In the days before Serbian president Slobodan Milosevic was toppled, some suggested that he should be granted an amnesty. Sending him to The Hague to face war crimes trials, it was said, would merely serve to keep him in office.
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The suggestion was never supported by British prime minister Tony Blair, British foreign secretary Robin Cook and US president Bill Clinton; and after Milosevic's fall from power their chorus line about letting justice take its course drowned out suggestions of an amnesty. We have now returned to the status quo ante, whereby 'Milosevic is an indicted war criminal' and therefore 'justice must take its course'. It is, according to Western politicians, a matter that is out of their hands. The phrases 'end to impunity' and 'no hiding place' are frequently uttered.
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The indicting of war criminals is not new: in 1946 the Nuremberg Court convicted 19 Nazi leaders (1). What is new is the belief that prosecutions for crimes against humanity are beyond politics. When the Nuremberg courts were wound up in 1948, it was not because there were no more Nazis who had committed horrendous crimes against humanity. It was for the political reason that Nazism had ceased to be a social evil, especially when viewed alongside the new menace of communism. In contrast to Messrs Blair and Clinton, then US president Harry S Truman and British prime minister Clement Attlee would have given short shrift to the idea that war crimes prosecutions were out of their hands.
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The desire of modern-day politicians to put the prosecution of war criminals beyond politics is enshrined in the Rome Statute of the International Criminal Court (ICC) (2). Voted for by 120 nations in 1998, the ICC will become a reality when 60 nations ratify the statute. When (and the current pace of ratification makes 'when' seem more likely than 'if') the ICC exists, its statute will outlaw the sort of political decision that caused the Nuremberg courts to be wound up.
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In many cases, the ICC will have jurisdiction to prosecute for a war crime where a domestic nation state refuses to act: even where the domestic state concludes that a prosecution would be politically inexpedient. As the human rights lawyer Geoffrey Robertson QC observes in his book Crimes Against Humanity: The Struggle for Global Justice: 'the ICC itself will decide whether it was reasonable for the domestic prosecutor to drop the charges, and may none the less pick up the case.' (3)
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 | | 'Amnesty International' would now be better named 'Prosecute International' |
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Elevating justice above politics sounds principled. And at a time when politicians are seen to lack principles, the prosecute-at-any-cost approach makes for good soundbites. But conflict resolution in recent decades is at odds with the principled approach. Most notably, the transition from apartheid to democracy in South Africa was facilitated by an amnesty: the beneficiaries of which included necklace killers, those who massacred a church congregation at prayer and the commander of the notorious Vlakplaas secret killing unit. In South Africa politics triumphed over justice.
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In Latin America, amnesties have frequently accompanied political settlements to end a civil conflict (El Salvador and Guatemala), facilitate the transfer to democracy (Chile), or to prevent a nascent democracy from lapsing back to military rule (Argentina). Amnesties have rarely been well received by the victims of torture or the families of those murdered. But they have been justified as a necessary political response in circumstances where the strict application of criminal law would be counterproductive.
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It is not just in recent decades that amnesties have facilitated political settlements. President Abraham Lincoln, over 130 years ago, granted an amnesty to all defecting Confederate forces in the American Civil War. No matter how severe the crimes, ex-Confederates were not prosecuted and the government returned their seized property to them.
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From Abraham Lincoln to Nelson Mandela, political compromise has usually triumphed over justice in the interest of political stability. Yet today's human rights lawyers talk of ending the 'culture of impunity'. In its annual report in 2000, Amnesty International states that 'combating impunity goes hand in hand with key human rights principles' (4). The irony of 'Amnesty International' calling for an end to impunity should not be overlooked. Pragmatism and forgiveness were seen as the way to foster human rights when the organisation was formed in 1961. Now the organisation would be better named 'Prosecute International'. Cynics would say 'Prosecute and damn the consequences International' would be particularly apposite.
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The British government would like us to believe that it is principled and that it is merely the severity of Milosevic's wrongdoing that warrants his indictment for war crimes. But the British-sponsored Lome peace agreement for Sierra Leone, made in 1999, made Foday Sankoh a vice-president and granted him and his mutilating supporters an amnesty. This compromise was as politically driven as anything in South Africa or Latin America in recent decades. Closer to home the British government's early release of convicted criminals from Northern Ireland also shows how principle can yield to political expediency.
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Those who call for an end to impunity view crimes committed in wars or civil conflicts in the same way as crimes committed by common criminals. This view is misplaced: the common criminal does not direct his crimes against the state and his actions do not reflect a clash of ideological, religious, ethnic or economic interests. Only the radical polytechnic lecturer of yesteryear would seek to explain ordinary criminal behaviour as a protest against the political order.
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Those who commit crimes during a political conflict rarely pose a threat to society in peacetime. Their crimes are context specific. The need to punish, to deter others, to reform the offender or to protect the rest of society is rarely present when the circumstances that caused that conflict have abated.
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This is not to say that prosecutions for human rights abuses are never warranted. But the question of whether they are is a matter of political judgement. It is a judgement to be taken in the interests of peace, stability and reconciliation. The human rights discourse that seeks to put human rights abuses beyond politics serves only to deny people the right to forge their own political settlements. This 'holier than thou' approach may fill its adherents with a warm glow of satisfaction, but it does little to resolve political conflict.
Jon Holbrook is a barrister in London. Email Jon.Holbrook@btinternet.com
Read on:
Spotlight on Camp X-Ray, by Jon Holbrook
A pariah made in the West, by Jon Holbrook
In defence of sovereignty, by Jon Holbrook
(1) In early October 1945, the four prosecuting nations - the USA, Britain, France and Russia - issued an indictment against 24 men and six organisations. The individual defendants were charged not only with the systematic murder of millions of people, but also with planning and carrying out the war in Europe. On 20 November 1945, 21 Nazi defendants filed into the dock at the Palace of Justice in Nuremberg to stand trial for war crimes
(2) The Rome Statute can be found here
(3) Crimes Against Humanity by Geoffrey Robertson QC can be ordered from Amazon
(4) See theAmnesty International website
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