Reconciliation v. Accountability: Balancing Interests of Peace and Justice

With the establishment of the United Nations Security Council Commission of Experts for the Former Yugoslavia in October 1992 – at a time when the UN-EU International Conference for the Former Yugoslavia was already conducting a peace process – the stage appeared set for a tense relationship between international mandates for peace and criminal justice or accountability for core international crimes. The perception of polarisation crystallized when the International Criminal Tribunal for the Former Yugoslavia (‘ICTY’) became operational in 1994. Since then, a broad discourse on the relationship between peace and criminal justice has emerged, with a widespread view that the two are not easily compatible.

South Africa’s truth and reconciliation process – and its projection on world public opinion following the collapse of the Apartheid regime – was welcomed by some ‘peace-before-justice’ proponents as a partner in the peace versus criminal justice discourse. Surely, a peace or transitional settlement combined with a well-organised truth and reconciliation mechanism must satisfy reasonable expectations for government response to mass-atrocity? Should not this combination pacify the persistent calls for criminal justice accountability, or at least postpone its introduction until after peace has taken proper hold?

Such rhetorical use of truth and reconciliation mechanisms added a further polarity to the peace versus criminal justice discourse, namely that of reconciliation versus criminal justice. Truth and reconciliation mechanisms such as the South African process – so the argument would go – have the capacity to generate reconciliation in societies affected by core international crimes, whereas criminal justice does not, at least not to the same extent. As criminal justice implies retribution, it may even be capable of undermining peace and reconciliation.

Does this perceived dichotomy between reconciliation and criminal justice for core international crimes really reflect reality? Or can criminal justice itself actually contribute to reconciliation in territorial states affected by atrocities? If so, how can criminal justice proceedings contribute most effectively to reconciliation or unity? Are there key factors or indicators that criminal jurisdictions need to meet in order to have such societal impact (for example, victim participation and reparation, even-handedness, proceedings located in territorial states, or speedy and cost-efficient trials)? Does the rhetoric of dichotomy or tension between reconciliation and criminal justice serve any meaningful purpose? Is it a ‘positive’ tension? What should be the impact on the transitional justice discourse if criminal justice can indeed itself contribute to reconciliation? At this seminar seven experts addressed these questions from the perspective of six international(ised) criminal jurisdictions, national jurisdictions and more generally.

At the tail end of the seminar, the outcome of another CILRAP-project on a novel theme – the anthology ‘Military Self-Interest in Accountability for Core International Crimes’ (edited by Morten Bergsmo and SONG Tianying) – was launched and discussed by Andrew Cayley QC and Arne Willy Dahl. The book opens a discourse on why accountability for core international crimes can be in the self-interest of armed forces. Wolfgang Kaleck then presented his book ‘Double Standards: International Criminal Law and the West’, a short monograph that assesses the problem of selectivity in international criminal justice. Mark Klamberg ended the event with remarks on the completed online ‘Commentary on the Law of the ICC: Statute’.