Justice in conflict: the suitability of international justice in conflict resolution
1 INTRODUCTION
There are times and circumstances when the relation between peace and justice is so
profound, so inextricably interwoven, that a negotiated peace that fails to meet the
demands of justice is worth scarcely more than the paper that the peace agreement is
written on.(Reporters Without Borders 2003: 26).
Richard Goldstone, the former Chief Prosecutor of the ICTY.
On 14
th
October 2005 the International Criminal Court unsealed its first ever set of indictments in
the form of arrest warrants for the top leadership of Uganda’s Lord’s Resistance Army rebel
movement (LRA). Those indicted included its leader Joseph Kony, his deputy Vincent Otti, and
commanders Raska Lukwiya, Okot Odhiambo and Dominic Ongwen (ICC 2005). The announce-
ment was received with widespread praise. The international community, human rights
campaigners and advocates of justice hailed it as a significant step to end impunity for war crimes
and crimes against humanity in the Northern Uganda conflict (AI 2005).
This apparent triumph for international justice has, however, not met with similar approval among
the Acholi and other war ravaged communities in Northern Uganda. Community and religious
leaders as well as civil society groups in the region have all along put their hopes on a peaceful
resolution of the conflict as opposed to taking the high road of legal and judicial retribution. Their
argument being that the indictments and the whole involvement of the ICC in the conflict would
derail peace negotiations with the rebels and instead trigger an escalation of the violence.
The dilemma facing the ICC in Northern Uganda cannot, however, be seen in isolation. It
represents a wider and on going debate on the place of international law and international justice
in conflict and post conflict situations. Recent developments in international criminal justice
suggest that the writing is on the wall for all perpetrators and would-be perpetrators of war
crimes, crimes against humanity, genocide, torture and other forms of systematic human rights
abuses. An international consensus is not only emerging, but also strengthening against impunity
in all forms. While previously, brutal dictators could hide under the cloak of immunity from
prosecution and state actors relied on the principles of sovereignty and non interference in
internal affairs of states, the emerging consensus on universal jurisdiction against the worst forms
of crimes against humanity and the decline of the principles of sovereignty is quickly bringing an
end to impunity.
5
Justice in conflict: the suitability of international justice in conflict resolution
The stripping of immunity, indictment and in some cases prosecution of former dictators such as
Slobodan Milosevic, Charles Taylor, Saddam Hussein, Augusto Pinochet and the former Khmer
Rouge leaders in Cambodia among many others bear testimony to this. Equally strong is the
message passed by the creation of ad hoc international war crimes tribunals for Rwanda and the
former Yugoslavia, Sierra Leone and justice initiatives in East Timor and Cambodia.
This drive for international justice and respect for human rights is not seen in isolation from the
greater need for international peace and security in its broadest sense. Increasingly, the
international community sees an inextricable link between security and development. Although
the causal relationships are still contested, several studies have shown a clear correlation between
conflict and poverty (Wayne 2002, Goodhand 2003, Krueger and Maleckova, 2002), still, others
see a cyclical causality in which many of the world's poorest countries are locked in a tragic
vicious circle where poverty causes conflict and conflict causes poverty (World Bank, 2006). This
view informed the community of nations at the turn of the millennium when the United Nations
drafted the Millennium Development Goals aimed at combating global poverty and its
manifestation in disease, malnutrition, illiteracy, maternal and child mortality and other forms of
inequality. Central to the realization of these goals is among others the eradication of civil
conflicts (Stewart 2003). Consequently, the World Bank asserts that conflict prevention and post-
conflict reconstruction are critical to its mission of poverty reduction. Hence, even this
organisation whose primary focus is on economic issues has recognised the multi-dimensional
approach to global issues by setting up a Post Conflict Fund that provides financing for physical
and social reconstruction initiatives in post-war societies (World Bank 2001).
The subject of conflict and conflict resolution is obviously central to the maintenance of global
peace and security. Its relevance becomes the more acute in light of the growing threat of global
terrorism and the multiplicity of violent conflicts since the end of the cold war. As former U.S.
President Bill Clinton (1994) put it, “the end of the superpower standoff lifted the lid from a
cauldron of long-simmering hatreds. Now the entire global terrain is bloody with such conflicts,
from Rwanda to Georgia.” These mostly intra state civil wars or the so called “new wars”
(Kaldor, 1999) have resulted in an unprecedented rise in the level of violence, human rights
violations and war crimes. These new wars have also led to the rise of new non-state actors in
global conflict that do not respect and are not regulated by existing international rules and
legislation on the conduct of war or jus in bello.
