back in july 1998, when 120 states adopted the treaty establishing the world's first permanent International Criminal Court, I cheered along with the rest of the human rights movement. We were all hopeful that the ICC could start actually to enforce international humanitarian law. And we were delighted that-unlike the two ad hoc courts created in The Hague in response to crises in the former Yugoslavia and Rwanda-the ICC would be free of UN security council politicking.
My view of the ICC has changed. Though I still occupy the seat I've had for nearly a decade on an advisory board of Human Rights Watch, the emphasis that it (and Amnesty) place on prosecuting and punishing perpetrators of rights violations may, I fear, be misguided and even counterproductive.
Strangely, these new doubts put me in the same camp as the US isolationists of the anti-UN "black helicopter" gang. They oppose the ICC on the grounds that it might impinge on the US's national sovereignty, and that US officers serving overseas may find themselves subject to the jurisdiction of foreign judges. I have different objections.
Supporters of the ICC argue from two strong premises: that victims of political violence deserve "justice;" and that perpetrators must be held accountable to deter such acts in the future. Who, hearing accounts of a rape-camp survivor in Bosnia, or the genocide in Rwanda, could criticise such a view?
The trouble is a cry for "justice" may not be an appeal for a criminal prosecution in a western style court. Many legally trained human rights activists have a worldview shaped by the 1945-46 Nuremberg trials. But for many millennia prior to 1945, and in places other than Europe, human societies dealt with episodes of egregious (intra- or inter-group) violence-and some of them did so quite effectively. Francis Deng, the distinguished Sudanese diplomat who is Kofi Annan's special representative for internally displaced people, has written about the ceremonies his Dinka forefathers used to bury, symbolically, the legacies of recent communal violence. Native-Hawaiians had a tradition of ho-oponopono to deal with serious violence; Muslim societies had sulha gatherings. More recently, in South Africa, supporters and opponents of apartheid underwent considerable healing and reconciliation through the partially ritualised workings of the Truth and Reconciliation Commission (TRC).
The problem with the legalistic approach to political violence, as epitomised by the ICC, is that criminal law crowds out such alternatives. If the ICC had existed in 1995, an appeal to it by, for example, Steve Biko's family, could have forced South Africa to prosecute the suspected killers, thus derailing the "truth for amnesty" exchange at the heart of the TRC's philosophy.
The "crowding out" effect of criminal courts was evident in Bosnia. There, in 1997-98, leading figures from all three communities discussed establishing a truth commission to produce a coordinated national narrative of the past seven years' violence. Their efforts were blocked, however, when the Hague's then-prosecutor, Louise Arbour, huffed that the commission might "contaminate" evidence. Might an inter-community truth commission have done more to help Bosnians come to terms with each other than a court? Thanks to Arbour, we will never know.
In Southern Africa we can compare the two approaches. Post-genocide Rwanda epitomises the legal approach. Since 1994, it has arrested more than 130,000 citizens on charges of participation in the genocide. (This effort runs in parallel to the UN's special court which is trying only around 50 of the ringleaders.) But seven years later, more than 112,000 of the detainees remain crowded in festering prison complexes, while the courts deal with them at a rate of just 600 per year. Think of the burdens that such unmet hopes for revenge has placed on a country of 7.2m people.
Then, look at South Africa's TRC, which established "truth" and "reconciliation" as goals more important than punishment and through the three years of its mandate travelled a remarkable distance towards realising them. Look, too, at Mozambique, which underwent a horrifying civil war from 1975 to 1992; but at the end of it leaders of the two contending groups eschewed both Rwandan-style war crimes courts, and a South African-style truth commission. Instead, the Frelimo and Renamo leaders, and nearly all the country's people, opted for a social peace buttressed by reconciliation ceremonies carried out by traditional healers. Those healing rituals have enabled both perpetrators and survivors of the war's atrocities to be reintegrated into village life.
Who is to say which of these countries has dealt most effectively with the legacy of political violence? Most of the evidence points to the greater effectiveness, by nearly all measures, of the non-prosecutorial approaches. So why should groups of lawyers from countries which, like the US, have no recent record of being subject to the ravages of war try to dictate to Mozambicans or South Africans how they should heal their societies and move on? That is what looms once the ICC is established.
For now, it looks a long way off. Sixty states need to ratify the relevant treaty, and that goal has only been half met. I think that's a good thing. It gives all of us-in the human-rights movement and in the UN-more time to reflect on what it is we're trying to achieve.
