2008

Peace Through Criminal Law? (*)

Danilo Zolo

1. During the 1990s the international community has established a variety of international criminal tribunals meant to promote processes of peace-making and political transition in situations of gross violations of human rights and armed conflict among ethnical or religious groups. This tendency led to the establishment of two ad hoc tribunals - for the former Yugoslavia and for Rwanda - and the International Criminal Court (ICC). But it has also emerged in a proliferation of 'mixed' judicial bodies - in Cambodia, Sierra Leone, Kosovo, East Timor - composed of both national and international judges and enforcing domestic as well as international criminal laws. A court very similar to these from a normative point of view is likely to be established in Iraq.

Moreover, side by side with both ad hoc international courts and mixed courts - e.g. in Sierra Leone - national governments have started and promoted procedures of conflict settlement which either replace or supplement criminal trials. A well known instance of this it the Gacaca system in Rwanda, partly shaped after the model of non-judicial peace-making of South African Truth and Reconciliation Commissions. Another aspect of this trend is the enforcement of the principle of 'universal punibility' of some kinds of war crimes, provided for by the Geneva conventions of 1949.

Most commentators look very favourably at this rapid and massive development of international criminal justice. The international legal order is quickly adapting to a more and more 'global' scenario where state sovereignty is declining, new actors are surfacing, and Grotius' principle that individuals are not subjects of international law is withering away. Moreover, international criminal justice appears as a suitable answer to the spreading, after the end of the cold war, of ethnic conflicts, virulent nationalism and religious fundamentalism leading to widespread and gross violations of human rights. From now on nobody, they argue, will be able to think that he can start conflicts or stir up nationalist campaigns leading to genocide without being tried by a court of justice and pursued by international police. From this standpoint criminal prosecution may effectively prevent even new wars.

In comparison with national courts, they argue, international criminal tribunals can repress war crimes and crimes against humanity much more effectively. For domestic tribunals are not very willing to act against crimes lacking relevant national or territorial links with their state. Moreover, international courts are technically much more skilled than domestic courts in ascertaining and interpreting international law, are more impartial in trying crimes and more likely to apply uniform judicial standards. And, because international trials are much more visible in the mass media, they are more effective in expressing the will of the international community to punish those guilty of serious international crimes and their sentences perform a clearer function as a public reprimand of the convicts.

These points may be accepted on the whole. But in my view the normative structure of international criminal justice remains quite uncertain and confused. It is especially so from the point of view of the philosophy of punishment and penitentiary treatment inspiring prosecutors and judges in carrying out their respective functions. What are the ends of international criminal punishment? Should it be an exemplary penalty with a strong pedagogical impact? Should it force a criminal to pay for his guilt and favour his redemption? Should it be meant to be a retributive sanction, as any other form of revenge? Or, rather, should it match the convict's social dangerousness? Should it redress a specific damage or should it perform a function of general prevention of international crimes, thus ultimately of war? Should the convict be socially isolated and stigmatised or, on the contrary, should detention be aimed at re-socialising and 're-educating' the convict?

These are by no means marginal questions because defining the quality of punishment is crucial to determine the meaning and ends of a criminal jurisdiction. Answering these questions is not made easier by the provisions of the Statutes of the Courts or the reports of the UN General Secretary. The statutes of ad hoc tribunals - as well as the statute of the International Criminal Court - simply repeat a very general normative refrain: 'the Trial Chambers should take into account such factors as the gravity of the offence and the individual circumstances of the convicted person' (1).

The poverty of a theoretical reflection on the key issues of the meaning and quality of punishment risks leading to an insufficient or even inconsistent elaboration of the 'general principles' of international criminal law. This underdeveloped elaboration may in turn lead to uncertainty and confusion both in construing rules and in that broad phenomenon of judicial making of substantive and procedural law characterising international criminal justice today. The outcome might be inconsistent sentences unsuitable to the goals of criminal justice, as Ralph Henham observed on this journal (2). On the basis of a thorough examination of the rationales for punishment in the context of the existing sentencing practices of the ad hoc tribunals, Henham has highlighted the conceptual 'obfuscation and confusion' of the ends judges attach to their sentences (3).

