Leslie Vinjamuri on the ICC and Conflict Zones

Leslie Vinjamuri is a lecturer (assistant professor), and co-director of the Centre for the International Politics of Conflict, Rights and Justice in the Department of Politics and International Studies at the School of Oriental and African Studies (SOAS), University of London. She is also one of the world’s foremost experts on the political effects of international justice. She spoke with Simon Collard-Wexler about the delicate relationship between justice-seeking and finding peace, about the role of the International Criminal Court in Libya and elsewhere, and about pursuing a “logic of consequences” in politics.

Can you explain the “peace versus justice” debate and what you think is at stake in it?

The debate is [centered on] questions of causality and timing. What does it take to get a lasting peace that is normatively desirable? And does justice yield peace dividends, or is justice built on the back of political bargains and stable institutions?

“Justice first” proponents think that justice is an instrument that has the capacity to marginalize perpetrators, and that the prospects for peace will follow pretty quickly once those perpetrators are out.

Critics argue that the calculation about what it takes to contain or remove powerful spoilers is far more complex, and it also matters whom you replace them with. If you can’t mobilize support for containing spoilers and backing reformers, then it’s better to wait on justice.

An area I look at is the relationship between international justice and diplomacy during conflict and peace negotiations. Unless the pursuit of justice is carefully negotiated with key stakeholders, it’s likely to backfire. If international justice is going to be used as a tool of international diplomacy, we need to think about how to apply it effectively. Part of the debate is how flexible we should be about international justice, and at what stage it should be used to shape the behaviour of its targets. I think the potential diplomatic use of international justice is greatest before indictments have come down.

Can you give some examples of the negative side effects of international justice, or, more specifically, of the International Criminal Court’s (ICC) involvement in cases of conflict?

There is a risk that if the ICC continues to get involved in very high-profile cases of ongoing conflict, where it really lacks the capacity to follow through, it will lose credibility, and that this will undermine its authority in the long run. The more you say you are going to do something and [then fail to do it], the less your threat or promise is credible [in the future].

In the short term, there is a “peace versus justice” debate – the concern that when the ICC gets involved in places like Uganda, Sudan, or Libya, it closes off space for peace negotiations, and that by closing off that negotiating space, it risks prolonged violence and more human-rights abuses. Moreover, it risks doing so without actually bringing any prosecutions or trials. It’s one thing to risk peace and deliver justice, but to [take that] risk and not deliver?

There is also no evidence to suggest that in periods of ongoing conflict, indictments have paved the way for more peace or more justice. [Consider] Sudan: What were the short-term results? A pretty noticeable and remarkable erosion of regional support [for the ICC] in Africa. Domestically, support for [Sudanese President] Omar al-Bashir was far from eroded, and was arguably bolstered.

How did the ICC impact conflict in the case of Libya?

The Libya case is really interesting. The problem with justice there is that the ICC moved so fast that it undermined the legitimacy of the investigation. The ICC also failed to capitalize on the potential to pursue a so-called “wedge strategy.” The idea here is that those who are fighting on the ground are really paying attention to the ICC referrals, and they are calculating the costs that they face if they continue to fight. The referral is aimed at shaping those strategic calculations.

Now, the referral basically said: “If you’re engaged in this fight, you’re up for investigation by the ICC.” It set precise dates that defined when Gadhafi loyalists could be subject to investigation, but those dates had already passed by the time the decision was announced. So, rationally, the incentive to defect was dramatically reduced.

If you believe those rational calculations were being made, then a better way to drive a wedge between Gadhafi and his supporters would have been to say: “We will give you a week to put down your arms.” Very few people believed Gadhafi was going to change his mind, but people believed that those around him might be affected by the threat to indict.

Not only did the Security Council referral fail to pursue an effective “wedge strategy,” but it also didn’t support a bargaining strategy with the Gadhafi government to end the conflict. In fact, it reinforced the impression that the Security Council’s design was regime change and not simply protecting civilians. Maybe bargaining was not the goal when the UN Security Council referred Libya to the ICC. But remember that the referral was at the bottom of a list of sanctions that were clearly intended to shape the behaviour of the Libyan government. Sanctions were conditional; the referral was not. So the resolution, in a sense, contradicts itself. Sanctions suggest that the Security Council wanted Gadhafi to change his behaviour, and that this would be sufficient. The referral signalled that regardless of [Gadhafi’s] behaviour, the ICC would try to prosecute.

The ICC also indicted Colonel Gadhafi’s son, Saif Gadhafi. There seems to be a conflict between the new Libyan government and the ICC over who should get to try him.

The great hope of the ICC was that, unlike the ad-hoc tribunals [for Rwanda and the former Yugoslavia, which both held trials in The Hague], it would stress the right of national governments to own the process of justice where they were “willing” and “able.” This is the principle of “complementarity.”

The case of Saif Gadhafi highlights how, by moving too soon on cases, the ICC can put itself into a very awkward position. If the ICC insists on trying Saif Gadhafi in The Hague, it really violates the spirit of complementarity and local ownership of the justice process. But if it acquiesces to a local trial in Libya and the process is truncated or botched in terms of fair standards, or the death penalty is applied, that’s a real problem for the ICC.

I think that this trial should take place in Libya. Local ownership of the justice process will be of central importance in Libya’s transition. The war was fought and won locally, albeit with assistance from NATO, and it certainly makes sense for justice to follow a similar course.

The UN High Commissioner for Human Rights has suggested that Syria should be referred to the ICC. Do you think that would be helpful or appropriate?

