I. Overview

The long-running debate about whether seeking justice for grave international crimes interferes with prospects for peace has intensified as the possibility of national leaders being brought to trial for human rights violations becomes more likely. The International Criminal Court (ICC) at The Hague, which is mandated to investigate and prosecute war crimes, crimes against humanity, and genocide, has already issued its first arrest warrant for a sitting head of state—Sudan’s president Omar al-Bashir. That the ICC operates while armed conflicts are ongoing fuels the justice and peace debate. The temptation to suspend justice in exchange for promises to end a conflict has already arisen with respect to the ICC’s work in Darfur and Uganda, and threatens to recur in coming years as parties and mediators struggle to negotiate peace deals.

With the functioning of international criminal courts, national tribunals, and, increasingly, trials abroad, the context of amnesty discussions is already very different from several years ago. It is now generally recognized that international law obligates countries to prosecute genocide, crimes against humanity, and war crimes. International tribunals and national courts applying universal jurisdiction are likely to reject de jure amnesties for the most serious human rights abuses. The trials of Serbian leader Slobodan Milosevic and Liberia’s Charles Taylor demonstrate that insulation from prosecution is no longer a certainty for former heads of state. The expectations of victims for justice have changed in this evolving context.[1]

At the same time, some diplomats tasked with negotiating peace agreements have argued that the prospect of prosecution by the ICC has made achieving their objectives more difficult. Those negotiating peace have tended to view the possibility of prosecution as a dangerous and unfortunate obstacle to their work. Some fear that merely raising the specter of prosecution will bring an end to fragile peace talks. Facing understandable pressure to resolve an armed conflict, negotiators and others often feel pressed to push justice to one side.

Indeed, to get parties to the table, blanket amnesties have often in the past been offered to those responsible for horrific human rights abuses. Supporters of amnesties argue that those bearing the greatest responsibility for atrocities have no interest in laying down their arms unless they believe that they will not face criminal charges. This point was made by the former United States (US) special envoy to Sudan, Andrew Natsios, who wrote, “They [the leaders of Sudan’s National Congress Party] are prepared to kill anyone, suffer massive civilian casualties, and violate every international norm of human rights to stay in power, no matter the international pressure, because they worry (correctly) that if they are removed from power, they will face both retaliation at home and war crimes trials abroad.”[2] Some claim that fear of accountability is the reason President Robert Mugabe refuses to relinquish his hold on power in Zimbabwe.[3] Known war criminals are even sometimes incorporated into government in an effort to consolidate peace. Often these decisions are made almost literally at gunpoint by people desperate to end years of violence and upheaval.

Others have argued that while justice is important, it should take a back seat to peace. ICC Prosecutor Luis Moreno Ocampo’s request for an arrest warrant against Sudan’s President al-Bashir in July 2008 triggered a backlash by numerous actors, including the African Union (AU) and the Organization of the Islamic Conference, which asked the United Nations (UN) Security Council to defer the ICC’s work in Darfur for 12 months. Alex de Waal and Julie Flint, experts on Sudan, publicly criticized the ICC prosecutor for pressing charges against high officials in the government of Sudan, stating, “Attempts to deploy UNAMID [the AU/UN peacekeeping mission in Sudan] in Darfur are at a critical point. At this sensitive time, to lay charges against senior government officials, and to criminalise the entire government, will derail attempts to pull Sudan from the brink.”[4] They argued that justice should wait until after those culpable are no longer in positions of authority, since seeking to prosecute risks retaliation, including against those who work for humanitarian agencies.[5] Negotiators and community leaders working for peace in northern Uganda had claimed that the ICC warrants for the rebel Lord’s Resistance Army (LRA) leadership jeopardized the peace process, and that starting investigations before the war ended risked both justice and peace.[6] Variations of these arguments have been used elsewhere.

In the short-term, it is easy to understand the temptation to forego justice in an effort to end armed conflict. However, Human Rights Watch research over the past 20 years in many different countries (only some of which are described in this report) has demonstrated that a decision to ignore atrocities and to reinforce a culture of impunity may carry a high price. While there are undoubtedly many factors that influence the resumption of armed conflict, and we do not assert that impunity is the sole causal factor, Human Rights Watch research shows that the impact of justice is too often undervalued when weighing objectives in resolving a conflict.

