by Nicole Fritz
Last
month, the Special Court for Sierra Leone convicted former Liberian
president Charles Taylor of crimes against humanity, war crimes and
other violations of humanitarian law. It is the most high-profile
conviction by the court and the ruling for which it is likely to be
known.
It
found him liable not, as the prosecution had charged, on the basis of
command responsibility for the gruesome atrocities committed by the
Revolutionary United Front and other rebel forces in Sierra Leone during
the civil war, or on the basis that he formed a joint enterprise with
the rebels, but because he had aided and abetted their acts and had
helped plan some of the rebel attacks.
For
some observers, this will seem less the resounding condemnation that
all the time, effort and resources deployed by the court should yield.
And yet Taylor will likely live out the rest of his days in prison, and
the many victims of Sierra Leone’s war will now know that the crimes
against them did not go unacknowledged.
International
criminal justice, particularly in an African context, is an easy
target. What dividends does it pay, critics ask. Too expensive, too
time-consuming, too far away, they say. Admittedly, some of these
criticisms are fairly made. It’s hard, for instance, to make the case
that international justice proceedings have any deterrent effect. Does
Syrian President Bashar al-Assad go any softer on anti-regime forces for
fear of a possible International Criminal Court (ICC) indictment? Does
Sudan’s Omar al-Bashir, already the subject of an ICC indictment, make
this impending sanction any part of his calculations against South Sudan
?
But
we appear to ask of international criminal justice proceedings far more
than we ask of any domestic criminal process. Countless studies call
into question the deterrent effect of domestic prosecutions and
punishments without us ever significantly interrogating the value of
these proceedings.
It
is the back story to another international law judgment issued last
month, that perhaps best testifies to the value of proceedings such as
those against Taylor. This case, heard by the European Court of Human
Rights, concerned the Katyn massacre, a Second World War atrocity in
which more than 20000 Polish army officers and other nationals were
executed — the crime hidden by burying their bodies in the Russian
forests of Katyn. The killings were on Joseph Stalin’s orders after the
Soviet invasion of Poland, but the Russians blamed the crime on the
Nazis, going so far as to try to have them prosecuted at Nuremberg. Only
in 1993 did then Russian president Boris Yeltsin acknowledge that
Stalin and the politburo of the Communist Party were responsible for the
deaths.
Descendants
of the victims attempted to initiate investigations and prosecutions
but, in 2004, Russian officials classified most of the volumes gathered
in investigations as "top secret" and classified their decision to
discontinue investigation as "top secret" too, effectively ending the
descendants’ search for accountability.
They
approached the European Court for assistance. The court’s judgment is
of limited value — it concluded that the time between the crimes (in
1940) and the entry into force of Russia’s obligations under the
European Convention (in 1998) meant that it could exercise no
jurisdiction in ordering investigation and prosecution. But it is this
very lapse of time that makes the case so notable.
Seventy-two
years on — several generations gone — the applicants before the court,
including a widow, children and grandchildren, seek official
acknowledgment of the wrong that was done to their families.
Court
judgments tend to be one dimensional, foregrounding the issue at hand.
Still, even if every day of the past 72 years has not been only joyless
grappling with the trauma of Katyn for these descendants, there is no
doubt that it has cast a long shadow over their lives — that their lives
would have been made easier by an acknowledgment of what happened, that
their husbands, fathers and grandfathers had not simply disappeared.
International
criminal justice proceedings will not erase the trauma of international
crimes, but its acknowledgement, its accounting, will go some way to
easing the suffering and memory of those who endured Sierra Leone’s
brutal war — a prospect still sought by many, such as those who, 72
years on, seek reckoning for the massacre of Katyn.
Its justification lies not in it offering a complete salve, but in offering some.
• Fritz is the director of the Southern Africa Litigation Centre.