This House believes post conflict peace cannot be sustained without impartial justice.

Balancing peace and justice has been a key moral issue for international criminal law. Should individuals always be prosecuted, or can justice be traded away for peace? Is it merely a chicken-or-egg scenario, therefore which, if any, has to come first?

The prototypical implementation of the “justice” model is the Nuremberg trials following the Second World War. Leading Nazis (as were leading members of the Imperial Japanese regime, in separate trials held in Tokyo) were prosecuted by a court comprised of judges from the Allied nations in the war. Most tried were convicted, and executed by hanging.

Following the collapse of the Apartheid regime in South Africa, a different route was taken. A Truth and Reconciliation Commission was set up. It provided a manner for those who were accused of human rights violations to seek amnesties if they told the whole truth about their crimes and asked for forgiveness. The commission had members from all sides of the divides in South Africa, and was chaired by Archbishop Desmond Tutu.  The TRC is not without its critics, including for those who described it having failed to put criminals on trial. That said, others have claimed that those criticisms exist due to a misunderstanding of the purpose of the commissions[1].

In 2013 the ICC prosecutor, Fatou Bensouda, said the court “cannot take in to consideration the interests of peace, which is the mandate of other institutions, such as the United Nations Security Council[2]” – in other words, that the ICC rejects a peace-justice trade, mirroring the general direction of the UN[3].

In 2013, the UN General Assembly organized a “thematic debate on the role of international criminal justice”, under the presidency of the Serbian government. It was boycotted by the USA, Canada and Jordan, and seen by many as a cheap shot at the International Criminal Tribunal for the former Yugoslavia[4].

Peace and justice may mean different things to different people, and different people will have different goals. But is justice necessary in order to maintain a long-lasting peace?

[1]               Barrow, Gregg, “South Africans Reconciled?” BBC News, 20 October 1998, http://news.bbc.co.uk/1/hi/special_report/1998/10/98/truth_and_reconciliation/142673.stm

[2]               Bensouda, Fatou, “International Justice and Diplomacy”, New York Times, 19 March 2013, http://www.nytimes.com/2013/03/20/opinion/global/the-role-of-the-icc-in-international-justice-and-diplomacy.html

[3]               Hannum, Hurst, “Peace Versus Justice: Creating Rights as well as order out of chaos”, International Peacekeeping, December 2006, http://www.ssrnetwork.net/uploaded_files/3384.pdf

[4]               Galdstone, Rick, “Serb defends UN meeting boycotted by the US”, New York Times, 16 April 2013, http://www.nytimes.com/2013/04/17/world/europe/serb-defends-un-meeting-on-criminal-justice.html?_r=0

 

Title 
Justice is needed for a lasting peace
Point 

By prosecuting perpetrators, justice creates a deterrent. The deterrent effect, as accepted in criminal law generally, is likely to make the peace more long standing and stable in the future – it will make those minded to perform atrocities think again. If those who committed atrocities ‘get away with it’ they will be much more likely to plunge the country back into violence.

The career of Laurent Nkunda is a good example of this; he fought in the Tutsi group that took control of Rwanda in 1994 ending the genocide and then was a rebel commander in both Congolese civil wars in which he was accused of atrocities before launching his own rebellion, only now after 14 years as an army commander is he under arrest.[1] Clearly Nkunda being locked up at some stage would have been better than regularly negotiating with him to try and create peace.

[1] BBC News, “Profile: General Laurent Nkunda”, 23 January 2009, http://news.bbc.co.uk/1/hi/world/africa/3786883.stm

Counterpoint 

This fails for two reasons. Firstly, prosecutions are not always a deterrent to future crimes. Secondly that justice is not necessary in all cases to prevent recidivism – justice has not been needed in many cases, such as in Haiti after the 2004 coup, Haiti’s subsequent problems being caused by natural disasters.

Title 
Accountability
Point 

It is a fundamental principle of morality that individuals should be held responsible for their crimes – that is the reason why we, as societies, have criminal law.

Prosecuting people – holding them responsible for their crimes – is a moral imperative.  We all wish to live in  a society where everyone is equally accountable when they commit crime as one in which not everyone is held to account is fundamentally unjust; it creates one rule for the powerless and another for those who are ‘needed’ to help create peace. This would simply incentivise people to try to make themselves indispensable strongmen – not a sustainable basis for a peaceful society. 

Counterpoint 

While distasteful, sometimes cutting deals with perpetrators is necessary to bring a quick end to the human suffering that conflicts cause[1].

