Negotiating Peace and Justice: Considering Accountability and Deterrence in Peace Processes, Nick Grono

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1 1 of :11 Negotiating Peace and Justice: Considering Accountability and Deterrence in Peace Processes, Nick Grono Presentation by Nick Grono, Vice-President of the International Crisis Group, to international conference on Building a Future on Peace and Justice, Nuremberg, 26 June * Introduction Dealing with justice issues during a peace process requires the balancing of a range of interests, many of which may not be readily reconcilable. Unless one party has been utterly vanquished and hence is simply negotiating the terms of its surrender peace talks commonly bring together parties with capacity to perpetuate the conflict and commit further atrocities. The primary task of mediators is to neutralise the incentives for a return to conflict, and produce a credible and sustainable peace agreement. The need to deal with justice issues often complicates this. One or more parties to a conflict, and often all of them, will have committed widespread atrocities. They will usually be keen to absolve each other of responsibility by way of amnesty, or de facto impunity. But mediators are not at liberty to ignore justice issues, even if the parties and some local actors want them to. International law imposes obligations that must be taken into account, particularly if a peace agreement is to receive the military, financial and political support from the international community that is generally a condition precedent to (though not a guarantee of) successful implementation of the agreement. National governments and courts, particularly in Europe, are increasingly utilising the principle of "universal jurisdiction" to try persons suspected of a serious international crime such as genocide, war crimes, crimes against humanity or torture. 1 This principle gives national courts competence to try atrocity crimes even if neither the suspect nor the victim is a national of that country and the crime took place outside its borders. 2 The International Criminal Court reinforces this demand for justice. While it will defer to states willing and able genuinely to prosecute their own, it will not be bound by amnesties or efforts to give impunity to those most responsible for atrocity crimes. Thus, the international community s demand for peace with justice means mediators have to negotiate it. They have a mandate to produce robust peace agreements that incorporate justice mechanisms to the greatest extent possible. But this provides little guidance for mediators, war-torn societies and the international community on how best to do so. Too much justice too early may mean no deal, and hence no peace. Too little may mean that the agreement doesn't receive the international support it needs, and may result in the ICC or foreign courts prosecuting regardless. And the legitimate fears and needs of local actors have to be given due weight and respect in this process, even if they don t always accord with the demands of international norms. This paper attempts to establish a framework for considering these issues. It draws primarily on African conflicts and peace agreements. 3 Accepting that all of the benefits of peace and all of the benefits of justice usually can't be achieved immediately, it seeks to spell out those benefits, over the short and long term, and from the perspective of local and international actors so that to the extent there has to be a trade off it can be made with an informed understanding of what may be gained or lost, and by whom. Weighing up peace and justice The value of peace is straightforward. For the society subject to the conflict, it means an end to killing and suffering and the removal of an overwhelming obstacle to development. For those not yet victims of the conflict, it removes the risk of becoming so. These benefits are immediate and, to the extent peace is sustained, they are long term. For the international community, and particularly neighbouring regions, peace brings an end to actual or threatened destabilisation, decreases the likelihood of state failure and related dangers.