In addition, in practice the anticipated negative consequences of pressing for accountability often do not come to pass. Insisting on justice, for example, does not necessarily mean an end to peace talks or result in renewed instability as some predict. Peace agreements and ceasefires in the Democratic Republic of Congo (DRC) did not include amnesty provisions for war crimes, crimes against humanity, and genocide despite the fear of many that not granting total amnesty would mean the collapse of negotiations.[7] In each of the peace talks (1999, 2002, 2006, and 2008), rebels put forward proposals for broad amnesties covering the worst crimes, but the government successfully resisted these demands without ending the talks. The inclusion of provisions for justice in negotiations with the LRA in Uganda that resulted from the ICC’s pursuit of LRA leaders likewise did not scuttle those peace talks, despite the concerns of many who advocated an amnesty. The fear that the International Criminal Tribunal for the former Yugoslavia’s (ICTY) indictment of Slobodan Milosevic for crimes in Kosovo during his negotiations to end the conflict with NATO would impede negotiations also proved unfounded. Only days after the warrant for Milosevic was announced, a peace agreement was reached.

Even years after a period of upheaval, some question the wisdom of bringing justice to those responsible for abuses for fear of the consequences. Following former Chilean dictator Augusto Pinochet’s arrest in 1998, some Chilean leaders argued that “a giant bomb has been dropped on the [democratic] transition”[8] and that if not overturned soon, the decision “will inevitably create a climate of instability ... and could lead to a grave deterioration in the national co-existence it cost us so much to construct.”[9] However, these forebodings were shown to be greatly exaggerated. The predicted apocalypse never occurred, and Chileans adapted to the momentous developments with little overt lawlessness.[10]

Instead of impeding negotiations or a peaceful transition, remaining firm on the importance of justice—or at least leaving the possibility for justice open—can yield short- and long-term benefits. Indictments of abusive leaders and the resulting stigmatization can lead to marginalizing a suspected war criminal and may ultimately facilitate peace and stability. In Bosnia and Herzegovina the indictment of Radovan Karadzic by the ICTY marginalized him and prevented his participation in the peace talks leading to the success of the Dayton negotiations to end the Bosnian war. Similarly, the unsealing of the arrest warrant for Liberian President Charles Taylor at the opening of talks to end the Liberian civil war was ultimately viewed as helpful in moving negotiations forward. By delegitimizing Taylor both domestically and internationally, the indictment helped make clear that he would have to leave office, an issue that had been a potential sticking point in negotiations. He left Liberia’s capital, Monrovia, a few months later.

Foregoing accountability, on the other hand, often does not result in the hoped-for benefits. Instead of putting a conflict to rest, an explicit de jure amnesty that grants immunity for war crimes, crimes against humanity, or genocide may effectively sanction the commission of grave crimes without providing the desired objective of peace. All too often a peace that is conditioned on impunity for these most serious crimes is not sustainable. Even worse, it sets a precedent of impunity for atrocities that encourages future abuses. The history of the country situations documented in this report make a persuasive case that peace premised on a blanket amnesty may be a short-lived respite before the resumption of further armed conflict and its attendant crimes. In Sierra Leone, for example, three blanket amnesty provisions in different accords failed to consolidate the hoped-for peace, and in Angola six successive amnesties did not lead to the called for “forgiving and forgetting.” In both places, war and war crimes resumed within a short period after peace agreements had been reached. The precedent of impunity meant that would-be criminals had no reason to curtail their unlawful tactics going forward.

An implicit (or de facto) amnesty may have similar results. In Sudan, longstanding impunity for the state’s use of brutal ethnic militias to attack civilians in the south set a precedent that suggested that there would be no price to pay for similar atrocities elsewhere. This likely factored into Khartoum’s decision to use the same strategy again with devastating results for civilians in Darfur. The peace agreement that ended the north-south civil war did not include provisions for accountability because negotiators were concerned that raising the issue would disrupt the talks.

