In pursuit of accountability during and after war

ABSTRACT

This article aims to identify and elaborate the causes and ramifications of applying transitional justice, in particular accountability measures, to situations of war. It focuses on the correlations between peace and justice – and hence an important perspective on the question ‘how do wars end’. The article seeks to understand some of the main challenges associated with pursuing accountability for crimes committed in contemporary forms of conflict, including civil wars and abuses committed by major powers in armed conflict.

KEYWORDS:

• Transitional justice
• armed conflict
• war crimes
• impact of transitional justice

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

¹ The term was coined by Huntington. See Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century (Norman OK: University of Oklahoma Press 1991). Notable studies of the transitions to democracy of this era include Guillermo O’Donnell and Philippe Schmitter, Transitions from Authoritarian Rule: Tentative Conclusions about Uncertain Democracies (Baltimore MD: The Johns Hopkins University Press 1986); Juan J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (Baltimore MD: The Johns Hopkins University Press 1996).

² See, for example, the studies in Neil J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Volume I and II (Washington DC: United States Institute of Peace Press 1995).

³ See, for example, Carlos Nino, ‘Response: The Duty to Punish Past Abuses of Human Rights into Context: The Case of Argentina’, in Kritz (ed.), Transitional Justice, Volume I, 417; Diane F. Orentlicher, ‘A Reply to Professor Nino’, in Kritz (ed.), Transitional Justice, Volume I, 437.

⁴ On the concept of ‘paradigmatic transitions’, and how transitional justice emerged as a tool to promote justice in these types of transitions, see, for example, Paige Arthur, ‘How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice’, Human Rights Quarterly 31/2 (2009), 321–367.

⁵ On the uniqueness of transitional justice and the nature and ramifications of such compromises, see further Ruti Teitel, Transitional Justice (Oxford: OUP 2000).

⁶ One notable exception to this understanding involves Eric Posner and Adrian Vermeule, ‘Transitional Justice as Ordinary Justice’, Harvard Law Review 117 (2003), 762–825.

⁷ See, for example, José Zalaquett, ‘Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations’, in Kritz (ed.), Transitional Justice, Volume I, 203–206.

⁸ Thomas Obel Hansen, ‘The Vertical and Horizontal Expansion of Transitional Justice: Explanations and Implications for a Contested Field’, in Susanne Buckley-Zistel et al. (eds.), Transitional Justice Theories (London: Routledge 2013), 105–124.

⁹ Naomi Roht-Arriaza, ‘The New Landscape of Transitional Justice’, in Naomi Roht-Arriaza and Javier Mariezcurrena (eds.), Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (Cambridge: CUP 2006), 1–16, at 2.

¹⁰ See further Andrew Reiter et al., ‘Transitional Justice and Civil War: Exploring New Pathways, Challenging Old Guideposts’, Transitional Justice Review 1/1 (2012), 137–169 (noting at 138 that whereas the number of post-authoritarian transitions is waning, ‘civil wars continue to proliferate around the world, offering new opportunities for transitional justice’).

¹¹ See further Thomas Obel Hansen, ‘Transitional Justice: Toward a Differentiated Theory’, Oregon Review of International Law 13/1 (2011), 1–46.

¹² Some scholars have warned against confusing transitional justice with international criminal law. See, for example, Jens Iverson, ‘Transitional Justice, Jus Post Bellum and International Criminal Law: Differentiating the Usages, History and Dynamics’, International Journal of Transitional Justice 7/3 (2013), 413–433.

¹³ See, for example, Fionnuala Ni Aoláin and Colm Campbell, ‘The Paradox of Transition in Conflicted Democracies’, Human Rights Quarterly 27 (2005), 172–213 (noting at 174 that the ‘end goal of transition in conflicted democracies is the same as that in paradigmatic transitions, namely the achievement of a stable (and therefore peaceful) democracy’).