In advocating prosecutions, justice can simply ignore victims. Atrocities are more than likely to have been committed by more than one side in a conflict. As those leaders do not want to be prosecuted, justice can act as a bar to peace. Moreover if people are responsible and accountable to society then that society should be able to agree to forgo justice in order to create peace if it is deemed necessary.

[1]               Grono, Nick and O’Brien, Adam, “Justice in Conflict? The IOCC and Peace Processes”, Courting Conflict? Justice, Peace and the ICC in Africa, 2008, available at http://www.lse.ac.uk/internationalDevelopment/research/crisisStates/download/others/ICC%20in%20Africa.pdf, chapter 2

Title 
Justice is needed to help end denialism.
Point 

By creating a historical record through the investigations and trial proceedings[1], International justice can create a narrative that helps fight denialism over events in the past. It creates an accepted version of events where both victim and accused have had their say.

Denialism can be dangerous because it is likely to create perceptions that are likely to make conflict more likely again. For example the post-First World War Dolchstoßlegende (stab in the back myth) was used by the political right in Germany after WWI implied that the German Army had not lost but Germany had only done so due to the civilian leadership. This not only encouraged a belief that Germany could win in another war but also as the accusation was levelled particularly at socialists and Jews helped pave the way for the holocaust.[2]

[1] Goldstone, p422

[2] Holocaust Encyclopedia, ‘Antisemitism in history: World War I’, United States Holocaust Memorial Museum, 10 June 2013, http://www.ushmm.org/wlc/en/article.php?ModuleId=10007166

Counterpoint 

Holocaust denial does still exists today despite the Nuremburg trials and immense amounts of evidence. Also, Japanese denialism over forced prostitution in the Second World War is part of mainstream politics[1].

Despite ICTY convictions, denial of atrocities in the Yugoslav wars continue.

[1]               See Honda, Masakazu and Takada, Makoto, “LDP Pressure led to cuts in NHK show”, The Asahi Shimbun, 12 January 2005, http://www.asahi.com/english/politics/TKY200501120160.html

Title 
Peace has occurred without justice
Point 

Argentina did not prosecute for a long time after the collapse of the junta[1], a 1986 law, commonly known as the Full Stop Law (also known by its number, Law 23492), prohibited prosecution of those involved in the dirty war which resulted in up to 30,000 deaths.

However, Argentina managed to build a lasting peace, and society without prosecutions.

[1]               Kersten, Mark, “The Fallacy of Sequencing Peace and Justice”, Opinio Juris, 29 September 2011, http://opiniojuris.org/2011/09/29/the-fallacy-of-sequencing-peace-and-ju...

Counterpoint 

Argentina did not prosecute for a long time after the collapse of the junta[1], a 1986 law, commonly known as the Full Stop Law (also known by its number, Law 23492), prohibited prosecution of those involved in the dirty war which resulted in up to 30,000 deaths.

However, Argentina managed to build a lasting peace, and society without prosecutions.

[1]               Kersten, Mark, “The Fallacy of Sequencing Peace and Justice”, Opinio Juris, 29 September 2011, http://opiniojuris.org/2011/09/29/the-fallacy-of-sequencing-peace-and-ju...

Title 
Justice can harm peace.
Point 

Former ICTR chief prosecutor, Richard Goldstone, argued that the indictments of Radovan Karadzic and Ratko Mladic prevented them from attending the Dayton peace talks. The Russian government tried to get those indictments suspended, but Goldstone informed them that he did not have the power to do so. Slobodan Milosevic, the representative of Serbia also represented Republika Srbska.[1]

In 2006 thyere was an agreement by the Lord’s Resistance Army to a ceasefire but before they would negotiate towards a final peace the LRA demanded the suspension of the ICC indictments.[2] Even six years on none of the LRA leadership have been caught – had peace been put first it might have occurred then rather than intermittent conflict continuing for years.

Peace is a valid goal. However, an overzealous pursuit of justice may impede negotiations.

[1]               Goldstone, Richard, “Peace versus Justice”, Nevada Law Journal, 2006, http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1367&context=nlj&sei-redir=1 at p421-p322

[2] Otim, Michael, and Wierda, Marieke, ‘Justice at Juba: International Obligations and Local Demands in Northern Uganda’, in Waddell and Clarck eds., Courting Conflict? Justice, Peace and the ICC in Africa, pp.21-28 http://www.issafrica.org/anicj/uploads/Waddell_Clark_Courting_Conflict.pdf

Counterpoint 

Dayton worked despite not inviting Karadzic and Mladic. Both of those are currently on trial for the most serious crimes imaginable – Karadzic for, amongst other things, his alleged role in ordering the Srebrenica massacre, and Mladic for Srbrenica and the Siege of Sarajevo.