2 2 of :11 These benefits too are short and long term. Justice is also fundamentally important. But, in the context of peace negotiations, it is intended to serve a greater and more diverse range of purposes. This means that the case for justice (or "accountability" as the terms are used more or less interchangeably in this context) is not always as clear-cut as that for peace, rendering it difficult to accept the claim that justice must always be pursued even at the cost of continued conflict. The strongest argument for preferencing justice, and the most common claim on its behalf in peace negotiations, is a functional one that peace is not sustainable in the absence of justice. But the evidence for this is far from unequivocal. Peace has held in situations in which reconciliation was pursued to the exclusion of accountability, for example in Mozambique and Namibia. South Africa is called in aid by proponents both for and against the "no peace without justice" case. Proponents for cite the fact that amnesties were conditioned on full disclosure by perpetrators of their acts of political violence, thereby addressing key objectives of accountability such as truth telling and delegitimisation of state-sponsored violence. Proponents against argue that almost no senior figures from the apartheid regime appeared before the Truth and Reconciliation Commission, nor were any prosecuted for their failure to do so apparently on the basis that such prosecutions could derail the fragile transition. While amnesties have rarely been granted to leaders responsible for atrocity crimes in recent peace deals, they frequently have been given to subordinates, or for crimes other than atrocity crimes. Yet many contemporary agreements ensure implicit impunity by ignoring the issue of justice altogether, or by setting up weak transitional justice mechanisms that hold no real threat of accountability. Others set up transitional unity governments which comprise most or all of the former warring parties, whose members are unlikely to have an interest in pursuing justice for fear they will become a future target. These approaches ensure there is little domestic institutional imperative in favour of pursuing accountability. But the entry of the ICC onto the world stage, and the growing willingness of states to prosecute under the principle of universal jurisdiction, may significantly change this dynamic. Now there is an international imperative in favour of accountability that may generate a domestic one. 4 In those cases in which the ICC has jurisdiction, it is not bound by amnesties granted to those most responsible for genocide, crimes against humanity or war crimes. Not only is it not bound, but if it decides to prosecute, then domestic attempts to avoid accountability by weak transitional justice mechanisms are unlikely to be successful. Foreign courts exercising universal jurisdiction are likely to take a similar approach. And even in cases where the ICC doesn t have jurisdiction, the widespread ratification of the Rome Statue is likely to strengthen the emerging international norm that amnesties are not effective for atrocity crimes. Mediators can no longer consider their job done if they produce a peace agreement that does not explicitly address justice and accountability issues. But they will constantly struggle with how much accountability is enough and whether if ever an exception is warranted. Thus, it is critical to understand the objectives that strong accountability mechanisms are intended to serve; how the international community and war-torn societies are expected to benefit; and how those benefits may vary over time and across conflicts and societies. The objectives of accountability While accountability is often used synonymously with "justice", it is narrower and used here to refer to efforts to operationalise justice when negotiating peace after the commission of mass atrocities. It is generally associated with at least six specific objectives. 5 The first is retribution. Punishing individuals for the harms they have caused, particularly when their crimes were committed on a massive scale, is intended to reestablish (or establish in the first instance) an equilibrium between victims and perpetrators as best possible under the circumstances. It is also expected to channel any desire for revenge through legitimate institutions thus reducing the likelihood of retaliatory crimes. The benefits of retribution follow immediately from an effective accountability mechanism and accrue to victims and the local society. Independent of these, the international community has little to gain from retribution. The second is the incapacitation or the purging and removing of disruptive actors from a post-conflict society. In this, it is intended that accountability mechanisms will physically remove those who have committed mass atrocities in a society, rendering them

