There is nowadays an important debate regarding the possibility that, after a considerable progress of international justice and accountability for war crimes, crimes against humanity and genocide, we are living a moment of setbacks (Tolbert 2015), mainly with the setbacks in the context of the global ‘War on Terror’ and the worsening of conflicts around the world, in cases such as Syria, Iraq, Sudan and South Sudan, Israel/Palestine and Central African Republic. The difficulties of the International Criminal Court to proceed with its work and to bring effectiveness to its sentences (Al Jazeera America 2014) leads to serious concerns and to the idea that the momentum of the Court has passed, drawing the hopes in one of the most important developments for the delivery of justice and accountability regarding international crimes.
Beyond this debate and the divergences between more or less pessimistic views, it is important to ask if these setbacks will impact the progress achieved for the delivery of justice after conflict situations regarding international crimes. The progress achieved with the International Criminal Tribunals for Rwanda and ex-Yugoslavia, hybrid tribunals established in Sierra Leone, Cambodia and Kosovo, among other cases, led to a fundamental change of paradigm regarding the resolution of conflicts and peacebuilding process, where justice is no longer understood as something dangerous for peace, but instead as a fundamental step for the achievement of a true and sustainable peace (UN 2004). The debates and practices regarding transitional justice achieved important developments, with the incorporation of non Western models and practices for the promotion of accountability, reconciliation and victims reparation, considering this last aspect and the building of memory and truth as essential for these processes, as well as a broader view of justice and rights, with the inclusion of economic, social and cultural rights (Aguilar and Isa, 2011).
Although there are still cases of societies that suffer with the emptiness of meaningful transitional justice processes, with perpetuation of impunity and high levels of state violence, such as in the cases of Angola, Brazil, El Salvador and Mozambique, the majority of peacebuilding processes after the establishment of the International Criminal Tribunals for Rwanda and ex-Yugoslavia involved some kind of accountability and recovery of truth (Al Hussein 2015).
Nevertheless, the setbacks of international community regarding justice and the severity of the conflict situations nowadays carries important concerns of whether these change of paradigm will be sustained in the future. The brutality and the scale in which crimes against humanity are being committed in situations such as Syria and Iraq, especially by the ISIS, with no respect at all for international humanitarian law, resembles extreme situations of the past such as the Cambodian and Rwandan genocide and the conflict in ex-Yugoslavia.
The persistence of impunity in such cases have profound and drastic consequences, for the societies that suffered and ultimately for humanity as a whole. The case of Cambodia is perhaps one of the most strong examples regarding this assumption, and should be remembered, as we are dealing with very similar situations today (Wood 2015). The delivery of justice regarding one of the worst genocides of 20th century, in which approximately 2 million people perished, almost one third of Cambodian population (Etcheson 2005, Kiernan 2008), took almost twenty years to start. The machinations of powerful states, mainly of United States, United Kingdom and China, already in the final stages of the Cold War (Mysliwiec 1988, Power 2013), were the most important factor for this huge delay, which had devastating consequences for Cambodian people.
The genocide perpetrated by Khmer Rouge (KR) were halted by the Vietnamese invasion of the country, together with defectors of KR, since the group attacked several times the Vietnamese and Thai territories as they had expansionist pretensions, having in mind the old Khmer Empire (Etcheson 2005, Kiernan 2008). The possibilities of other external help for the stop of the KR reign of terror were very remote (Power 2013). The regime established with the Vietnamese support after the invasion didn’t have international support, accused as an occupation force, and KR began to receive support of Western countries such as United States and United Kingdom, besides the support it already had from China, a measure to contain the Vietnamese and Soviet influence in the region (Kiernan 2008, Power 2013).
With the end of the Cold War and the establishment of a peace process to solve the conflict situation of the country, the posture mainly of United States and China didn’t change – both countries insisted on the participation of the Khmer Rouge in the peace talks and in the political settlement for the resolution of the conflict, and the claims for justice from Cambodian and international civil society had been totally ignored (Ibidem, Etcheson 2005).
Only after years from the first election promoted with the support of the United Nations Transitional Authority in Cambodia (UNTAC) the prime minister of the country, Hun Sen, wrote to United Nations requiring support for the establishment of a tribunal for the judgement of the most responsible for the genocide (Ibidem). United Nations personnel were very proactive in help the country in this fundamental task, and despite all difficulties and barriers and after hard negotiations, the Extraordinary Chambers in the Courts of Cambodia (ECCC) were established, delivering justice and promoting actions for the recovery of the truth and reparation for victims (Jørgensen 2008, McGrew 2011, Pham et al 2011). Despite the limitations and problems of the transitional justice in Cambodia and the serious problems of its current political system, with great impacts in human rights, the transitional justice undeniably brought relief for victims that were not even recognised as victims of such extreme violations, and help to consolidate the memory and truth about one of the worst genocides of the last century.
