The UN Mapping Report came out a couple of weeks ago, with the much-tantrumed-about allegations of genocide intact. (Toned done a bit, but impressively extant.) Naturally, this has led a lot of people to conclude that what the DRC needs; more than security from the threat of violence, a competent police force, a functioning road network, protection of property rights, and access to clean water; is a mob of international lawyers traipsing about the place.
Whether or not you think the call for war crimes trials sounds totally reasonable or like so much crazy sauce depends on which side you're on in the great “No peace without justice” vs. “Does justice comes free with peace? Cause if not, I’ll just take my peace with a side of fries, please” debate.
If, like I do, you love peace, french fries, and justice, you may not know where to come down on this. The argument of the pro-trials folks (made recently by international justice A-lister Reed Brody here) is a viscerally compelling one; it makes a certain amount of intuitive sense that impunity breeds atrocity and that allowing war crimes to go unpunished will only result in more war crimes. For a lot of people, the theoretical appeal of this argument, coupled with the sense that it’s a moral imperative to punish guilty parties, is enough to justify a push for war crimes trials.
Me, I like my theories backed up by a bit of evidence. Unfortunately, in this case we don’t have any. International war crimes trials are a relatively recent phenomenon and we just don’t have the kind of data necessary to begin to draw informed conclusions about what benefits trials have and how they produce them. There is some evidence, however, that war crimes trials may exacerbate existing tensions and potentially trigger or prolong conflict. While the argument, mostly advanced by governments and diplomats in the region, that an accountability exercise would not be worth the instability it could produce might sound self-serving (after all, they weren’t the ones getting massacred), they may have a point. Consider, for example, the effect that the backlash to ICTY prosecutions had on the transitional process in Serbia.
In the absence of evidence, a highly plausible theoretical account of a deterrent effect might be enough to offset the potential risk of worsening the violence in the Eastern DRC. But the deterrent effect of criminal punishment is a contested concept even in domestic criminal law. In the international system, where we have nothing approaching the level of certainty of punishment and sentencing severity that arguably produces general deterrence in a domestic system, a reliable deterrent effect is that much less likely.
Without deterrence, the argument for pushing for immediate war crimes trials rests on the assumption that the moral imperative to punish the guilty demands punishing them instantly upon discovery of the crimes. Or rather, instantly upon publication of an official report detailing what we’ve all known for upwards of a decade. I’m just not sure that’s enough to justify the risk.
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How much say do victims and survivors of these crimes have? What if they think some form of legal action and acknowledgment of the crimes is necessary for them to heal?
Some regions in eastern congo have neither peace nor justice. Can we attain both?
If you're asking how much say victims and survivors *should* have, I think most of us would agree that the answer is "a lot."
If you're asking how much they currently *do* have, it's hard to say. There's a large enough victim community and enough diversity of opinion that you can claim support of victims' groups for pretty much any position on the peace vs. justice spectrum.
As for your second question, of course we all want both peace and justice for the eastern DRC, the question is whether pushing for justice now harms/delays the chances for peace.
Kate,
As I'm sure you know, some academics are working on studying the evidence question that you raise here. It's a tough nut to crack, but there's a piece by Kim and Sikkink that I talked a bit about last year:
http://kohenari.tumblr.com/post/306416944
It has its methodological problems, to be sure, but it's not the only one out there. There's work by Payne, Olsen, and Reiter, as well my work being done by my colleague at Nebraska, Patrice McMahon (all of which, to my knowledge, is still forthcoming, though some might already be available online).
The findings are something of a mixed bag. Payne, Olsen, and Reiter -- I think -- are going to challenge the efficacy of these transitional justice mechanisms; Kim and Sikkink argue that they're having an effect. McMahon, in what I've read, wants to challenge what you've argued here about the ICTY and Serbia (though there are so many variables that I think it's likely going to require a good deal of work to untangle things).
But, anyhow, it's a question that people *are* trying to address.