3 3 of :11 incapable of doing so again or spoiling the peace. The benefits of incapacitation, like those of retribution, are immediate and to the local society. For the international community any gain from incapacitation is somewhat indirect preventing the recommencing of conflict which poses a potential for spillover and broader destabilisation and more or less distant depending on the context. Then there is deterrence. Prosecutions have long been believed to have the power to prevent future atrocities. 6 The argument is that if leaders genuinely believe that they are likely to be prosecuted if they commit atrocity crimes, then this will provide a strong (though not always overwhelming) incentive against such conduct. Certainly the founders of the ICC believed so, setting out in the Rome Statute s preamble their determination "to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes". 7 The benefit of deterrence accrues overwhelmingly to the international community as, to the extent it works, it prevents future atrocity crimes around the world. For local actors, the benefits are more focused, preventing a return to conflict by new leaders anxious to avoid the fate of their predecessors. Importantly, fear of prosecution can also prolong current conflicts a concern to both local and international actors if leaders threatened with such an outcome entrench themselves to ensure they don t end up in the clutches of a criminal court. Another much-discussed objective of accountability is truth telling or establishing an accurate historical record. Robert Jackson, chief prosecutor at Nuremberg, and U.S. Supreme Court Justice, notably reported to President Truman that the trials documented the Nazi atrocities "with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people". 8 This can help prevent the distortion of facts and misuse of historical examples both domestically and internationally, and provide the related benefit of acknowledging victims of crimes and allowing them to state their experiences publicly. Thus, truth telling can serve domestic and international interests, but more immediately the former. A fifth objective is institutionalisation of human rights norms. Insisting on prosecution of atrocity crimes forces states to recognise the legal and moral force of those norms and entrenches them more firmly in international and domestic legal spheres, bureaucratic and military structures and in the minds of ordinary citizens. States will be more likely to comply with treaty-based duties to prosecute such as those for genocide and grave war crimes and bolster customary law developing around other atrocity crimes. This objective, like (and related to) deterrence, holds great potential value for the international community in the long term, as well as more limited and largely future value for the local society. And finally, accountability serves to delegitimise the individuals responsible for atrocity crimes and help dismantle the institutions they created or used for support. There is obviously an overlap here with the objectives of purging, truth telling and institutionalisation of norms, but the purpose is more specifically focused on holding accountable, and discrediting, the individuals responsible for the crimes committed thereby absolving broader social groups and promoting healing. There are real challenges in determining where to draw the line in allocating responsibility, though practical considerations will likely ensure that only those most responsible are prosecuted, as neither the international community nor the war-torn society has the means or the will to prosecute beyond the circle of the senior leadership. The benefit here principally accrues to the war-torn society, enabling it to move on with rebuilding its shattered state. The first three of these objectives fall within traditional goals of a criminal justice/punishment system, 9 while the last three are better placed within a human rights framework. There is obviously a degree of overlap among them. All of them can play a role, to a greater or lesser extent, in ensuring the sustainability of peace. But advocates need to be careful in arguing for accountability on the ground of sustainability alone, as the evidence is far from unequivocal. And insistence on incorporating robust justice mechanisms may be an obstacle to achieving any peace agreement rendering arguments about sustainability irrelevant. Thus it is important to look beyond sustainability to justify the pursuit of accountability when there is a potential trade-off in terms of peace. Why insist on accountability? All of the accountability benefits outlined above in theory accrue to the war-torn society, and most predominantly so. Hence, in principle, retribution, incapacitation and purging, truth telling and delegitimisation benefit primarily local actors; with deterrence and the

4 4 of :11 internationalisation of human rights norms being of greater import to the international community. And, to the extent any or all of these objectives contribute to the sustainability of a peace agreement, then it is the local community that overwhelmingly benefits. Yet despite this, many local actors (and not just the parties to the conflict, but also civil society and local political representatives) in recent African peace negotiations have been vehement in their desire to minimise robust accountability mechanisms in favour of reconciliation. 10 Reconciliation here generally means a process of expressing remorse for past crimes, seeking forgiveness and the payment of reparations to the victims. It generally does not mean prosecution and incarceration, and is often preferred on the basis that is more in accord with local traditions than "Western" concepts of punitive justice. And, though rarely made explicit, a reconciliation process is often perceived to be more acceptable to the perpetrators, thus reducing the risk of a return to conflict. So if the international community is to insist on holding perpetrators accountable, it will often have to do so in the face of opposition from a range of local actors. On what grounds can or should the international community insist on accountability in the face of such opposition and at the risk of prolonging the conflict in question? In situations where this difficult choice has to be made, it should only do so if the benefits of accountability over the long term are likely to outweigh the short-term costs of prolonging an ongoing conflict. It must make the case that the potential to prevent future atrocity crimes by deterrence and institutionalisation of human rights norms is so important that it should take precedence over the suffering and atrocities that may result if an insistence on prosecution prevents resolution of a current conflict. Do deterrence and norm institutionalisation prevent atrocity crimes? This argument is viable only if they do. But that proposition is understandably difficult to establish to any substantial degree. 