Sacrificing justice is too high a price for peace
The International Criminal Court - the world's answer to war crimes - is used to being attacked by conservative opinion. In the US, President George W. Bush cancelled Bill Clinton's decision to sign up. Yet now, ironically, we have the Bush administration giving the ICC support from behind the scenes while liberal voices in Europe are raising doubts about its counterproductiveness. Such doubts have been expressed by Richard Dowden, director of Britain's Royal African Society, in this month's Prospect magazine.
The work of the ICC, created after an overwhelming majority vote of nations in 1998, only truly began 21/2 years ago when it issued its first warrants against five leaders of the Lord's Resistance Army of Uganda. More recently, it arrested a suspected warlord in the Democratic Republic of Congo and publicly identified three suspects in Sudan.
Mr Dowden accuses the ICC of showing signs of 'naivety and a sense of bad timing' and suggests that 'western-inspired universal ideas of justice might come into conflict with local forms of law, jeopardising the process of reconciliation'. He argues that almost all of Africa's nastiest wars have ended in local deals. 'Victors have showed a reluctance to punish. Losers have not been excluded but given places in government,' he writes.
The implication is that modern-day human rights laws are a western construct, tracing their roots back to 12th century European Christian theology on natural rights and, later, the Enlightenment. But the law is no western invention. Every society has developed laws, just as each has its own language.
There is no imperialism in the spread of human rights law. At the World Conference on Human Rights in Vienna, in 1993, African nations lobbied hard to persuade the holdouts - mainly Muslim and Confucian nations - to sign up for a strengthened version of the Universal Declaration of Human Rights. They succeeded, but China was the exception.
All nations have a deep urge to enact laws, with leaders, elites and, often enough, the populace yearning for their laws to be seen as sensitive and up to date. Thus, all over the world, legal codes are being updated to monitor complex financial, economic and aviation issues, for fighting corruption, controlling immigration or international trafficking in drugs, women and children. Very few question the need for this, even if legislation is often borrowed from more developed jurisdictions.
The reason for adopting contemporary ideas on human rights and turning them into law is because most countries want to develop, modernise and desire best practice. They realise that life is becoming too complicated to have its disputes settled through a chat under a baobab tree, even though old-fashioned community values can reinforce modern-day decision-making.
Besides, research shows clearly that people who have been brutalised by insurgency and war want justice as much as they want peace. An important survey carried out in Uganda makes it clear that more than half the people do not want to settle for peace if it means their persecutors, in the Lord's Resistance Army, are merely absolved by an age-old practice of ritual cleansing.
This makes sense. Unless their killers are jailed, they may too easily resume their path of destruction. A deal absolving such merciless killers sends a message to the young - that life will always be precarious and the laws of the land mean very little when evil men want power at any cost. Good law is about setting a standard.
A key ICC article is that there is no statute of limitations. This means that if officials today do not have the courage to arrest the suspects, a future administration might. The sword of Damocles will hang over them. No wonder that only when the ICC handed down the indictments against the leaders of the Lord's Resistance Army did they begin to negotiate for peace.
Jonathan Power is a London-based journalist