¹⁴ See, for example, Phil Clark, ‘Establishing a Conceptual Framework: Six Key Transitional Justice Themes’, in Phil Clark and Zachary Kaufman (eds.), After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond (London: Hurst 2008), 191–205 (arguing that transitional justice should ideally aim to achieve all of the following: reconciliation, peace, justice, healing, forgiveness and truth).

¹⁵ José Zalaquett, ‘Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints’, in Kritz (ed.), Transitional Justice, Volume I, 3–31, at 17.

¹⁶ Zalaquett, ‘Balancing Ethical Imperatives and Political Constraints’, 203–206, at 205.

¹⁷ Carlos Nino, ‘Response: The Duty to Punish Past Abuses of Human Rights into Context: The Case of Argentina’, 417–436, at 421.

¹⁸ Of course, the change in perceptions did not occur overnight and there were dissenting voices. However, a highly promoted and widely attended 2007 conference in Nuremberg, entitled ‘Building a Future on Peace and Justice’ appears as a key turning points whereby the view that peace and justice are not only compatible notions but are mutually dependent outcomes of a transition was consolidated as the mainstream.

¹⁹ For example, writing in 2002 – the same year that the International Criminal Court became operational – M. Cherif Bassiouni, a leading international lawyer, argued that ‘if peace is not intended to be a brief interlude between conflicts, it must, in order to avoid future conflict, encompass what justice is intended to accomplish: prevention, deterrence, rehabilitation, and reconciliation’. See Bassiouni, ‘Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights’, in Bassiouni (ed.), Post-Conflict Justice (New York: Transnational Publishers 2002), 3–54, at 9.

²⁰ Mark Ellis, ‘Combating Impunity and Enforcing Accountability as a Way to Promote Peace and Stability – The Role of International War Crimes Tribunals’, Journal of National Security and Policy 2/1 (2006), 111–164.

²¹ See Rosemary Nagy, ‘Transitional Justice as Global Project: Critical Reflections’, Third World Quarterly 29/2 (2008), 275–289, at 276.

²² To my knowledge, the first comprehensive study which elaborates methodological issues concerning impact studies in transitional justice is the 2009 volume, Assessing the Impact of Transitional Justice (edited by Hugo van der Merwe, Victoria Baxter and Audrey Chapman) (Washington DC: United States Institute of Peace Studies 2009).

²³ See, for example, David Backer, ‘Cross-National Comparative Analysis’, in Hugo van der Merwe, Victoria Baxter and Audrey Chapman (eds.), Assessing the Impact of Transitional Justice, 23–90. Louise Mallinder has developed the extensive Amnesty Law Database involving information on 506 amnesty processes in 130 countries introduced since the Second World War. See further Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Oxford: Hart Publishing 2008).

²⁴ See Hyeran Jo and Beth A. Simmons, ‘Can the International Criminal Court Deter Atrocity?’, International Organization 70/3 (2016), 443–475.

²⁵ See Jack Snyder and Leslie Vinjamuri, ‘To Prevent Atrocities, Count on Politics First, Law Later’, openDemocracy, 12 May 2015, available at https://www.opendemocracy.net/openglobalrights/jack-snyder-leslie-vinjamuri/to-prevent-atrocities-count-on-politics-first-law-late. For a further debate about the ICC’s claimed deterrent effect, see Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’, International Security 28 (2003), 5–44.

²⁶ Chandra Lekha Sriram, Johanna Herman and Olga Martin-Ortega, ‘Beyond Justice versus Peace: Transitional Justice and Peacebuilding Strategies’, in Karin Aggestam and Annika Björkdahl (eds.), Rethinking Peacebuilding: The Quest for Just Peace in the Middle East and the Western Balkans (New York: Routledge 2012), 1–23, at 4.

²⁷ Chandra Lekha Sriram, ‘Justice as Peace? Liberal Peacebuilding and Strategies of Transitional Justice’, Global Society, 21/4 (2007), 579–591.

