This House believes prosecutions help the healing process

One of the leading disputes surrounding modern International Criminal Law is how best to deal with the crimes of repressive regimes that have been overthrown. Some advocate for the prosecutions of the offenders. With the establishment of stronger international bodies such as the International Criminal Court and ad hoc tribunals such as the International Criminal Tribunals for the Former Yugoslavia and Rwanda such prosecutions have become easier to implement. The International Criminal Court (ICC)  began in 2002, formed under the Rome Statute  to try the most serious of war crimes when sovereign nations are not in a position to do so themselves. The ICC is an independent international organisation, outside of the United Nations system, and runs on funding from state parties. In order to be able to prosecute people involved in conflict, the ICC needs to have a referral either from the country central to the conflict, by the United Nations Security Council (being made up by the US, France, Russia, China and the UK), or prosecutors can seek leave to charge leaders themselves. It is therefore now available new regimes to refer their predecessors for prosecution if they have committed crimes against humanity or other war crimes; there has been a suggestion by Geoffrey Robertson that it might be the best place to try those who ordered attacks on protestors in Ukraine during the winter of 2014.[1]

Others however advocate for more reconciliatory approaches, such as amnesties, Truth and Reconciliation Commissions and inquests.  An amnesty is an agreement with dictators and leaders who might otherwise be prosecuted that they will not be tried for crimes if they give up power. Truth and Reconciliation commissions (TRC) can also offer amnesties, in exchange for testimony. They serve to provide a forum where both perpetrators and victims give their stories of the conflict, with the aim of providing Restorative Justice, or breaking down ethnic tensions. The most high profile TRC to date occurred in South Africa at the conclusion of the apartheid era. This case will ask whether seeking prosecutions are beneficial with the healing process, and will compare with the alternatives.

[1] Robertson, Geoffrey, ‘Yulia Tymoshenko’s trial was a travesty of justice’, The Guardian, 23 February 2014, http://www.theguardian.com/commentisfree/2014/feb/23/ukraine-yulia-tymoshenko-travesty-justice-trail

Title 
Prosecutions are needed for victims
Point 

Prosecutions are the only way for victims to see those who caused pain against them brought to justice. The alternative of some kind of reconciliation often leaves those who perpetrated crimes able to retain power as has happened in countries like Bosnia and Herzegovina, Colombia and Guatemala[1]. When this happens there is clearly a concern both that these individuals are not being held to account and that they could act in a similar way again if given the opportunity. Under the United Nations Genocide Convention of 1948, victims have a right to see offenders prosecuted[2]. And it is only prosecution that will ensure that such acts cannot occur again so giving peace of mind to victims.

[1] Osiel, Mark J. ‘Why Prosecute? Critics of Punishment for Mass Atrocity’ 118 Human Rights Quarterly 147 http://www.princeton.edu/~bsimpson/Human%20Rights/articles/Osial,%20Why%20Prosecute%20-%20Critics%20of%20Punishment%20for%20Mass%20Atrocity.htm

[2] Akhavan, Payam, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities' American Journal of International Law, 95(1), 2001, pp.7-31

Counterpoint 

Victims are often no better off by seeking prosecutions, especially because prosecutions are often hard to make stick in the first place. But moreover, the process often involves victims having to relive their story while being cross examined, which further harms the victim.

The continued trauma among genocide survivors in Rwanda is largely due to having to give testimonies in such cases [1].

[1] Redress and African rights, ‘Survivors and post genocide in Rwanda’, redress.org, November 2008, http://www.redress.org/downloads/publications/Rwanda%20Survivors%2031%20Oct%2008.pdf

Title 
The only just method
Point 

Prosecuting offenders is the only way to get a just outcome when there have been horrific crimes committed. At a most principled level, those who commit a crime ought to be held accountable for their actions even if they are powerful or it damages the chances of peace because the powerful must be shown not to be above the law. Even where the law did not exist, or the leaders were in control of the law, international norms provide a standard for what actions merit prosecution, and judiciaries have been very good at convicting those who committed atrocities[1]. Having those who committed crimes convicted by law courts helps prevent those affected by atrocities holding grudges and put the past behind them so aiding the healing process [2].

