Transitional Justice in Troubled Societies
248
Transitional Justice in Troubled Societies
248eBook
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Overview
While in many cases the ‘blind’ criminal justice does not enhance, and even militates against, the achievement of political transitions, an understanding of transitional justice as a fundamentally political process is novel, controversial and a concept which may shape the future of transitional justice.
This collection contributes to developing this concept both theoretically and through concrete and current case studies from the worlds most pronounced crisis spots for transitional justice.
Product Details
| ISBN-13: | 9781786605900 |
|---|---|
| Publisher: | Rowman & Littlefield Publishers, Inc. |
| Publication date: | 11/26/2018 |
| Series: | Studies in Social and Global Justice |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 248 |
| File size: | 1 MB |
| Age Range: | 18 Years |
About the Author
Aleksandar Fatić is Professor of Philosophy at the Institute for Philosophy and Social Theory, University of Belgrade.
Klaus Bachmann is Professor of Social Sciences at SWPS University of Social Sciences and Humanities in Warsaw.
Igor Lyubashenko is Assistant Professor of Political Science at the University of Social Sciences and Humanities in Warsaw.
Read an Excerpt
CHAPTER 1
Transitional Justice and Injustice in Transition
Assessing the Penalisation of Wartime Violence in Light of the ICTY Legacy
Axelle Reiter
STANDARDS OF EFFECTIVENESS: MANDATE AND AIMS OF THE ICTY
International law relies on the principles of criminal law to deal with wartime violence and past human rights abuses in postconflict societies. The appropriateness of this approach is presumed, rather than grounded in any actual assessment of its benefits, and alternative means of conflict management are sidelined. The need to test this uncritical assumption calls for an examination of the effectiveness of international criminal justice in meeting the aspirations of the international community (i.e., the international political community that has presided over the creation of international criminal tribunals) and generating the outcomes it is meant to bring about; here, focusing on the penalisation of violence in the Socialist Federal Republic of Yugoslavia (SFRY) before the International Criminal Tribunal for the former Yugoslavia (ICTY). Criminal law aims at determining the individual accountability of the accused for past offences. It is punitive and, although it also aspires to reach preventive and expressive or symbolic goals, its main object is retributive. Besides, the ICTY, which has just been closed having 'fulfilled' its stated mission, purported to fulfil various functions, some of which were associated with transitional justice mechanisms and human rights law, namely rehabilitation, deterrence, the protection of society, public reprobation and stigmatisation, the fight against impunity, redress for the victims, reconciliation and contribution to the peace process. The questionable methods adopted in order to achieve these objectives have resulted in severe violations of the rights of the accused and denial of victims' claims, as well as in undermining reconciliation in the region. These consequences can be traced back to the hybrid nature of international criminal justice and a lack of insights into the causes of wartime criminality. Whereas penal law traditionally rejects collective responsibility, criminological studies demonstrate that international crimes are group offences and manifest systemic violence.
This chapter analyses the causes of wartime criminality, the specificities of this form of violence, the adverse consequences of penalisation of violence by the ICTY, and the social reactions to international trials in the SFRY successor states and entities. It is divided into four sections. The first clarifies the ambitions of the ICTY and discusses the question of how they can be realistically circumscribed in order to provide standards against which to judge its usefulness and determine an operational benchmark for its success. It argues that the mandate and functions of the ICTY should have been cut down to the fulfilment of three main purposes: retribution, redress for the victims, and the restoration and maintenance of peace in the region. The second section examines the roots and distinctiveness of wartime criminality, the challenges posed by the penalisation of acts of systemic violence and the inadequacy of ordinary criminal law mechanisms to establish responsibility for mass atrocities. The remaining sections gauge the ICTY's effectiveness in delivering its three core aims and investigate the reasons for its failure to attain any of these objectives, a failure echoed in the local population's scepticism towards the institution. Finally, this chapter scrutinizes alternative options and advocates a switch of emphasis from penal responses to transitional justice mechanisms like truth commissions and compensatory solutions.
An assessment of the success of international criminal justice calls for an inquiry into its aims. One must then investigate what the prosecution of individuals in supranational fora effectively achieves, in order to determine whether they fulfil (or, as it turns out, do not fulfil) their explicit mandate and the broader expectations that the international community bestows upon them.