²⁸ Sharp further notes that liberal peacebuilding ‘has at times resulted in a “top-down” approach to justice, concerned more with the bargains between elite groups needed to sustain the political transition than a more participatory approach to building democracy from the grassroots’, and has ‘tended to privilege the state, the international, and the universal, over the local, the traditional, and the particular’. See Dustin Sharp, ‘Interrogating the Peripheries;
The Preoccupations of Fourth Generation Transitional Justice’, Harvard Human Rights Journal 26 (2013), 149–178.

²⁹ Dustin Sharp, ‘Beyond the Post-Conflict Checklist: Linking Peacebuilding and Transitional Justice through the Lens of Critique’, Chicago Journal of International Law 14 (Summer 2013), 165–196.

³⁰ Kersten points to a range of other interactions between peace and justice, some of which are discussed further below in this article. See further Mark Kersten, Justice in Conflict: The Effects of the International Criminal Court’s Interventions on Ending Wars and Building Peace (Oxford: OUP 2016), at 193–200.

³¹ See Thomas Obel Hansen, ‘Transitional Justice in Kenya? An Assessment of the Accountability Process in Light of Domestic Politics and Security Concerns’, California Western International Law Journal, 42/1 (2011), 1–35.

³² See Cath Collins, ‘The End of Impunity? “Late Justice” and Post-Transitional Justice in Latin America’, in Nicola Frances Palmer et al. (eds.), Critical Perspectives in Transitional Justice (Cambridge: Intersentia 2012), 399–423, at 399–419.

³³ For a further discussion of the ‘time’ and ‘space’ of transitional justice, see Thomas Obel Hansen, ‘The Time and Space of Transitional Justice’, in Dov Jacobs et al. (eds.), Research Handbook on Transitional Justice (Cheltenham: Edward Elgar Publishing 2017), 34–51.

³⁴ Par Engstrom, ‘Transitional Justice and Ongoing Conflict’, in Chandra Lekha Sriram et al. (eds.), Transitional Justice and Peacebuilding on the Ground: Victims and Excombatants (London: Routledge, 2012), 41–61.

³⁵ Ibid, at 3.

³⁶ See the info available at https://www.icc-cpi.int/uganda/ongwen.

³⁷ Mark Drumbl, ‘The Ongwen Trial at the ICC: Tough Questions on Child Soldiers’, openDemocracy, 14 April 2015, available at https://www.opendemocracy.net/openglobalrights/mark-drumbl/ongwen-trial-at-icc-tough-questions-on-child-soldiers.

³⁸ For a symposium of academic commentaries on the topic, see ‘The Dominic Ongwen Trial and the Prosecution of Child Soldiers – A JiC Symposium’, Justice in Conflict, available at https://justiceinconflict.org/2016/04/11/the-dominic-ongwen-trial-and-the-prosecution-of-child-soldiers-a-jic-symposium/. For a discussion of the reactions to the trial in Northern Uganda, see, for example, Lino Owor Ogora, ‘Just or Unjust: Mixed Reactions on whether Ongwen should be on Trial’, JusticeHub, 25 April 2017, available at https://justicehub.org/article/just-or-unjust-mixed-reactions-whether-ongwen-should-be-trial.

³⁹ See similarly Reiter et al., ‘Transitional Justice and Civil War: Exploring New Pathways, Challenging Old Guideposts’, 137–169, at 139.

⁴⁰ Accordingly, tensions may arise between promoting accountability norms and respecting due process rights of suspected perpetrators, as was so clearly the case in Rwanda following the genocide and the civil war that surrounded it. See, for example, William A, Schabas, ‘The Rwanda Case: Sometimes It’s Impossible’, in Bassiouni (ed.), Post Conflict Justice, 499–522.

⁴¹ See the info available at https://www.icc-cpi.int/drc.

⁴² For a recent account of the challenges associated with pursuing accountability, internationally and nationally, for crimes in the DRC, see Patryk Labuda, ‘Taking Complementarity Seriously: Why is the International Criminal Court Not Investigating Government Crimes in Congo?’, Opinio Juris, 28 April 2017, available at http://opiniojuris.org/2017/04/28/33093/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Juris%29.

