1. Introduction

It is perhaps no exaggeration to assert that the single most divisive question in the contemporary transitional justice discourse consists of how to balance the demands for ‘justice’ in terms of retribution (punishment of past wrongdoing) against those for ‘peace’ in terms of post-violence restoration (reconciliation and embrace after evil). The aftermath of mass violence, particularly in the so-called global South, seems to pit proponents of criminal accountability against the advocates of amnesty and post-violence reconciliation. On the one hand, those who emphasize the beneficial effects of prosecution—the International Criminal Court (ICC) being its ultimate expression—put forward an argument for criminal liability and hence against impunity vis-à-vis grave wrongs (heinous crimes), as a post-violence society has a moral obligation to prosecute and punish the perpetrator. Advocates of amnesty and reconciliation, on the other hand, argue that dealing with perpetrators, possibly by means of criminal prosecutions, is only one of the many challenges faced by the post-violence society. Yet prosecutions, it is further argued, do have some intrinsic limitations; they are perpetrator-oriented and so do not give victims the full attention they are entitled to in order to be healed of the injustice they suffered.

Besides pointing out these two problematic understandings of justice (retributive and restorative) conventionally summoned following mass atrocity, I will attempt a grasp of the nature of mass violence which had come to characterize most of post-Cold War Africa, in a bid to decipher a possibly deeper meaning of the unease with the ICC as the current judicial world order on the part of some African governments. In the final analysis, I look to propose what can be termed ‘a third-way pursuit of justice following mass violence’ in the context of a post-violence African nation-state. In so arguing, I chiefly seek to re-appraise the prevailing normative expectation of criminal accountability—largely influenced by the notion of lex talionis—in righting specific wrongs understood as heinous crimes as currently captured by the ICC script.

2. The context of ‘heinous crimes’ in most of today’s Africa

The sense of justice as punishment in the aftermath of mass violence, the claim goes, is not only treasured by members of a victim-community as it promises future assurance in the post-violence context, but it is also what shapes their primary conviction of what is to be done. No doubt, mass violence in most of Africa today—manifested by way of state repression, civil wars, genocides, or ethnically- or religiously-aligned massacres—leaves many in the post-violence society shattered. Mahmood Mamdani nonetheless makes not only a qualitative but also a quantitative distinction between criminal and political violence. Qualitatively, Mamdani argues, political violence “requires more than just criminal agency; it needs a political constituency.” That constituency, in turn, is held together and mobilized by an issue. More than criminal violence, political violence is “issue driven.” Quantitatively, the distinction is that of “sheer scale.” The larger its scale, the more the likelihood that the violence is either unleashed by the state or is part of an anti-state mobilization, i.e. civil war or an insurgency, or both.

Drawing from the Sudan case, Douglas Noll illustratively depicts the clash between the pursuit of justice (as criminal liability) and that of peace (as amnesty and reconciliation): On July 12, 2010, the ICC added charges of genocide to the list of crimes Sudanese leader Omar al-Bashir had been accused of committing.  In the first warrant of arrest issued by then ICC Chief Prosecutor Luis Moreno-Ocampo, al-Bashir had been charged with seven counts of war crimes and crimes against humanity for his role in orchestrating an extermination campaign against the Black African ethnic groups of the Fur, Masaalit, and Zaghawa living in Sudan’s western region of Darfur. Throughout the world, both international human rights organizations as well as regional civil society organizations hailed the decision, saying that it sent a strong rejection of impunity to Sudanese leaders and beyond. Meanwhile, the then United States special envoy to Sudan, General Scott Gration, expressed concerns about how the new indictment would affect his efforts to secure the cooperation of al-Bashir in bringing peace to Sudan. In a local newspaper, Sudan Tribune, Gration reported:

“The decision by the ICC to accuse Sudanese president Omer al-Bashir of genocide will make my mission more difficult and challenging especially if we realize that resolving the crisis in Darfur and South, issues of oil and combating terrorism at a 100%, we need Bashir. Also on the issues of citizenship and referendum, the North holds a lot of influence so this is really tough. How will I carry out my duties in this environment?”