6
Justice in conflict: the suitability of international justice in conflict resolution
The interests of international justice has therefore shifted from a state centric approach that
sought to regulate the conduct of states and state representatives in their interaction with each
other towards a more holistic approach of protecting peace, security and the human rights of
individuals. Individual actors can now be held responsible for their actions in the conduct of war
be they state or non-state actors. The pursuit of justice has however been applied ex-post facto,
after the conflict has ended, peace agreements signed, or a clear victor has emerged.
In view of the fact that contemporary application of international justice has been within a post
conflict setting primarily as a means to rebuilding and reconstructing war torn societies, this
thesis seeks to examine the suitability of international justice in conflict resolution. It explores the
implications of the application of international justice in on going conflicts and whether this can
serve as a conflict resolution tool. The civil war in northern Uganda provides a suitable case study
for the analysis of the impact of the ICC for several reasons; it is the first case to be referred to the
international court, it is a long and protracted ongoing conflict that seems to have defied all other
options for its resolution as well as being the first case in which the ICC has indicted suspects to
be tried for war crimes and crimes against humanity. The unsealing of the indictments against the
LRA was a culmination of a lengthy process that started in December of 2003 when Uganda’s
president Yoweri Museveni took the decision to refer the situation concerning the Lord’s
Resistance Army to the International Criminal Court in The Hague. The ICC prosecutor quickly
determined that there was enough evidence to institute investigations with a view to prosecuting
those found to hold the greatest responsibility for atrocities in the conflict. But even at that early
moment, questions were raised as to whether the investigations and subsequent trials in the quest
for justice would serve the interests of lasting peace and reconciliation while the conflict was still
raging.
Since the outbreak of the conflict between the LRA and the Ugandan government in 1986 (see
Appendix 1 for a map of Uganda), various attempts have been made to resolve it through both
diplomatic and military means. These efforts have so far failed to yield results and hostilities
continued to escalate between the Uganda People’s Defence Forces (UPDF) and the Lord’s
Resistance Army (LRA). The referral to the ICC is the latest in the government’s attempt to deal
with the situation, although doubts have been cast as to the sincerity of intentions on the
government’s part. Both sides in the conflict have perpetrated war crimes and crimes against
humanity.
7
Justice in conflict: the suitability of international justice in conflict resolution
Civilians have suffered numerous incidences of rape, mass murder, mutilation, abductions, and
forced labour. Villages have been plundered and destroyed, and normal life is all but absent
(HRW, 2003).
The principle question of inquiry, therefore, is what is the suitability of international justice as a
conflict resolution tool in situations of ongoing conflict where war crimes and crimes against
humanity have been and are still being committed?
In seeking to answer this question, the thesis will address itself to the theoretical and
philosophical debates on the place and role of international law and international justice in global
politics and how this influences the contemporary practice of international justice. First, it traces
the development of the notion of international justice as practiced today by examining the rise of
the principles of universal jurisdiction in international law, human rights and humanitarian law.
This exploration is guided by several sets of questions including whether and how justice is linked
to the rise of international law, what place does it take in international human rights law and
what role does it play in international relations discourse?
Secondly, it seeks to examine the development of the different dimensions of justice and explores
the emergence and predominance of retributive justice over other forms of distributive,
rectificatory and restorative justice. This development is viewed in the context of the
development of ad hoc criminal tribunals that eventually led to the Rome Statute of the ICC.
Further more, the principle of international justice is examined in juxtaposition with the doctrine
and practice of conflict resolution with a view to exploring its applicability and suitability for
ongoing conflict situations.
This is followed by an analysis of the conflict in northern Uganda with a view to examining the
historical and contemporary characteristics of the conflict, the kind of atrocities committed in the
conduct of the conflict, previous attempts made at trying to resolve it and why these failed and,
finally, the complicated relationship between the ICC and communities affected by the conflict. It
seems paradoxical that communities and peoples that have suffered immeasurable atrocities,
displacement, marginalization and brutality from both sides in the conflict would protest against
the move by the ICC. So what accounts for this apparent disconnect between the victims’ desire
for a speedy and peaceful resolution of the conflict and their objection to a process of justice? Are
the interests of peace on the one hand and that of justice on the other, mutually exclusive?
8
Justice in conflict: the suitability of international justice in conflict resolution
Does the involvement of the ICC pose a real threat to the interests of peace and on-going
negotiations in the conflict? The answer to these questions may be understood through a critical
analysis of the Northern Uganda conflict, by putting it first in its historical perspective, of decades
of marginalization of the north from the rest of the country, dating back to colonial times. Second,
examining the philosophical and ideological evolution of the conflict both on the rebels and
government sides, and thirdly, situating the predicament facing the ICC in the broader dilemma of
reconciling the demands for justice and the requirements of peace.