All interesting arguments. I'm left to wonder to what extent do Congolese communities get consulted on how they think these issues should be dealt with. Seems these discussions, as most discussions on the DRC, take place predominantly among Westerners (sometimes with the Congo government putting in its two cents). Congolese themselves never appear to have their own agency recognized. There are other, less foreign, justice and conflict resolution mechanisms than these tribunal models based on Western traditions of jurisprudence. So. How do communities feel this stuff should be dealt with, is it viable, and how do you work with or around that?
Hi Ari,
Thanks for chiming in!
Yes, there's a lot of work being done on this topic, but we're still a long way from being able to say anything conclusive about the effects of int'l war crimes trials. (My recollection is that the Kim & Sikkink does not attempt to separate out an effect of international vs. domestic prosecutions, but correct me if I'm wrong about that.)
Looks like the Olsen, Payne, & Reiter book came out over the summer - I'll be interested to see where they come down on these issues.
"As for your second question, of course we all want both peace and justice for the eastern DRC, the question is whether pushing for justice now harms/delays the chances for peace."
Kate, in the context of eastern DRC what peace are we talking about? Also, with the ICTR in Rwanda, would we say that the court has harmed "chances for peace." I do think that, the ICTR has played a crucial though controversial role in deterring future violence. I believe this is the same argument that Jason alludes to.
So, yes, we need justice and perpetrators of crimes need to be brought to account. A peace built on impunity, where yesterdays criminals becomes today's leaders, is not sustainable. Already, you can see that with Burundi!
Who would potentially destabilize the great lakes region because of this and how? The FDLR, the CNDP, Kabila, elements within the Congolese army, Kagame? The Rwandan opposition parties? Internal opposition within the RPF? I don't see any likely candidate.
ColoredOpinions,
The idea is that it might negatively affect incentives to disarm/demobilize for these actors, not that it would necessarily provide an independent source of conflict.
"The idea is that it might negatively affect incentives to disarm/demobilize for these actors, not that it would necessarily provide an independent source of conflict."
Which actors?
Anyone who feels threatened by a prosecutorial mechanism.
Kate thank you very much for this article.I lived in DRCfrom Bukavu-Kibumba-Mugunga-Sake-Kibabi-Walikale-Amisi-Tingitingi-Lubutu-Kisangani-Ubundu-Boende-Ikella-Mbandaka-Congo Brazaville.all this journey it was flying red bullets and bombs-we left Rwanda as a family of 200 people but as we speak there is only three people left:One is me writing to you,another two are still surviving in the Congo forest.He killed some of us I remember seeing my dad being burnt alive together with my two siblings in Kisangani near the hospital they were killed not because they were fighting Kagame but simply they were Hutus,,,my mother was pregnant and her with her baby put in Lubutu river in early March 1997. So who is saying there is no evidence that Kagame killed more Hutus that the Tutsis he claim to protect? Now Kagame has sent a committee of propagandists like Rose Kabuye to go to the western countries to discredit the UN Mapping report why should he fear the report if he things they are no evidence?men ,you who say that Kagame should not face justice you do not understand how much 80% of Rwandans are yearning for it. I thank Kate for bringing this issue up again because America support a justice of the American interest not about justice otherwise there would be no way that Clinton would be busy sanctifying a killer like Kagame.It took a month to establish ICTR Arusha and yet the evidence showed that Kagame was to be prosecuted by ICTR Arusha but USA refused it to happen and sacked the prosecutor Del Carl Ponte because she had evidence to prosecute Kagame in the wrongful death of many Rwandans including two Hutu presidents Habyarimana and Ntaryamira but where is justice?
If anyone want to see Rwandans both Hutus and Tutsis together without any threat of conflict, he/she must establish a true justice mechanism that will establish the root causes of all this.
Ingabire Victoire is in jail simply because she publicly showed interest of establish a new Rwanda that exists by the law but where is USA and UK?If it was somewhere else like in China,Sudan, or Iran America would be shouting from the top of the tree saying" there is no freedom of expression" but look at us Rwandans now because it is Kagame killing and imprisoning Hutus,USA government does not care,why?because they are Africans....
I am a genocide survivor who want to see all Rwandans living together in harmony no one is harassed because of her or his ethnic background.
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