Lawyer Benjamin Ferencz once wrote: “There can be no peace without justice, no justice without law, and no meaningful law without a court to decide what is just and lawful under any given circumstance”.
A dilemma often arises when a conflict is present or possible, and our priorities are called upon to resolve it. Should we favour justice even if it may hinder peace negotiations, or should we favour peace even if justice may have to be compromised?
On Friday, Oct.12, Laws of War teacher Jean-Baptiste Jeangène Vilmer gave a talk at Concordia titled: “The Peace vs. Justice Conundrum: Does International Criminal Justice Deter Criminals?” The workshop, organized by the Montreal Institute for Genocide and Human Rights Studies (MIGS), attempted to differentiate two schools of thought: those who prioritize peace over justice and those who prioritize justice over peace.
In the 1990s, the United Nations’ Security Council created two ad hoc tribunals to deal with peace and justice in conflict situations: the ICTY (1993) and the ICTR (1994). In theory, most people see justice as created to serve peace, but in practice, that is not always the case. Truth is that in resolving conflicting situations, justice is often slowed down in the name of peace. That is, compromises in the name of peace will sometimes be favoured over a trial, because in some cases it is believed that justice could hinder peace negotiations.
This is what first happened to Charles Taylor during the First Liberian Civil War, which ended in 1996. He was not arrested for his crimes because a peace deal to end the war was favoured over a trial. This is an example of a situation where a parallel agreement bypassed the court.
Jeangène Vilmer asks us consider that there is in fact a peace and justice paradox, where it is hard to come to an agreement that would include both peace and justice, because one works against the other in some ways.
But the question he has is: Is there really a pacifying effect to negotiations? Is that method efficient? If we look at it in the point of view of security, justice is more efficient than peace. That is because justice serves the basic functions of social protection. Arresting war criminals means removing them from their environment. Then, by charging war criminals, it marginalizes them and sends the message to their possible successors that some things are simply unacceptable and that they could not get away with it.
However, there are many structural limits to justice, which Jeangène Vilmer thoroughly explained. First, the cooperation of states can easily limit justice. States who refuse to cooperate hinder the justice process, for it is not possible to conduct a trial if the state is not willing to participate in the process. Also, because we talk about them so much, some prosecuted persons manage to gain some type of popularity, which can bias some people’s opinion.
The complicity of the population is another limit. For example, in Rwanda, the population was living in fear and unwilling to talk about what was happening to them. The media was either not talking about what was going on or fuelling the hatred against one party or another. This made it extremely hard for justice to be done. Other limits included the ideological, religious and racial factors, the tribal and ethnic tensions, the foreign origin of international criminal justice, and the time constraint.
Jeangène Vilmer gave many examples of situations where justice was undermined at the expense of peace. He talked about Gustave Moynier’s idea of the functions of justice, which he classifies as retributive (punitive) and deterrent (prevention) functions. Then again, deterrence, like justice, has its limitations. He emphasized that for a population to be sensitive to deterrence, it must have something to lose. In many of the civil war situations, most populations were poor and therefore didn’t really have anything to lose, so they were not really sensitive to prevention and were looking forward to punishment. As he also said, it’s a fact that no criminal justice system will ever stop the crimes from happening, no matter how strong and important is it.
In the end, is this dilemma between peace and justice resolvable? Jeangène Vilmer suggests that we should always analyze the situation beforehand to decide whether to prioritize peace or justice, because it really depends. It takes practice and time to make the right choice, but we should insist on transitional and reparative justice, he emphasizes. In the end, it’s all about patience and the ability to make long-term decision, really.