In some situations, negotiators feel that turning a blind eye to crimes is not enough and that alleged war criminals must be granted official positions in order to persuade them to lay down their arms. However, we have seen that in places where governments have opted to incorporate such individuals into the government instead of holding them to account for their crimes or marginalizing them, the price has been high. Rather than achieving the hoped-for end of violence, Human Rights Watch has documented how in post-conflict situations, incorporating leaders with records of past abuse into the military or government has resulted in further abuses and has allowed lawlessness to persist or return. In Afghanistan, many of the worst perpetrators from its recent past were brought under the umbrella of the Hamid Karzai government. The result has been continuing violence and abuse of power by some of the warlords who now wield governmental authority. Inclusion of those with blood on their hands in the new order eroded the legitimacy of the government for many Afghans and has been used by opponents of the government to discredit it. In the Democratic Republic of Congo, in an effort to buy compliance with the transition process, dozens of people suspected of committing human rights violations were given posts of national or local responsibility, including in the army.[11] Rather than end the conflict, this has resulted in a proliferation of rebel groups who see no downside to taking up arms.

Although under the pressure of trying to negotiate a peace deal justice may seem like a dispensable luxury, there are important benefits to promoting accountability that are worth consideration. In the longer term, lack of accountability can be fertile ground for those who seek to manipulate history to sow seeds of new conflict in order to achieve their own political ends. Assumptions of collective ethnic guilt rooted in atrocities dating back to the Second World War were important in enabling ultra-nationalist politicians in Yugoslavia to divide Serb, Croat, and Muslim communities and to trigger cycles of intercommunal violence during the conflicts of the 1990s. In Burundi too, the absence of criminal prosecutions for atrocities committed over a period of decades contributed to periodic explosions of inter-ethnic strife: members of each group feared violence—even potential annihilation—by the other and felt anger for past sufferings. These feelings were then exploited by those with their own political agenda. Without individualizing guilt, the notion of collective responsibility for crimes has greater resonance, and it is easier for blame focused on a group to be passed from one generation to the next.

The failure of international and regional bodies and donor states to demand accountability can embolden abusive leaders to commit more crimes. In Rwanda, a significant contributing factor to the 1994 slaughter was the willingness of influential governments to overlook crimes that predated the genocide. In Kenya, by taking little action in the face of consistent and chronic patterns of impunity that characterized government practice for the past two decades, international actors contributed to the recurrence of violence following the 2007 elections.

Fair trials also assist in restoring dignity to victims by acknowledging their suffering and help to create a historical record that protects against revisionism by those who will seek to deny that atrocities occurred. The evidentiary rules used at judicial proceedings, and the requirement that judgments be based on proven facts, help confer legitimacy on otherwise contestable facts and make it more difficult for “societies to indulge their fantasies of denial.”[12] Trials also bring forward evidence that might not otherwise be disclosed. The Nuremburg trials performed this important function following the Second World War. Evidence revealed in the trials became insurmountable obstacles to those seeking to deny the crimes of the Nazi regime. In the course of its trials, the ICTY has also accumulated a formidable wealth of documentary evidence and testimony that can serve as a reference point in years to come and help prevent revisionist history that can be used to foment conflict.[13] Of course, trials are only one of a number of tools that can assist in this process of creating a record and addressing the needs of victims: as important as they are, they will only address a small subset of crimes. Broader truth-telling mechanisms, in addition to reparations, vetting, economic development, and reconstruction are needed as part of the process of moving society forward in a sustainable way.

