The notion that impunity for mass atrocities or severe human rights violations is acceptable has been shattered largely because of the accelerating development of international justice over the past two decades.
Hand of international justice will punish dictators
International Justice Day tomorrow calls for accountability for human rights abuses across the globe, from Cairo to Washington, from Bogota to Kinshasa, from Srebrenica to Colombo. The demands for justice are today a driving force of social change and popular revolutions, and they reach even those at the highest levels of power. From time immemorial, tyrants and unjust leaders have been deemed untouchable and often afforded immunity in furtive and shabby deals that shielded them from prosecution "for the sake of peace".
Those days are passing. The notion that impunity for mass atrocities or severe human rights violations is acceptable has been shattered largely because of the accelerating development of international justice over the past two decades. Although there are legitimate debates about the performance and capacity of the International Criminal Court (ICC) and ad hoc tribunals (and they have yet to live up to their promises in terms of their of impact on affected communities), it is nonetheless beyond dispute that international justice plays an increasingly important role in our rapidly changing world.
The most visible effect of these courts and tribunals comes from their power to directly investigate and prosecute the political and military leaders usually beyond the reach of national courts. The arrest of Slobodan Milosevic in 2001 marked the beginning of a new era in which it is now possible to arrest high-level figures. It set the stage for the ICC to issue arrest warrants for Omar Al Bashir, the president of Sudan, and Muammar Qaddafi, the Libyan leader. They join a lengthening line of leaders from Rwanda, the former Yugoslavia, Cambodia, Sierra Leone, Liberia and other countries who have found that impunity for serious crimes is rapidly eroding.
Such high-level prosecutions send a powerful signal: the circle of justice is closing and the principle that no one is above the law is rapidly gaining ground. This should be a clear message to all who believe that widespread, systematic crimes can be perpetrated with impunity, despite some obvious exceptions such as in Sri Lanka or in Syria.
Levelling charges against high-level political figures invites controversy. Politicians and policy makers, particularly in regional organisations such as the African Union or Arab League, often try to argue that justice cannot be pursued at the expense of peace. The African Union has issued resolutions stating that its members should not arrest Al Bashir or Qaddafi. In Lebanon, it is not clear whether the government will respect the decisions of the Special Tribunal and enforce arrest warrants in the Hariri case. We must not shy away from these difficult questions. We must recognise that although justice is essential for long-term peace and security, there can be short-term tensions that deserve serious consideration and planning.
Moreover, we must guard against misuse of the law for short-term political purposes that undermine the cause of justice. The first judgments, made in absentia, against Tunisia's former president, Zine El AbidineBen Ali, and upcoming proceedings against Hosni Mubarak, the ousted president of Egypt, raise serious questions. Hastened domestic proceedings answering the call of the street can lead to unfair processes that do not respect the rule of law. At the same time they run the risk of cheating scores of victims who have waited for decades to pursue justice for their own cases of torture, disappearance or other violations at the hands of fallen regimes.
A deliberate, careful approach to criminal proceedings is needed to consolidate the gains of the transitions in Tunisia, Egypt and beyond. International experience, such as that of the former Yugoslavia, teaches that trials should target those bearing the most responsibility, while ensuring that the outcome of an independent and fair process will survive long-term scrutiny. Both of these goals are important in consolidating democracy. The cost of not doing so is exemplified in the substandard trials held in Iraq.
We must also bear in mind that, while holding the leaders and architects of mass crimes to account is essential, such trials in themselves are not enough. Not every crime can be prosecuted, and there are clear limits to the judicial process that often only tell a small part of the national story of a conflict or authoritarian rule. It is essential that the past be confronted, the truth be told, victims' injuries be redressed and steps be taken to ensure that institutions that perpetrated crimes - such as the police and the military - be reformed. Thus, in addition to the work of international and national courts, broader justice strategies are essential in transitional societies.
Moreover, the ICC can only be expected to investigate and prosecute a relatively small number of perpetrators. It was created as a court of last resort, as a backstop to domestic systems lacking the capacity or the necessary political will to prosecute the most serious crimes. It is part of an international system to combat impunity, where in principle the primary responsibility for addressing these crimes rests with the state. Thus we must ensure we not only support the ICC but national and regional justice mechanisms. This is the next frontier in the battle against impunity: to make sure gross violations of human rights are increasingly addressed at the national level.
International justice not only addresses crimes committed in the present but also has inspired efforts to grapple with accountability for past crimes. For example, in Uganda, proceedings have begun in national courts against a mid-level commander of the Lord's Resistance Army. In another part of the world, the International Crimes Tribunal in Bangladesh has been established to address events that happened 40 years ago during the war for independence from Pakistan (although it must be noted that serious questions have been raised about these proceedings).
These cases will have to adhere to internationally recognised standards if they are to be accepted as credible attempts at justice. In this regard, it is worth noting that the UN's high commissioner for human rights, Navi Pillay, recently opposed the extradition of the former dictator Hissan Habre from Senegal to Chad to face criminal justice charges on the grounds that his rights may be violated during that process. His extradition has now been postponed.
Even where they must wait for justice, the victims of mass crimes are no longer asked to forget. The mothers of Srebrenica waited almost 17 years for the arrest of Ratko Mladic, the prime suspect accused of the genocidal murder of more than 8,000 Bosnian men and boys. Although inexcusably delayed, his recent arrest in Serbia shows the long arm of the law reaching across time. This, together with the increasing number of trials held in national courts, is one of the most important legacies of international justice, as it decisively affects our rapidly changing world.
David Tolbert is the president of the International Center for Transitional Justice