Turning to current situations such as in Syria, Iraq and Central African Republic, it is quite worrying to imagine peace processes and political settlements without the promotion of meaningful transitional justice processes. The magnitude and severity of the massive human rights violations in these cases brings no other option, if is there a willingness to bring an end to these conflicts and to build real and sustainable peace. Contemporary cases such as Sudan also demonstrates that without justice there is a fatal deadlock for peace, and that international community must act and place justice as one of its priorities. Completely wrong ideas such as that human rights and fundamental freedoms must be sacrificed in the name of national and international security must be defeated once for all, if is there a will to put the progress of human rights and international law back on its feet (Tolbert 2014), and to construct a more safety and peaceful world.
Of course, the complexity of these situations must be taken into consideration, and many lessons had been learned regarding the delivery of justice after massive human rights violations, lessons that can make the next transitional justice processes more effective and with less difficulties and hardships. There is an important consensus that a regular justice process is something almost impossible in such cases (Minow 1998, Newman 2002), taking into consideration that the individuals responsible for the crimes and violations are in many cases just too many people, and that in civil wars in many cases all parts are involved in such crimes (although this doesn’t seems like to be the case of Iraq and Syria regarding ISIS). The accountability and punishment of the most responsible, and the demobilization of low level combatants, with recovery and reconciliation processes, with the promotion of local mechanisms and focus on the reparation of victims, are among the pathways nowadays identified as possible and fundamental after massive human rights violations (Ibidem, Aguilar and Isa, 2011).
The promotion of transitional justice, understood as a crucial step for peacebuilding, with participation and empowerment of local people and victims, is a sine qua non condition for the solution of the current crises that are causing so much unspeakable human suffering, as demonstrated by several situations of the past and of the present.
United Nations should also play a leading role to promote transitional justice processes regarding past conflicts, especially in countries like Mozambique and El Salvador, where UN peace operations had been established and no justice and accountability had been pursued, and the manner which the peace agreements and the mandate of these operations occurred had a crucial role for this emptiness (Pouligny 2006), as in the case of Cambodia, where UN already made this effort.
It is fundamental, of course, to reinforce the importance to respect the international humanitarian law in the relationship with groups that are committing egregious crimes daily, many of it being broadcasted to all over the world every day. Hate speeches lead to blindness and to the worsening and escalation of conflict and violence, as so well demonstrated by the drastic and planetary consequences of the ‘War on Terror’ (Duffield 2007). In this sense, the calling to reason and to dialogue with groups such as ISIS, with the abolition of international lists that prohibits any dialogue with certain organizations under penalty to be considered also an ‘enemy’, is essential (Fisk 2005).
But it is important to keep in mind that there are some groups that clearly must be defeated, with the trial of the most responsible and dismantling of troops in the most cautious way. Besides grey and contested zones, that are groups with ideologies and practices that affront our most basic and fundamental values and simply exists to promote this hate, these crimes and destruction. It is important to avoid blindness and pay attention to what they themselves present as their ideology and goals (Wood 2015). The inclusion of such groups in political settlements, as if it would be possible to transform them into political groups to participate in fair and peaceful political disputes has been proved a catastrophic idea, as demonstrated by cases such as Cambodia.
It is always fundamental to dialogue, even in order to comply with international humanitarian law and to achieve humanitarian objectives, and it is imperative to combat fundamentalist ideologies and positions of all sides (Gare 2002). The dialogue with less radicalized individuals in such groups can also help and play a key role in the conflict resolution (although, unfortunately, in extreme cases such as ISIS the moderates are often eliminated). But to invite and welcome such groups to international community, to legitimize them, as made with Khmer Rouge, which after had committed the genocide, represented the country in United Nations for long years (Power 2013, Etcheson 2005), is a blow in open wounds of individuals and societies victims of egregious and massive crimes, in victims of the intent of extermination of whole groups and societies.
In the current world situation, where so many people are suffering and dying in conflicts with no respect for international human rights and humanitarian law, in places like Palestine, Sudan and South Sudan, Democratic Republic of Congo, Central African Republic, Syria and Iraq, it is fundamental to resume the progress of international law, without setbacks in the peacebuilding paradigms, without sacrifice justice for, as in most of the cases, vested and stingy interests of powerful states (Ignatieff 2015). To make this possible, all pressure and mobilization of civil society and citizens is required, not just based on solidarity, but also on a less noble and more rational and realist concern: the security of us all (Beck 2002).
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Mariana dos Santos Parra is PhD candidate in Human Rights at University of Deusto.