There are two competing visions of how to promote peace and justice in situations of violent political conflict. One vision reifies the International Criminal Court (ICC) as the ethical and political successor to the Nuremberg trials, the famed series of Allied tribunals that prosecuted leading Nazis in the aftermath of the Second World War. The other contrasting vision places politics at the core of conflict management and resolution, with all the messy compromises that entails. By MARTIN KIMANI.
The field of battle is mostly in Africa. At stake are the fate of nations and the lives of millions of people.
This intensifying confrontation has an ancestral language, which I shall deploy here provocatively, even dramatically. The aim is to (hopefully) stir debate and situate what’s happening in Africa today in the global historical context, if we are to clearly see the perils ahead.
The Peace of Westphalia in 1648 is exemple par excellence of the negotiated settlement – quintessential realpolitik before the term was even invented. Westphalia brought to an end a 30-year war with no military victors and that left such devastation in its wake, more than a quarter (some say as much as half) of the population of the warring countries died as a result. The Kings, Princes, States, Queens, Heirs and Successors of seventeenth century Europe sought a ‘perpetual Oblivion, Amnesty, or Pardon’ of all that had been committed since the beginning of their troubles. They pledged that they would:
not act, or permit to be acted, any wrong or injury to any whatsoever; but that all that has pass’d on the one side, and the other, as well before as during the War, in Words, Writings, and Outrageous Actions, in Violences, Hostilitys, Damages and Expences, without any respect to Persons or Things, shall be entirely abolish’d in such a manner that all that might be demanded of, or pretended to, by each other on that behalf, shall be bury’d in eternal Oblivion.
This is the dream language of the conflict mediator: foes at the negotiating table with their Plenipotentiary Ambassadors ready to append signatures to a peace that could not be won on the battlefield.
Westphalia was a far cry from the victorious allies – France, Britain, the Soviet Union and the U.S. – who defeated Nazi Germany and established Nuremberg as a legal and moral standard for the world that they were building. Justice Robert H. Jackson, Chief of Counsel for the United States, and the chief prosecutor, said in his famous opening address, ‘that four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.’
The trials were aimed at individuals but went far beyond normal legal bounds with Jackson calling the accused the living symbols of racial hatreds, of terrorism and violence, and of the arrogance and cruelty of power. They are symbols of fierce nationalisms and of militarism, of intrigue and war-making which have embroiled Europe generation after generation, crushing its manhood, destroying its homes, and impoverishing its life.
Rather than the quick executions of the Nazi leaders by military firing squads that those like Winston Churchill initially preferred, or the classic show trial wanted by the Soviets for propaganda reasons, the Americans prevailed on them to carry out the trials. Thus was born a new body of international law and with it that powerful phrase, ‘crimes against humanity’, that banishes the mass killer from the human family. Crucially, this political choice, by forgoing the military option of shooting the Nazis on sight, and choosing the legal path, set apart ‘crimes against humanity’ from the very politics that gave birth to them. It consecrated the liberal ideal with its clear separations of economy, politics and law, and it is no surprise that it was the Americans, forgers of the liberal world order that followed the war, who were its drivers.
Nuremberg acquired mythic status as the birthplace of modern human rights and international criminal justice as an instrument to deter mass crimes and give justice to their victims. And these ideals were at the heart of the realpolitik of the Western-dominated global order through the Cold War. Even today, they form a powerful organising logic of what constitutes the West and are a powerful plank in its political and even military relations with the rest of the world.
Fast forward to the second decade of the twenty-first century. The world looks awfully like that of the 1648 Princes and Potentates. The kind of total victory to a total war that produced the Nuremberg trials is exceedingly rare. So much so that even the overwhelmingly powerful United States has to settle for some form of accommodation to elements of the Afghan Taliban who despite never winning a tactical engagement of note insist on fighting on almost a decade and a half after the US intervention. Today, nearly everyone accepts the maxim that war is little but a mistake-prone, bodybag-laden prelude to seeking a political settlement as initial military wins deteriorate into ignominious defeat.
Although the ‘clarity’ evident at Nuremberg may never again take place in the foreseeable future, adherents to the Nuremberg-type solution not only persist but, if anything, have grown more insistent. Perhaps we are all morally better for having strong networks of civil society organisations, who assert, despite all political or military realities to the contrary in specific situations, that individual criminal responsibility, preferably via the ICC, be brought to bear against the organisers of atrocity. Their motivations may be a bit purer than those of the European states who mostly fund them and the ICC, seeking to raise themselves and Europe as the moral gold standard of the world even as they engage in all the amoralities and even immoralities of state conduct in international relations.
The Nuremberg vision today therefore becomes both a moral salve and geopolitical position – with all the utility that phrase contains. ‘Impunity must be combatted’, the battle cry of this righteous pairing, thus requires a space for its application that allows both moral sensibility and geopolitical reality to co-exist in some harmony. Africa is that space, and how the Nuremberg vision is implemented there will cost lives. The question is whether the lives will be lost or saved by pursuing the legal path or by sticking with the primacy of political settlements to violent conflict.
Like almost all conflicts globally, Africa’s civil wars and political strife rarely have a clear winner or loser. And like all wars, they pit political constituencies bound, or claiming to be bound, by ethnic, sectarian or regional ties. These parties wield ‘outrageous Actions, in Violences, Hostilitys, Damages and Expences’ for years, decades even, with no end in sight. Millions of refugees flow across boundaries, the United Nations agencies declare disasters and impending conflict-made famines, photos of mangled bodies fill the television screen and NGOs announce impunity is amok. The peace negotiators are deployed to reach a negotiated ceasefire from which they wish to lay the basis for reform, reconciliation, the chance for relief to the victims to be delivered, and the realization of a new political dispensation.
