By Michael Holtzman
May 2, 2016
Imagine you are a diplomat in the US government. You have just been informed that Syrian President, Bashar al-Assad, is willing to negotiate a transfer of power to the opposition in return for blanket amnesty for all high level officials in his government. Also, imagine that Russia and China, as United Nations Security Council members, have decided to change course and are willing to vote in favor of referring Assad to the International Criminal Court (ICC) to be investigated and likely indicted. Tomorrow morning President Obama has requested a briefing and wishes to know which course of action you advise: amnesty or prosecution?
On the one hand, offering Assad amnesty to step down would likely put an immediate end to a civil war that has lasted over three years with a death toll exceeding 150,000,over 9 million displaced Syrians and more than 1,400 dead from chemical weapons attacks. Without peace, those numbers will undoubtedly grow.
On the other hand, referring Assad to the ICC for indictment would send a strong message to the world that grave crimes are not tolerated and carry serious consequences. This could deter other potential high-level perpetrators from engaging in similar conduct. UN High Commissioner for Human Rights Navi Pillay and over 58 countries from around the world support this course of action.
Of course, both options carry potential downsides. An ICC referral runs the risk of removing diplomatic solutions from the table: Assad could believe his only option is outright military victory because stepping down would mean prosecution. The civil war would likely intensify and casualties would mount.
Alternatively, an amnesty agreement, despite ending immediate hostilities, would likely leave the roots of the conflict intact. The failure to hold Assad and his cronies responsible could fuel resentment and retaliation. That might result in future conflicts within Syria and the broader region, not to mention setting a precedent for allowing leaders responsible for mass crimes to negotiate out of punishment.
So, do you advise trying to get Assad behind bars or granting him amnesty in return for a quick peace deal?
International Criminal Law and Conflict
We live in a unique era. For the first time in history, international institutions and some domestic jurisdictions exist to try world leaders for the most egregious crimes: war crimes, crimes against humanity and genocide. This stands in contrast with most of human existence, where mass atrocities only came to an end when a diplomatic solution was achieved or, more likely, one side of the conflict wiped out the other.
The paradigm shift towards using human-rights based prosecutions as the preferred method for ending conflict was set in motion by the creation of the first international criminal courts, the Tokyo and Nuremberg Tribunals, at the end of World War II. While there were some prosecutions of war-crimes perpetrators at the domestic level during the Cold War, it was not until the Yugoslavia and Rwanda Tribunals were formed in the 1990’s that international criminal law gained acceptance within the international community. Since the International Criminal Court came into force in 2002, the potential for prosecuting high-level government and military officials has increased due to its permanence and expansive jurisdiction.
However, it would be naïve to think that the growing prevalence of international criminal law will act to stop and prevent all conflicts overnight. Under what circumstances should human-rights trials be used to prosecute responsible individuals? The answer to this question remains controversial (as demonstrated by the opening hypothetical), especially in the context of an ongoing conflict.
There exists a strategic divide between those whose primary focus is justice, or the prosecution of perpetrators, and those who predominantly emphasize securing peace through diplomatic agreements, often requiring the granting of amnesties or allowing escape into exile. Commentators call this the peace vs. justice debate.
Peace vs. Justice: A False Dichotomy
Supporters of the “peace” perspective argue that “justice does not lead, it follows.” Under this view, only when certain political and institutional preconditions necessary for democracy are met will a society be capable of providing justice through trials. In order for these preconditions to be created there must first be peace. If prosecutions are looming over the heads of high-ranking officials in an ongoing conflict, it is unlikely that they will lay down their arms. Thus, granting amnesties or allowing for escape to exile may be a “necessary evil” to achieve peace.
A common example of the “peace camp” relates to the 2009 indictment of Sudanese President Omar al-Bashir for war crimes and crimes against humanity in Darfur by ICC Prosecutor Luis Moreno Ocampo. Critics of the Ocampo’s decision to seek an indictment argue that it spoiled diplomatic efforts to resolve the crisis and exacerbated human suffering when al-Bashir retaliated by expelling humanitarian organizations from the region. Five years later Darfur remains embroiled in conflict and a number of African countries have refused to arrest al-Bashir while on visits in their territory.
