Painting by Cheri Samba

Lokuta eyaka na ascenseur, kasi vérité eyei na escalier mpe ekomi. Lies come up in the elevator; the truth takes the stairs but gets here eventually. - Koffi Olomide

Ésthetique eboma vélo. Aesthetics will kill a bicycle. - Felix Wazekwa

Tuesday, October 19, 2010

Peace vs. Justice: A Response

I wrote this as a response to Kate's posting below.

I agree that, despite mud-slinging from both sides on this debate, we have little empirical evidence to go by. However, I think that, in this absence of evidence, doing nothing could be just as risky and probably less noble than promoting accountability.

Let's look at the theory, as there is little evidence. For the people on the justice side, they must prove that prosecutions do more good than harm. Usually, the argument is made that prosecutions are the just thing to do, that they deter future violence and that the counter a culture of general indiscipline and impunity. Strong arguments, I would say. But prosecutions can destabilize as well as deter, and we don't know how much one Lubanga prosecution, for example, buys us in deterrence or destabilization.

Also, international prosecutions usually come in the single digits per annum - if we lock up 5% of the top-level killers (don't even mention the low level ones), will it really deter the other 95%? This reasoning, however, can be flipped around and applied to those worried of destabilization: will prosecuting 5% really bring down the regime?

For people on the destabilization side, however, I would say this: The impunity that was supposed to be the glue of the transition in the Congo has ended up being more like acid. The fact that Rwanda was not held responsible - in the court of donor politics or in an international court - for its crimes in the eastern Congo gave it a blank check. Same goes for Kabila's crackdown on the Bundu dia Kongo in Bas-Congo in 2007, or the rash of killings and rapes by Congolese army members in the Kivus. It is hard to argue that impunity has been very successful in stabilizing the country.

I would also emphasize that this is not an either-or situation. Vetting, for example, would allow Kabila to purge his army of abusive officers without having to try them in a court of law - they would be forcefully retired, as happened in many post-Soviet countries. A real Truth and Reconciliation Commission (not the farcical one we had during the transition) could educate people about happen and serve as a warning to officers not to re-offend. Above all, a serious crack-down on current abuses would send a strong signal, especially if commander are held responsible for the behavior of their soldiers.

It is fair and well to preach justice, but it is worthwhile noting the hypocrisy of western donors: After the US Civil War, President Johnson handed Lee and his men a collective amnesty. In Spain, to this day no one has been tried for crimes committed during the civil war (an amnesty law was passed in 1977); no Italians to my knowledge were tried after World War II for their war crimes; no American has been sentenced for crimes committed at My Lai in 1968 and only a few for Abu Ghraib. The biggest exception are the Nazis and their allies, of whom thousands were tried throughout Europe and executed.

There is no formula for how to do this. But, when in doubt, I would suggest being smart about it, tailoring any solution to the local situation, involving local civil society groups (two hundred of whom demanded a tribunal), and erring on the side of justice.


andrea.trevisan said...

Dear Jason, I perfectly agree with you.

The difficult is to adapt to the Great Lakes context.
At his first visit in Goma after a long time in 2009 Kagame as been cherried and warmly welcomed by population...

These people has more the tendance in forgetting and forgiving i think. A TRUE CNR should be a good step. But justice remains necessary, in a form or an other someone should pay, maybe not directly with prison but simply by being sided from their position.

Who can imagine the effects of a standard trial on Laurent Nkunda now in East DRC?

The problem is really so big because is difficult to separe small, medium and big criminals from each side.

And verything could work better if there would be a TRUE will of solving problems:reforming properly the army, eradicating local armed groups, bringing state autorhity in every corner of the country ... without strong signes of changings no one would accept peace and reconciliation (also said forgiving and forgetting).

Unknown said...

"There is no formula for how to do this. But, when in doubt, I would suggest being smart about it, tailoring any solution to the local situation, involving local civil society groups (two hundred of whom demanded a tribunal), and erring on the side of justice."

And the most important thing of all ... is to start with Africa.

Anonymous said...

I am glad that Kate has asked the question because the likes of Brody from HRW always use the same justification and just as we are expected to treat everything HRW says as gospel truth we are supposed to agree his argument unquestioningly. HRW don't prove or justify things, because they are HRW and they know best don't they?

If you are going to tackle impunity then there needs to be consistency. How about impunity for ignoring obligations as signatories of the Genocide Convention?

Douglas Hurd (now "Lord Hurd") was UK Foreign Sec in 1994. Why not take him out of his glowing retirement and put him in Court for doing nothing about the Genocide in 1994 save for voting for UN troops to be pulled out in a secret Security Council resolution? If not, what does "never again" mean? Unless the likes of him are brought to book, presumably other politicians will do the same in the future?

Why has Brody not suggested this?

Derrill Watson said...

Another issue is that the examples I can think of of successful truth and reconciliation hearings were instigated by the country, not from the outside. As we (temporarily) learned at Nurenburg, outside powers with power rarely know when to stop. They can quickly lose legitimacy both by going too far and not going far enough.

Is there anyway to find out what a majority of Congelese want?

Unknown said...

Survey instruments are not well suited to this line of enquiry, so make of this what you will but according to a survey conducted in late 2007 by the ICTJ, Univ of California/Berkeley and Tulane U (

"The majority of the population of eastern DRC (85% of respondents) believes it is important to hold those who committed war crimes accountable and that accountability is necessary to secure peace (82%)."

However, on the next page, the report writers specify: "Few respondents identified providing justice (2%) or arresting those responsible for violence (2%), punishing those responsible (1%) or encouraging reconciliation (1%) among their immediate priorities."

Jason Stearns said...

Thanks, Eugenia. Surveys - all about framing the question.

Rich said...

It seems the idea of a mix chamber specialised in war crime within the Congolese judicial system is taking momentum. Stephen Rapp is the last one to have favoured the idea. However, it will always be a tricky question to get the balance between restorative justice and retributive justice. This is because, as suggested by Stan Cohen (Human right and crimes of the state: The culture of denial).

To paraphrase Stan I would say this, if the Turkish can deny that the Armenian genocide happened; if revisionist historians and neo-Nazis deny that the Holocaust took place; if powerful states all around the world today can systematically deny the systematic violation of human rights they are carrying out – then we know we are in a bad shape. But we’re in even worse shape when the intellectual avant garde invent a form of denial so profound, that serious people – including progressives – will have to debate whether millions of innocent Congolese have been killed as a result of a bad managed post 1994 genocide.

I do believe in both restorative and retributive justice, but a state needs to ensure it has a complete autonomy over the use of coercive violence to coerce before venturing into any serious application of justice.

On an optimistic note, I’d say, yes we can restore all the way up to the point of retribution for war criminals. It is obvious that for some individuals the time for their restoration has long gone therefore, retribution is the only option.

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