To this end, this paper attempts to explore the intersection of peace and justice in the Ugandan
civil war, the competing and apparent disconnect between the demands for justice and the
requirements of peace. While appreciating the need for justice and the necessity to uphold
international law, to bring and end to impunity and to make perpetrators of crimes against
humanity to account, there exists a stark choice between the former and the necessity, indeed the
urgency for conflict resolution, cessation of violence, death and suffering and destruction facing
victims of war. In the light of this dilemma, the thesis argues that while current international
political thinking upholds the pursuit of justice and human rights by discouraging impunity, the
imperative for conflict resolution, societal integration and the attainment of a sustainable peace
should take precedence over judicial prosecution. While recognising that there can be no peace
without justice, any pursuit of justice should bear in mind the question, for whom is justice sought
and to what end? The answer to this question should therefore take into account the preferences
of the affected society, its norms, customs and processes. Although conventional wisdom asserts
that justice delayed is justice denied, in the case of Northern Uganda, a temporary stay of
prosecution or a negotiated settlement with indicted criminals may serve the more immediate
concern towards securing peace and putting an end to atrocities against civilians.
9
Justice in conflict: the suitability of international justice in conflict resolution
2 INTERNATIONAL JUSTICE THEORY
The notion of justice has been closely associated with the quest for the realization of universal
human rights. The premise of this thesis is based on the argument that individuals can demand
justice based on a claim to certain rights, entitlements and privileges. Accordingly, justice is not
only derived from individual rights but it is also an integral component of human rights.
Consequently, international justice stems from the notion of the existence of universal human
rights. These rights could be categorised as socioeconomic, political or legal rights that are
ascribed to individuals, groups, classes, societies, or the whole of humanity (Viotti & Kauppi
1999: 401). The exact definition and construction of these rights and therefore notions of justice
associated with them has changed dramatically with the development of the social contract
between the individual and the state. According to Viotti and Kauppi (1999: 401) the concept of
rights in western thought and practice can be traced back to ancient Greek, Roman and religious
writings.
The following discussion seeks to chart the development of human rights in international law and
the contentious position that this takes vis-à-vis realpolitik and how the world of international
relations is ordered. Despite the ascendance of the human rights doctrine and its codification in
international as well as domestic law, it is still faced with several challenges. First is the question
of the universality of human rights and subsequent differences in cultural, regional or national
interpretation and prioritisation. This is demonstrated by a new and emerging North-South
ideological rift that, as I will argue, presents a fresh challenge for the notion of universality and
legitimacy of international law and the human rights doctrine as well. Second and closely related
to the first is the categorization and prioritisation of certain rights such as individual and political
over socioeconomic and cultural rights. Third, and perhaps more fundamental, is the state centric
nature of international relations and how the empowerment of the state over non state actors in
international law affects the interpretation and practice of human rights and consequently,
international justice.
The boundary between international law and human rights is thus unclear and is contested both in
theory and practice. According to Mani (2002: 29) the minimalist view of international law
propagated by realist approaches to international relations conceives human rights as distinct and
separate from the rule of law.
10
Justice in conflict: the suitability of international justice in conflict resolution
The maximalists on the other hand range from those who restrict the rule of law to political and
civil rights on the one hand, to those who perceive international law as encompassing the whole
range of human rights from civil and political to socioeconomic, educational and cultural rights.
There is, however, a growing consensus that the two notions are somehow linked, both
historically and functionally, and it is this interlinkage that will be discussed in detail in this
chapter.
The principle task of this chapter is therefore to establish the link between international human
rights law and justice. It seeking to answer the question whether and how justice is linked to the
rise of international human rights law, and what role this plays in international relations
discourse. It traces the development of international human rights law in dominant discourse on
and practice in international relations. The development of human rights and its rise in
international relations bears relevance to the development of international justice as well and as I
will demonstrate, this has significant consequences relevant to our field of research.
2.1 Justice and the Development of International Human Rights
Debate on the importance of individual rights versus the state has been raging for centuries.
Classical theorists such as Hobbes, Locke, and Rousseau have been credited with elevating the
place of individual liberty and equality alongside those of community and order in determining
the structural relationship between the individual and the state (Cassese 2005: 375). However,
traditional international relations theory and practice did not readily embrace the advance of the
human rights doctrine, which was seen as being subversive to state authority. By elevating respect
for the dignity of all human beings and promoting recognition of individual rights, this
philosophy was in part responsible for undermining the despotic feudal and monarchic systems in
Europe, leading eventually to the development of the modern democratic of state. Even though
these aspirations were later codified through the thirteenth and eighteenth centuries in the English
and American as well as French legal systems, there remained significant differences even to date
in emphasis between individual political, socioeconomic and legal rights (Viotti & Kauppi
1999:401). I will return later to these societal and cultural differences in the interpretation and
understanding of human rights in different social contexts when I discuss the notion of a universal
conception of justice.