11 For a start, the number of cases of mass atrocity is thankfully sufficiently small, knowledge of the actors' motivations sufficiently limited and the historical threat of prosecution sufficiently murky that it is very difficult to draw any hard and fast conclusions from past cases. That said, there are plenty of examples where whatever threat of criminal prosecution there was failed to deter perpetrators of atrocity crimes, and it is difficult to point to cases of successful deterrence. But this doesn t prove there are none, as the problem may be the same as that which confronts conflict prevention efforts more generally, namely that it is difficult to establish something that never eventuates: in this case atrocities would have been committed, and no doubt a conflict ensued, but for the deterrence. Also, history is of limited benefit when considering these issues, as international institutions and norms are much stronger today than they were fifty or even twenty years ago ensuring that the risks of prosecution are greater, and hence more likely to impact on potential perpetrators calculations. That being the case, perhaps the more appropriate question at this stage is what are the circumstances in which deterrence is most likely to work? First, it is necessary to understand that the interests and motivations of parties to a conflict are different, and this may impact on how effective deterrence may be. For instance, a credible threat of prosecution may be less effective against rebels, at least until the late stages of their rebellion by which time it is too late for them to ameliorate their conduct to escape prosecution. Most rebellions fail, and most rebels embarking on their challenge to the central government are unlikely to be concerned that in future years they may be prosecuted atrocities they commit. For these individuals, survival and success are probably much more immediate concerns. In contrast, when it comes to the calculations of government officials, prosecution is a threat to something they already have power and thus may have greater deterrent impact. If a credible threat of prosecution for future atrocities exists in the minds of a regime s leadership, then those leaders have something tangible to lose and arguably will weigh that risk when deciding on how to respond to a challenge to their authority. In so responding leaders usually have a number of policy options they can seek to crush those rebelling against their authority; they can seek to undercut them politically (e.g., by addressing some of the grievances of the rebels constituency); or they can seek to come to a deal with them. In today s world of instant global communications, large-scale atrocities can rarely be carried out in secret, so a decision to crush their opponents, which will almost invariably result in such atrocities being committed, can rarely be hidden from the world s view. If leaders knew such attention would automatically lead to investigation and prosecution, they may choose to respond differently to a challenge.

5 5 of :11 Second, deterrence will be effective only if the threat of prosecution is as suggested above sufficiently immediate and credible. The mere possibility of future prosecution is unlikely to have that impact, particularly weighed against other goals and interests such as the threat posed by a rebellion or the desire to overthrow a repressive regime. Until recently, prosecution was more theoretical than real, as the only vehicles for it were ad hoc international tribunals or domestic courts. The former were exceedingly rare, and reserved for crimes on the scale of genocide. The latter could be defeated by amnesties in peace agreements, or exile. The advent of the ICC a permanent tribunal, with the power to initiate its own prosecution together with growing use of universal jurisdiction, increase the odds of prosecution, and hence the potential deterrent impact. In the past, most perpetrators were safe in the knowledge that they could outlast any international outrage at their actions. Absent a permanent court to try them, their greatest risk of prosecution came from being overthrown and put on trial by their usurpers. That in turn encouraged brutal measures to ensure that such a fate did not befall them. But such an approach will not work against a permanent tribunal or vigilant foreign courts. They can outlast any dictator, unless he dies in office. So the ICC and universal jurisdiction have the potential to give deterrence a credibility and validity it has not had before. In this they will support, and be supported by, the emerging Responsibility to Protect norm. A key component of Responsibility to Protect is the responsibility to prevent serious harm from eventuating. Strengthening deterrence is perhaps one of the most effective ways to give meaning to this component. 