Wednesday 27 November 2013

Truth vs Justice at the International Criminal Court

The International Criminal Court, and the one-off tribunals it is intended to replace, face a tension if not a conflict between the aims of truth and justice. Bringing the perpetrators of awful crimes against humanity to justice is of course the official reason for these courts, but bringing out the truth of what happened is also usually cited. However I have the distinct impression that the Courts themselves have little faith in their ability to provide justice and see their service to truth as their greatest contribution.

The UN Courts have a budget of billions, but still lack the capacity to bring more than a handful of people to trial. For example, the International Criminal Tribunal for Rwanda has tried around 50 individuals in connection with the genocidal murder of 800,000 people. There is an obvious mismatch between the scale of the atrocity, and the scale of the justice. It surely cannot be that only those 50 people were involved. Of course, when you think about the logistical difficulties of running such trials, it is hard to see how they could have tried more than a handful of ringleaders. Nonetheless, the consequence is that from the perspective of the perpetrators, the risk of being brought to international justice has similar odds to winning a lottery: not something you should factor into your rational life calculations.

To give another example, the International Criminal Court itself has managed after nearly 12 years of operation to conclude a single trial, finding Thomas Lubanga guilty of  the war crime of "conscripting and enlisting children under the age of fifteen years and using them to participate actively in hostilities" and sentencing him to 14 years imprisonment. (He is appealing.) Yet that charge seems somewhat feeble considering what his Congolese militia is accused of by the people where it operated: systematic murder, torture, rape, mutilation, and ethnic massacres (as a number of human rights organisations pointed out). How can the people Lubanga terrorised take the court's pretensions to serving justice seriously? How can the Court seriously believe that justice is being seen to be done? 

One reason the international Courts have so much trouble fulfilling survivors' expectations for just punishment is that they have tied themselves to an extraordinarily demanding model of due process, emulating but often exceeding the best practice of modern Western criminal justice systems. While reasonably effective with regard to small scale crimes by individuals in a relatively well-ordered state (where e.g. forensic and witness evidence gathering is relatively straightforward) these procedures can be very difficult to satisfy for crimes against the peace, like mass-murder, whose very nature consists in rupturing the social order. For example it is part of the character of such crimes to murder, scatter, or suborn their witnesses, making it extraordinarily difficult to piece together what exactly happened in a way that can withstand forensic scrutiny.

International legitimacy

The Courts' commitment to impeccable forensic procedures seems self-defeating if their purpose is to bring the perpetrators of atrocities to justice. But I think it can be explained if we step back to consider the Courts' need to achieve international recognition of the legitimacy of their rulings.

Unlike a regular national court whose legitimacy is generally already established, the international Courts have the burden of developing their legitimacy to skeptics as they go along. (Though this may become less significant in future, if they manage to build up their international reputation.) The Courts must perform to the interests and demands of their large and diverse audience of 'stakeholders'.

That audience includes not only the immediate allies of the accused and the victims and their relatives. It also includes the wider society in the country where the alleged crimes happened, for whom  questions of guilt or innocence may well be mixed up with political contests and loyalties in a manner uncommon in well-ordered societies (though see the contestation over British justice in Northern Ireland). Mega crimes of the sort the Courts are intended to investigate almost always have a political dimension: the moral meanings of the actions are contested in ways that reflect political divisions in the society.  See, for example, the case of Laurent Gbagbo, former president of Cote D'Ivoire. To some groups in a fractured polity, vicious warlords may be seen as protectors or freedom fighters against a tyrannical government.

In addition, the Courts must also satisfy the skeptical scrutiny of international third parties. This is an especial problem for the new International Criminal Court whose global ambitions are viewed with suspicion if not antagonism by many national politicians prickly about national sovereignty. The ICC must not only continually reassure such observers about its impartiality and rigour. It must also seek to positively impress the governments of countries like America, India, and China which have yet to sign up to its jurisdiction. Their membership is essential for the long-term success of the Court.

