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Thursday, May 10, 2007
Uganda: Peace vs. Justice?
Greetings all - I'm delighted to be guest blogging here! Thanks, Dan, for the invitation! As Dan mentioned in his earlier post, in my book Atrocity, Punishment, and International Law (...thanks, Kevin, for the plug over at Opinio Juris) I explore some difficult questions regarding the role of prosecution and punishment as responses to genocide and crimes against humanity. And I question our reliance on liberal legalism - in particular Westernized trials and correctional models that focus on incarceration - as a method to seek justice in the wake of such tragedies.
One interesting case study which keeps on unfolding is Uganda. For the past 20 years, northern Uganda has been subject to a conflict between the Ugandan government and a rebel group called the Lord's Resistance Army (LRA). The LRA campaign has brutalized villages in northern Uganda. Tens of thousands of civilians have been killed and well over one million residents displaced. The LRA has conscripted child soldiers and used sexual violence in its campaigns. Four of its leaders have been indicted by the International Criminal Court (ICC). For at least two years or so, albeit in halting fashion, the LRA has been involved in peace negotiations with the Ugandan government. The ICC indictments have become a sticking point in the discussions. The LRA balks at signing a peace deal so long as the indictments remain open. And, although the Ugandan government initially referred the LRA violence to the ICC, it, too, is hedging regarding the ICC indictments.
What to do? Does the pusuit of justice, as seen through prosecution at the ICC, get in the way of peace? Or is peace impossible without justice?
Two interesting additional facts:
1. Many people who actually live in northern Uganda, for example among the Acholi population, support justice. But for these people justice means traditional community methods of dispute resolution and integration -- particularly for child soldiers -- that are deeply symbolic, communicative, and restorative. Some community members have implored the ICC not to continue with the indictments.
2.The Ugandan government, although having referred LRA violence to the ICC, was found responsible by the International Court of Justice in 2005 for breaches of international humanitarian law and for unlawful use of force in its own military incursions into a neighboring state, the Democratic Republic of the Congo.
Posted by Mark Drumbl on May 10, 2007 at 09:36 PM | Permalink
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Comments
Mark,
I would infer from the above that you would have some sympathy with Helena Cobban's work here (she focuses on Rwanda if I'm not mistaken). But would you go as far as she does in here critique of the ICC?
Secondly, your reference to 'Liberal legalism' would seem to imply that there was not a history of negotiations and compromises in the various fora leading up to and in the drafting of the Rome Statute (e.g., caucus of the Non-Aligned Movement, the South African Development Community, caucus of Arab and Islamic states, ect.) that were of an international (hence not exclusively 'Western') nature, beginning with the mandate from the UN General Assembly. If there is an emerging international consensus on something that resembles or grows out of Liberal legalism is that necessarily such a bad thing?
Finally, in the case of Rwanda which so enchants Cobban, initial enthusiasm for the gacaca system (local, popularly elected, non-professional courts) seems to have waned somewhat, in part because of the role of the government (despite its decentralized structure its been directed from above by the central government [according to Alison Des Forges and Timothy Longman]) and perhaps in part owing to the difficulties of mixing judicial systems of retributive and restorative justice ('due process' concerns for one come to the fore). I wonder, then, if it's possible that in claiming that 'justice means traditional community methods of dispute resolution and integration' if we are not engaging in something on the order of an Orientalist-like valorization of the traditions of 'the other.' After all, justice means something like that to a certain sort of Christian (e.g., a Quaker ethic), but we seem to have decided that such a conception is not socially acceptable among larger publics, that it seems to violate some recalcitrant and intuitive if not universal conceptions of justice.
Well, thanks for raising very provocative questions.
Posted by: Patrick S. O'Donnell | May 10, 2007 11:42:44 PM
Glad to see you blogging here professor, I'm a big fan of your work.
I'm curious what you think of this story coming out of the Congo, where a former dissident General currently under indictment by the ICC was reintegrated into the DLC army. Apparently, his units, sent to stabilize Eastern Congo, instead have launched a new wave of violence and terror.
Perhaps all it proves is that post-conflict resolution is really, really tough no matter what we do, but it does seem to provide somewhat of a counterexample to the Uganda case.
Posted by: David Schraub | May 11, 2007 11:37:48 AM
David and Patrick -- thanks for your comments!
Patrick, you raise some great questions. I am familiar with Helena Cobban's work and, while I share some of her criticisms of international criminal courts, I am more inclined to believe that these courts can play a valuable - albeit limited - role. In my book, I argue that although prosecution and imprisonment for mass atrocity fail to meet retributive or deterrent purposes, these are not the only purposes that punishment serves. Expressivism -- namely, the creation of historical narratives, truth-telling, and the condemnation of discrimination-based conflict ideologies -- also is a valuable purpose. And, despite their shortfall in terms of deterrence, retribution, and reconciliation, the theater of Westernized trials does go some way to serving expressive purposes (though there is great fragility here). So that is one area in which I would part company with Helena's approach. For example, in a paper I have posted on SSRN, which is forthcoming in the George Washington Law Review, I make a case how the expressive justification of punishment could ground open public trials for individuals accused of wide-scale and indiscriminate terrorist attacks.