At the heart of the debate over ‘justice for heinous crimes’, it seems, the most pertinent concern is not about whether ‘some justice’ is or can be better than ‘no justice’; rather, the most hotly debated question is about whether the interests of “justice” in terms of criminal liability for past wrongdoing can remain complementary to—let alone compatible with—the pursuit of “peace” in terms of amnesty for reconciliation in the context of a post-violence society.

3. Assumptions undergirding international criminal justice

In early 1930s, following the cataclysm of the First World War and the subsequent emergence of national-socialism with the coming of Hitler to power in Germany, Sigmund Freud and Albert Einstein—two predominantly influential scientists in the first half of the 20^th century—exchanged correspondences about possible ways to salvage humanity from the scourge of war. In their exchanges published in a pamphlet titled “Why War,”[1] the two men came to an agreement that the surest way for humanity to live in peace and settle conflicts peacefully consists in circumventing the obstacle of national sovereignty. In his open letter to Freud, Einstein wrote:

“This is the problem: Is there any way of delivering mankind from the menace of war? […]As one immune from nationalist bias, I personally see a simple way of dealing with the superficial (i.e., administrative) aspect of the problem: the setting up, by international consent, of a legislative and judicial body to settle every conflict arising between nations. Each nation would undertake to abide by the orders issued by this legislative body, to invoke its decision in every dispute, to accept its judgments unreservedly and to carry out every measure the tribunal deems necessary for the execution of its decrees… But at present we are far from possessing any supranational organization competent to render verdicts of incontestable authority and enforce absolute submission to the execution of its verdicts. Thus I am led to my first axiom: The quest of international security involves the unconditional surrender by every nation, in a certain measure, of its liberty of action—its sovereignty that is to say—and it is clear beyond all doubt that no other road can lead to such security.”[2]

Freud, too, in reply, reiterated:

“There is but one sure way of ending war and that is the establishment, by common consent, of a central control which shall have the last word in every conflict of interests. For this, two things are needed: first, the creation of such a supreme court of judicature; secondly, its investment with adequate executive force. Unless this second requirement be fulfilled, the first is unavailing. Obviously the League of Nations, acting as a Supreme Court, fulfills the first condition; it does not fulfill the second. It has no force at its disposal and can only get it if the members of the new body, its constituent nations, furnish it. And, as things are, this is a forlorn hope.”[3]

The thoughts of these two men were never entertained by the time these correspondences were published in 1933. It hence took the occurrence of the Nazi war crimes for the idea of international criminal justice to re-emerge. In the immediate aftermath of the Second World War, individuals responsible for serious violations of International Humanitarian Law (IHL) as well as crimes against humanity were brought to trial before an international court. If Nuremberg and Tokyo’s appeals to jus cogens law and erga omnes obligations did not translate into the creation of a permanent international judicial body with the authority to adjudicate crimes against humanity and violations of the laws of war, the 1998 Rome Statute of the International Criminal Court spelt out the creation of a permanent international criminal tribunal as a clear acknowledgement that perpetrators of mass atrocity, in addition to posing an obvious threat to their own states and citizens, threaten the peace and security of the international community as a whole.

Criminal justice hence sees crime essentially as a violation of law—domestic or international. Advocates of international criminal justice point out the advancement of peace through deterrence and pre-emption as the overarching goal of justice by trial. Prevention of elite-induced mass violence, proponents of international criminal justice argue, can operate through both conscious and unconscious responses to punishment, in that, where leaders engage in some form of rational cost-benefit calculation, the threat of punishment can increase the costs of a policy that is criminal under international law. With regard to pre-emption, supporters of this prosecutorial justice argue that the mere indictments of prosecuted war criminals are often enough to popularly stigmatize them, force their retreat from public life, and hence pre-empt the disruptive threats they pose to post-violence transitions. The moral high-ground evoked often maintains that it is the wrongness of the criminal act that justifies the imposition of punishment on the offender.

Against the above backdrop, it becomes pretty clear to notice the apolitical thrust of the international criminal justice campaign, presenting itself as a post-Nuremberg movement born as a moral criticism of politics. Insightfully, Mamdani argues that prosecutorial justice vehemently advocated by the contemporary human rights and humanitarian community is the result of a double failure: analytical and political. Analytically, the ICC à la Nuremberg model confuses political with criminal violence while politically, the focus on perpetrators is at the expense of a focus on the issues that drive the violence; as such, the ICC’s prosecutorial trait is much likely to magnify rather than mitigate violence in the public sphere.

