As we mark July 17, designated International Justice Day by the state parties of the International Criminal Court (ICC) just over two years ago, we should not limit our focus to the work of the court or criminal justice as such.
It is vital we have a wider conception of how justice can be achieved in the aftermath of atrocities and why it is necessary to do so. Pursuing justice in these conditions presents an opportunity to do three crucial things: reaffirm a society’s shared values about basic ideas of right and wrong; restore confidence in the institutions of the state charged with protecting fundamental rights and freedoms; and recognise the human dignity of the victims of atrocities that have taken place.
Criminal justice does have a central role to play in these aims, but the means of achieving them lies not in the singular pursuit of prosecutions, but in managing a range of measures that ensure there can be no denial about the patterns of abuses that occurred – that the truth be known; that those bearing the most responsibility face trial; that material and symbolic reparations are provided to victims to the extent possible, and that flawed institutions are reformed to remove wrongdoers and ensure that such practices do not recur.
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Over the last 20 years we have learned much more about how these things might be done to better effect, but we remain in the foothills. The one truth that has been proved again and again is that the key to justice lies not in rhetoric or the occasional trial, or the one-off truth commission, but in a fundamental recognition of the dignity of those who have suffered. If we take that seriously, the rest follows much more easily.
The pursuit of justice has come a long way in the last few decades, and as such the prospect of the protection of most fundamental rights and freedoms around the world stands stronger than it once did. Those engaged in large-scale killing, torture, rape, disappearance, and systematic starvation have been on notice for some time that they should not expect to get away with it.
International Justice Day is partly about recommitting to the promise the international community has made to victims that such crimes will not be tolerated. It is a day on which we can all reaffirm basic notions of right and wrong that transcend ideology: that it is never acceptable to disappear a person because she disagrees with your political views; that it is never acceptable to rape a girl because your commander told you it was like a form of payment; that it is never acceptable to torture a prisoner because his colleagues attacked your colleagues.
These are principles of an almost shockingly minimal standard and yet we still frequently find ourselves having to make the case for them. The good news is that slowly but surely, accountability is becoming more of a reality. And this understanding of accountability takes the form not only of criminal trials, but also in almost 50 truth commissions that have taken place; in the multiple (although some flawed) reparations programs instituted in many countries; in the reform of police, judicial, security and intelligence sectors.
There will inevitably be claims that international justice has turned into some kind of persecution of African states. We should not let this argument cloud the fact that real progress is being made, both in terms of accountability and our complex understanding of what that means for societies dealing with a legacy of past abuses.
This is not the place to confront the arguments about the ICC “picking on Africa”. But let us think for a moment – not of the African leaders who make such claims, but of the African victims who are not allowed to be heard. We should of course depreciate and fight against the double standards that allow leaders of powerful states to escape justice, but if that leads to abandoning the fight for the right to justice of victims in Africa, the only victors are the violent leaders of both the powerful and the weak states. The victims of crimes committed in Africa have the same rights as victims everywhere. The fundamental dignity of the child soldier forcibly recruited in the Democratic Republic of the Congo is the same fundamental dignity of the disappeared in Argentina in the 1970s, of the Mayan villagers massacred in Guatemala the 1980s, of the dead and tortured in the Omarska camp in Bosnia and Herzegovina in the 1990s.
The response to these atrocities, perpetrated throughout the world, remains complex. We are getting better at understanding those complexities, at recognising the opportunities for societies to rebuild on the basis of taking the dignity of victims seriously. Criminal justice alone is an instrument with limited reach, but an essential part of the equation. Working together with the efforts to ensure truth, reparations, and reform, we can help ensure such atrocities do not recur.
We celebrate today the progress made in the fight for justice. We remember the struggles to get to where we are, the lives lost and the hardships suffered along the way, and the constant unobserved struggle of many that continues today. We reaffirm the call to justice, to the basic recognition of right and wrong, and to the knowledge that where there is no accountability, there is no dignity.
Paul Seils is vice president of the International Center for Transitional Justice and former head of Analysis Section of the Office of the Prosecutor at the International Criminal Court.