03 June 2010

Kampala Diary 2/6/10

The Review Conference changed gears today. After two days of ‘general debate’ on Monday and Tuesday, we moved into the ‘stocktaking’ phase.

The concept of stocktaking only emerged about a year or so ago. It was described as ‘stocktaking of international criminal justice … in order to enhance the work of the Court’. It is not, to be sure, a stocktaking about the performance of the Court itself. At last November’s meeting of the Assembly of States Parties, agreement was reached that there would be four themes: The impact of the Rome Statute system on victims and affected communities; Peace and justice; Complementarity; Cooperation. These four themes are being discussed in half-day sessions over Wednesday and Thursday.

Today, the morning session was devoted to ‘The impact of the Rome Statute system on victims and affected communities’ and the afternoon to ‘Peace and justice’. There were several panelists, who exchanged views during a discussion chaired by Eric Stover, of the University of California at Berkeley. Participants included David Tolbert, of the International Centre for Transitional Justice, and Binta Mansaray, who is the Registrar of the Special Court for Sierra Leone. After about an hour, the debate was opened up for questions and comments from the floor, first from States parties, and then from non-party States and NGOs. The session was informative and interesting, but not particularly controversial. A resolution on the subject has already been agreed to – it was negotiated in March, prior to the Conference – and it will presumably be adopted during the final session at the end of next week.

The afternoon session, on ‘peace and justice’, was more stimulating. At the Rome Conference, this was an issue on which views were sharply divided, and while the debate this afternoon was relatively serene, the divisions clearly remain. Of course, everybody is in favour of both peace and justice. But some like to say that justice must take precedence, while others say that peace comes first. Still others talk of the two going hand in hand, and that is the view I prefer. At its sharpest, this is the quarrel about whether peacemakers may contemplate conceding an amnesty to combatants in return for an end to the armed conflict.

The able chair of the session, Ken Roth of Human Rights Watch, invited each of the panelists to make a short comment, and then he questioned them about different aspects of their views. Just as the panel in the morning session, on victims, had been rather feminine, the afternoon session, on peace and justice, was a very masculine affair. I was particularly impressed by Barney Afako, who has been involved in the peace negotiations concerning the conflict in Northern Uganda. You can see Barney in the photo. As this is the first ‘situation’ to come before the Court, and the one where its work has been stymied by the inability to execute the arrest warrants that were issued in 2005, it is a subject of great interest.

The five arrest warrants of 2005 were directed against the leaders of the Lord’s Resistance Army. After their issuance, this rebel group sued for peace. An agreement was negotiated that included clauses intended to neutralize the International Criminal Court, although the leader of the Lord’s Resistance Army never signed the agreement. They have now left northern Uganda, where peace has returned. The contribution of the Court to this process needs to understood.

Barney Afako was asked whether the Lord’s Resistance Army had come to the negotiating table because of the arrest warrants from the International Criminal Court. He answered that the arrest warrants had certainly ‘concentrated the minds’ of the rebel leaders. He described a conversation with Vincent Otti, who was at the time a Lord’s Resistance Army leader and one of the five persons charged by the Court. Otti said: ‘If you don’t do something about the indictments there isn’t going to be a deal.’

But ultimately, there was no deal. Afako suggested it was the fact that the negotiated peace agreement could not lift the arrest warrants that prevented a signature, with the result that the conflict was not brought to an end. ‘We have taken that choice, as the international community, and we have to live with those consequences,’ he said. It that is indeed the case, it is profoundly troubling. That would mean the International Criminal Court, because of its refusal to countenance any compromise in the interests of peace, would have contributed to the prolonging of a conflict.

Another panelist, James Lemoyne, who is an experienced peace negotiator, spoke of the ‘terrible choice’ between peace and justice. Recognizing the danger, he said that ‘the International Criminal Court will be harmed if indictments appear to prolong wars rather than bring them to an end’.

In the debate from the floor, I perceived a clear division in the emphasis that states put upon the components of this problem. The Europeans were clear and uncompromising about the importance of justice. There was a particularly shrill intervention from the European Union – actually, from a member of the European Parliament – who charged that those who were questioning the wisdom of prosecuting President Al-Bashir of Sudan were doing so because they themselves feared prosecution by the Court.

The African Union representative responded by providing examples. ‘If you ask people in Mozambique, they would say peace was more important’, he said. As a general proposition, ‘you cannot put one ahead of the other’. By and large, the African states stressed the importance of peace, or a flexible approach. They said they wanted peace and justice, and that one should not take priority over the other.

Perhaps the discrepancies between the European and African views are understandable. Terrible devastation has been wrought by war on the African continent in recent decades. Most European states have had no experience with war for more than two generations.