This lack of theoretical reflection is all the more worrying because international criminal judges work outside and above the social, cultural and economic contexts within which those being tried acted. They tend to 'de-contextualise' deviant behaviour - Henham argues again (4) - and to punish it without due consideration of both its social motivation and the social environment that should host the convict once he has served his term. In addition, international justice sets itself goals - firstly, the settlement of conflict - that are very far away from those of national criminal justice.

In spite of this, since the Nuremberg Tribunal Western legal culture has been developing a simplified conception, too easily premised on the 'domestic analogy', of the relationship between international judicial power, protection of human rights and processes of peace-making. This has been inspired by an optimistic view of criminal law deducing models of punitive and penitentiary justice from the national experience and applying them mechanically to the international arena, disregarding the many questions raised about such models by Western criminology and philosophy of punishment during the twentieth century. Those might be right who spoke of criminal and penitentiary fetishism, rejecting the idea that the punishing reaction to the violation of rights and the explosion of conflicts can be meant tout court as 'the paradigm of social reaction' (5).

2. I will not dwell here on the 'mixed' courts I mentioned above, and I will not be concerned with the International Criminal Court, whose activity is at its very beginning and is facing very serious difficulties. I will focus on the two ad hoc tribunals for the former Yugoslavia and for Rwanda. As I have mentioned above they are characterised, besides the task of repressing the most serious violations of 'humanitarian international law', by their goal to promote peace. When it established them the Security Council appealed to the powers bestowed upon it by Chapter VII of the UN Charter: they are powers to intervene in case of threat to peace or violation of peace. It is not by chance that both tribunals have been meant to operate within contexts - the territories of the former Yugoslavia and the area of great African lakes - that had been upset by civil wars where conflicting parties had resorted to such ruthless practices as 'ethnic cleansing' and genocide.

To 'do justice' in these two cases should have meant also - or firstly - to co-operate through the appropriate means of criminal justice to the reconciliation of peoples involved in the atrocities and devastation of war. Chief justices and other members, as well as prosecutors, seem to assume as a self-evident axiom that an exemplary punishment of crimes committed by one or both the conflicting parties may decisively contribute to peace-making: 'peace through criminal law', we might say, after the title of a well known essay by Hans Kelsen.

The key issue is the relationship between the quality of trials and penalties, on the one hand, and the specific goals of pacifying involved peoples and promoting peace in general. In the following paragraphs I will summarily highlight some points that in my view would be worth a critical investigation.

2.1. Impunity. As we have seen, a frequently cited justification of international criminal justice is the goal of abolishing impunity. The idea is that the most serious war crimes and crimes against humanity tend to remain unpunished because of the connivance, the ineptitude or unconcern of national courts. And punishing those guilty of criminal actions within conflict areas is thought to be a key premise of the transition towards a new political regime and, ultimately, peace. It can hardly be denied that widespread impunity is a fact and there is an important link - though not decisive or exclusive - between the political-judicial restoration of social equilibrium and the start of a process of peace-making. But until now international criminal justice has not proven capable to remedy the phenomenon of widespread impunity, except to a minor degree and with normative ambiguities.

For instance, as it was the case in Nuremberg and Tokyo, criminal prosecution only affects a limited number of individuals, generically singled out by their bearing a major political responsibility or being more directly involved in criminal activities. No selective legal criterion has ever been clearly stated and general prosecutors seem to rely on very discretional and intuitive evaluations that, among other things, take such extra-judicial elements into account as organisational weakness, insufficient investigative and policing apparatus, limited financial resources.