⁴³ For a thoughtful debate about the ICC’s ability to deter specific crimes such as recruitment of child soldiers and the impact of the Lubanga ruling, see Abigail Reynolds, ‘Deterring the Use of Child Soldiers in Africa: Addressing the Gap Between the Mandate of the International Criminal Court and Social Norms and Local Understandings’, Master Thesis submitted to Leiden University, June 2016, available at https://openaccess.leidenuniv.nl/bitstream/handle/1887/41163/Reynolds,%20Abigail-s1754807-MA%20Thesis%20PS-2016.pdf?sequence = 1.

⁴⁴ As noted by Reiter et al., while ‘authoritarian regime transitions tend to involve abuses by one set of actors, war tends to involve complicity on both sides’. See Reiter et al., ‘Transitional Justice and Civil War: Exploring New Pathways, Challenging Old Guideposts’, 139.

⁴⁵ See, for example, René Lemarchand, ‘The Politics of Memory in Post-Genocide Rwanda’, in Phil Clark and Zachary Kaufman (eds.), After Genocide: Transitional Justice, Post-Conflict Reconstruction and Reconciliation in Rwanda and Beyond (London: Hurst Publishers 2008), 21–30.

⁴⁶ See, for example, Victor Peskin, ‘Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda’, Journal of Human Rights 4/2 (2005), 213–231.

⁴⁷ See further William A. Schabas, ‘State Policy as an Element of International Crimes’, Journal of Criminal Law and Criminology 98 (2008), 953–982.

⁴⁸ On the importance of State cooperation (and the ICC’s limited ability to promote it), see further Rita Mutyaba, ‘An Analysis of the Cooperation Regime of the International Criminal Court and its Effectiveness in the Court’s Objective in Securing Suspects in its Ongoing Investigations and Prosecutions’, International Criminal Law Review 12 (2012), 937–962; Human Rights Law Centre, University of Nottingham, ‘Cooperation and the International Criminal Court Report’, Report on Expert Workshop, 18–19 September 2014.

⁴⁹ See, for example, Gwen P. Barnes, ‘The International Criminal Court’s Ineffective Enforcement Mechanisms: The Indictment of President Omar Al Bashir’, Fordham International Law Journal 34/6 (2011), 1585–1619. Most recently South Africa failed to arrest al-Bashir as he attended a meeting there in June 2016, leading to significant controversy, which arguably was a major reason why South Africa later announced its intention to withdraw from the ICC. See, for example, International Commission of Jurists, ‘South Africa appears before ICC for failure to arrest Sudanese President Bashir – The ICJ observes the hearing’, 6 April 2017, available at https://www.icj.org/south-africa-appears-before-icc-for-failure-to-arrest-sudanese-president-bashir-the-icj-observes-the-trial/.

⁵⁰ The PEV did not amount to an ‘armed conflict’ in humanitarian law terms, but the dynamics discussed here are nonetheless of interest.

⁵¹ See further Sarah Nouwen and Wouter Werner, ‘Doing Justice to the Political: The International Criminal Court in Uganda and Sudan’, The European Journal of International Law 21/4 (2011), 941–965.

⁵² See further Thomas Obel Hansen, ‘The International Criminal Court in Kenya: Three Defining Features of a Contested Accountability Process and Their Implications for the Future of International Justice’, Australian Journal of Human Rights 18/2 (2012), 187–217; Yvonne M. Dutton, ‘Enforcing the Rome Statute: Evidence of (Non) Compliance from Kenya’, Indiana International and Comparative Law Review 26/7 (2016), 7–32.

⁵³ However, the Prosecutor has also been faulted for not developing sufficiently clear strategies on the basis of the goals of international justice for making selection decisions. See further Margaret M. deGuzman, ‘Choosing to Prosecute: Expressive Selection at the International Criminal Court’, Michigan Journal of International Law 33/2 (2012), 265–320.