[1] Moore, John J Jr ‘Problems With Forgiveness’ 43 Stanford Law Review 733, February 1991

[2] abc news, ‘Dallas Holocaust survivors welcome prosecution of former Nazi guard’, wfaa.com, 20 August 2010, http://www.wfaa.com/news/local/Dallas--101185974.html

Counterpoint 

Most often, prosecutions that occur are not just with only the losing side being prosecuted for their crimes. The Nuremburg trials prosecuted Nazi’s for offences they committed, but none of the Allied forces were ever brought for trial; Curtis LeMay who commanded the US Air Force in fire bombings that killed hundreds of thousands of Japanese himself said “I suppose if I had lost the war, I would have been tried as a war criminal.”[1]

Prosecutions also focus on a small number of scapegoats, to the exclusion of the majority who showed sympathy for that regime, civilians that marched with the regime, or political supporters. An example of this is the prosecution of the military junta in Argentina in 1984-5 while Peronist supporters (the new government was peronist) were given amnesties under the ‘full stop’ program. It took another 20 years before more – 267 members of the military and police – were convicted.[2]

The third reason why these trials may be unjust is that the laws that get created – in order to ensure that no one slips through the cracks – are usually so broad and generalist that they are virtually indefensible and fail to take context of the crimes into account. As such, the laws themselves are often manifestly unjust.[3]

[1] ‘General Curtis E. LeMay, (1906-1990)’, PBS, accessed 24/2/2014, http://www.pbs.org/wgbh/amex/bomb/peopleevents/pandeAMEX61.html

[2] Layús, Rosario Figari, ‘Better Late than Never: Human Rights Trials in Argentina’, RightsNews, Vol.30, no.3, May 2012, http://www.hrcolumbia.org/rightsnews/may2012/trials_in_argentina

[3] Osiel, Mark J. ‘Why Prosecute? Critics of Punishment for Mass Atrocity’ 118 Human Rights Quarterly 147 http://www.princeton.edu/~bsimpson/Human%20Rights/articles/Osial,%20Why%20Prosecute%20-%20Critics%20of%20Punishment%20for%20Mass%20Atrocity.htm

Title 
International prosecution encourages domestic justice
Point 

By introducing internationally based prosecution, the laws are able to effectively filter down into the domestic system. The international system takes care of powerful offenders who might otherwise not receive a fair trial or be brought to justice. This then allows domestic courts to prosecute those involved in the crimes at a lower level. This has worked in Ivory coast where the former leader was brought to face charges committed at home and also helped stabilize the situation in the country [1].

[1] Smith, David, ‘Laurent Gbagbo appears before international criminal court’, thegurdian.com, 5 December 2011, http://www.theguardian.com/world/2011/dec/05/laurent-gbagbo-international-criminal-court1

Counterpoint 

By using international courts, countries do not actually gain skills or dependence within their own systems, but may instead become reliant on that system.

However, such an international institution cannot handle all the cases and delays the process of justice; The ICTR have completely finished 47 cases in 20 years [1], a slow operation compared to the Rwandan local courts. The domestic Gacaca system has done much more trying nearly 2million suspects.[2] But this system has been reconciliatory in nature without forensic evidence and cross examination.

[1] Will, Ross, ‘Rwanda genocide: Did Bizimungu trial take too long?’, bbc.co.uk, 17 May 2011, http://www.bbc.co.uk/news/world-africa-13434232

‘Status of cases’, International Criminal Tribunal for Rwanda, accessed 24/2/2014, http://www.unictr.org/Cases/tabid/204/Default.aspx

[2] Kimenyi, Felly, and Asiimwe, Bosco, ‘Legal experts hail Gacaca’, newtimes.co.rw, 18 June 2012, http://www.newtimes.co.rw/news/index.php?i=15027&a=54925

Title 
Deters future offences
Point 

By prosecuting those who commit crimes against humanity and war crimes future leaders are dissuaded from committing such acts [1]. When criminals are held accountable, the belief in the reliability of the legal system is enhanced, society is strengthened by the experience that the legal system is able to defend itself and the sense of justice is upheld or rectified [2].

Since the Office of the Prosecutor announced its interest in Colombia in 2006, the government has taken a number of measures particularly the Peace and Justice Law to ensure domestic prosecution of those who could potentially be tried by the ICC. The threat of ICC prosecution appears to have concerned former President Pastrana. Vincente Castrano (AUC) a paramilitary leader was fearful of the possibility of ICC prosecution, a fear that reportedly directly contributed to his group’s demobilisation[3].

[1] Safferlin, Christoph J.M., ‘Can Criminal prosecution be the answer to massive Human Rights Violations?’, issafrica.orghttp://www.issafrica.org/anicj/uploads/Safferling_Human_Rights_Violations.pdf

[2] Grono, Nick, ‘The Deterrent Effect of the ICC on the Commission of International Crimes by Government Leaders’, globalpolicy.org, 5 October 2012, http://www.globalpolicy.org/international-justice/the-international-criminal-court/general-documents-analysis-and-articles-on-the-icc/51978-the-deterrent-effect-of-the-icc-on-the-commission-of-international-crimes-by-government-leaders.html?itemid=id

Counterpoint 

Deterrence doesn’t work as people who commit these atrocities usually don’t believe they will be caught, or don’t care. Further, prosecutions can actually cause more offenses in the future, as supporters of those prosecuted seek revenge for the prosecution occurring. We have seen this in Sudan where President Bashir’s indictment by the ICC has done little to halt attacks on civilians in both Darfur and, more recently, South Kordofan [1].