Apart from its importance in helping to create a historical record, we have found that international justice for serious crimes has a positive impact on the development of domestic enforcement tools. Prosecutions in courts even far from the places where the crimes occurred have played a beneficial role in galvanizing establishment of the means in national court systems to deal with these crimes. The arrest of Pinochet in the United Kingdom (UK) and the resulting litigation in Belgium, France, Spain, and Switzerland prompted an opening of the domestic courts in Chile to victims who had previously been denied access to remedies. Trials of military officers responsible for gross violations of human rights during Argentina’s “dirty war” were reopened in Buenos Aires in part because of efforts in Europe to hold them to account there. The ad hoc tribunals and the ICC have also directly and indirectly contributed to improved national justice mechanisms or laws in the countries where they are investigating crimes. The desire to have cases transferred from the ad hoc tribunals inspired both Rwanda and the countries of former Yugoslavia to engage in domestic legal reform in order to meet the tribunals’ standards for transferring cases. In each country in which the ICC is investigating, steps have been taken—at least nominally—to start domestic proceedings. Even in countries where ICC investigations are being considered but have not been opened, efforts have been made to hold perpetrators to account that otherwise would not have occurred in order to keep the cases in national courts. Thus, international justice can serve to promote rule of law and long-term stability.

Finally, given the nascent development of international criminal justice, we would not expect to see evidence of its deterrent effect. However, we have seen increased awareness of what constitutes criminal behavior as a result of ICC prosecutions. This may result in behavioral changes simply out of fear of prosecution. For example, in the Central African Republic (CAR), a rebel commander demobilized his child soldiers after learning about the ICC’s prosecution of Congolese rebel leader Thomas Lubanga on charges of recruitment of child soldiers, claiming he had not known using child soldiers was a crime. In the Democratic Republic of Congo, observers also noted the enormous educational impact of the Lubanga case.

Although this report argues that justice should not be shortchanged in peace negotiations and that the cost of overlooking impunity is high, we acknowledge that there is not one formula that is suitable to all situations. Well-known counter-examples do exist. In Mozambique, for example, there has been no justice for horrendous crimes committed during a lengthy civil war, yet it has remained stable since the peace agreement was signed in 1992.

Although South Africa’s Truth and Reconciliation Commission is frequently cited as an alternative to justice, it is a model from another era. Established in 1994, it was an advance over previous models of truth commissions: unlike Latin American truth commissions, the South African model contained a justice provision. There was no blanket amnesty. Instead individuals had to apply for amnesty and fully disclose human rights violations and, in most cases, had to appear before the truth commission in a public hearing. Only crimes associated with a political objective were eligible, and as a result most amnesty requests were denied. If the same model were applied elsewhere now, it would likely be seen as a step backwards by victims whose expectations for justice have changed as a result of the rise of international criminal law.

In addition, the South African truth commission’s effectiveness was in part a result of fear of prosecution, and some trials were held initially. Once the perceived threat of prosecution was lessened (after a high-ranking official was acquitted), far fewer senior officials applied for amnesty, thus undercutting the truth commission’s effectiveness.[14]A weakness of the South African approach was the failure to set in place a coherent program to prosecute those who were denied or did not apply for amnesty. The lack of prosecution for crimes continues to be an issue.[15] On March 19, 2009, a coalition of victim and civil society groups filed a complaint seeking to prevent the South African president from issuing pardons for politically motivated crimes without hearing the input of victims and other interested persons.[16]

Human Rights Watch believes that international law and practice has evolved over the last 15 years to the point where both peace and justice should be the objectives of negotiations aimed at ending a conflict where the most serious crimes under international law have been committed. At the very least, peace agreements should not foreclose the possibility of justice at a later date. As Archbishop Desmond Tutu has said, “As painful and inconvenient as justice may be, we have seen that the alternative—allowing accountability to fall by the wayside—is worse.”[17] Even decades after the crimes have occurred we have seen in places like Spain and Argentina that failing to address the past leaves open wounds that still demand attention.

With this report, Human Rights Watch is seeking to put important facts and analyses on the table to better inform the debate about accountability and peace. Sacrificing justice in the hope of securing peace is often projected as a more realistic route to ending conflict and bringing about stability than holding perpetrators to account. Yet our research shows that most often out-of-hand dismissal of justice proves to be shortsighted. Those who call for forgoing justice need to address the facts, some of which are described in this paper, that contradict their oft-repeated assumptions. Because the consequences for people at risk are so great, decisions on these important issues need to be fully informed.