David Bosco posted “The Case for Impunity” today on his Foreign Policy blog, The Multilateralist. The central issue in the post is whether the ICC’s intervention in Libya has prolonged the conflict, by taking away Gaddafi’s option to go into exile, and whether international justice can credibly deter war criminals. I nodded my way through the first few paragraphs, until I got to the end. Bosco makes a sweeping claim about “international justice advocates”:

“It’s a bit disconcerting that international justice advocates rarely acknowledge the possible downsides of international judicial intervention or grapple with the evidence that cuts against their predictions. In sectors of the human rights community, there’s a messianic faith in the value of international justice. And that’s fine if the argument is essentially based on principle: justice is right, impunity is wrong, consequences be damned. But the justice movement makes the argument both on principled grounds and on consequentialist grounds. They have an obligation to honestly confront some of the possible negative consequences.”

I don’t completely disagree, but these statements are goading.

First, who are we talking about here? Are advocates only NGOs and human rights activists, or are scholars also advocates? Whether you call it a “field,” “network,” or “epistemic community,” there’s some sort of community of NGOs, policy experts, scholars, etc. that has coalesced around this central issue of international or transitional justice. But we’re not all on the same page and the fissures are cross-cutting.

Of course, the likes of Human Rights Watch (HRW) and the International Center for Transitional Justice (ICTJ) fall more in the principles camp. See HRW’s Selling Justice Short report, which counters arguments that justice has negative consequences for peace. Also, see the ICTJ’s recent short video on “Peace vs. Justice: A False Dilemma” (and my response to it here).

But we can’t ignore local level advocacy. Take civil society actors in Northern Uganda and Kenya. In Uganda, local religious organizations and human rights advocates have been highly skeptical of the ICC as it arguably has entrenched conflict by removing incentives for the LRA to negotiate. In contrast, Kenya’s strong civil society has been actively supporting the ICC and has pressured both the Court and national political elites for trials of the “Ocampo Six,” arguing that without such trials violence could resume around the next presidential election.

The United Nations, the central policy and negotiating forum for international justice, discursively promotes that peace and justice are mutually reinforcing, but in practice (and thanks to Security Council politics) takes an ad hoc and selective approach that belies any consistent commitment to principles or consequences.

In terms of scholarship, the principles vs. consequences dichotomy has mirrored the justice vs. peace dichotomy and overlaps with arguments about deterrence effects. For example, the scholarship of Jack Snyder and Leslie Vinjamuri (see here and here) is illustrative of the consequentialist side, and the work of Kathryn Sikkink and others who argue there is a “justice cascade”(see here, here, and here) is illustrative of the principles side. The few that make the case that international justice can deter, such as Payam Akahvan, do so arguing that if we commit to justice in principle it will have the desired consequences of preventing and ending conflict. But certainly these and other international justice scholars have shown empirical evidence that actors pursue, or not pursue, justice for both principled and consequentialist reasons.

Second, the potential negative consequences that advocates should confront need not be conflated with instability writ large. The when, where, and how of international justice can have a variety of perverse and unintended consequences. For example, international trials can displace or delegitimize local judicial processes and actors, reinforce collective guilt and innocence (if both sides are not held accountable), forestall reconciliation (if low-level perpetrators are not held accountable), and reinforce perceptions of judicial colonialism.

So we’re not one big happy principled family.

(cross-posted at Global Transitional Justice)

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