There was talk of what was called ‘sequencing’, by which peace comes first, followed later by prosecution. This is an interesting idea, but it conceals a controversy, and does not directly address the real issue – which is the one that the Ugandan negotiators confronted – of being able to use the promise of impunity in exchange for an agreement to lay down arms.

Stefan Bariga of Liechtenstein spoke of a ‘paradigm shift’ resulting from the exclusion of amnesties. He said this must actually be helpful to negotiators, because they can no longer promise amnesties. But experienced peace negotiator James LeMoyne said that it might not always be helpful to a negotiator. Some speakers, including those from the NGOs, said there could be no amnesty for crimes contained in the Rome Statute. The so-called ‘Template’ for the stocktaking discussion, which is an annex to the report of the March 2010 session, says that ‘amnesties, once viewed as a necessary price for peace, are no longer considered acceptable for the most serious international crimes’.

In my view, the view that amnesties are always impermissible for crimes in the Rome Statute swings the pendulum too far. It is an extreme view that deprives peace processes of the flexibility that they need to end armed conflict. The evidence that amnesty may either bring peace, or prevent war, is simply too strong to be dismissed. Nobody today seems to want to talk about the South African transitional process. To my mind, it is one of the finer developments in recent decades. The end of apartheid, without real bloodshed and civil war, stands as one of the great events of my lifetime. It was built upon an amnesty. I am not hear referring to the amnesties that were granted as a result of the Truth and Reconciliation Commission, but rather the broader amnesty that was agreed by Mandela and de Klerk with respect to the crime against humanity of apartheid. There have been no prosecutions in South Africa, or for that matter anywhere else, for perpetrators of apartheid. No country with universal jurisdiction has suggested it wants to upset the South African transition process. Judge Garzon has not tried to issue indictments against racist South Africans for the crime. Indeed, there seems to be broad consensus that Nelson Mandela not only knew what he was doing, but that he did the right thing. Yet today, far from taking this as a model that might be repeated in the future, there are those who want to make sure that this cannot happen again.

Nor does the claim that we must be uncompromising in insisting upon prosecution seem consistent with policies of the international community today. If we were truly insistent upon justice without amnesty, the United Nations would have insisted upon prosecuting more than a dozen individuals at the Special Court for Sierra Leone. At the United Nations, they will answer that the issue is one of resources. But if the imperative of justice that can be limited by available resources, surely it can also be subject to the requirements of peace.

Isn’t it enough to insist upon prosecution, and other forms of accountability, such as truth and reconciliation commissions, but realizing that sometimes these priorities must be balanced with the exigencies of a peace process? It is often said that victims want justice. But, and some of the African delegations said it yesterday, victims also want peace. The goal should be to deliver as much of both, but without sacrificing one to the other. It is something that eludes a legal formula. It eluded it at Rome, and we are no closer today to agreement on a text that can resolve the peace and justice conundrum.

Apparently, there will be no resolution or ‘outcome document’ from the session on peace and justice. That makes sense. It would probably be more difficult than trying to resolve the issue of the crime of aggression.

The day concluded with what are called ‘side events’. The European Union presented a very useful booklet of about 60 pages entitled ‘The European Union and the International Criminal Court’. The International Committee of the Red Cross launched its manual on ‘The Domestic Implementation of International Humanitarian Law’. This is a very thorough set of guidelines and legislative templates to be used by national lawmakers. The minister of justice of Burkina Faso did the honours. He is shown here speaking at the event, together with Knut Döhrmann and Yves Sandoz of the International Committee of the Red Cross.

* * * *

The stocktaking exercise is not really concerned with the performance of the Court itself. But one document making the rounds, the ‘Statement by the Chairperson of the Committee on Budget and Finance, Mr Santiago Wins’, raises some interesting issues.

The statement says that with an increasing case load, the Court may require more judges. Following the example from the temporary tribunals, it might consider the use of ad litem judges, who are appointed on a case by case basis. This would require an amendment to the Statute, which only allows for an increase in the number of permanent judges.

The statement also considered whether ‘all the bodies that are being set up are really necessary and whether the structures of the Court should not perhaps be adjusted to the reality of its situation’. It expressed concern about ‘the risk of duplication of roles and failure to achieve the desired results’.

On the participation of victims in proceedings before the Court, the statement says: ‘While acknowledging the importance for the international community of this step forward in international criminal justice, and being aware of the sensitivity of the issue, the Committee has found it necessary to highlight the potential cost driver that legal aid to victims has become, given the potential for the eligibility of large numbers of persons to be declared victims by Chambers.’

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