May 16, 2012 was an auspicious day for international criminal justice for two reasons. First, the Special Court for Sierra Leone heard statements from the Prosecutor and from former Liberian President Charles Taylor at his sentencing hearing. (Taylor had been convicted at the Special Court for Sierra Leone on charges of war crimes and crimes against humanity on April 26, and sentence will be handed down on May 30). Second, the International Criminal Tribunal for the Former Yugoslavia heard opening statements in the trial of former Bosnian Serb military commander, General Ratko Mladić.
Both cases have been lauded as triumphs for international justice and the fight against impunity. Taylor was convicted on all 11 counts of aiding and abetting the commission of crimes against humanity and war crimes in Sierra Leone from 1996-2002. Although the process is not yet complete (an appeal is pending), reactions among international observers of the trial were overwhelmingly positive. UN High Commissioner for Human Rights, Navi Pillay, said that the verdict marked a “major milestone in the development of international justice [and a] stark warning to other Heads of State who are committing similar crimes, or contemplating doing so.” The opening of the Mladić trial might similarly be viewed as a marker of success for international criminal justice and the fight against impunity. Mladić was the second-to-last of the Tribunal’s 161 indictees to be brought into custody, and his arrest by Serbian authorities and transfer to the Tribunal in May 2011 has allowed the Tribunal to proceed toward the completion of its work.
“[T]he general sense is one of dissonance between the justice done in The Hague and the way in which it is perceived and understood by many in the region.”
In both cases, there is certainly cause for celebration for advocates and supporters of international criminal justice. Not only does it demonstrate that leaders who order the commission of egregious crimes can and will be held accountable, it also provides some form of redress for the victims of those crimes. This is especially significant in Sierra Leone, where the other main architects of those crimes, Foday Sankoh, Sam Bockarie (leader and battlefield commander of the Revolutionary United Front (RUF)) and Johnny Paul Koroma (leader of the Armed Forces Revolutionary Council (AFRC)) all died before they could face justice. Observers in Freetown reported “satisfaction” with the verdict among Sierra Leoneans watching the judgment being read out, and others reported a general sense of “jubilation” elsewhere.
Both cases also have a significant role to play in establishing a record of events. The judgment in the Taylor case puts on record the litany of crimes committed by the RUF and the AFRC, both of whom received material support from Taylor as leader of the National Patriotic Front of Liberia (NPFL) and as President of Liberia. These crimes include murder, rape, sexual slavery, outrages on personal dignity, conscription and enlistment of child soldiers, violence to life, health and physical or mental well-being, and other inhumane and cruel treatment. In Mladić’s case, the charges relate to his role in the entire project of ethnic cleansing carried out by Bosnian Serb forces from 1992-5, including the massacre of 8,000 Bosnian Muslims at Srebrenica in July 1995, for which he is charged with genocide.
But there are also reasons to be circumspect regarding the impact of these two trials. For some, the fact that Taylor was convicted on the lowest threshold of responsibility (aiding and abetting rather than directly ordering or participating in a joint criminal enterprise) dilutes his individual accountability. For others, the trial is viewed as part of an enterprise that is engaged in the imposition of Western values on African states and a form of ‘victor’s justice’. This was the critique with which Taylor’s supporters in Liberia greeted the verdict, echoed by Taylor in his own statement (in which he accused the Court of being manipulated to suit U.S. interests). In Sierra Leone, although there was jubilation, there were also mixed feelings. While some expressed a wish to move on and the need to focus on other pressing issues, others expressed disappointment that the trial (which was moved to The Hague for security reasons) had not taken place on Sierra Leonean soil. These sentiments reflect findings of a study conducted in 2008 assessing the impact of the Special Court`s outreach programme. In spite of much effort having been expended (especially compared to the early stilted efforts of the ICTY and ICTR), many Sierra Leoneans did not report a sense of engagement with, and ownership of, the process. In particular, people felt that the Court had failed to deliver on expectations, which far outweighed anything the SCSL could realistically be expected to do.
This is also an issue for the Mladic case and for the ICTY more generally. Although its judicial legacy is impressive, and its judgments are significant in establishing accountability and a record of events, it has so far failed to win the hearts and minds of many of those most directly affected by the crimes under its jurisdiction. Attitudes and perceptions vary and are complex, being mediated by personal experience as much as political and public discourse, but the general sense is one of dissonance between the justice done in The Hague and the way in which it is perceived and understood by many in the region. This is a problem for transitional justice, which does not operate in a vacuum but as part of a broader societal, psychological and political process of rebuilding and reconstituting in the aftermath of violent conflict. In addition to being expected to contribute to this process, transitional justice is influenced by and can be manipulated by it, as Stephen Brown argued recently with regard to Kenya. This can give rise to the kind of dissonance evident in both Sierra Leone and the former Yugoslavia. Until this can be addressed, such dissonance presents a significant obstacle to the ability of transitional justice processes and outcomes fully to engage the populations most affected by the crimes with which it is concerned. And in turn, it weakens the ability of transitional justice to make its expected broader contributions to peace.