The famed statement by the International Military Tribunal at Nuremberg, that 'crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced,' lies at the core of international criminal law. Hence, international criminal law basically regulates the international responsibility of individual actors. Security Council Resolution 827 purported to establish the ICTY 'for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia' (§ 2). This allegedly unique function of the tribunal could not be divorced from underlying strategic goals. The Security Council adopted Resolution 827 in the frame of its 'primary responsibility for the maintenance of international peace and security' under Article 24 § 1 and Chapter VII of the UN Charter. After determining that the situation in the former Yugoslavia constituted 'a threat to international peace and security,' it put it forward that the prosecution of international crimes committed on its territory 'would contribute to the restoration and maintenance of peace' (Article 24, Preamble). Accordingly, the main criterion to appraise its adequacy from a teleological perspective was its effectiveness in contributing to the restoration of peace, deterrence of additional violence and the cessation of military hostilities, on the one hand, and the maintenance and consolidation of peace and security in the postconflict era, on the other (Futamura, 2008: 3–4; Kerr, 2000: 17). Thus ICTY aimed to support a lasting peace and long-term stability in the region through the reconciliation of erstwhile enemies. Yet, penalisation tends to be counterproductive on both counts: the indictment and prosecution of civil and military leaders reduce the realistic prospects of a negotiated ceasefire and prompt settlement of the conflict (D'Amato, 1994: 500–501), while the adversarial nature of criminal trials undermines the reconciliation process. In a nutshell, 'peace through justice' often leaves way for 'peace versus justice.'
ICTY considered its mandate to be 'threefold: to do justice, to deter further crimes and to contribute to the restoration and maintenance of peace.' It identified itself 'as one of the measures designed gradually to promote the end of armed hostilities and a return to normality' (ICTY, 1994: §§ 11–14). A supplementary purpose was eventually endorsed, that of rendering justice to the victims of international crimes (ICTY, 2002: § 328). ICTY also tried to clarify the 'purposes and objectives' of sentencing. In a misguided attempt at exhaustiveness, it lumped together 'retribution, protection of society, rehabilitation and deterrence' of the accused (special deterrence) and other persons alike (general deterrence). Retribution had been renamed 'just deserts,' while deterrence was sometimes mentioned under the label of 'prevention.' In a competing account, the tribunal emphasised 'public reprobation and stigmatization by the international community'; which partook more to the classical symbolic vision of penalisation. It recurrently brought up the fight against impunity, the end of infractions to humanitarian rules, enhancing public information about the crimes and the establishment of 'truth,' redress, 'appeasement' for the victims and their relatives, reconciliation and contribution to the peace process. The goals enumerated varied from one judgement to the next and none referred to this list in its entirety. The exaggerated ambition, mutual irreconcilability and lack of ranking of the professed objectives were striking.
Interestingly, ICTY appeared to be aware of the mutually exclusive character of some of its self-appointed missions. Retribution clashes with reconciliatory objectives because it originates in revenge and retaliation. As a result, sentences handed out mostly on retributive premises risk to disrupt the peace process. Moreover, invoking classical justifications for the prosecution of ordinary crimes in times of peace hardly makes sense in the context of wartime violence. In particular, the deterrent power of international criminal justice is doubtful. ICTY was created before the Dayton Peace Agreement and was already operational at the time of some of the most serious breaches of the ius in bello during the Yugoslav civil wars, including Operations Flash and Storm and the Srebrenica bloodbath. ICTY acknowledged that deterrence, social defence and rehabilitation were problematic targets of sentencing. The tribunal admitted that the improbability of opportunities for recidivism in war crimes rendered the consideration of special prevention 'unreasonable and unfair,' while reliance on general deterrence ignored that 'a sentence should in principle be imposed on an offender for his culpable conduct.' Social protection and the 'incapacitation of the dangerous' cannot justify the removal from society (and preventive detention) of first-time offenders without criminal records. The very nature of international crimes means that they 'can be committed only in certain contexts which may not arise again in the society where the convicted person, once released, may eventually settle,' while the 'rehabilitative effect' of imprisonment is controversial at best. This signifies that international justice cannot (nor should it attempt to) promote the traditional rationales for penalisation other than retribution.
Subsequently, the success of international criminal tribunals essentially depends on their ability to respect the standards of conventional deontic justice, grounded in retributivism, together with their capacity to answer the broader societal concerns that presided over their creation; namely, to deliver redress to the victims and secure peace. Whereas restorative justice facilitates reconciliation by focusing on remedies to the injustice committed and reparation of the wrong done to the victims rather than on punishment, retributivism hinders both. The adversarial character of criminal trials calls attention to the prosecution of the offenders and the defence of the accused, minimising the position of the victims in the proceedings, and leads to the perpetuation of resentments and antagonism between the warring factions. Besides, effective justice cannot be attained if it is marred by unfairness or if it breaches the substantive and procedural rights of the accused. Thus, ICTY was not only meant to be concerned with the punishment of the atrocities committed in SFRY. It was supposed to be equally anxious to try the defendants in conformity with international human rights law. Proceedings before ICTY have unfortunately failed spectacularly in all three respects, by seriously infringing the basic rights of individual participants in the trials (be it accused, victims or witnesses), by denying adequate remedies to the victims of international crimes and by destabilising the process of peace and reconciliation. They most usefully serve as a catalogue of judicial worst practises, to illustrate the hazards of tempering with the rule of law through adjudication. As such, they militate for a complete reform (voire the abolition) of the international criminal justice system and the adoption of higher standards or alternative solutions, which would satisfy the requirements of effective justice and fulfil the wider aspirations of the international community.