⁵⁴ Kersten, however, also notes that the ICC does not necessarily create, but rather tends to reinforce already existing narratives of ‘good versus evil’. See Mark Kersten, Justice in Conflict, at 194–195.

⁵⁵ For an account of the legitimacy challenges facing the current system of international justice, see further Thomas Obel Hansen, ‘The International Criminal Court and the Legitimacy of Exercise’, in Per Andersen et al. (eds.), Law and Legitimacy (Copenhagen: DJOEF 2015), 73–100.

⁵⁶ Par Engstrom, ‘Transitional Justice and Ongoing Conflict’ (further noting that ‘there has been a discernible shift from the pursuit of accountability strategies after the cessation of armed hostilities on the one hand, and in the aftermath of political transitions on the other, to attempts to achieve accountability for atrocities even before a political settlement of armed conflict has been reached’, at 42.

⁵⁷ Ibid. On the topic of justice in conflict, see further Thomas Unger and Marieke Wierda, ‘Pursuing Justice in Ongoing Conflict: A Discussion of Current Practice’, in Kai Ambos, Judith Large et al. (eds.) Building a Future on Peace and Justice (Berlin: Springer 2009), 263–302.

⁵⁸ See similarly Par Engstrom, ‘Transitional Justice and Ongoing Conflict’ (noting that: ‘the ICTY issued only few indictments during the armed conflict itself and cases only came to trial after the end of the war. Instead, the first significant attempt to pursue justice during ongoing conflict came with the indictment of Slobodan Milosevic during the NATO bombing of Kosovo’, at 42.

⁵⁹ Ibid, at 3. See also Luis Moreno-Ocampo, ‘Transitional Justice in Ongoing Conflicts’, International Journal of Transitional Justice 1/1 (2007), 8–9, at 8.

⁶⁰ Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York and London: W.W. Norton and Company 2011).

⁶¹ As Stahn notes: ‘the norms of international humanitarian law, by definition, apply only to a limited extent to the period following the cessation of hostilities. Additional Protocol I provides that the application of the Geneva Conventions and the Protocol will cease “on the general close of military operations”. This moment is usually deemed to occur “when the last shot has been fired”. Only selected provisions apply after the “cessation of active hostilities”. A “post-conflict” duty, namely the obligation to repatriate, is activated in a classical “wartime” situation, namely before the close of military operations, which marks the date of the termination of “armed conflict”. Moreover, parts of the “law of war”, namely specific duties of the occupant under the laws of occupation, continue to apply in a “peacetime” situation, namely after the close of military operations. The norms of international humanitarian law are, therefore, only to a limited extent relevant to the broader process of building peace after conflict’. See Carsten Stahn, ‘Jus ad bellum’, ‘jus in
bello’ … ‘jus post bellum’? – Rethinking the Conception of the Law of Armed Force, European Journal of International Law 17/5 (2007), 921–943, at 927.

⁶² Ibid, at 923.

⁶³ Ibid, at 929.

⁶⁴ From a victims’ perspective, pursuing accountability under human rights law may often prove the more feasible route, partly due to the relative accessibility of courts such as the ECtHR and other regional human rights courts and due to the ability of victims to bring human rights cases before domestic courts. Even if the ICC is mandated to order reparations to victims of international crimes and victims can participate in the proceedings, these regimes face significant challenges. See further Luke Moffett, ‘Elaborating Justice for Victims at the International Criminal Court’, Journal of International Criminal Justice 13 (2015), 281–311; Christine van den Wyngaert, ‘Victims before International Criminal Courts: Some Views and Concerns of an ICC Trial Judge’, Case Western Reserve Journal of International Law 44 (2011), 475–496. Human rights law, however, only applies to situations of armed conflict to the extent the armed forces have ‘effective control’, as will be the case for example in detention facilities. See, for example, Daragh Murray, Practitioners’ Guide to Human Rights Law in Armed Conflict (Oxford: OUP 2016).