In the first six years of its activity the Tribunal for the former Yugoslavia had prosecuted around ninety people, of whom around twenty had been arrested and roughly as much tried. The case of the International Tribunal for Rwanda at Arusha is even more significant: by 1999, six years after its establishment, Rwandan state prisons hosted beyond 120,000 detainees, whereas the International Tribunal had arrested 38 people, charged with genocide, and had tried five defendants. Those responsible for a tragedy where everybody, or nearly everybody, had killed, causing the death of around 500,000 people, are likely to be many thousands. Clearly, in such cases the violation of some basic principle of modern law -habeas corpus, legal equality, the certainty of criminal law - is conspicuous, whereas impunity remains substantially untouched.

Secondly, the punishing role played by ad hoc international criminal courts is peculiarly anomalous. The scope of their jurisdiction has been strictly limited to international offences against jus in bello, excluding crimes against jus ad bellum, that is crimes against the peace. In other words their jurisdiction does not include the crime of aggression, that fell instead within the jurisdiction of the tribunals of Nuremberg and Tokyo. Thus, those responsible for one of the most serious violation of international law - the violation of the prohibition of the use of force, which is the pillar of the UN Charter - are immune from the jurisdiction of these courts or of any other. Absolute impunity still applies to them.

For instance, in 1999 the 'special' nature of the Tribunal for the former Yugoslavia allowed it to coexist without problems with the illegal use of force by NATO which acted in the very territory covered by the Tribunal's jurisdiction. Criminal trials, with their accurate procedural rites, took place together with NATO bombings and their 'collateral damages'. Not only did the Tribunal ignore that NATO political and military authorities were manifestly responsible for a 'crime against the peace' but it could systematically avail itself of NATO armed forces as its own police (6). This kind of impunity can - and in the case of Kosovo did - go against the goal of peace-making attributed to international criminal justice.

2.2. The exemplary nature of punishment. The exemplary character of sentences has been hailed as an important feature of an international criminal justice that does not hesitate to prosecute high level political authorities, e.g. a state president such as Slobodan Miloševic. The exemplary character of sentences is seen as showing the superior impartiality and moral austerity of the judicial body. Moreover, the exemplary character is thought to be the premise of the pedagogical effectiveness of sentences (7). As a matter of fact the Hague Tribunal has issued exemplary sentences for their severity (there have been sentences to a nearly 50 years term), for the solemn formality of rites, and for the relevance and spectacular character of mass media communication.

Exemplariness is a typical feature of pre-modern penal systems. There the equality of individuals before the criminal law was replaced by the paternalist-pedagogical standard of the (public) execution of the sentence as a power narrative and a means of reinforcing popular feelings of hierarchical dependency (8). The trial is the more degrading and stigmatising the more it is 'exemplar', the more it leads to the popular condemnation of an individual who broke collective values and therefore deserves a severe and solemn punishment (9).

We might recall the view of René Girard about the function of 'scapegoat' played by the sacrifice of a political chief (or an 'internal stranger') in 'primitive' cultures (10). In situations of social conflict and instability the punishing rite symbolically embodies the sense of guilt of the group and unloads it on the victim, whose sacrifice serves to bring back peace and to regain gods' favour. Thus, the 'exemplary' character of criminal penalties retains elements of ancestral irrationality attaching a victimising and sacrificial function to punishment. Such elements should not enter processes of social reconciliation based on collective deconstruction of the historical development of conflict, on political compromise and constitutional engineering as dialogical and rational 'pacification rituals' aimed at rebuilding the cultural and political identity of a whole country.

As to the pedagogical-deterrent impact of an 'exemplary' international criminal sentence, it suffices to cite as a significant precedent that Japanese public opinion perceived the process of Tokyo as a judicial parody that satisfied the United States wish for revenge after the attack of Pearl Harbor. Few remember that since 1978 in the temple of Yasukum the seven Japanese executed by the Tribunal of Tokyo have being paid the honours reserved to the martyrs of the Japanese fatherland. Something similar seems to have happened in Serbia where the television broadcasting of the long trial of Slobodan Miloševic apparently had an effect opposite to the wished one: the recent general elections in the Federation of Serbia and Montenegro saw a remarkable success of the party of Miloševic, and this does not seem to make for peace-making in the Balkans.

