In the Quest for Justice, Who is the Judge?
By Fiorenzo Conte
Countries that have experienced civil conflicts or episodes of political violence are faced with the following dilemma: how to prosecute and judge those responsible for the violence without the legal procedure undermining effort towards national reconciliation? In other words, how to ensure justice and reconciliation at the same time? Lately, countries have increasingly resorted to delegating such important issues to an external actor, namely ,the International Criminal Court and its prosecutor Ocampo. For example, in his first press conference as president of Ivory Coast, Ouattara declared his intention to ask the ICC to find and prosecute those responsible for the massacres in the country. The most fervent supporters of such choice are often the victims of the crimes who see in the ICC as super partes actor able to carry out investigations and ensure justice. As the court is not a political actor in the country, its rulings are more likely to be perceived as less partial vis-à-vis the possible ruling of a national court and therefore are more likely to be accepted. In Kenya, for example, 85% of the population support the indictment of some of the suspects of the 2007 post-electoral violence by the ICC.
Yet, according to some, there are fundamental problems with this trend. Firstly, to delegate the prosecution to the ICC is tantamount to giving up one of the fundamental power of a sovereign state: the administration of justice. Mwenda frames the problem in these terms:
The ICC indictments are yet another step in the increasing efforts of the “international community” (actually read the West) to regain control of African affairs lost through decolonisation half a century ago. The accused politicians may be guilty. However, the question that arises is who should really have the final say on justice in Kenya: the elected leaders of that country or some remote and non-elected bureaucrats in an international institution far removed from the day-to-day challenges of the country?
Secondly, the process of deciding who is to be prosecuted, who is to be judged and who is to punished is a highly political matter. When violence is widespread, perpetrators can be found on both side of the political spectrum. So if one wants to have complete justice everybody should be prosecuted. But this is not feasible most of the time (for example, the Statute of Rome prescribes that people high in the hierarchy who, aware of the crimes, failed to prevent massacres or punish the responsible should be prosecuted. If applied to the case of Ivory Coast, this would imply prosecuting Generals and high rank personnel who are now part of the new government). A line must be drawn and such decision concerns the domestic policy of the specific country. The pursuit of justice that encompasses all those responsible for violence in the past reopens the fracture of the past and can undermine efforts for reconciliation. In the end it comes to find a compromise between punishment and reconciliation. There is no easy way out of this dilemma and to delegate this decision to the ICC is only to put off the conundrum.