The Politics of International Justice

KIGALI - The decision to release Abdelbaset Ali al-Megrahi, a Libyan national convicted for the Lockerbie bombing, provoked a chorus of disapproval from United States politicians and angered the families of the victims.

KIGALI - The decision to release Abdelbaset Ali al-Megrahi, a Libyan national convicted for the Lockerbie bombing, provoked a chorus of disapproval from United States politicians and angered the families of the victims.

To extend “compassionate” sentiments to an individual convicted of a terrorist act is outrageous for the families: had their loved ones been given similar considerations, they will still be around to hug, to love and to cherish.

The urge to pay Megrahi back for the pain he inflicted is certainly understandable.

Nevertheless, the Scottish Government decided to release Mr. Megrahi to his home country where his hero welcome received extensive media coverage.

It is difficult to imagine that those Libyans that gathered to meet him did so because Megrahi had successfully carried out a terrorist act that took away hundreds of innocent lives.

What the joy and celebration in Tripoli suggest, instead, is that many in Libya never accepted the findings and narrative proclaimed at the end of the Lockerbie Trial.

Just a few months ago, in March this year, judges of the ICC issued a warrant for the arrest of Sudan’s President, Omar El Bashir, in connection with alleged war crimes and crimes against humanity in Darfur, prompting anti-ICC demonstrations in Khartoum for several weeks.

Sudanese are incensed at the arrogance of the ICC judges and Prosecutor, accusing the Court of political bias.

Incidentally, at the conclusion of its Summit in Sirte, Libya, on 1 July 2009, the Assembly of Heads of State and Governments of the AU decided that “AU Member States shall not cooperate ... in the arrest and surrender of President Omar El Bashir of The Sudan.”

What do these developments tell us about the project of international justice?

Well, for one, international justice often takes place in an atmosphere of distrust and disillusionment.

First, there is a question of legitimacy arising from a relationship in which a narrow and unrepresentative set of actors retains disproportionate power in setting the agenda of international justice and establishing the terms of dealing.

The problem of “who decides” is further complicated by concern about the basis for the decision.

How can international justice dispel suspicions about the arbitrariness of prosecutorial decisions that are seen by those at the receiving end as serving the aim of political expediency rather than justice?

Second, the fact that most prosecutions are decided upon, designed, funded and administered by officials for use in countries other than their own raises concern about double standards.

Assuming, for example, that Rwanda was to issue indictments against French politicians and members of the French military for their direct participation and/or complicity in genocide in Rwanda, it would certainly not matter that Rwanda has valid grounds to issue such indictments; the move will be labelled “unacceptable” – not to mention the potential negative implications for Rwanda’s foreign policy and economic interests - though this would simply be a version of the golden rule: “carry out prosecutions against other countries’ officials as you would have them do in your own”.

Yet, issuing French Arrest Warrants might serve to focus European politicians and their constituencies on the long-standing “unacceptable” indictments pending against our leaders.

With a bit of luck, this might prompt Europeans to listen to the AU appeal to dismiss the abusive indictments against African leaders and personalities, and consider that, perhaps, reform is needed in those EU judicial systems that embrace international justice for “everyone else” but their own.

Third, while one of the stated goals of international justice is to establish “the truth”, it is unrealistic to expect that once the truth is proclaimed, it is likely to be accepted by those against whom it is directed.

Germans are said to have condemned the Nuremberg Trials as “victor’s justice” because the Allied Forces – some of whom had committed crimes – did not stand trial there, along with the Nazis.

Critics of the ICTR – HRW & Co. – claim the same thing because, they say, ICTR has not prosecuted RPF cases.

Even if we were to assume, for a moment, that ICTR could bring a case against RPF soldiers, it is absurd and naïve to believe that, on that basis, Rwandans will be more likely to reconcile in a way that has not been achieved until now.

Frankly, ICTR should not be given more credits than it deserves.

In the end, fashionable clichés in international justice advocacy such as “the question of victor’s justice” prove to be nothing more than empty slogans designed to drive a political agenda under the veil of “equal justice”. International justice is, indeed, political.

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