More generally, it is questionable that the 'exemplary' sentencing of a very limited number of individuals can perform an effective deterrent function against civil conflict and war. It has been argued that international criminal trials after Second World War have exhibited little or no deterrent power. In the second half of the century deportations, atrocities, war crimes, crimes against humanity and genocides did not decrease. Several aggressive wars waged by the states who initiated the trials of Nuremberg and Tokyo caused hundreds of thousands of victims. The repressive activity against the atrocities committed in Bosnia from 1991 to 1995, performed by the Hague Tribunal, seems to have had no deterrent effect, for comparable atrocities were committed by all parties to the Kosovo war of 1999. As a matter of fact, there is no evidence that the 'exemplary' judicial sentencing of particular individuals - isolating their responsibilities within highly complex contexts - may have as such any impact on the macro-structural dimension of war, i.e. it can affect the deep reasons for conflicts and armed violence.

2.3. Retribution. In his essay I have often mentioned, Herbert Henham concludes his critical investigation by arguing that as a matter of fact, though in an implicit and confused way, sentences issued so far by ad hoc international tribunals are inspired by the paradigm of the retributive and stigmatising function of punishment (11). If so, this situation, probably rooted in the poor statutory phrasing mentioned above, has another aspect that today makes the practice of international criminal justice ill-suited to its goals of social peace-making.

The retributive view of punishment is very ancient, for it can be traced back to the Bible tradition, and was given its most typical form by Catholic medieval theology. This kind of afflictive punitive justice sees deviant behaviour as a breach of an objective order, a violation of the universal harmony of cosmos. To punish and to pay for is to restore the ontological equilibrium undermined by illegal or immoral behaviour. Thus, the suffering of the deviant individual has both a penitentiary function - with its effects of subjective purification and redemption - and a compensatory function. From this there follows the 'retributive' idea that human justice should impose on the convict a pain matching the 'seriousness' of his guilt. And this is an 'objective' seriousness measured by absolute criteria, ethical and theological in character.

Modern philosophy of punishment, since the late seventeenth century, has departed more and more - at least in principle - from this afflictive and penitentiary archetype and has developed a secularised view of criminal punishment. There came the utilitarian paradigm of social defence and the re-socialisation of convicts. Criminal punishment is meant to neutralise dangerous deviant individuals and to bring them back into the group after 're-educating' them to social discipline and making them harmless. The resulting misery is no longer conceived of as expiation, purification or redemption. It consists in the prison deprivation of freedom, that should perform a correctional and deterrent function. The memory of past pain should advise the convict against repeating his criminal behaviour, whereas the social spectacle of the misery imposed upon deviant individuals should lead most citizens to respect collective rules the group freely adopted (12). Thus, the basic rationale of imposing penalties is not 'retribution': a penalty should match the 'social dangerousness' of a convict and should take into account the evolution of his personality, providing for a number of 'alternative measures' to imprisonment that make the application of penalties flexible.

On the contrary, the retributive character of punishment rules out the end of re-education, conflicts with the idea of alternative measures to imprisonment, rejects the very notion of a flexible application of penalties and does not allow for any form of re-socialisation of convicts. It makes prison absolute as a place of custody and affliction and a non-contextual device for excluding and isolating convicts, for stigmatising them in an exemplary, irreversible fashion. Prison becomes a place of sheer misery - sometimes of actual physical and mental torture - and violation of a citizen's most elementary rights.

It is quite clear, in my view, that the retributive conception of criminal punishment can hardly be reconciled with any project of social peace-making.

3. Conclusion. Rebus sic stantibus, international criminal justice does not seem to perform that function of 'transitional justice' for which it has been formally established. This function is to contribute to settle serious social conflicts through judicial measures. If this function were to be taken seriously, then in my view the conception of punishment and of the means for its execution that has characterised so far the action of ad hoc international tribunals should be deeply revised.

