Don’t decriminalise war crimes

By Matthew T. Simpson and Ahmed H. Adam

February 19, 2014 – In a February 5, 2014 New York Times op-ed, former South African President Thabo Mbeki and Professor Mahmood Mamdani of Columbia University chastised the international community for efforts to bring war criminals in Africa before criminal courts. For those concerned with the peaceful resolution of the conflicts in Darfur, South Kordofan, Blue Nile, and South Sudan, this idea is both dangerous and untimely.

Mbeki and Mamdani argue that prosecuting war crimes impedes efforts to resolve conflicts, ultimately prolonging them. Further, they spin a fiction in which the prosecution of war criminals is mutually exclusive of all other efforts to resolve a conflict. Most disturbingly, they fail to acknowledge the value of justice and the consequences of impunity. Courts and other justice mechanisms serve an essential role in establishing a sustainable peace in post-conflict societies, while impunity perpetuates the status quo and is a disincentive to the peaceful resolution of a conflict.

Mbeki and Mamdani imply that judicial mechanisms in a peace process are used primarily to “inaugurate a new political order.” Such a simplistic view of conflict resolution and reconciliation efforts denies the role and utility of the many constituent parts of a holistic peace process.

Any genuine effort to address the root causes of a conflict requires a comprehensive approach and multiple mechanisms in order to allow the affected populations to rebuild and renew their lives. Accountability for perpetrators of the most serious crimes can be sought in conjunction with myriad other methods for achieving sustainable peace. It is not one or the other.

Indeed, in 2009, Mbeki himself, then the Head of the African Union Panel on Darfur (AUPD), recognized the vital role of transitional justice mechanisms in resolving conflicts. Mbeki’s AUPD formally proposed the establishment of “hybrid Criminal Courts [to exercise] jurisdiction over individuals who appear to bear particular responsibility for the gravest crimes committed during the conflict in Darfur.” Ultimately, Mbeki’s proposal failed to win over either party to the negotiations, an unsurprising result given Sudanese President Omar Bashir’s overt distaste for any transitional justice mechanism, even one crafted heavily in his favor. Regardless, it is curious for Mbeki to now denounce a justice mechanism that was once the cornerstone of his own peace proposal.

In their attack on the International Criminal Court (ICC) and other international justice efforts, Mbeki and Mamdani rhetorically blur the line between perpetrator and victim. While it is true that “victims and perpetrators often trade places, and each side has a narrative of violence,” their conclusion that “there can be no permanent assigning of victim and perpetrator identities” is nothing less than an assault on the very concept of international law.

The moment President Bashir designed, implemented, and coordinated the systematic rape, torture and murder of Darfurians, he “permanently assigned” himself as a perpetrator of international crimes. And he permanently assigned as victims those his soldiers and proxies raped, tortured, and killed.

Sensitive to the reality that perpetrators and victims may appear on either side of a conflict, the ICC and other justice mechanisms implement a sophisticated, non-discriminatory approach to prosecution, exercising jurisdiction over a conflict as a whole. Indeed, in the case of Darfur, the ICC has sought to prosecute perpetrators on both sides – indicting Darfuri leaders as well as President Bashir and other Government officials. If President Bashir claims his innocence, then he should submit to the jurisdiction of the ICC and prove it to a fair and impartial proceeding.

Mbeki and Mamdani suggest that “mass violence is more a political than a criminal matter.” But should the political motivations of those authorizing, condoning or ordering mass violence absolve them from criminal responsibility for their actions? Politically motivated murder is no less murder for any other motive, and should be punished accordingly.

While a state may understandably forgive certain crimes against itself in an effort to move society and political reengagement forward, there remains a moral obligation to the victims of grave crimes against persons – such as murder, torture, and rape – to hold the perpetrators accountable for their actions.

There is no room for war criminals in democratic societies. Rather than lamenting, as Mbeki and Mamdani do, that those “found guilty and punished as perpetrators are denied a life in the new political order,” we find comfort in knowing that those guilty of heinous crimes will be excluded from future nation building.

By denying a role for courts of international justice, Mbeki and Mamdani ignore the benefits that judicial processes add to the success and sustainability of peace efforts. Prosecuting war crimes serves as a deterrent to new violations, upholds the rule of law, builds public trust, and generates a credible historic record of human rights violations. Indeed, the indictment of Slobodan Milosevic by the International Criminal Tribunal for former Yugoslavia served to strengthen the resolve of the NATO partners and provided a legitimate basis for the peace builders to call for regime-change. In that case, international justice paved the way for the removal of a war criminal from office and accelerated the peaceful and democratic transition of the state.

Judicial mechanisms also afford victims a cathartic opportunity to voice their experience and decry their malefactor. As such, their establishment is often a key negotiating priority of the victims of the conflict. During the most recent Darfur peace negotiations, for instance, the representatives of the Darfurian refugees and internally displaced persons led the demand for accountability mechanisms. Despite the Sudanese Government’s efforts to exclude justice matters from the broader negotiations, the Darfurian representatives insisted upon their inclusion, adamant that justice for the victims was an essential component of a lasting peace.

In the shadow of past tragedies and faced with those in our present time, impunity for war crimes cannot be tolerated for any reason. Rather than undermining established law and international judicial mechanisms such as the ICC, Mamdani and Mbeki’s theorizing on approaches to conflict resolution would be better served by embracing comprehensive initiatives for sustainable peace.

When conflict is prolonged over decades and generations, many on all sides must bear the pain of the victim and the shame of the perpetrator. Nevertheless, this complex reality does not relieve us of the moral obligation to seek justice for the victims of heinous crimes and end the impunity of perpetrators. We can, and must, do better.

Matthew T. Simpson, Esq. is a Canadian, U.S.-based attorney, who served as the Principal Legal Advisor to the Darfur Delegation at the United Nations/African Union – sponsored Darfur Peace Negotiations.

Ahmed Hussain Adam is a Visiting Scholar and Co-Chair of the Two Sudans Project at Columbia University’s Institute for the Study of Human Rights in the New York. He is the author of the forthcoming book, titled: Darfur Betrayed: An Insider Perspective.