ORDINARY CRIMINAL NORMS AND MECHANISMS FOR EXTRAORDINARY CRIMES
International crimes are intrinsically tied to the specific circumstances of armed conflicts or situations of widespread societal violence. They differ radically from common crimes committed in times of peace. The negation of their specificity creates deep tensions and irresolvable problems, when common (or harmonized) national rules for the prosecution and punishment of ordinary crimes are transplanted onto international tribunals.
From a liberal (rights-based) perspective, the sole claim to the legitimacy of prosecution and penalisation is to be found in deontological or desert-based considerations (Hart, 1958: 448–55). Indeed, 'one clear implication of Kant's prohibition against treating human beings as means to an end is the rejection of deterrence as a sufficient rationale for punishment.' Since 'punishment must respect the offender as an end in himself, as a responsible agent called to account for his wrongdoing' (Fletcher, 1998: 43), the reproached offence results from an intentional autonomous act of the accused, whose wrongfulness demands (according to Kant) society's retaliation and encroachment upon her personal rights. This conception of the object of penal justice, entrenched in the general principle of personal culpability, is widely recognised by national systems of criminal law. Unlike civil liability, criminal responsibility requires an element of mens rea, the intention to commit the imputed infraction. The notion of mens rea comes from the Latin adage actus facit reum nisi mens sit rea, which means that the deed itself cannot be determinative of guilt in the absence of a blameworthy intent. Penal courts 'should not find a man guilty of an offence against the criminal law unless he has a guilty mind' and the imputation of said crime requires proof of both the criminal act and intent of its perpetrator. To satisfy this condition, the offender must have known that what she was doing was wrong (the cognitive element) and must have been able to act otherwise (the volitional element). If one of these two elements is not met, she has not acted of her own free will and can therefore not be held criminally responsible. This exculpates perpetrators who have acted under compulsion and could thus not have acted otherwise, since they do not possess the volitional element of mens rea. In addition, it casts serious doubts on the adequacy of penalising individuals who believe that the commission of the imputed offence was not wrong but right (or that it was their duty), because they align their personal judgements to those of the community to which they belong, since their crimes do not satisfy the cognitive element of mens rea. The vast majority of national legal systems have adopted the concept of mens rea with the result that it most likely qualifies as a general principle of law under Article 38 of the Statute of the International Court of Justice (Pradel, 1995: 251–53; Schabas, 2003: 1015).
Individual criminal responsibility targets transgression or deviance from established social and legal norms. Retributivism and associated expressive goals are grounded in the idea that punishment is not meted solely to penalise specific breaches of the law but also to sanction a perceived moral wrong. The penal system of prosecution and punishment of ordinary crimes is structurally disconnected from the realities of wartime violence and the roots of international criminality. Far from being deviant or in conflict with the prevailing values, the perpetrators of international crimes are usually well-adjusted individuals with good (voire high) social skills, characterised by a lack of criminal identity, who neither need reinsertion into society nor jeopardise the society from which they originate. After the cessation of the hostilities, they can easily integrate (and conform to) a new set of social norms and live as ordinary citizens and members of their communities for the rest of their lives. During armed conflicts, individuals commit atrocious crimes out of survival instinct or patriotism, sometimes under the perception that they are defending their own people from ethnic cleansing and possible extermination (Gaynor and Harmon, 2007: 693–95; ICTY, 2006). They do not consider the offences morally wrong, but acceptable or good. While particular actors might act out of different motives (including sadism, opportunism, ambition or an innate tendency to commit crimes) and merely use their violent environment for personal purposes, most culprits are moved by loyalty to a group or a cause, trust in authority, obedience, or pure conformism. Others do not even act out of their own accord and only cooperate reluctantly under pressure, intimidation, force or other forms of coercion. Their crimes cannot be comprehended if divorced from the context of collective violence in which they emerged (Smeulers, 2008a: 240–60).
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Table of Contents
Introduction: Transitional Justice as Conflict-Resolution, Aleksandar Fatić
Chapter One: Transitional Justice and Injustice in Transition: Assessing the Penalisation of Wartime Violence in Light of the ICTY Legacy, Axelle Reiter
Chapter Two: Transitional Justice, Democracy and the Justification of State Coercion, Thomas Hancocks
Chapter Three: Organised Crime as a Challenge to Transitional Justice, Nataša Radovanović
Chapter Four: Economic Justice and Economic Efficiency in Post-Conflict Societies in Transition, Mrdjan Mladjan
Chapter Five: Fighting Impunity or Containing Occupiers: How the Ukrainian Self-Referrals Reshape the ICC’s Role in International Relations, Klaus Bachmann
Chapter Six: The Political Economy of Transitional Justice in Ukraine, Igor Lyubashenko
Chapter Seven: Historical Justice, National Identity, and Memory in Contemporary Ukraine, Adrian Mandzy
Chapter Eight: Romanian Transitional Criminal Justice: The Story of Four Trials and a Failure, Cătălin-Nicolae Constantinescu
Chapter Nine: A Theory of National Reconciliation: Some Insights from Africa, Thaddeus Metz
Notes on Contributors
Index