Sometimes - as it has been the case both in Yugoslavia and in Rwanda - the punitive justice of ad hoc international tribunals may even have effects opposite to the wished ones. This kind of punishment can symbolically reinforce feelings of hostility, fuel the wish for revenge and exclusion rather than eradicating crime, for it does not encourage rival parties to adopt forms of settlement and mediation aimed at rebuilding the social texture and at civil solidarity. This is not to say that international jurisdiction, even ad hoc, is never appropriate, provide of course that it operates with an acceptable degree of autonomy and political impartiality. The practice of criminal justice after the end of a civil war, Otto Kirchheimer argued, may be important in limiting political power (or making it limit itself), as an alternative both to general amnesty - which may be often impracticable - and to summary justice, the physical suppression of enemies, generalised revenge and the restart of conflict (13). Nor is this to exalt rites of extra-judicial peace-making or to make a moralistic and rhetoric argument for the virtue of forgiveness. In my view there are actually no instruments that are always good and should be applied whenever possible in place of others.

However, the developments of the last decade seem to suggest that any mediating intervention in a situation of post-war transition should be many-dimensioned and very articulated, having the 'requisite variety' to meet the complexity of historical-social dynamics. Both domestic criminal courts and international courts - with a complementary jurisdiction - and the rituals of non-judicial or quasi-judicial pacification, rooted in native traditions, should contribute to the process of peace-making. In this vein the very agencies of international criminal justice should achieve the highest possible degree of contextualisation and cultural and normative placement in the process of transition, rather than judging from the heights of a superior instance of morality and legality - inevitably located in Northern Europe or North America - and issuing from there their indisputable verdicts upon ordinary mortals.

Notes

*. Journal of International Criminal Justice, 2 (2004), pp. 727-734.

1. See article 24 of the statute of the International Criminal Tribunal for the Former Yugoslavia and article 78 of the statute of the International Criminal Court.

2. See R. Henham, The Philosophical Foundations of International Sentencing, 'Journal of International Criminal Justice', 1 (2003), 1, pp. 64-85.

3. See R. Henham, The Philosophical Foundations of International Sentencing, cit., pp. 69 ff.

4. See R. Henham, The Philosophical Foundations of International Sentencing, cit., pp. 74 ff.

5. See Y. Cartuyvels, Le droit pénal et l'Etat: des frontières 'naturelles' en question, in M. Henzelin, R. Roth (eds), Le droit pénal à l'épreuve de l'internationalisation, Paris, Lgdj-Georgéd.-Bruylant, 2002, p. 27.

6. See D. Zolo, Invoking Humanity: War, Law and Global Order, London-New York, Continuum International, 2002, pp. 120-2.

7. See C. Bassiouni, Etude historique: 1919-1998, 'Nouvelles Etudes Pénales', (1999), p. 2.

8. See M. Foucault, Sourveiller et punir. Naissance de la prison, Paris, Gallimard, 1975.

9. See H. Garfinkel, Studies in Ethnomethodology, Englewood Cliffs (N. J.), Prentice-Hall, 1967; J. Heritage, Garfinkel and Ethnomethodology, Cambridge, Polity Press, 1984.

10. See R. Girard, Le bouc émissaire, Paris, Editions Grasset & Fasquelle, 1982.

11. R. Henham, The Philosophical Foundations of International Sentencing, cit., pp. 66-9.

12. In extreme cases an individual is 'exiled' for ever, i.e. kept permanently segregated by the social group as irreversibly dangerous and unable to be 're-educated'. This is the case of the (de facto) permanent internment in a criminal asylum, of life sentencing and death penalty. The latter penalties are thought to be very effective in deterring the whole of citizens.

13. See O. Kirchheimer, Politische Justiz, Frankfurt a.M., Europäische Verlaganstalt, 1981, pp. 607-8.