Argument

Immunity Cannot Allow Impunity

Immunity Cannot Allow Impunity

This March, as mediators scrambled to arrest the devastating civil war in South Sudan, a coalition of the country’s civil society organizations wrote a letter to the Commission of Inquiry on South Sudan, a body established by the African Union to investigate crimes committed since violence engulfed the world’s newest country in December 2013, insisting that those responsible for the atrocities be held to account. "Men and women in positions of authority and those in uniform have committed serious crimes on the assumption that they are absolutely immune from any accountability for their actions," they argued. There needed to be clear consequences for the widespread and often criminal behavior. "Accountability should form the bedrock of a new institutional culture in which all citizens are equal and subject to the rule of law."

Although South Sudan was the focus of the letter, the same point could apply to many of the brutal civil conflicts in Africa, where for every celebrated truth-and-reconciliation process — South Africa’s after the fall of apartheid being the most renowned — many more wars end without any meaningful effort to pursue accountability and address the oft-criticized culture of impunity.

This is not a popular topic among African heads of state, most of whom are in Washington for the first-ever U.S.-Africa Leaders Summit, which officially begins on Aug. 4. Two sitting heads of state, Sudanese President Omar al-Bashir and Kenyan President Uhuru Kenyatta, have been indicted by the International Criminal Court (ICC) for their alleged roles in widespread violence in their countries, and they have repeatedly tried to mobilize fellow African leaders in opposition to the ICC. Others fear they could be targets of future prosecution for past indiscretions. Only weeks ago, African leaders voted to give themselves, along with "other senior state officials," immunity from prosecution by the yet-to-be-created African Court of Justice and Human Rights, designed to be an African counterweight to the ICC.

Some heads of state have argued that efforts at retributive justice — such as the ICC — are built on a Western model of justice and accountability, backed by Western funding and political support. Kenyatta went so far as to call the ICC a "toy of declining imperial powers." Outside interventions, these leaders argue, are contrary to the notion of African solutions to African problems and ignore traditional African practices of reconciliation and forgiveness.

This view was forcefully articulated this year by Thabo Mbeki, South Africa’s former president, and Mahmood Mamdani, a Ugandan academic who is a member of the Commission of Inquiry on South Sudan. "There is a time and a place for courts, as in Germany after Nazism, but it is not in the midst of conflict or a nonfunctioning political system," they wrote in the New York Times. "Courts are ill-suited to inaugurating a new political order after civil wars; they can only come into the picture after such a new order is already in place." Mbeki and Mamdani argue that following extreme violence, "what we need is a political process driven by a firm conviction that there can be no winners and no losers, only survivors," and that "to call simply for victims’ justice, as the ICC does, is to risk a continuation of civil war." A key lesson from the South African experience, they wrote, is that "it is sometimes preferable to suspend questions of criminal responsibility until the underlying political process has been addressed."

In instances of extreme violence, they argue, giving voice to a view held by many, restorative justice should take precedence over retributive justice.

Such blanket assertions, however — in the direction of either restorative or retributive justice — oversimplify matters. They also contradict preferences expressed by Africans in at least two counties. A poll by the Afrobarometer, a widely-respected effort to survey populations across the continent, was conducted in Mali in December 2013 to assess Malians’ views on issues ranging from causes of the country’s recent violence and instability to perceptions of democracy. The findings are stark:

On balance, Malians clearly prefer a retributive form of justice — meaning that offenders would be tried and sentenced — over a restorative form of justice — meaning that victims would be compensated for their losses (64 versus 35 percent). In other words, most Malians are in no mood to forgive and forget; instead they seem determined to prosecute and punish. Of course, punishment and reparations are not mutually exclusive; they could be pursued simultaneously or in sequence. There is evidence in the survey that a mix of justice measures might eventually attract significant popular support. But, at least at the outset, the popular urge to deter the agents of violence takes priority over making sure that the casualties of conflict are made whole.

Also notable are the findings that nine out of 10 surveyed "insist that perpetrators of political crimes must be held accountable for what they have done" and that "almost half of all Malians interviewed prefer to keep any legal proceedings within the country: 47 percent want the national courts to hear human rights cases."

Another survey in Zimbabwe, which has been plagued by political violence for more than a decade, comes to similar, though more muted, conclusions. "The population is closely divided in a head-to-head comparison of retributive and restorative measures: whereas 45 percent attach most importance to putting criminals on trial, 44 percent would prefer to place the emphasis on compensating victims," wrote Michael Bratton, a professor at Michigan State University, summarizing the results in The Journal of Modern African Studies. He adds, "62 percent want to hold legally accountable those responsible for past crimes (who ‘should face the consequences for what they have done’), versus just 31 percent who favour amnesty (‘which means they would never be prosecuted’)."

Mali and Zimbabwe are only two of the many African countries beset by civil conflict, and like every country have their own particular circumstances. But respondents to these polls echo the same sentiment as South Sudanese civil society: The response to mass violence cannot only be to look to the future and construct a new political order. Some combination of restorative and retributive justice should, under most circumstances, be considered. Efforts at retributive justice can sometimes be delayed, as Mbeki and Mamdani suggest, but not too long that they become ineffectual or impossible, or not in the interests of the next regime in power.

Mbeki and Mamdani knocked down a straw man in arguing that courts can’t end civil wars — they can’t, but they’re also not supposed to. Few people working to prevent, mitigate, and resolve violent conflict would argue only for courts as a solution. Courts are intended to provide some closure for the victims of mass violence and to deter future atrocities (whether international courts can do this is a matter of debate), but they are just one of many tools that can be used in a transitional justice process. Political processes are required to initiate a new political order, but those processes can co-exist with retributive justice processes — they need not displace them.

Justice, and how to best carve it out in countries where many hands have been sullied one way or another, is likely to fall low on the agenda for the summit, which will largely focus on security and governance concerns and economic opportunities. But whether in Washington, at the African Union headquarters in Addis Ababa, or in the villages of South Sudan or Mali that have been razed to the ground, questions of how to achieve justice need to be discussed. Options for restorative and retributive justice have to be considered side-by-side. An overall transitional justice strategy should be flexible and tailored to the particular circumstances. Models that have worked elsewhere are useful, but don’t always translate to a new context. Most importantly, the preferences of citizens — not their leaders, who if complicit in the violence have their own narrow calculations — should be paramount in deciding what combination of justice strategies to employ. If the people are yearning for accountability, the world needs to listen.

Jon Temin is director of Africa programs at the U.S. Institute of Peace.