12 But in the case of the ICC this will only happen if the Court can successfully pursue those in power most responsible for atrocities. That in turn will require stronger international support for the ICC than we have seen to date. It will also require the Prosecutor of the ICC to use his proprio moto power to initiate investigations and prosecutions of government officials. 13 Balancing the ICC s justice role with peace The Rome Statute gives the Prosecutor the power effectively to ignore amnesties granted to those most responsible for atrocity crimes, and to prosecute perpetrators if domestic prosecutions lack credibility. 14 Without more however, the ICC's strong focus on prosecution could well present a very significant obstacle to peace agreements, even in situations where ICC prosecutions have little deterrent benefit, and where other objectives of accountability are unlikely to be achieved. Anticipating this, the Rome Statute sets up its own mechanisms to allow a balancing of peace and justice interests. Article 16 of the statute allows the UN Security Council to defer ICC prosecutions and investigations for twelve months, renewable indefinitely. And Article 53 gives the Prosecutor the power to decide not to proceed with an investigation or prosecution if it is not in the interests of justice. These articles appropriately delimit the responsibilities of the Security Council and the Prosecutor. The Prosecutor has a justice mandate and should not be required to make the essentially political judgement of whether the prospects of an uncertain peace should take precedence over accountability. He should proceed with prosecutions where the situation warrants them, and if a balancing has to be made and it should only be considered if major peace benefits are very likely to result then it should be made by the Security Council. The Security Council has a peace and security mandate. While it can put a prosecution on hold temporarily to allow a peace deal to be implemented, 15 it should be acutely conscious that indiscriminate exercise of this power in purported pursuit of peace will emasculate the ICC, and undermine efforts to strengthen deterrence and institutionalise human rights norms. It should therefore only intervene exceptionally, in those cases where its intervention will not significantly undercut the deterrent impact of the Court. It should insist on credible and sustainable peace agreements being in place before it acts, and its willingness to renew its deferral should be conditioned on their whole-hearted implementation. And it should perhaps be more willing to act in situations such as Northern Uganda, where ICC prosecution of the rebels may significantly impede reconciliation efforts and be less likely to advance the deterrent impact of the Court, than in a case such as Darfur, where prosecution of those in the regime responsible for the state-sponsored campaign of atrocity crimes will send a very significant message to others contemplating such deliberate actions in the future. In so doing it will reinforce the lessons of the Milosevic,

6 6 of :11 Taylor and Habre prosecutions, and potentially contribute significantly to the prevention of state-sponsored atrocities. As for mediators they are largely bystanders to this process. Their most effective contribution is to push the warring parties to produce credible and sustainable peace agreements which include justice mechanisms to the greatest extent possible. By having the possibility of Security Council deferral of an ICC prosecution conditioned on prior negotiation of robust agreements, mediators will have additional leverage over the parties to achieve such an outcome. Conclusion When it comes to negotiating peace agreements between parties with the capacity to commit further atrocities, mediators have to balance often starkly competing objectives. These cover a spectrum ranging from the immediate need for peace to the necessity to ensure that the agreements they produce do not promote impunity and give comfort to those who might commit atrocities in the future. The advent of the ICC and the increasing application of universal jurisdiction by national courts constrain the options available to mediators. They cannot readily agree to amnesty or substantial impunity, even if they want to. Mediators should use these constraints to maximise the justice mechanisms contained in agreements they negotiate. By so doing they strengthen deterrence and further institutionalise human rights norms. And on the hopefully rare occasions that the Security Council is called upon to consider deferring an ICC prosecution, it should only do so if its intervention will not significantly undercut the deterrent impact of the Court in other cases. Such an approach will give substance to the international community s responsibility to prevent atrocity crimes. It is also perhaps one of the most practical and concrete measures we can take to prevent future Rwandas and Darfurs. *This text is a working paper jointly prepared by Nick Grono and Caroline Flintoft, Crisis Group's Research Director. Nick Grono gave a presentation based on it at the Nuremberg conference on 26 June Genocide, war crimes and crimes against humanity are referred to herein as "atrocity crimes". David Scheffer, the former U.S. Ambassador-at-Large for War Crimes Issues, argues that we should use the generic expression "atrocity crimes" in order to avoid semantic arguments over the particular circumstances of each case, leaving it to the prosecutors and judges in international and national courts to work out whether the conduct amounts to genocide, a war crime or a crime against humanity in each instance. See David Scheffer, "How to bring atrocity criminals to justice", Financial Times, 1 February See Human Rights Watch, "Universal Jurisdiction in Europe: The State of the Art", 28 June 2006, for a comprehensive overview. 