Since the Nuremberg trials (1945-1946), criminal jurisdictions such as those for the former Yugoslavia and Rwanda have aimed to judge the world’s most serious offenses: war crimes, crimes against humanity, and genocides.
These jurisdictions have inspired substantial legal, anthropological, and sociological analyses. Most of the research carried out has been either through field observations or interviews with victims and professionals. Our research, however, looks at another angle: that of the criminal experience of the accused (whether they have been acquitted or convicted). The aim here is not to understand the criminal act, but the institutional processes that were set up to respond to it.
Epistemology of a singular research
We have therefore conducted interviews with sixty people tried by the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR) – a number no other journalist or researcher had until now been able to access – to learn about their justice experience. All interviews were conducted under conditions of anonymity, and most took place in the prisons where the convicted persons were held.
The idea of meeting people commonly referred to as genocidaires or war criminals is based on the teaching of the French philosopher Paul Ricœur. In a 1992 article published in the magazine Esprit, he explains:
“The act of judging has reached its goal when the person who has, so to speak, won their case still feels able to say: my opponent, the one who lost, remains like me a subject of law: their cause deserved to be heard; their arguments were plausible, and they were heard. But recognition would only be complete if [the same] could be said by the condemned person; they should be able to declare that the sentence against them was not an act of violence but of recognition.”
The study of international criminal justice is also guided by such questions. Indeed, it has a range of objectives: retribution, deterrence, and reintegration, but also the writing of history or memory, the satisfaction of victims, or cathartic release.
Such aims require that the suspects can be reached or, at the very least, approached. As we shall see, international criminal jurisdictions have not managed to enrol the perpetrators of crime into their view of justice like they have done with other war protagonists.
“Who is that monster?”
Although all the people I met say they support the idea of an international criminal justice that is “above suspicion” or that “allows the truth to be established”, the institutional and symbolic violence they feel they have been subjected to delegitimises this form of justice for them.
Thus, they describe a criminal process full of pitfalls: excessively framed by a legal terminology that, in their eyes, does not transcribe the reality they have experienced and that too rarely gives them a voice. When this was the case, it was mainly their attorneys (chosen by the defendants and often paid by the court) who spoke, and not the defendants themselves.
Moreover, the defendants say that they do not recognise themselves in the indictments they have faced. One respondent asked “who was that monster?”, expressing a sense of disconnect with what had been experienced. While this may be a denial of the acts committed, from our perspective as attorneys, it also points to a gap between the law in force and the facts.
Another will tell how, when the judge asked him “Do you plead guilty or not guilty?”, he tried to explain the context and the acts committed… but the judge simply wrote down: “The accused has pleaded not guilty”. He would have liked to speak more, but the judge did not give him the opportunity.
A large majority of those interviewed also felt that the justice system they faced was “out of touch”, imposed by “the West” and politically oriented, refusing to listen to any element of contextualisation (be them the context of war or, more broadly, that framing the crimes, both of which are inevitably political).
Respondents describe a “victors’ justice” system that overlooks the latter’s own war crimes or crimes against humanity (mainly in Rwanda). Furthermore, they note a “two-tier” justice system that never tries the leaders of powerful states – notably American or European – and that mainly prosecutes nationals of “dominated” states.
Finally, and this is one of the most bitter criticisms of international criminal justice expressed, both the accused and the convicted regularly ask themselves: “Why me?” They reflect an unavoidable tension in international criminal law, which lies in weighing up individual guilt for mass crimes - crimes that have not only resulted in a dramatic and disproportionate number of victims, but been committed by a significant number of perpetrators. Thus, while suspects and and those convicted often admit to committing crimes, they nevertheless deny responsibility (which is symbolically attributed to them) for the entire mass crime.
Pitfalls that undermine the reconstruction process
Only one of the interviewees made a negationist statement during our interviews and only 3, out of 51 convicts we met, fully admit the justice of their conviction.
This means that the vast majority of those interviewed (some of whom had pleaded guilty before the international court) do not recognise either the acts reproached, their legal qualifications, their illegality, or the associated responsibilities. Although many psychological factors could be behind this non-recognition, it nonetheless remains a failure of international criminal law: to use Paul Ricœur’s formula, the sentence remains an act of violence and does not become, for the convicted person, an act of recognition.
This failure has consequences that go beyond the sole case of the convicted persons, insofar as it prevents a common (or consensual) memory from being created and influences the entire reconstruction process. It is accepted that mass crimes are generally committed by a mass of perpetrators. In Rwanda, for example, it has been said that between 100,000 and 150,000 people participated in the genocide against the Tutsis.
Imagining a fairer international justice system
It is therefore important to take into account the words of the accused as well as those of the other protagonists – the victims, the judges, and the populations affected by the war – and to note that they inevitably lead to other avenues of justice: restoration or reconciliation, traditional or interactional, local avenues that are culturally rooted and less politicised, or simply more symbolic. While some avenues have already been implemented, through more local and culturally rooted jurisdictions (such as the gacaca in Rwanda or Truth and Reconciliation Commissions in South Africa), the role of the accused remains to be defined and shaped, so that their experience is taken into account.
One possible way forward is to combine these different types of justice, as seems to be the case in Colombia. The peace process currently underway in the country taps into both the systems of criminal justice and restorative justice, which seeks to rehabilitate of offenders by reconciling them with victims and without condemnation. It also empowers all parties to write history, with the memories of perpetrators as well as victims featuring in trials and memorial museums. When perpetrators are not confronted to criminal law, they also appear to better explain their acts and the context in which they were committed - a notable benefit for victims seeking the truth.
While we can’t guarantee this will work, the laboratory holds out great hope by taking into consideration all the protagonists of the crimes, including the perpetrators. It is no longer a question of ending the enemy through law, but of rising with them through law.
Damien Scalia has received funding from the Swiss National Science Foundation and the Belgian Scientific Research Fund.
This article was originally published on The Conversation. Read the original article.