⁶⁵ See, for example, Freedom House, Delivering Justice Before and After Transitions, 2013, available at https://freedomhouse.org/sites/default/files/Delivering%20Justice%20Before%20and%20After%20Transitions%20Istanbul%20Report%20Final%202014.pdf.

⁶⁶ See, for example, Brian Kritz and Jacqueline Wilson, ‘No Transitional Justice without Transition: Darfur – A Case Study’, Michigan State Journal of International Law 19/3 (2010–2011), 475–500.

⁶⁷ See, for example, Maria A. van Nievelt, ‘Transitional Justice in Ongoing Conflict: Colombia’s Integrative Approach to Peace and Justice’, Cornell International Affairs Review 11/2 (2016), 101–138.

⁶⁸ The UN has stated that ‘United Nations endorsed peace agreements can never promise amnesties for genocide, crimes against humanity or gross violations of human rights’. See UN Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616, 23 August 2004, para 10. On the actual use of amnesties, see further Louise Mallinder, Amnesty, Human Rights and Political Transitions.

⁶⁹ See further Mark Kersten, Justice in Conflict.

⁷⁰ For an account of US abuses in the war on terror, including a description of government authorisation under the Bush administration, see Human Rights Watch, ‘Getting Away with Torture: The Bush Administration and Mistreatment of Detainees’, 2011.

⁷¹ See OTP Report on Preliminary Examination Activities (2016), paras. 198, 199 and 211.

⁷² Ibid, paras. 212–220.

⁷³ Ibid, para 230.

⁷⁴ Ibid, paras. 75–108.

⁷⁵ Ibid, paras. 109–145.

⁷⁶ Ibid, paras. 146–191.

⁷⁷ See Office of the Prosecutor of the International Criminal Court, Request for Authorisation of an Investigation Pursuant to Article 15, ICC-01/15–4, 13 October 2015, paras. 98; 140.

⁷⁸ For a detailed account of such strategies in the Iraq/UK preliminary examination, see further Thomas Obel Hansen, ‘Accountability for British War Crimes in Iraq? Examining the Nexus between International and National Justice Responses’, in Morten Bergsmo and Carsten Stahn (eds.), Quality Control in Preliminary Examination: Reviewing Impact, Policies and Practices (TOAEP 2017), 399–450.

⁷⁹ Ibid.

⁸⁰ For examples of such expectations, see, for example, Fatou Bensouda, ‘Reflections from the International Criminal Court Prosecutor’, Case Western Reserve Journal of International Law 45 (2012), at 508–509.

⁸¹ On US-ICC relations, see further David Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (Oxford: OUP 2014).

⁸² ‘Hundreds of compensation claims against British soldiers could be abandoned after controversial law firm announces closure’, The Telegraph, 15 August 2016, available at http://www.telegraph.co.uk/news/2016/08/14/hundreds-of-compensation-claims-against-british-soldiers-could-b/.

⁸³ Lawsuits relating to the legality of the 2003 Iraq War, brought on the basis of rules concerning private prosecution, have been filed in British courts, requesting trial of then prime minister Tony Blair, foreign secretary Jack Straw, and Lord Goldsmith, the attorney general at the time. However, the High Court ruled in July 2017 that the crime of aggression does not exist under English law and hence blocked the suit. See further ‘Tony Blair Prosecution over Iraq War blocked by Judges’, The Guardian, 31 July 2017, available at https://www.theguardian.com/politics/2017/jul/31/tony-blair-prosecution-over-iraq-war-blocked-by-judges.

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Notes on contributors

Thomas Obel Hansen

Thomas Obel Hansen is a lecturer in the School of Law and a member of the Transitional Justice Institute at Ulster University since January 2016. Thomas obtained his LLM (2007) and PhD in Law (2010) from Aarhus University Law School in Denmark. Prior to joining the TJI, he worked with the United States International University in Nairobi and as a consultant on assignments relating to international law, human rights and transitional justice in the country and the broader region.