In performing for such a demanding audience the Courts must be particularly concerned with showing that justice is being done, not only to the victims of the crimes concerned, but also to the other interested parties. But this conflicts with actually punishing perpetrators in accordance with justice. One cannot build legitimacy by upholding moral norms, because the legitimacy of those moral norms, or at least their relevance, is often what is contested. Is this rebel really a vicious warlord rather than a freedom fighter? Is this Court merely the puppet of Western interests or its member governments? Is it anti-African? (All the ICC's cases so far have been in Africa.) In trying to reach a foundation of objectivity that even skeptics can go along with, the Courts are forced to focus on proving the facts rather than punishing the crimes.

While victims are understandably concerned with the punishment of those who wronged them, the concern of skeptical third parties is with the factual accuracy of the Courts' rulings. Here we come to the truth function of international courts and its peculiar bias. False positives are more dangerous to the legitimacy of the court than false negatives. That is, it matters little if the Courts fail to indict and convict a particular mass murderer. That only upsets the survivors and relatives of his crimes. But it is essential that no observer can have a reasonable doubt about the factual basis of the convictions of those they do find guilty. That is the kind of mistake that would kill the Courts stone dead.

To convince skeptical third parties of the truth tracking function of the Courts they must demonstrate that they are operating to the highest objective forensic standards even if that comes at the expense of just punishment. Thus, the Courts are almost absurdly scrupulous in upholding the rights of defendants to a fair trial because they actually want the strongest possible public test of the prosecution case that will leave no reasonable doubts about the accuracy of convictions. The International Criminal Court not only provides legal aid to defendants, but it even includes an independent Office of Public Counsel for the Defence with a mandate to "represent and protect the rights of the Defence in order to reinforce the equality of arms and to enable a fair trial".  It is not enough to convict a guilty person. It has to be done in a way that convinces all observers that he was really guilty.

Serving the Peace

Seen in a certain way, and especially in a longer term forward-looking perspective, truth serves peace. And this is the argument that supporters of the Courts often make when their effectiveness is challenged.

Many of the crimes these international courts were set up to investigate are intra-state in one way or another, and hence political. They are often characterised by continuing inter-communal tensions which risk falling back into conflict (such as in Bosnia, Rwanda, Kenya, and Congo). An international Court has a capacity here that national courts may often lack, and which mirrors the additional demands upon its legitimacy. Such Courts can provide an account of what happened that is so scrupulously objective that even the supporters of those convicted can go along with it, or at least find it hard to reject on rational grounds. This shared objective understanding of the narrative and players in atrocities can be part of the foundation for a society's long-term reconciliation and peace. And peace - the re-establishment of social harmony and security - is surely an important aspect of justice in the wider sense.

And yet, the impartiality that the international Courts are so concerned with and which is so important for this peace function is biased in an important way. The Courts' own interest in establishing their legitimacy (especially global in the case of the ICC) leads them to be more concerned with satisfying skeptics than victims. Specifically, addressing the deep skepticism of some observers, including local political factions sympathetic to the accused and third party governments, has required commitment to a principle of nothing but the truth. But what the victims and their relatives want the Courts to do is recognise the truth of the injustice they suffered and punish those who wronged them. The principle this implies is validation of the truth.

Turning back to the role that truth can perform for peace, it is obvious that there must be some balance between the principles of nothing but the truth and validation of the truth. But the Courts' bias in favour of the former would seem to undermine the effectiveness of international trials in supporting reconciliation and the rebuilding of social harmony across political fractures, in the way that non-adversarial local Truth and Reconciliation commissions have shown themselves to be capable of. For it follows from an absolute requirement that all convictions be sound that many crimes will go unrecognised and unpunished, making the objective history on which the traumatised society is supposed to rebuild significantly incomplete. And it will not satisfy the skepticism of victims, human rights groups, and people contemplating committing atrocities that those who perpetrate crimes against humanity will someday be held accountable to justice.