International tribunals: not fit for purpose?

Former president of Liberia, Charles Taylor, refused to turn up to the opening of his trial by an international court at The Hague this week, declaring that it was ‘not fit for purpose’ (1). You do not need to have been summoned to The Hague as a war criminal to see that Taylor has a point. Rather than being regarded as an aid to peace and reconciliation, international war crimes tribunals, instituted to deal with African conflicts, are coming under criticism for destabilising the continent.

Taylor’s trial is controversial. He was being indicted for complicity in war crimes in Sierra Leone, which neighbours Liberia, because of his support for the Revolutionary United Front (RUF) rebel movement, led by Foday Sankoh. It was felt that, due to Taylor’s popular standing, organising the trial in Sierra Leone could destabilise the country (2). While Taylor’s trial is talked up in the West as marking another milestone in the progress of international law – this being the first time that a former African leader has been put on international trial for war crimes – in Africa, there is much less support for the UN-backed tribunal, composed of both local and international judges.

In Sierra Leone there has been strong criticism of the international court. Peter Penfold, the former British high commissioner to Freetown, argued that prosecutions threaten a fragile peace and are unnecessarily destabilising (3). The ad hoc UN tribunal is coming under similar criticism to that levelled at the International Criminal Court (ICC), which is accused of undermining local peace processes in Africa. The ICC’s first case in Africa risks turning into a farce following the Ugandan government’s request that charges against Joseph Kony’s Lord’s Resistance Army be dropped, accusing the ICC of ‘neo-colonialism’ and of overriding local desires for a peace settlement (4).

Richard Dowden, director of the Royal African Society, argues that the extension of international involvement in African conflicts through the use of international law is problematic because African peace deals have traditionally been based on including losers in government and binding them to the peace, rather than on punishment and retribution (5). This was the case with Sierra Leone, where the civil war ended when the RUF joined the government following an agreement signed in Togo in 1999. Although the peace deal did not stick and Foday Sankoh, the RUF leader, was arrested and died in custody, the main war was brought to an end through accommodation that would not have been possible had the war leaders been threatened with life imprisonment in The Hague or elsewhere.

For Dowden, there is no point in pursing international justice when it undermines local peace; international tribunals cannot treat law in isolation from the political reality of conflict and pretend to ‘hand out justice in Sudan as if it were Surrey’. He argues that international tribunals do little to bring peace and reconciliation to African victims of war, and that it is Western, not African, needs that drive the understanding of African conflicts in the legal vernacular of crime and punishment: ‘Who is it for? I suspect it is for us, watching these wars on television…. The court may be a salve for our consciences for doing nothing about the wars in the first place.’ (6)

One of the strongest advocates of international tribunals, Justice Richard Goldstone, seems to reinforce Dowden’s point that international tribunals in Africa are ‘not fit for purpose’ because they are driven by Western concerns that are alien to local circumstances and which contradict local needs. Goldstone argues that ‘if you have a system of international justice you’ve got to follow through on it. If in some cases that’s going to make peace negotiations difficult, that may be the price that has to be paid’ (7).

Unlike Goldstone, the UK government does recognise that its support for international tribunals, such as the ICC, puts it in a difficult position when it comes to conflict resolution in Africa. The British position is that the best solution is for African peace deals which ‘take into account international justice and local needs’ (8). However, this is easier said than done. Labour peer, Lord Peter Archer QC, who was on the government’s negotiating team in the establishment of the ICC, has recently argued that the application of international tribunals in Africa needs to be pragmatic. He states that, as with domestic law, two issues need to be considered. Firstly, ‘has a breach of the law occurred?’ and, secondly, ‘is it in the public interest to prosecute?’ For Archer, this means that whether or not international law concerning war crimes should be applied should be decided on a case-by-case basis (9).

While Archer appears happy with an understanding of international tribunals as merely one potential tool of international intervention, to be applied by external actors as and when necessary, it is difficult to square this approach with any reasonable understanding of law – which depends on the idea of universal applicability and equal treatment. It would seem that international tribunals are indeed ‘not fit for purpose’, either in terms of bringing peace and reconciliation to Africa or in terms of the advancement of international law.

David Chandler is Professor of International Relations at the Centre for the Study of Democracy, University of Westminster, and editor of the Journal of Intervention and Statebuilding. Visit his website here.

(1) Diamond wars dictator faces Hague trial, Guardian, 4 June 2007

(3) African search for peace throws court into crisis, Guardian, 9 January 2007

(4) Ibid

(5) ICC in the Dock, Prospect, No.134, May 2007

(6) Ibid

(7) Cited in African search for peace throws court into crisis, Guardian, 9 January 2007

(8) Ibid

(9) Lord Peter Archer, ‘The Responsibility to Protect’, presentation and discussion at the World Disarmament Campaign AGM, Wesley’s Chapel, London, 31 March 2007