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David Tolbert
David Tolbert
David Tolbert is the president of the International Center for Transitional Justice.
International justice system blossoms
No longer can war criminals expect amnesty 'for the sake of peace', no longer are victims asked to forget.
Last Modified: 17 Jul 2011 08:11
The recent capture of Ratko Mladic brings hope to victims' relatives that the alleged architect of the 1995 Srebrenica massacre will be brought to justice [EPA]

As we acknowledge International Justice Day on July 17, calls for accountability for human rights abuses resound 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 their reach now extends to those at the highest levels of power. Those leaders have, from time immemorial, been deemed untouchable and often afforded immunity in furtive and shabby deals that shielded them from prosecution "for the sake of peace". That day is passing.

The notion that impunity for mass atrocities and severe human rights violations is acceptable has been shattered, largely due to the accelerating development of international justice over the past two decades. While 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 impact of these courts and tribunals comes from their power to directly investigate and prosecute political and military leaders who are 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, setting the stage for the ICC to issue arrest warrants for Omar al-Bashir, the president of Sudan, and Muammar Gaddafi, the president of Libya.

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 widespread, systematic crimes can be perpetrated with impunity, despite some obvious exceptions such as in Sri Lanka or in Syria.

Leveling charges against high-level political figures brings controversy. Politicians and policymakers, particularly in regional organizations 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 Gadhafi. 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 while justice is essential for long-term peace and security, there can be short-term tensions that deserve serious consideration and planning.

Trials in Tunisia, Egypt must respect due process

Moreover, we must guard against misuse of the law for short-term political purposes that undermine the cause of justice. In Tunisia the first in absentia judgments against former President Ben Ali and upcoming proceedings against former President Hosni Mubarak in 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 an independent and fair process - the outcome of which will survive long-term scrutiny. Both of these goals are important in consolidating democracy. The cost of not doing so is exemplified by the substandard trials that were 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 the past be confronted, the truth be told, victims' injuries be redressed and steps be taken to ensure institutions that perpetrated crimes - such as the police and 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 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 also 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.

No statute of limitations

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 High Commissioner for Human Rights, Navi Pillay, recently opposed the extradition of former dictator Hissène Habré 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 seventeen 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.

The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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