[1] Jennifer, Christian and James, Bair, ‘Why does the world allow Sudan’s Bashir to target civilians?’, globalpost.com, 30 July 2012, http://www.globalpost.com/dispatches/news/regions/africa/sudan-bashir-target-civilians

Title 
Peace more important than Justice
Point 

In practice, prosecutions often come at the expense of other forms of reconciliation. For instance before Truth and Reconciliation Commissions can work amnesties have to be given for people to be willing to tell their stories. In order for people to put down weapons, or agree to tell stories, prosecutions must be given up.

This is evident with the conflict is South Sudan; the opposition which had signed the ceasefire agreement to restore stability in the region, breached it and started fighting again when many of its members were indicted for the crimes they had committed [1]. In such case the most important thing is to prevent future atrocities as healing can only start when there is no conflict or atrocities going on.

[1] Deustche Welle, ‘South Sudan: Rebels Strike Oil Centre, Breaching Ceasefire’, allafrica.com, 18 February 2014, http://allafrica.com/stories/201402190297.html

Counterpoint 

This often leads to a scenario where leaders grant themselves immunity, or continue to commit atrocities, in the comfort of knowing that immunity is coming. Those in the CIA who committed what many consider to have been torture were granted immunity by the justice department claiming that it would be unfair to prosecute men and women working to protect America [1]. Such an immunity or amnesty can then be used to close discussions to find the truth and effectively shut of the healing process.

[1] Greenwald, Glenn, ‘Obama's justice department grants final immunity to Bush's CIA torturers’, thegurdian.com, 31 August 2012, http://www.theguardian.com/commentisfree/2012/aug/31/obama-justice-department-immunity-bush-cia-torturer

Title 
Prosecutions don't get to the real truth
Point 

Truth is the most important factor that supports the healing process. Individuals when being prosecuted have incentives to hide crimes and lie about the true motivations for offences occurring as they don’t want to go to prison for telling the truth. This means that the whole truth of matters never really come to light. TRC’s, such as that in South Africa, do a very good job of ensuring that the full record of human rights abuses come to light [1].The Rwandan Gacaca courts which encompasses three important features of relevance to broader experiments of reconciliatory justice serve as a lesson. Those who confess their crimes are rewarded with the halving of prison sentences and as a result, 60,238 prisoners have confessed to participating in the genocide [2]. Second, gacaca law highlights apologies welcomed by many as an important ingredient to promote reconciliation.

[1] Linfield, Susie, ‘Trading Truth for Justice? Reflections on South Africa’s Truth and Reconciliation Commission’, bostonreview,net, 01 June 2000, http://www.bostonreview.net/world/linfield-south-africa-mandela-truth-reconciliation

[2] Graybill, Lyn, and Lanegran, Kimberly, ‘Truth, Justice, and Reconciliation in Africa:  Issues and Cases’, ufl.edu, Fall 2004, http://asq.africa.ufl.edu/v8/v8i1a1.htm

Counterpoint 

Prosecutions allow an equal chance for both prosecution and defense to show the truth as they believe it with the result that far more facts are brought to life than a process that is reliant only on the individual being ‘truthful’. Moreover an amnesty may not be forever as it is against the norms of international justice so it is unlikely that they will tell the whole truth.[1] Argentina for example has seen the prosecution of those who were given amnesties two decades earlier [2].

[1] Ahmed, Anees and Quayle, Merryn, ‘Can genocide, crimes against humanity and war crimes be pardoned or amnestied?’,  sas.ac.uk,  28 January 2008, http://sas-space.sas.ac.uk/2563/1/Amicus79_Ahmed%26Quayle.pdf

[2] Layús, Rosario Figari, ‘Better Late than Never: Human Rights Trials in Argentina’, RightsNews, Vol.30, no.3, May 2012, http://www.hrcolumbia.org/rightsnews/may2012/trials_in_argentina

Title 
Fear of prosecutions cause leaders to do more damage
Point 

Instead of giving up fighting, leaders continue to fight, disrupting the ability of a country to move on, for fear of prosecution. Pol Pot, for example, rebuilt armies and continued to fight long after his regime was overthrown, killing thousands more people. Had an amnesty been offered, he might well have given up and allowed the country to heal with far less death. Joseph Kony also continues to plague Uganda from within bush land even though he has offered to surrender for amnesty, because the ICC refuses to grant him any indemnity for his crimes [1]. 

[1] BBC news Africa, ‘LRA leader Joseph Kony 'in surrender talks' with CAR’, bbc.co.uk, 20 November 2013, http://www.bbc.co.uk/news/world-africa-25027616

Counterpoint 

It is the threat of prosecutions that cause leaders to fear committing crimes in the first place. The best way to stop leaders causing damage is for them to be deterred from doing so by being held accountable of their deeds.