11
Justice in conflict: the suitability of international justice in conflict resolution
It is however important to set out here that these initial conceptions of the universal values
common to all humanity, such as respect for life, human dignity and justice, paved the way for
the codification of the rights of the individual or human rights in international law. Hence, the
linkage between international law, human rights and international justice is a complex and hotly
contested subject. The contentious relationship between international law and international
relations or politics is central to the way the notion of international justice is constructed. I will
now seek to examine this relationship and the contending discourses that underpin the debate on
role of international justice in conflict resolution, which is, in itself, a political activity.
Although momentum for the codification of the rights of individuals had been building up
steadily at the international level, this did not happen overnight. For long, international politics
still remained very much a state centric affair and the interests of the state, such as national
security, took precedence over those of its individual citizens. As Cassese (2005:376) puts it,
‘individuals were mere appendices of the state to which they belonged, simple pawns in its hands,
to be used, protected, or sacrificed according to what state interests dictated’.
What then is the current status of international law and how do individuals and human rights fit
in? According to the Penguin dictionary of international relations (1998:261), the term
international law was coined by Jeremy Bentham in 1780 to describe the system of rules regarded
as binding on states and other agents in their mutual relations. By this very definition,
international law was therefore traditionally more concerned with regulating relations between
sovereign states and promoting their national interests than with protecting the rights of
individuals. According to Richard Falk (in Mathews et al. 1999: 444) international law represents
an umbrella conception that expressed the totality of legal phenomena germane to the control of
international conflict. This represents the Grotian philosophy that conceives international law as
being essential to maintaining order among nations that dwell in a constant state of anarchy. The
Dutch thinker Hugo Grotius (1583-1645) in his seminal work War, Peace and the Law of Nations
in 1625 (Viotti & Kauppi 1999: 410) argued for the adoption or recognition of norms and values
into international law as a panacea for the conduct of war and peace.
This philosophy informs the state centric worldview of the realist school of international relations
that is still dominant to date. According to this school of thought, issues of state sovereignty,
equality of nations and non-interference in domestic affairs of states are paramount.
12
Justice in conflict: the suitability of international justice in conflict resolution
It is noteworthy that such a position appears to be at odds with new developments in international
law that promote human rights and the principles of universal jurisdiction defined by Cassese
(2005:451) as the concept by which ‘any state is empowered to bring to trial persons accused of
international crimes regardless of the place of commission of the crime, or the nationality of the
author or of the victim’. To realist opponents of universal jurisdiction such as former U.S.
Secretary of State Henry Kissinger, this amounts to an attempt to subject “international politics to
judicial procedures” and “risk[s] substituting the tyranny of judges for that of governments
(Kissinger, 2001).
What has realists up in arms is the fact that the nature of international relations is now changing
with the entry of numerous non-state actors. Such actors include international institutions,
transnational organizations, non-governmental organizations, globally operating banks and civil
society groups. This development is especially pertinent to this thesis in the light of the
proliferation of intra state conflicts characterised by an increasing number of non-state actors such
as ethnic militias, separatist forces, guerrilla groups, rebel groups, insurgents, warlord armies, and
other armed groups usually pitted against a central government and national armies (Klare 2004:
117). Although states are still deemed the principle actors in international affairs, individuals as
well as non-state actors are increasingly becoming the focus of international relations. Similarly,
international law is evolving in this same direction. In other words, this represents a shift from the
Grotian to a Kantian conception of international law that places a higher premium on the
individual. In his 1795 essay, Morality, Politics and Perpetual Peace, East Prussian philosopher
Immanuel Kant (1724-1804) postulated the imperatives of universal, morally binding norms
including the treatment of human beings as ends in themselves and not merely as means. In
Kant’s view, international law does not exist to regulate inter state war and peace. He postulates a
reverse logic according to which the promotion of the respect and dignity of human beings and
the observance of universal values (international law) would lead to perpetual peace (Kant 1795,
in Viotti &Kauppi, 1999: 410-421).
Accordingly, there is now an increasing realisation of a common destiny for humanity, the rise of
the doctrine of global public goods, global commons (environmental and natural resources which
crosses national boundaries), and the need for states to respect a core of universal values such as
peace, respect for human rights and self-determination of peoples (Cassese 2003). Several factors
have served to elevate this development, including the tragic and massive loss of lives of both
combatants and civilians during the conduct of the first and the second world wars.
13
Ricevi informazioni sui nostri servizi, sulle offerte e non perdere news e consigli su università e lavoro.