An additional critique levied against this prosecutorial mode of justice in the aftermath of mass violence is that individual prosecutions leave untouched other actors who may have been complicit in crimes, whether by direct participation or (as more often) passive acquiescence. Not only does selectivity in prosecuting perpetrators of mass violence raise important concerns related to the criminalization of guilt, but what is even more worrisome is that the focus on individualizing guilt may even contribute to what Jeffrey Bernstein termed as “mythologizing collective innocence.”

Perhaps, the subtlest echo yet of profoundest concern about the recent proposal for an African continent-wide withdrawal from the ICC membership consists of an emphasis that mass violence in most of Africa today is not just (merely) criminal but also (if not all the more) political. This emphasis, as recently emitted by some African governments and non-state critics of the ICC alike, should augur a shift of logic from international criminal justice (ICJ) to the international political justice (IPJ)—which decriminalizes mass violence and instead thrust back the political into the calculus of justice after mass violence—is indeed timely, if not long overdue.

4. Conclusion

Political violence, whenever manifested, pulverizes the building blocks of society to such a great extent that the stone that the post-violence builder rejects often turns out to be the cornerstone. Conventionally, post-violence builders have been characterized by either their desire for retribution or their urge for restoration, each builder defending their way as the most promising in rebuilding the post-violence human society. In this two-way pursuit of dealing with past evil an attempt to think of a third way is often unimagined.

Beyond this two-pronged transitional justice debate, a third-way approach may indeed consist of political reform of the post-violence state and society in and through which political violence took place. In its orthodox sense, transitional justice—as both discourse and praxis—has come to be described as the range of strategies a political community (or nation-state in the Westphalian sense) pursues in order to emerge from conflict or totalitarian rule, holding in tension political necessity, the pursuit of accountability and social healing. Is not dealing with the political—by way of unprecedented reform of and in power relations within the very political community affected by mass violence—one sure way to deflate this tension in the longest run possible, especially when the pursuit of criminal accountability brings little to no reward to the many affected by past evil?

In the final analysis, if justice as pursuit of criminal accountability on the one hand and amnesty, on the other, are in tension, then the balance between the two is best judged, Suren Pillay insightfully argues, according to the criteria of what most effectively creates “lasting peace and stability in a divided political community.” Political reform of the state and society previously embroiled by political violence, as is the case in most of today’s Africa, seems to be a much more commensurate dose in righting past wrongs of such specificities. Otherwise, the continued misanalysis of mass violence in most of today’s Africa by the ICC—perceived as simply criminal and not principally political—can only vindicate the harsh criticism against the ICC as indeed being an ‘International Caucasian Court’ (the position of a Gambian female attorney at the helm of its Office of the Prosecutor notwithstanding), deploying a Nuremberg-styled victor’s justice.

* David-Ngendo Tshimba is a PhD Fellow at Makerere Institute of Social Research, Makerere University, and Assistant Lecturer, Uganda Martyrs University. [email protected]

References

Bernstein, M. J. “After Mass Atrocity: Pragmatism and Foresight in the Pursuit of Post-Conflict Justice” in International Affairs Review, Vol. XIX, No. 2, Fall 2010, pp. 27-41.

Mamdani, M. “Beyond Nuremberg: The Historical Significance of the Post-apartheid Transition in South Africa” in Politics and Society, Vol. 43, No. 1, 2015, pp. 61-88.

Noll, E. D. (2011). Elusive Peace: How Modern Diplomatic Strategies Could Better Resolve World Conflicts. New York: Prometheus Books.

Pillay, S. “Conclusion” in C. Sriram & S. Pillay (eds.) (2010) Peace vs Justice? The Dilemma of Transitional Justice in Africa. Durban: University of Kwa-Zulu Natal Press.

End notes

[1] See The Einstein-Freud Correspondence (1931-1932) published in 1933 under the title Why War? [Retrieved online from http://www.public.asu.edu/~jmlynch/273/documents/FreudEinstein.pdf] Viewed on 17.04.2015.

[2] Ibid

[3] Ibid

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