Bibliography 

ABC news, ‘Dallas Holocaust survivors welcome prosecution of former Nazi guard’, wfaa.com, 20 August 2010, http://www.wfaa.com/news/local/Dallas--101185974.html

Ahmed, Anees and Quayle, Merryn, ‘Can genocide, crimes against humanity and war crimes be pardoned or amnestied?’,  sas.ac.uk,  28 January 2008, http://sas-space.sas.ac.uk/2563/1/Amicus79_Ahmed%26Quayle.pdf

Akhavan, Payam, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities' American Journal of International Law, 95(1), 2001, pp.7-31

BBC news Africa, ‘LRA leader Joseph Kony 'in surrender talks' with CAR’, bbc.co.uk, 20 November 2013, http://www.bbc.co.uk/news/world-africa-25027616

Deustche Welle, ‘South Sudan: Rebels Strike Oil Centre, Breaching Ceasefire’, allafrica.com, 18 February 2014, http://allafrica.com/stories/201402190297.html

Graybill, Lyn, and Lanegran, Kimberly, ‘Truth, Justice, and Reconciliation in Africa:  Issues and Cases’, ufl.edu, Fall 2004, http://asq.africa.ufl.edu/v8/v8i1a1.htm

Greenwald, Glenn, ‘Obama's justice department grants final immunity to Bush's CIA torturers’, thegurdian.com, 31 August 2012, http://www.theguardian.com/commentisfree/2012/aug/31/obama-justice-department-immunity-bush-cia-torturer

Grono, Nick, ‘The Deterrent Effect of the ICC on the Commission of International Crimes by Government Leaders’, globalpolicy.org, 5 October 2012, http://www.globalpolicy.org/international-justice/the-international-criminal-court/general-documents-analysis-and-articles-on-the-icc/51978-the-deterrent-effect-of-the-icc-on-the-commission-of-international-crimes-by-government-leaders.html?itemid=id

‘Status of cases’, International Criminal Tribunal for Rwanda, accessed 24/2/2014, http://www.unictr.org/Cases/tabid/204/Default.aspx

Jennifer, Christian and James, Bair, ‘Why does the world allow Sudan’s Bashir to target civilians?’, globalpost.com, 30 July 2012, http://www.globalpost.com/dispatches/news/regions/africa/sudan-bashir-target-civilians

Kimenyi, Felly, and Asiimwe, Bosco, ‘Legal experts hail Gacaca’, newtimes.co.rw, 18 June 2012, http://www.newtimes.co.rw/news/index.php?i=15027&a=54925

Layús, Rosario Figari, ‘Better Late than Never: Human Rights Trials in Argentina’, RightsNews, Vol.30, no.3, May 2012, http://www.hrcolumbia.org/rightsnews/may2012/trials_in_argentina

Linfield, Susie, ‘Trading Truth for Justice? Reflections on South Africa’s Truth and Reconciliation Commission’, bostonreview,net, 01 June 2000, http://www.bostonreview.net/world/linfield-south-africa-mandela-truth-reconciliation

Moore, John J Jr ‘Problems With Forgiveness’ 43 Stanford Law Review 733, February 1991

Osiel, Mark J. ‘Why Prosecute? Critics of Punishment for Mass Atrocity’ 118 Human Rights Quarterly 147 http://www.princeton.edu/~bsimpson/Human%20Rights/articles/Osial,%20Why%20Prosecute%20-%20Critics%20of%20Punishment%20for%20Mass%20Atrocity.htm

‘General Curtis E. LeMay, (1906-1990)’, PBS, accessed 24/2/2014, http://www.pbs.org/wgbh/amex/bomb/peopleevents/pandeAMEX61.html

Redress and African rights, ‘Survivors and post genocide in Rwanda’, redress.org, November 2008, http://www.redress.org/downloads/publications/Rwanda%20Survivors%2031%20Oct%2008.pdf

Robertson, Geoffrey, ‘Yulia Tymoshenko’s trial was a travesty of justice’, The Guardian, 23 February 2014, http://www.theguardian.com/commentisfree/2014/feb/23/ukraine-yulia-tymoshenko-travesty-justice-trail

Safferlin, Christoph J.M., ‘Can Criminal prosecution be the answer to massive Human Rights Violations?’, issafrica.org, http://www.issafrica.org/anicj/uploads/Safferling_Human_Rights_Violations.pdf

Smith, David, ‘Laurent Gbagbo appears before international criminal court’, thegurdian.com, 5 December 2011, http://www.theguardian.com/world/2011/dec/05/laurent-gbagbo-international-criminal-court1

Will, Ross, ‘Rwanda genocide: Did Bizimungu trial take too long?’, bbc.co.uk, 17 May 2011, http://www.bbc.co.uk/news/world-africa-13434232

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