Right now, it would not. The international diplomatic community should be trying as hard as it can to bring the atrocities to an end in Syria. I think that if there is scope for a diplomatic solution, a Security Council referral of the ICC doesn’t need to happen now. There is no evidence to suggest that a referral now is going to help alter the outcome in Syria in a positive and productive way. A referral can come later.

I was reading Mark Lynch’s piece on this question at Foreign Policy. Lynch argues that the Security Council should refer Syria to the ICC, and that Hilary Clinton’s desire to keep the exit option open is indicative of a logic whose time is “rapidly passing.” The referral, according to Lynch, is critical for building norms.

I think this argument is problematic. As long as violence continues in Syria, any move that the Security Council makes needs to increase, and not diminish, the prospect for peace. So how do we know when the right moment is to refer a case to the ICC? Really, when it comes to ongoing conflict, that is the debate: When is it that we should bring in the ICC as a point of leverage? We can’t just operate according to some sense that “this is a bad person and this has gone on too long, so send in the ICC.” That’s not how you do coercive diplomacy. The scope for negotiation or bargaining is dramatically restricted after a referral, and even more so once indictments come down.

In your work, you distinguish the logic of appropriateness from the logic of consequences. This seems relevant to your point about diplomatic strategies. Can you describe the two and how they apply?

The logic of appropriateness says that we should act according to what we think is the right, or appropriate, thing to do. The logic of consequences says we should act according to how our actions are going to affect different outcomes.

The logic of consequences can be broken down further. Some claim people should act according to how they think their behaviour is going to affect something like peace, or stability, or justice. Others argue what really matters is pursuing behaviour that will have a positive consequence on the creation or consolidation of norms. So the particular act might not turn out the way we want – we might get less justice or peace in the short term – but we need to evaluate it on the basis of whether or not it contributes to the consolidation of a stronger ICC and a stronger norm of international justice.

Is this a question of different time horizons, where we consider shorter-term consequences for peace and longer-term consequences for norms?   

That is certainly how it used to be debated. The critique I used to get on my work with Jack Snyder was, “You’re evaluating this too much in the short term, and what we are trying to do is create a long-term project. We are trying to build an international justice system. We are creating the ICC. You just cut into this too soon.”

But how you get to that long-term order where you have more justice and more peace is absolutely impacted by your short-term decisions and the consequences that they have. Whether in the short term you can create a robust political system that is led by a reform-minded, democratic-minded coalition that can contain the vested interests that are against peace … that will affect what happens in the long term.

This is the 10th anniversary of the ICC. It delivered its first verdict last March. How do you think the ICC has fared in its first 10 years?

It’s been a mixed bag. The ICC has been important symbolically for highlighting the global abhorrence of mass atrocities. However, the selectivity of the ICC [choosing to investigate certain states and individuals and not others] has damaged its symbolic power. In Europe, people talk of the ICC as a wonderful and glorious institution. I don’t really hear that as much when I go to meetings in Africa, even among those who have invested their professional lives in transitional justice. Of course, there isn’t one African opinion. But there are a lot of people who feel Africa has, unfairly, been the singular target of the ICC. And there are many who feel that the ICC is getting in the way of local ownership of justice across Africa.

The second thing I would say is that, since 2008, the ICC has become heavily associated with ongoing conflicts, the UN Security Council, and power politics. There is a contradiction here. If the ICC wants to hold on to the notion that it is an apolitical organization, it would do better to focus on post-conflict cases and stay out of ongoing conflict. If the ICC is going to act in conflict cases, it needs to maximize its leverage to help bring peace. After all, the greatest human-rights abuses are the product of the violence associated with conflict.

The ICC’s outgoing prosecutor, Luis Moreno-Ocampo, has been criticized in the African Union and elsewhere for his approach. With a new prosecutor, there might be an opportunity to change course. What would you recommend as a strategy for the new prosecutor, Fatou Bensouda?

First of all, there has to be some consolidation. The ICC can’t keep up with what it is doing. Rather than trying to jump out there and get in the limelight and take on the high-profile cases and be a key diplomatic player, [it needs to] consolidate what’s on the charts already. That consolidation can take place either through the ICC really moving its own cases forward, or by finding ways to make complementarity a reality in as many cases as possible – in other words, by finding ways to turn the cases back to local authorities [and assist their ability to hold credible trials and investigations].

Fatou Bensouda is really going to have to think through the role the ICC should have in high-profile cases in which the UN Security Council is a key player. And this is not just her decision. The Security Council is going to have to decide how it treats cases such as Syria and Libya. There is a real need for some creative thinking about the role of justice in ongoing conflict. If a working group tasked with evaluating the impact of Security Council’s referrals on peace diplomacy hasn’t already been set up, now is the time.

It’s hard to talk about international justice without at least touching on the Kony 2012 campaign. Do you think this campaign will help bring Joseph Kony to justice?

My son has tried four times to get me to purchase a bracelet! [The campaign is] very powerful and effective with youth.

In terms of marketing, it’s been a huge success. But is the policy they are advocating (i.e. the push for military intervention), something that should be pursued?

The Kony 2012 campaign is absolutely fascinating, and one has to admire their ability to bring people into an issue. However, Kony 2012 is not giving the audience an accurate understanding of where we are now. (Of course, accuracy is not necessarily the sort of thing that galvanizes public attention.) The policy prescriptions – certainly the push for military intervention – are deeply problematic. Maybe there are cases where we needed Kony 2012 initiatives to wake people up. But at this moment, we need the NGOs and local actors that have a deep history in Uganda to take the debate forward.

Photo courtesy of Reuters