Supporters of the “justice” view argue that there can be no lasting peace without justice (defined as individual legal accountability), and no deterrence of future crimes without the threat of judicial action. The emphasis is reversed: social and political institutions cannot be changed until sustainable peace is first achieved. In order for there to be lasting peace, individuals responsible for mass crimes must be prosecuted so that the reconciliation process can begin. The goal is not just the cessation of violence, but sustainable peace usually based on the transition to democratic, just societies.
The overall impact of prosecutions on peace-building within a given society is more difficult to determine because effects may not be noticeable until decades later. Additionally, speculating what might have happened \ includes counter-factual analysis: “if Charles Taylor had not been prosecuted, 10,000 more people would have died.” Such a claim cannot be proved or disproved. However, as data is beginning to accumulate and more studies are being conducted, some conclusions can be drawn. For example, supporters of human-rights trials argue that the International Criminal Tribunal for the former Yugoslavia deterred the commission of further crimes and helped kick-start the reconciliation process at an early stage of the conflict.
The terms “peace” and “justice” each encompass a multitude of ideas, and in relation to this debate, are often depicted as a false dichotomy: you can either seek peace or you can seek justice. This way of framing the issue is misleading and shortsighted. Peace and justice are not mutually exclusive concepts. They are mutually reinforcing.
The real difference between the two camps is mainly one of timing and causation: is justice necessary to secure lasting peace or is peace necessary to create democratic institutions that lead to justice?
Why International Prosecutions Matter
Prosecutions matter because they lead to both justice and peace in the long-term. Holding perpetrators of mass atrocities legally accountable almost always outweighs the repercussions of prolonging individual conflicts because it cultivates an interconnected system of international justice in which all states and peoples have a moral interest. Each time a perpetrator is prosecuted, international norms and institutions are strengthened and the world community moves a few steps closer to creating the conditions necessary for sustainable peace. This idea of a norms-cascade has changed world opinion: instead of being unable to imagine holding perpetrators accountable, we now think it’s the natural thing to do.
However, in a particular country at a particular time, it is possible that a prosecution might exacerbate a conflict to such a degree that “justice” becomes outweighed by the need for “peace”. In the face of ensuing genocide, granting amnesty could save hundreds of thousands of lives. When the potential loss of life is so high, diplomatic solutions become an important tool. But these situations should not involve blanket amnesties for high-level officials. Similar to what happened with the crumbling of apartheid in South Africa, amnesties should only be reserved for low-level perpetrators.
Prosecutions should be the general rule. Without accountability for egregious crimes, the root causes of conflict will likely flare up again. As the Neville Chamberlains of the world know, history is filled with examples where “peace” obtained through diplomacy alone was only temporary. While the merit in achieving an immediate peace agreement is understandably tantalizing, the end goal should be sustainable, not superficial peace.
What to do about Syria and Assad?
Back to the opening hypothetical: now do you have a better grasp of what course of action to advise?
Prosecuting Assad is either necessary for reconciliation and sustainable peace, or constitutes a naive and dangerous proposition which could prolong the civil war. However, if you are still entirely unsure you are not alone. This debate raises one of the oldest questions in international politics: what leads to sustainable peace within and among states?
To me, violent crime is violent crime, especially when mass atrocities are involved. In developed countries, like the United States, when a violent crime is committed the prosecution is expected to prove the accused’s guilt beyond a reasonable doubt. If suspects are not prosecuted and/or trials are conducted unfairly, this may lead to social outrage (remember the George Zimmerman verdict?).
This is the fundamental purpose of the rule of law – to constrain harmful behavior. However, the evolution of international criminal law and the institutions associated with it will take considerable time to develop before it functions like a domestic criminal justice system. If Assad is led to believe that there’s no scenario in which he will be indicted for war crimes, he can use blackmail to stay in power. State officials cannot be rewarded for using crime and violence to obtain political ends.
At the end of the day history is heading in the direction of accountability and the rule of law. While it may not happen in the next decade, there is hope that in the near future high-ranking officials of powerful countries, such as former Secretary of Defense Donald Rumsfeld and other Bush Administration officials, will no longer be able to hide behind the shield of impunity.
This article was first published on June 9, 2014 on Thrival Room.