When successful, they often reward actors who have been cynical and brutal with high office. Few members of the warring political constituencies that have agreed to a deal are satisfied. After all, today’s conflicts, as perhaps all conflicts in history, are less about clinical pursuits of provinces and profits and more a reflection of deeply felt hostilities that demand clear victory. The negotiated agreement is located in the grey zone of compromise, and requires the parties accepting that the battlefield – or massacre-field, to be more exact – is not viable. Even more, they cause agony because of the need to accept the rights of an enemy, previously consigned to a dehumanised status, to existence
The black and white of Nuremberg is a very far cry from that negotiating table.
Experienced negotiators know this, yet Africa, uniquely, is being compelled to step back from the negotiated peace if it does not come with a healthy dose of (international) criminal justice. The Nuremberg mindset is mostly unable to assert itself over matters involving the major powers – the wars in Syria, Iraq, Ukraine, Afghanistan – but can hold sway over geopolitically weak Africa. Years of sustained, almost pornographic, coverage of Africa’s conflicts with their body counts being attributed to perverse, failed leadership – a cry echoed in thousands of workshops and research papers – have cemented the idea that ending African wars is a moral, not political act.
The ICC’s chief Prosecutor Fatou Bensouda affirmed Africa’singularity in a 2011 interview:
the facts we have today show that African leaders and activists are building a system of international criminal justice designed by the Rome Statute to protect victims of massive crimes; these are the facts.
She then gives ‘some further facts’, namely:
there are over five million African victims displaced, more than 40,000 African victims killed, thousands of African victims are raped, hundreds of thousands of African children are transformed into killers and rapists, 100% of the victims are Africans, 100% of the accused persons are also Africans.
This is utterly true but still does not explain how Nuremberg’s heir has camped so permanently in Africa, with all of the ICC’s accused being African. It suggests, falsely by a huge distance, that Africa’s conflicts are somehow on par with those of Nuremberg. That there are Hermann Goerings to be plucked out of Africa and flown to The Hague to face humanity’s moral outrage.
At best the reasoning is naive, but more realistically it is lazy and dangerous.
Consider the West’s almost unanimous support for the ICC prosecutor bringing extremely weak cases in Kenya – notably against the current President and Deputy President – despite the far-reaching political settlement that was reached following the 2008 post-election violence, and which has led to far-reaching reforms to insulate Kenyan society from similar breakdowns. Or observe the recent clamour in Western diplomatic and human rights circles denouncing the on-and-off 14-month ceasefire and political negotiations in South Sudan, suggesting that the solution lies in the punitive approach. This despite the fact that South Sudan is part of a region where intractable conflicts are the norm and not the exception, with some dragging on for decades.
Such is the impatience with the negotiating table by the Nurembergists that they are calling for the release of an African Union report on the atrocities and crimes committed since December 2013. Presumably so that such a report can begin, or threaten to begin, a process of sanctions and even international legal action against South Sudanese battlefield leadership.
Compare this to the West’s insistence outside Africa – such as the face-off between Israel and the Palestinians – that political settlements are the only game in town. Brutalities and injustices in political conflicts are very rarely allowed to stand in the way of a deal that delivers security and stability. Why then does political reconciliation and accommodation in Africa somehow always get tagged as a demonstration of immoral ‘impunity’?
Caution should be exercised in how Africa’s wars are dealt with. As tempting as it is to see those who order the murder of non-combatants in court, they may respond to such pressures by rejecting political negotiations and sustaining their war effort. To the cost of many thousands of lives. What is more, their political constituencies would interpret the attempt to single out their leaders to be little more than an extension of the enemy camp’s machinations and interests, leading to the entry of third parties – well intentioned though they may be – into the heart of the conflict. As the scholar Mahmood Mamdani has argued, the survivors, and the endangered society, deserve a chance to live and not be engulfed in continuing war for the sake of an international push for law over politics.
Much has been said to explain the exclusive focus on Africa: aside from the geopolitical vulnerability of African states, there are continuing atrocities on the continent and the degrading of sovereignty due to the rise of the Responsibility to Protect Principle. What seems clear is that adherents of the Nuremberg vision believe they can get their cake in Africa and eat it too. Removing bad men from African societies affords a satisfying moral-emotional payoff where the geopolitical stakes are not significant, at least when it comes to Western interests. And we should not discount the West’s fears over its waning economic dominance and contested liberal values. The need to re-assert its values and thus reestablish geopolitical primacy, and the fraying post-1945 liberal order, may be feeding the motivations of Western NGOs and their (mostly) European sponsors who can intrude in African political processes in ways that would be unthinkable elsewhere.
Africans seek only to make the political accommodations the rest of humanity has made and continues to make. Considering that what starts in Africa rarely ends there, a day may come when large parts of the world trying to deal with increasing violence brought on by ideological conflicts and economic and political exclusion will find the path to political settlement closed. Only the total wars that guarantee total victories will allow them any chance for peace.
Where war is concerned, we live in 1648 much more than we do in 1945. Outside acts of genocide forcefully stopped by the International Community, Nuremberg and its heirs are not fit for purpose to arbitrate political conflicts. It is time we embraced this truth and stopped pursuing ideals in Africa that we do not pursue elsewhere. African lives matter, they are worth more than arms-length ideals and geopolitical manoeuvrings on a legal platform. DM
Ambassador Martin Kimani is a Kenyan diplomat. This piece was first published by The Brenthurst Foundation. He writes here in his personal capacity. You can follow him on Twitter: @KenyaDiplomat.
Photo: Fatou Bensouda, International Criminal Court’s chief prosecutor (ICC) speaks at the annual meeting of the Human Security Division of the Federal Department of Foreign Affairs (FDFA) in Bern on Tuesday, October 10 2014. EPA/MARCEL BIERI.
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