These prosecutions have not caused problems for peace in the Balkans and Croatia, one of the participants in the conflict, has joined the European Union.

Similarly, despite the ICC indictment, coupled with better results obtained by the Ugandan military, has lead towards the prospect of surrender by the LRA, despite their leaders such as Joseph Kony being indicted[1].

[1]               BBC News, “LRA leader Joseph Kony ‘in surrender talks’ with CAR”, BBC News, http://www.bbc.co.uk/news/world-africa-25027616

Title 
Justice can be impossible
Point 

The Rwandan genocide one of the largest the world has ever seen since the Second World War. A large number of victims – at least half a million – means a large number of perpetrators. There are 100,000 alleged perpetrators in Uganda. While an informal Gacaca system has been criticized by human rights groups for not being able to provide fair trials, a full system of fair trials would be impractical[1].

Rwanda is now relatively peaceful, with a functioning economy.

[1]  Hannum, p492

Counterpoint 

Justice is not easy. However, it needs to be done – for its own ends, and for a lasting peace. In cases where there are a huge number of perpetrators then the obvious approach is to offer an amnesty to those who committed smaller crimes while prosecuting those who provoked or ordered the crimes. 

Bibliography 

AP, ‘Argentina’s former dictator Jorge Videla given life sentence’, theguardian.com, 23 December 2010, http://www.theguardian.com/world/2010/dec/23/argentina-dictator-jorge-videla-life

Barrow, Gregg, “South Africans Reconciled?” BBC News, 20 October 1998, http://news.bbc.co.uk/1/hi/special_report/1998/10/98/truth_and_reconciliation/142673.stm

BBC News, “Profile: General Laurent Nkunda”, 23 January 2009, http://news.bbc.co.uk/1/hi/world/africa/3786883.stm

BBC News, “LRA leader Joseph Kony ‘in surrender talks’ with CAR”, BBC News, http://www.bbc.co.uk/news/world-africa-25027616

Bensouda, Fatou, “International Justice and Diplomacy”, New York Times, 19 March 2013, http://www.nytimes.com/2013/03/20/opinion/global/the-role-of-the-icc-in-international-justice-and-diplomacy.html

Galdstone, Rick, “Serb defends UN meeting boycotted by the US”, New York Times, 16 April 2013, http://www.nytimes.com/2013/04/17/world/europe/serb-defends-un-meeting-on-criminal-justice.html?_r=0

Goldstone, Richard, “Peace versus Justice”, Nevada Law Journal, 2006, http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1367&context=nlj&sei-redir=1

Grono, Nick and O’Brien, Adam, “Justice in Conflict? The IOCC and Peace Processes”, Courting Conflict? Justice, Peace and the ICC in Africa, 2008, available at http://www.lse.ac.uk/internationalDevelopment/research/crisisStates/download/others/ICC%20in%20Africa.pdf, chapter 2

Hannum, Hurst, “Peace Versus Justice: Creating Rights as well as order out of chaos”, International Peacekeeping, December 2006, http://www.ssrnetwork.net/uploaded_files/3384.pdf

Holocaust Encyclopedia, ‘Antisemitism in history: World War I’, United States Holocaust Memorial Museum, 10 June 2013, http://www.ushmm.org/wlc/en/article.php?ModuleId=10007166

Honda, Masakazu and Takada, Makoto, “LDP Pressure led to cuts in NHK show”, The Asahi Shimbun, 12 January 2005, http://www.asahi.com/english/politics/TKY200501120160.html

Kersten, Mark, “The Fallacy of Sequencing Peace and Justice”, Opinio Juris, 29 September 2011, http://opiniojuris.org/2011/09/29/the-fallacy-of-sequencing-peace-and-justice/

Newman, Carter, “In the wake of Kony: Peace versus Justice in Uganda”, African Arguments,  10 April 2013 http://africanarguments.org/2013/04/10/in-the-wake-of-kony-peace-versus-justice-in-uganda-by-carter-newman/

Otim, Michael, and Wierda, Marieke, ‘Justice at Juba: International Obligations and Local Demands in Northern Uganda’, in Waddell and Clarck eds., Courting Conflict? Justice, Peace and the ICC in Africa, pp.21-28 http://www.issafrica.org/anicj/uploads/Waddell_Clark_Courting_Conflict.pdf

Pohjonen, Soile, “Peace versus justice?”, available from SSRN, February 2010, http://www.helsinki.fi/oikeustiede/omasivu/pohjonen/Peace%20versus%20Justice.pdf

X