3 More conflicts are taking place, and ending, in Africa than anywhere else. Human Security Report Project, Human Security Brief 2006, at 4 Under the principle of "complementarity" in the Rome Statute, the ICC has jurisdiction to proceed only if the domestic system is unable or unwilling to. One of the underlying aims of the ICC is to encourage all countries to ensure that their own criminal laws are co-extensive with the ICC's prohibition on atrocity crimes, and to prosecute those crimes when they fall within domestic jurisdiction. 5 These objectives have been discussed in various forms by a number of experts in the field, including Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton, 2000); Paul R. Williams and Michael P. Scharf, Peace with Justice? (Maryland, 2000); Juan Mendez, "Accountability for Past Abuses", Human Rights Quarterly 19 (1997) Then U.S. Secretary of State Madeline Albright argued in April 1994: "If the architects of war and ethnic cleansing in Bosnia go unpunished, the lesson for would-be Milosevics around the world will endanger us all". For arguments in favour of deterrence, see Bass, Stay the Hand of Vengeance, op. cit., pp In a similar vein the UN Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities concluded that impunity is the major reason for continuing human right violations throughout the world. See Scharf, "The Amnesty Exception to the Jurisdiction of the International Criminal Court", 32 Cornell Law Int'l L.J. 507 (1999) at "Report to the President from Justice Robert H. Jackson, Chief of Counsel for the United States in the Prosecution of Axis War Criminals, 7 June 1945", American Journal of International Law 39 (Supp. 1945) at Rehabilitation is often regarded as another traditional goal of a criminal justice system. The theory posits that crimes are often committed under the influence of a dysfunctional

7 7 of :11 social environment, and that offenders are capable of redemption by accepting responsibility for their actions. Members of the local community benefit, as it allows for more effective reintegration of offenders into society. Benefit to the international community lies in the reduced chances of a return to violence. For present purposes, rehabilitation is perhaps better considered as a component of reconciliation (discussed below), than as an objective of accountability. 10 In Uganda, the Acholi leadership and many local civil society actors have been vocal at times in demanding local reconciliation mechanisms over ICC prosecution. According to Priscilla Hayner's case studies for this conference, most civil society actors in Sierra Leone and Liberia did not insist on prosecution as part of the peace agreement, believing it would derail the peace talks. 11 Numerous studies have challenged the deterrent effect of punishment in domestic criminal justice systems, particularly with respect to the death penalty. See, e.g., John J. Donohue and Justin Wolfers, "Uses and Abuses of Empirical Evidence in the Death Penalty Debate", 58 Stanford Law Review 791 (2005). Yet the motivations and circumstance associated with most domestic property and violent crimes differ significantly from those associated with atrocity crimes, perhaps more so for government officials who order or enable them. Thus, while general criminal deterrence studies may be relevant, they certainly do not provide a clear answer to the question of whether prosecution will prevent future atrocity crimes. 12 While deterrence may give substance to the responsibility to prevent where atrocities have yet to occur, fear of prosecution may impact on the international community s responsibility to react where they have taken place. Such a fear may result in those responsible seeking to entrench themselves to avoid being held accountable. 13 To date, the Prosecutor has investigated rebel groups in DR Congo, Uganda and Central African Republic, following referrals from those governments. In Darfur, he has commenced a prosecution of a government minister, following a referral from the UN Security Council. 14 While the Rome Statute does not have specific amnesty provisions, amnesties of those most responsible for atrocity crimes would amount to an unwillingness to prosecute by the national jurisdiction under the complementarity principle. Likewise, it could hardly be argued that amnesty of top leaders would be in the interests of justice (as opposed to peace). See Darryl Robinson, "Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court", European Journal of International Law (481); Scharf, "The Amnesty Exception to the Jurisdiction of the International Criminal Court", 32 Cornell Law Int'l L.J. 507 (1999). 15 If the Security Council puts a prosecution on hold, and a peace deal is implemented, then it may well be that in time it will be appropriate for the Prosecutor to exercise his power to stop the prosecutions in "the interests of justice". While the interests of justice don't necessarily equate with the interests of peace, if a society has achieved significant reconciliation, and is largely at peace and dealing appropriately with the legacy of past abuses, then the interests of justice may well be broad enough, and intended, to allow the Prosecutor to end his prosecutions. comments