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Don’t Decriminalize War CrimesFebruary 17, 2014 - 9:56am | admin

By:  Matthew  T.  Simpson  and  Ahmed  H.  Adam

In a February 5, 2014 New  York  Times op-ed, former South African PresidentThabo Mbeki and Professor Mahmood Mamdani of Columbia Universitychastised the international community for efforts to bring war criminals inAfrica before criminal courts. For those concerned with the peaceful resolutionof the conflicts in Darfur, South Kordofan, Blue Nile, and South Sudan, thisidea is both dangerous and untimely.

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

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

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

Indeed, in 2009, Mbeki himself, then the Head of the African Union Panel onDarfur (AUPD), recognized the vital role of transitional justice mechanisms inresolving conflicts. Mbeki’s AUPD formally proposed the establishment of

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“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.

[Photo courtesy of Al  Jazeera  English]

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