As to your second point on liberal legalism: sure, the ICC is a product of international negotiation, formally concluded by states. In my book, I explore the reality that one cannot assume that the state speaks for society. As with other areas of international law, there is a democratic deficit in international criminal law. Many states, particularly in the developing world, may prefer punitive criminal law frameworks to respond to violence insofar as such frameworks may consolidate state power. Diffuse local methodologies of justice, particularly those which empower local communities in decision-making, adjudication, and reintegration of offenders, may decentralize political power. State consent to formalized criminal justice methodologies may not fully reflect local interests or aspirations.
With regard to Rwanda, I agree that as gacaca becomes increasingly neo-traditional and structured by the state, it loses grassroots appeal and credibility. The lack of any prosecutions for RPF violence doesn't help either. I would argue that the Rwandan government has made gacaca look more like a Western criminal trial than what it traditionally looks like for a number of reasons -- (1) to centralize power, instead of decentralizing it through autonomous local gacaca panels; (2) funding pressures - the more gacaca looks like Westernized procedural legalism, the more Western funders are prepared to support it; and (3) victims' input - it is very difficult to reconcile and reintegrate a genocidal murderer, and many victims are outraged at the prospect that sanction means that person tills their fields or engages in community service.
David - I think the Ugandan situation is an unusual one. You are correct, the matter is complex. And the DRC situation may be more typical. So, in the end, what do we do with the complexity? We need to develop a comfort level with it. One of the major themes of my book is that responding to mass atrocity should not be animated by the quest for the parsimonious, one-size-fits-all, or simple solution.
Posted by: Mark Drumbl | May 13, 2007 9:05:37 PM
Mark,
Thanks for your articulate response to my questions. And I owe it to you to read the book and the article mentioned before replying in some detail.
For now, I would simply say that I agree that we should "not assume the state speaks for society," but in the international legal system it is assumed that the state does represent society, however imperfectly, un-democratically, etc., that is, it's the only game going until such time as there is an alternative. The equality of sovereignty at the international level does count for something even if we concede disturbing power differentials in the system (via the Security Council, control of international financial institutions, etc.). At present there are no alternative organs to speak for society, and in any case it is clear no one organ can ever speak for society as such. In principle, I see nothing wrong with developing countries attempting to consolidate state power as such consolidation may be essential to their survival and for their having a voice in the international community of states. Modernity allowed for European and other States in the North to consolidate their power (without conflating modernity and liberalism): it seems a bit hypocritical if not condescending to deny same to those in the 'developing world' (an expression, by the way that can be as concealing as it is revealing) this same political process. What is more, NGOs were part and parcel of the political and jurisprudential dynamics that led to the Rome Statute and still play a role vis-a-vis the ICC so it will not do to see this as 'Bad State' v. 'Good Society,' as some societal interests and values (i.e., democratic representation) come by way of the NGOs.
I think far too much has been made of the notion of there being a 'democratic deficit' at the international level if only because this putative deficit does not compare poorly to its municipal counterpart. Indeed, one can say the same thing ad nauseum about domestic politics, which is what radical participatory and deliberative democratic theorists continue to do. Local and communal institutions and politics are not inherently good or democratic, nor need we assume empowering local communities is always a good thing (one reason for my mention of a possible perverse form of romantic valorization of 'the other'): intolerance, authoritarianism, magical thinking, individual identity indistinguishable from social role and status, and so on, may leave such communities bereft of some of the universal values and principles we believe essential to human flourishing. Decentralization of political power is not an unmitigated good: at the very least we need some criteria to help us ascertain if such decentralization is necessary or will in fact help us better achieve our rational goals and overarching ends (e.g., decentralization of political power would not seem wise by way of a strategic response to global environmental problems). In short, perhaps the state and its institutions better express the 'common good' and public welfare than local or community interests: this should probably be addressed on a case-by-case basis.
Again, I need to read your work, so I apologize if anything I say here you've anticipated and addressed in your published arguments.
Posted by: Patrick S. O'Donnell | May 13, 2007 10:22:23 PM
Mark,
Looking back, I see something of Koskenniemi's 'apology'/'utopian' structure in our discussion (although I don't think he has a very sophisticated grasp of Liberalism).
Posted by: Patrick S. O'Donnell | May 13, 2007 10:57:33 PM
Mark,
On last thought: I wonder if the 'expressivist' capacities and functions of the law are not spillover or by-product effects and thus not achieved by direct legal means but rather the result of the pursuit of criminal justice as undestood in Liberal philosophy (e.g., with its retributive, deterrent, rehabilitative and reintegrative practices). This would make 'expressivism' as a goal or end of international criminal law the legal equivalent to those 'self-defeating political theories' Jon Elster writes about in Sour Grapes (1983): 'the theory that the main benefit and indeed purpose of a political system can be found in the educative and otherwise useful effect on the participants.' Directly pursuing expressivist aims in law would therefore be analogous to the direct pursuit of self-respect or willing what cannot be willed: 'Self-respect, like self-expression, self-realization and their companions, are essentially by-products. There is no such activity or kinesis as "acquiring self-respect," in the sense that one may speak of the activity of "learning French," although other activities such as that of uniting in the struggle for a common goal may have self-respect as a side effect.' I'll try to elaborate upon this on another day, perhaps through private correspondence if that's ok with you.
Posted by: Patrick S. O'Donnell | May 14, 2007 11:32:34 AM
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